Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia In partnership withSupported by J. Hows 1, L. Power 2, K. Hain 2, M.Stolk 3 1 DRAG, London, UK, 2 Terence Higgins Trust, London, UK, 3 Global Network of People Living with HIV/AIDS, Amsterdam, Netherlands

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Thanks /Acknowledgements All the in country respondents Lisa Power and the research volunteers at THT – Katie Dain and Mark Kenwright UNAIDS for part funding the 2004 baseline study and Moono Nyambe for reviewing the 2004/2008 changes Martin Stolk and all at GNP+ Edwin Bernard of NAM for free access to his blog-spots POSITIVE ACTION for funding this phase of the research

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia The study area covers 53 Countries in Europe and Central Asia Iceland to Tajikistan, Portugal to Russia

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Purpose of Study To map the use of the criminal or other laws in prosecuting HIV+ people for the potential/actual transmission of HIV in 53 states of Europe and Central Asia. Specifically to: Record prosecutions/convictions and the laws used Compare how the situation has developed since 2004 Provide data to aid advocacy efforts

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia What’s in a title ? ‘Sex’; This presentation concentrates on sex rather than medical negligence or exposure/transmission via ‘sharing’ needles or ‘purposeful’ infection with contaminated blood ‘Lies’; The lies that criminalisation is proving to be necessary/effective in preventing HIV transmission or has any sound legal or public health rationale ‘Prosecutions’; We have concentrated on actions taken within criminal law frameworks rather than civil remedies, or public health regulations

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Prosecutions ‘league’ table ProsecutionsCountry 30 or Over Austria, Sweden (50-55), Switzerland (50+) Denmark, Finland, France, Italy, Netherlands, Norway, UK, Azerbaijan, Belarus, Cyprus, Czech Republic, Estonia, France, Georgia, Germany, Hungary, Kyrgyzstan, Latvia, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Ukraine, 0 Armenia, Azerbaijan, Belgium, Bosnia & Herzegovina, Croatia, Iceland, Ireland, Liechtenstein, Lithuania, The FYR of Macedonia Malta, Moldova, Montenegro, Serbia, Turkey, Ukraine Not criminalised Albania, Bulgaria, Estonia Luxembourg, Slovenia, No data or not enough data yet Greece, Monaco, Portugal, Spain, Uzbekistan

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Transmission versus Exposure Only actual transmission ‘punishable’ (23 countries) Exposing another person to the risk of transmission also ‘punishable’ (19 countries) Belarus, Belgium, Bosnia, Croatia, Czech Republic, Estonia, Finland, Hungary, Ireland, Italy, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, FYR Macedonia, Malta, Portugal, Romania, Serbia, Spain, Switzerland, UK, Uzbekistan Armenia, Azerbaijan, Denmark, France, Georgia, Germany, Iceland, Kazakhstan, Liechtenstein, Lithuania, Moldova, Montenegro, Netherlands, Norway, Poland, Russia, Serbia, Slovakia, Ukraine Introduction of legislation is pending in Albania on introducing penalties for transmission/ exposure

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Developments – changes since 2004 NEW LAWS ALBANIA Changes pending and likely to be accepted criminalising transmission/exposure MOLDOVA Criminalisation of exposure added in 2007 – but no cases since law introduced in 1993 MONTENEGRO HIV transmission specifically made a criminal offence in 2005 ; maximum of 15 years if the infected person dies KYRGYZSTAN Law introduced in one prosecution outstanding SERBIA 2005 HIV transmission becomes a crime first prosecution commences TURKEY Law revised in 2005 and made more punitive and specific First Prosecutions : MALTA, POLAND, KYRGYZSTAN, SERBIA

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Developments – changes since 2004 NEW ADVOCACY SWITZERLAND No changes (yet) in Law and approximately 10 prosecutions /8 convictions since However application of the law currently being reviewed in light of Swiss AIDS Commission statement on ‘infectiousness’ NETHERLANDS No prosecutions or convictions have taken place since 2005 due to Dutch Supreme Court rulings in 2005 and 2007 and discussions between legislators, lawyers and PLHV and other civil society organisations – though there has been one prosecution for intentional transmission of HIV by a needle filled with HIV infected blood UNITED KINGDOM 16 prosecutions and 12 convictions since and possibly 100 'investigations' have occurred. More investigations happening - but also more advocacy preventing prosecutions starting and /or being successful UKRAINE No change in law but All Ukrainian Network of PLWHA have had success in using scientific evidence as a defence and to avoid prosecutions being initiated

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Conclusions There is a slow ‘creep’ of increasing criminalisation across the countries being studied Advocacy efforts to decriminalise where possible, mitigate where it is not, and ensure that laws are not introduced where there are none – are mainly noticeable by their absence Laws are being introduced or being made more punitive without any regard or consideration for the evidence ….

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Policyconsiderations Policy considerations Asserted that… Functions of criminallaw do not advance HIV prevention: Functions of criminal law do not advance HIV prevention: Incapacitation- infections in prisons Rehabilitation- no evidence Retribution- legitimize stigma and discrimination Deterrence- irrationality around sex/drugs UNAIDS Policy Options Paper: Criminal Law, Public Health and HIV Transmission

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Broader policy considerations Difficulties of proof Detrimental effect on public health initiatives  Reinforcing HIV/AIDS-related stigma  Spreading misinformation about HIV/AIDS  Disincentive to HIV testing and other services  Creating a false sense of security Selectivity of prosecution Gender inequality and impact on women Invasions of privacy To which I would add the absurdity of some of the laws

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia A few examples of the laws -no equivalence, much absurdity Several countries have increased penalties if the person infected dies The statute of limitations in some countries would enable a child (or other competent authority ) initiating a complaint for being infected by their mother Countries side-by-side geographically with open borders and similar epidemics have: Widely divergent views of the ‘sanction’ to be imposed - from a few years to life imprisonment Differing views as to the degree of ‘fault ‘ that is required to initiate a prosecution, from strict liability, through intentional, to recklessness, to negligence

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia What we know and feel as HIV+ people “… through this experience I am left feeling like a criminal for being HIV positive …... where I am today, in prison..I am learning how to live a criminal life. I am unable to talk to my son. I wake up everyday on edge, waiting for someone to discriminate against me for being who I am. I am petrified of coming out. I fear reprisal attacks.” Sarah, Positively Women Magazine, Autumn 2006 “Criminalisation has, for me, re-stigmatised HIV when it was becoming normalised” Participant Living 2008 The Positive leadership pre-conference Participants at Living 2008 also believed that criminalisation … Sends negative messages about us as “irresponsible” Creates fear and confusion as we try and have healthy and safe sexual (including reproductive) lives Increases stigma and discrimination Willful, deliberate, malevolent transmission, should be ‘punished’, in some way but…

Julian V Hows Sex, lies, and prosecutions Sex, lies, and prosecutions: criminalisation of HIV in Europe and Central Asia Next Steps – Global survey already underway… The full scan for Europe and Central Asia will be going on-line at the end of September If you want to be kept informed contact us at By December 1 st 2008 using the same framework GNP+ and other partners will be providing similar information for the rest of the world We will be relying upon ‘information gatherers’ and respondents world wide. If you think you can help Please contact me on