The HIV & AIDS Legal Clinic Ontario (HALCO) is offering their Fall 2011 Public Legal Education Series starting in October. This is a great forum for actvists and those interest in gaining much needed knowledge on exsiting and emerging legal issues. 

For more information see below, or go their website. For your own PDF copy of the page below, click here.

The laws applying to the disclosure of our HIV-positive status to sexual partners are complex, imprecise and a moving target. We know that. Nevertheless as HIVers we expect our health care providers to be able to speak with authority, and offer counsel and guidance which reflect the current state of the law. A new study suggests that isn’t always happening, but it blames the law for the lapse.

Edwin J. Bernard, a well-known UK expert in HIV disclosure issues, has written an excellent account of the research in question; his AIDSMAP feature article is here. An abridged version of it appears below.

The research, Bernard reports, was conducted by Eric Mykhalovskiy, an Associate Professor in the Department of Sociology at York University in Toronto. Now the sample size is small – twenty-eight health care professionals and 26 People living with HIV. One questions why the Professor didn’t go bigger. But it conforms my own suspicions that people living with HIV often have an imprecise understanding of where they stand and what is required of them, disclosure-wise. Regrettably, it also conforms my fear that not all health care professionals - those who counsel HIVers - are well enough informed either.

An alarming thing is happening as a result. As Bernard (pictured right) states “some healthcare providers have responded to the vagueness of the law by advising patients to disclose to ALL sexual partners, regardless of the transmission risks they pose.” This again is not news – some of us have experienced this first-hand – but it appals nevertheless.

HIVers can be forgiven for not understanding the law. Counsellors paid to give them advice which will hopefully keep them and their partners OUT of the legal system have in some ways much higher obligations.

Now I KNOW we devote a lot of time and resources to trying to keep our health care providers current. But if they don’t go to workshops, don’t read bulletins, don’t keep current . . . . And I KNOW our health care providers have A LOT of other duties to perform. And it’s a GIVEN that the law is indeed complex, indeed imprecise and indeed a moving target. But it IS do-able to understand  - and to advise - when there is a duty to disclosure, when there isn’t and when the law doesn’t say precisely one way or another.

If this sounds like a criticism of some – not all – health care providers, it is. To put this in perspective, this is the first time in the history of PositiveLite that I have levelled criticism at health care providers. They are our friends, our allies, they keep us alive. But they are not perfect, no one is, and it serves noone well to turn a blind eye to shortcomings where they exist. If this research can be considered reliable, it should be enough to start our collective wheels turning to rectify this situation.

It's certainly something for the Ontario Working Group on Criminal Law and HIV Exposure http://www.ontarioaidsnetwork.on.ca/clhe/ responsible for the excellent work to date on developing prosecutorial guidelines to look at. But it's also something for HIVers themselves, collectively and individually, to seek solutions which will ultimately see them better served.

We HIVers have always played a role in educating our health care providers.  That may be important here too.

Ask your health care professions whether they REALLY understand the law. If there is any doubt, a dialogue with them is a good starting point.

In any event, here is an abridged version of Bernard’s AIDMAP review. It’s a call to action, in my view,  if ever there was one. (Highlighted areas are our own.)

Canadian study finds criminalisation confusion "chills" open and honest discussion of HIV risk-taking

By Edwin J. Bernard; Published: 23 August 2011

The lack of clarity over when a person with HIV has a legal obligation to disclose their HIV-positive status to a sexual partner is resulting in "anxiety, confusion and contradictory HIV counselling advice," according to a new study on the impact of HIV criminalisation in Canada.

A 1998 Supreme Court decision created Canada's current law, which obligates people with HIV to disclose their HIV-positive status before engaging in conduct that poses a “significant risk” of transmitting the virus. Non-disclosure prior to sex that poses a "significant risk" renders the sex non-consensual, so that HIV exposure is considered to be a sexual assault.

As part of a criminal law reform project to encourage a more evidence-informed application of the criminal law, Eric Mykhalovskiy, an Associate Professor in the Department of Sociology at York University in Toronto interviewed 28 healthcare and HIV service providers, and a further 26 people with HIV participated in four focus group interviews. The interviews took place in three cities in the province of Ontario – Toronto, Ottawa and Hamilton.

The legal uncertainty over which sexual acts pose a "significant risk", thus triggering the obligation to disclose, left many study participants "angry, confused and frightened" notes Professor Mykhalovskiy. Although some participants with HIV claimed to disclose in all sexual circumstances, others said they were less open about their HIV-positive status as a result of the law.  A few participants admitted that they have responded to the situation by withdrawing from sex altogether.

Healthcare providers also admitted to struggling with the tension between unclear legal concepts of "significant risk" and public health-focused safer sex counselling. This has resulted in people with HIV being provided with inconsistent and contradictory information about their legal obligation to disclose.

Some healthcare providers have responded to the vagueness of the law by advising patients to disclose to all sexual partners, regardless of the transmission risks they pose.

Healthcare providers emphasised how HIV criminalisation has impeded their ability to establish trust with their HIV-positive clients and patients, creating a chill in their counselling relationships. Mindful that medical and counselling records could be used in criminal proceedings, healthcare workers are cautioning their patients about the limits of client confidentiality, resulting in a “don't ask, don't tell' approach.

Professor Mykhalovskiy notes that "while the use of the criminal law may be warranted in some circumstances, the expansive use of a vague legal concept of significant risk does little good either for preventing HIV transmission or for the credibility of the criminal justice system." He concludes that the establishment of prosecutorial guidelines may create some clarity regarding disclosure obligations, potentially mitigating some of the problems described in this study.

