Law and HIV:

Are we there yet?

Current Legal Framework

Notifiable but records are coded

Testing requires informed consent

Anti-discrimination legislation is in place (PLHIV, believed to have HIV, & those who associate)

Treatments are subsidised through listing on PBS

You can be prosecuted and go to gaol if you have sex with someone without disclosing HIV+

Prosecutions seem to be increasing

Exposure (non-transmission) is prosecuted

1/3 of prosecutions for exposure

16 transmission/8 exposure (+ 5 public health order cases)

Those found not-guilty still pilloried in the press

MSM prosecutions increasing

African born men overrepresented

Why is criminalisation problematic?

Conflates risk of harm with risk from other types of assault

Considers ‘harms’ of HIV infection to be devastating

Fails to weigh up the risk of harm with the severity of the harm – basic premise of criminal law

Ignores that unprotected sex not uncommon (1000 new infections/year)

Penalties are excessive

Why is criminalisation problematic? Does nothing to decrease risk taking/increase

disclosure

• Condom use with casual sexual partners is less likely following disclosure CSRH E-male study)

• no difference between disclosure rates of HIV+ men from NSW compared to others (CSRH Stigma Study- 1200 MSM)

Undermines public health initiatives

• Undermines messages of mutual responsibility

• Creates expectation people will disclose

• Creates expectation people will be punished

Why is criminalisation problematic?

Reduces trust in healthcare practitioners

Spreads misinformation about HIV

Reinforces stigma surrounding HIV

- reliance on disclosure to reduce risk increases stigma and discrimination (Stigma Study)

Is too arbitrary/cultural filtering

So what tools can we use to advocate for change?

International Support

How should Aust deliver on international commitments?

UNPD

78. Commit to review …laws and policies that adversely affect … delivery of HIV …

programmes to PLHIV (in accordance with relevant national review frameworks and

time frames)

80. Commit to national HIV strategies that promote and protect human rights,

including programmes aimed at eliminating stigma and discrimination against PLHIV,

including by:

sensitizing the police and judges

training health-care workers in non-discrimination, confidentiality and informed

consent

supporting national human rights learning campaigns

legal literacy and legal services

monitoring the impact of the legal environment on HIV prevention, treatment,

care and support

UNAIDS Guidance: Ending overly broad criminalization of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations

Recommends “limiting the application of criminal law to cases of intentional transmission (i.e. where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it)”.

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law

to HIV.

Domestic Support

MACBBVS Legal Working Group

Set of seven papers on the impact of discrimination and criminalisation on public health approaches to BBV and STI prevention and treatment - including recommendations for law and policy reforms

Melbourne Declaration

Action Area 4:

Strengthen the partnership response and enabling environment

Incorporate MACBBVS Legal Working Group recommendations into the 7th National Strategy

Remove HIV criminalisation and disclosure requirements

Seventh National HIV Strategy

The Strategy has six objectives:

reduce HIVreduce the risk behaviours decrease undiagnosed HIV infectionincrease treatments (UVL)improve quality of life of PLHIVeliminate the negative impact of stigma, discrimination, and legal and human rights issues on people’s health

Seventh National HIV StrategyObjective Indicator

Reduce incidence of HIV • Incidence of recent HIV infection among HIV diagnoses

• Estimated incidence of HIV

Reduce risk behaviours associated with transmission of HIV

• Proportion of gay men who have engaged in unprotected anal intercourse with casual male partners in the previous six months

• Proportion of people who inject drugs reporting re-use of someone else’s needle in previous month

Decrease number of people with undiagnosed HIV infection

• Proportion of gay men who have been tested for HIV in the previous 12 months

• Proportion of people who inject drugs who have been tested for HIV in the previous 12 months

• Median CD4 count at HIV diagnosis

Increase proportion PLHIV on treatments with undetectable viral load

• Proportion of people living with diagnosed HIV who are receiving antiretroviral treatment

• Proportion of people receiving antiretroviral treatment for HIV infection whose viral load is less than 50 copies/mL

Improve quality of life of PLHIV

• Proportion of people with HIV who report their general health status and their general wellbeing to be excellent or good

Eliminate the negative impact of stigma, discrimination, and legal and human rights issues on people’s health

 

7.5 Enabling Environment

Priority Actions Eliminate stigma and discrimination in community and healthcare settings and empower priority populations. Remove institutional, regulatory and systems barriers to equality of care for people infected and affected by HIV in the health sector. Work towards addressing legal barriers to evidence-based prevention strategies across jurisdictions. Establish a dialogue between health and other sectors aimed at reducing stigma and discrimination against HIV-infected and affected individuals and communities.

