Bringing Science to Justice:

Beyond the Canadian Consensus Statement on HIV and its

Transmission in the Context of Criminal Law

Introduction and global overview

Edwin J Bernard
Co-ordinator, HIV Justice Network, United Kingdom

CAHR Ancillary Event, April 30th 2015

P 20, HIV AND THE LAW: RIGHTS, RISKS & HEALTH, JULY 2012
WWW.HIVLAWCOMMISSION.ORG
CAHR Ancillary Event, April 30th 2015

Why are we concerned?

Human rights and justice
Laws and prosecutions for acts that represent no risk, or nonsignificant risk, of HIV transmission.
Laws and prosecutions even when individuals use condoms
or have low viral load or have disclosed their HIV-positive
status.
Excessive penalties for people with HIV found guilty (long
prison sentences, sex offender registration).
Failure to apply standard requirements for criminal liability to
people with HIV (foreseeability, intent, causality,
proportionality and proof).
Selective and arbitrary prosecutions primarily impacting
people with HIV from marginalized communities.
CAHR Ancillary Event, April 30th 2015

Why are we concerned?

Public health impact
No evidence that laws/prosecutions enhance public health / national HIV
response by:

Deterring risky behaviour and/or encouraging disclosure

Incapacitating or rehabilitating small numbers of PLHIV when HIV epidemics are
driven by undiagnosed/untreated HIV infections

Media coverage contributes to public misunderstanding about HIV.

Increasing HIV-related stigma, creating vicious circle of allegations/prosecutions.

Misrepresents and overstates HIV-related risks and harms.

Contributing to myths about HIV, including how it is transmitted and how best to
protect oneself and ones partners.

Further increases HIV-related stigma.

Negatively impacting a person's willingness to learn about, or discuss, HIV.

Undiagnosed/untreated HIV harms individual and public health.

Creates a false sense that HIV is someone elses problem.

Preventing HIV within a consensual sexual relationship is a shared responsibility.

CAHR Ancillary Event, April 30th 2015

Where is overly broad HIV criminalisation happening?

HIV-SPECIFIC LAWS, REPORTED PROSECUTIONS

HIV-SPECIFIC LAWS, NO REPORTED PROSECUTIONS
REPORTED PROSECUTIONS UNDER GENERAL LAWS
NO REPORTED LAWS / PROSECUTIONS
CAHR Ancillary Event, April 30th 2015

Where are the global law enforcement hotspots?

CAHR Ancillary Event, April 30th 2015

What does the 2013 UNAIDS guidance recommend?

Restrict the use, if any, of criminal law in the context of

HIV, ideally to intentional transmission only.
Where it is used, criminal justice principles (including
key criminal law principles of legality, foreseeability,
intent, causality, proportionality and proof) should be
upheld.
Criminal law should not undermine public health
efforts.
Best available scientific and medical evidence should
guide any use of criminal law.
Treat like harms alike, with proportionate penalties.
Condoms or low viral load = no significant risk; use
shows no intent to harm.
Non-disclosure alone is not proof of malicious intent.
Limitations of phylogenetic analysis / RITA.

CAHR Ancillary Event, April 30th 2015

Where and how has science impacted HIV-related

criminal law and policy? (1)
Netherlands: Detention or Prevention report (2004) led to limited role
of criminal law via Supreme Court rulings on risk (2005-7); only
intentional exposure or transmission a crime.
Denmark: Government acknowledges reduced HIV harm on ART,
suspends HIV-specific law (2011); currently undecided on new or no
law.
Switzerland: Swiss statement on viral load/risk leads to acquittal in
Geneva (2008). Law on Epidemics revised in 2012 so only
intentional communicable disease transmission a crime (2016); but
grievous bodily harm prosecutions still possible.
UK: England & Wales created prosecutorial (2008) and police
guidance (2010) informed by science to limit overbroad application of
law. Scotland followed in 2012. Reduced unjust prosecutions and
convictions, but reckless transmission of HIV, herpes, hepatitis B/C
and other STIs can be, and are, prosecutable: jury decides on harm.
CAHR Ancillary Event, April 30th 2015

Where and how has science impacted HIV-related

criminal law and policy? (2)
Sweden: Swedish statement on sexual HIV risks (October 2013)
impacted two cases (reduced sentence/acquittal) resulting in major
policy shift, changing HIV disclosure obligations; Government review
pending.
United States
May 2014: Iowa became the first US state to modernize its
draconian HIV-specific criminal law with public health/science
input; in June 2014, Iowa Supreme Court also recognizes science
of HIV risk (Rhoades).
July 2014: US Department of Justice issues guidance to eliminate
or reform HIV criminalisation laws based on up to date HIV
science around risk and harm.
February 2015: Military Court of Appeal recognizes low risk of
heterosexual HIV transmission (Gutierrez).
April 2015: Up-to-date science reflected in H.R.1586 - REPEAL
HIV Discrimination Act of 2015.
CAHR Ancillary Event, April 30th 2015

The future?
Momentum against overly broad HIV criminalisation is growing,
as evidence-base of harms grows, despite new laws being
proposed and ongoing unjust prosecutions.
Scientists and clinicians have played, and will continue to play,
a crucial role in ensuring that HIV is treated rationally in the
criminal justice system (CJS), with just outcomes for public
health and human rights.
18 month UNAIDS/UNDP task team on overly broad HIV
criminalisation launches in June 2015. Will include a global
consensus statement on HIV-related risks and harms aimed at
CJS, as well as the unintended negative public health impact
of laws and prosecutions for policymakers.
For more information, visit www.hivjustice.net, also on
Facebook and Twitter (@hivjusticenet).
CAHR Ancillary Event, April 30th 2015