Criminalizing women living with HIV

Key questions: To what extent do punitive laws do more harm than good? Do punitive laws affect disclosure of HIV status? How do punitive laws affect women and men living with HIV differently? How much do we consider questions of love, trust, intimacy and pleasure in the context of the criminal law?

 Signatory to international human rights treaties and conventions  Universal Declaration of Human Rights (1948)  International Covenant on Economic Social and Cultural Rights (IESCR, 1966)  189 countries that endorsed the Declaration of Commitment on HIV/AIDS from the United Nations General Assembly Special Session dedicated to HIV/AIDS (UNGASS) (2001).  National human rights laws and provisions  Anti-discrimination laws and workplace policies  Criminalisation of HIV transmission or exposure:  HIV specific laws e.g. Model Law (N’Djamena, Chad 2004)  ‘Catch-all’ laws e.g. Grievous Bodily Harm or Reckless Conduct  Laws criminalising vulnerability to HIV  Buying or selling of sex  Possession of drugs  Sodomy or ‘acts against the order of nature’

‘Criminalization’ refers to the application of criminal law to prosecute HIV transmission or exposure to another person.  Several countries have laws that are used to criminalize HIV transmission that are often justified on the grounds of promoting public health.  BUT ‘Criminalization’ can:  weaken HIV prevention efforts (and therefore public health), by creating barriers for accessing health services and the uptake of testing  undermine human rights, by having laws that only relate to people living with HIV  fuel stigma and discrimination, by conflating attitudes, perceptions and morality associated with HIV with criminality 4

“Today one of the most pressing issues in the AIDS epidemic is the use of criminal statutes and criminal prosecutions against HIV transmission. Such laws are increasingly wide in their application and frightening in their effects. HIV is a virus, not a crime. That fact is elementary, and all- important. Too often law-makers and prosecutors overlook it.” Edwin Cameron, Justice of the Supreme Court, South Africa “If the law criminalizes HIV transmission it could lead to the total exclusion of people living with HIV” Ghizlane Naoumi, Moroccan Family Planning Association  OSI, IPPF/ICW/GNP+, UNAIDS, ARAS, ATHENA Network, Amnesty International … campaign gaining momentum  New UNDP Commission on HIV and Law 5

 Process: 4 day workshop in N’Djamena, Chad, 2004  Aim: To protect the rights of vulnerable people – particularly women  Major aspects of the model law:  Compulsory HIV testing illegal (Article 17)  Guarantees patient confidentiality for PLHIV (Article 24)  Wilful transmission of HIV an offence (Article 36)  In practice discriminates women as:  More likely to know their HIV status  Can be criminalised for passing on HIV to their child e.g. Sierra Leone 6

 Canadian criminal code, section 215(2)(a)(ii):  Parent/guardian commits an offence if causes the health of a child under their care to be injured permanently.  This non-HIV specific law used to criminally prosecute a mother for not seeking PMTCT services whilst pregnant  Shows how the law can have unforeseen and unintended impacts on women  Wider implications – could set precedent for countries like Sierra Leone 7

politik/Fokus-SRHR/Hiv-och- aids/Hur-kunde-hon-leva- som-om-det-inte-fanns/ 1986, Lillemor is 19 and goes to France Husband and 2 children 30 month prison sentence for attempted GBH Tabloid media Now this is her story....

 Mark Devereaux,  1 st UK case exposure (only possible in Scotland)  Ill-informed and stigmatising media coverage:  ‘Evil HIV beast took my babies away from me’ (The Scottish Sun, )  ‘Lying chef with HIV ‘stole my babies’ says lover who had twins aborted’ (Daily Record, )

 The criminal law is ill-equipped to respond to the complex layers of individual identities  Legal judgements and media coverage seldom consider challenges to disclosure e.g. fear of possible violence, rejection, or shame.  ‘Moral barometer’. Crime and punishment in relation to HIV have prominence in the formation and regulation of moral norms—and can perpetuate stigma.  ‘Double Jeopardy’. People living with HIV need support not suspicion. Once the trial is over, once a legal judgement has been made, and once the press have left the gallery, in cases where HIV transmission has occurred the ‘victim’ of crime is still vulnerable to these very same social attitudes and processes of devaluation.  Women are often the first to know their HIV status and can be blamed—highlighting wider gender inequalities relating to inheritance, property, motherhood and SRHR.  Stigma and vulnerability. The criminalisation of HIV transmission or exposure contributes to perpetuating the stigmatisation that fuels vulnerability to ill-health and the marginalisation of people living with HIV…

 Find out the specific situation in your country and: Advocate for the repeal of HIV specific law or ▪ Advocate for no new HIV laws being passed ▪ How is the law affecting women and men living with HIV and is it different?  Raise awareness amongst PLHIV about the legal situation in your country  Support PLHIV with psychosocial support and legal referral systems—tailored to gender specific means  Arrange press briefings and engage journalists 11

*Vienna IAC: — 2 specialist sessions, skills building workshop and human rights networking zone — Screening of Swedish film: ‘How Could She’ — Book launches: - Bernard E.J. (2010) HIV and the Criminal Law, NAM - AIDES, the Canadian HIV/AIDS Legal Network, GNP+ and Groupe sida Genève (2010). Responding to the criminalization of HIV transmission or exposure: Resources for lawyers and advocates. *Further Research *World AIDS Day 2010: — Behind the Bars: Life Stories of people affected by the criminalisation of HIV