Seventh National HIV Strategy

Implementation of this Strategy rests within the health system. However, many of the barriers … fall outside the responsibility of the health system.

For example, criminalisation impacts on priority populations …

It is important that the health sector enters into a respectful dialogue with other sectors to discuss impacts of wider decisions on the health of priority groups.

Implementation Plan: Priority Actions

Strategy Enabling Environment Mechanism/s for progressing action Responsibility

HIV

Hep C

STI

Eliminate stigma and discrimination in community and healthcare setting and empower priority populations

Support advocacy and empowerment of priority populations to encourage access to testing, treatment and care

Civil Society Partners

Hep B

Maintain effective partnerships between governments and organisations representing the interests of people affected by or at risk of living with hepatitis B at local, state and territory and national levels.

Identify and make effective use of channels of communication across and between sectors (e.g. housing, education, legal) to promote better understanding of the impact of stigma and discrimination and discuss the impacts of wider decisions on the health of people living with BBV & STI.

All Governments with Partners

ATSI

Establish a dialogue between health and other sectors to reduce stigma and discrimination against BBV and STI infected and affected Aboriginal and Torres Strait Islander individuals and communities

Enter into respectful dialogues across government, including through the justice and custodial sectors, to discuss the impacts of wider decisions on the health of Aboriginal and Torres Strait Islander peoples.

All Governments and partners

Nat. Strat. Implementation Plans

The Commonwealth provides national leadership on health, working through the Council of Australian Governments (COAG) Health Council and its sub-committees to facilitate national policy formulation and coordination.

State and territory Governments are primarily responsible for direct delivery of health services and service planning activities. State and territory response to BBV and STI is guided by jurisdictional policies and strategies that align with the National Strategies.

But …

Commonwealth refuses to engage in coordination or discussion of legal issues (jurisdictional)

Consistent disinterest & under-resourcing: MACBVSS Legal Working Group:

‘Experts’ - ignored representative structures –input, feedback, tracking progress

No funding Reports appeared supressed

http://corinnegeertsen.com/wp-content/uploads/Elephant-in-the-Room600.jpg

And from nowhere … Mandatory testing of people who spit or bite

Bills drafted in South Australia & Western Australia

Adelaide Advertiser15 October 2014

Some issues

A senior police officer decides

Reasonable grounds - suspects there has been a transfer of blood or bodily fluid

may apprehend and detain the suspect for as long as is reasonably necessary to enable the test (WA)

Failure to comply: $12 000 and imprisonment for 12 months (WA)

Includes firefighters, paramedics, emergency services, midwives, nurses, doctors, hospital emergency staff and surf lifesavers (SA)

…. lack of regulatory/legislative protections & guidance

& monitoring - 147 instances - officers were exposed to bodily fluids while policing in 2013 (WA)

How do we advocate?

Police and Blood-Borne Viruses

Australasian Society for HIV Medicine

Australia New Zealand Policing Advisory Agency

How do we advocate?

Would the AG or Police Minister listen to the Health Minister? How do we monitor implementation – data on frequency, justification, experience? (147 instances - officers were exposed to bodily fluids while policing in 2013 – WA)

How do we better engage with police?

‘Partner’ Agency What

President White House National HIV AIDS Strategy for the United States: ‘Since it is now clear that spitting and biting do not pose significant risks for HIV transmission …’

Federal Government (department)

US Department of Justice Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors

Senior scientists

Centers for Disease Control and Prevention

Statement - HIV not transmissible through spit

Peak organisations

Center for HIV Law & Policy, National Organization of Black Law Enforcement Executives, Association of Prosecuting Attorneys

Spit does not transmit: Fact sheet for Law Enforcement Professionals on the Risk of HIV Transmission in the Line of Duty

 

Report to The Sunday Times from WA Police Union A FATHER with several children was bitten on the leg by a man during

an arrest: “My children were astounded that, firstly, any person would consider doing that and, secondly, that it could result in me being exposed to a disease that could have serious consequences to my health. I regularly think about how this will affect my life.”

STABBED with a screwdriver and exposed to the attacker’s blood, a policeman says later: “We had family members travel from the United Kingdom to attend the wedding. As is customary my family members expected at least a kiss on the cheek from me on their arrival from overseas. I had to pull myself away from them, which was embarrassing for me and I am sure was the same for them. This situation made me very self-conscious and turned what should have been a very happy time for me into an awkward and difficult time. I will never get that time back again.”

Progress – last 5 years