law and hiv: are we there yet?
DESCRIPTION
An overview of the issues related to the criminalisation of HIV exposure and transmission in Australia. This presentation was given by Sally Cameron, HIV Education and Health Promotion Officer with AFAO, at the AFAO National HIV Forum, 17 October 2014.TRANSCRIPT
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Law and HIV:
Are we there yet?
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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+
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Prosecutions seem to be increasing
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Exposure (non-transmission) is prosecuted
1/3 of prosecutions for exposure
16 transmission/8 exposure (+ 5 public health order cases)
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Those found not-guilty still pilloried in the press
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MSM prosecutions increasing
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African born men overrepresented
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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
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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
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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
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So what tools can we use to advocate for change?
International Support
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How should Aust deliver on international commitments?
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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
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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.
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Domestic Support
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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
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And from nowhere … Mandatory testing of people who spit or bite
Bills drafted in South Australia & Western Australia
Adelaide Advertiser15 October 2014
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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)
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How do we advocate?
Police and Blood-Borne Viruses
Australasian Society for HIV Medicine
Australia New Zealand Policing Advisory Agency
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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
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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.”
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Progress – last 5 years