Reference:

Mykhalovskiy, E. The problem of "significant risk": Exploring the public health impact of criminalizing HIV non-disclosure. Social Science & Medicine (2011), doi:10.1016/j.socscimed.2011.06.05 (In Press) 

It's a bit of  a public health nightmare. We KNOW we have a problem with getting HIV infection rates under control. We KNOW we have a problem with STI’s generally. But are the courts helping the process  - or themselves contributing to new infection rates in sexually transmitted infections, meanwhile happily stigmatizing people coping with those diseases.

I’d say yes on both counts. But I’m far from alone on this: read the comments which follow. But first let’s review the latest idiocy. Now criminalization of herpes transmission, for heaven’s sake, seems to be on the table, at least in the UK.

As reported in The Northampton Chronicle August 19 .

“David Golding, 28, was jailed for 14 months at Northampton Crown Court last week after he kept quiet about having the sexually transmitted infection. The traffic officer with the Highways Agency, who pleaded guilty to inflicting grievous bodily harm, had caught it from a previous partner. He claimed to have been given the all-clear before passing it onto a new partner towards the end of 2009, without ever disclosing he had it.”

Judge Michael Fowler (left) sentenced David Golding to 14 months at Northampton Crown Court

The arguments against criminalization of herpes transmission must surely mirror those against HIV criminalization, but involve addressing an added layer of stupidity.

One more time, though, why criminalization sucks from a prevention perspective: criminalizing transmission (or even exposure) of a sexually transmitted infection encourages a false sense of security – that the possibility of disease need NOT be discussed between sex partners, that a partner will always KNOW they are themselves infected, always volunteer that information too. In that leap of faith the law is horribly counterproductive; it effectively facilitates infections. Meanwhile, the courts think punishment, punishment, punishment is the answer - and damn the consequences. How absurd is that?

It’s not just about the Brits. Their courts are in fact saner than their Canadian counterparts. At least in the UK, and we’re talking about HIV now, there has to be transmission to occur for a successful prosecution. Here there have been many convictions based on mere exposure. Canada is in fact the HIV criminalization capital of the world.

Lets’ hear from some of those NOT staying silent on the absurd herpes criminalization case.

In the UK, Nigel Scott, of the Herpes Viruses Association, said: “This is outrageous. Will children also now be prosecuted for giving their friends chicken pox? For passing on a cold sore?

Scott goes on “most people who have genital herpes don’t know it because even if they do get recurrences, it is such a trivial infection that they don’t notice it. It has exactly the same medical implications and consequences as an ordinary facial cold sore so in no way can it be construed as serious. . . This case sets back the normalisation of this trivial infection by years. I had thought such a farcical scenario could only happen in America . . .”

Dr Colm O’Mahony, who is a sexual health consultant in the UK said: “Being sent to prison for passing on herpes simplex is like being sent down for 10 years for a parking offence. I’m appalled. There is no way of proving who gave herpes to whom and with so many of the population already unknowingly infected it is irrelevant to blame someone specific. It is a cold sore in an awkward place.”

Marian Nicholson, director of the Herpes Viruses Association said, “It is unfortunate genital herpes is being dragged in to court like this. This is a very common virus – herpes simplex – that most of us carry without even noticing. We know that many of those who are diagnosed are reluctant to disclose their status but this is because of the unnecessary stigma, not because it is serious . . . emphatically it is not.”

Matthew Weait in a Guardian UK opinion piece said “ . . we might pause to reflect both as to why someone would think that going to the police and reporting a partner is seen as an appropriate response to discovering that one has an STI, and also that the law is prepared to respond in such a draconian way. Sexually transmitted infections are a fact of life. They are things people would rather not have. Some are incurable but most, including HIV and herpes, are treatable and manageable. Criminalising people who have taken as much care as they are able to prevent onward transmission but are still treated in law as having been reckless does nothing to reinforce the message that we should take responsibility both for our own sexual health, as well as that of others. It does precisely the converse, and that is surely a bad and unhelpful thing.”

In an official statement. THT, the UK’s largest provider of HIV services said  "this case highlights the ridiculousness of using criminal law to police disease transmission. Genital herpes is a virus that can lie dormant for years, is hard to predict or control and routinely affects thousands of people. Currently, we are using Victorian assault laws to criminalise disease transmission, but only when this occurs sexually. This is discriminatory and stigmatising and current sentencing is out of all proportion to the impact of the "offence". There is a shameful lack of understanding of sexually transmitted infections within the justice system and this case perfectly illustrates the problem."

I asked two PositiveLite writers for comment. Ken Monteith, an HIV+ correspondent out of Montreal, said this “This case demonstrates just how inappropriate it is to use the criminal law to intervene in the sphere of public health.  . . What's next? Flu season crippling not only our emergency rooms, but our courtrooms? (Influenza usually kills more people in Canada each year than HIV, and I've never heard of anyone dying of Herpes.) One could easily argue that going out in public with the flu is intentionally putting at risk anyone with whom one has contact, not to mention those who might grip the same handrail or doorknob later in the day. Is this how to manage the flu?”

Ken goes on “in a similar sense, our public health message around HIV and other STIs has always been to protect oneself and one's partners. The responsibility to protect oneself is disappearing into the mindset that every misfortune is the fault of someone else: not my fault, not chance, but the criminal responsibility of someone else."

Denise Becker, an HIV+ PositiveLite writer from B.C. whose own column on HIV criminalization appears here said this: “Is the answer really to put people with sexual diseases behind bars? I believe that we are currently in a very dangerous time, when many people in casual relationships are consciously making the decision NOT to get tested because they might discover they have a disease and then they would have to make unwelcome changes to their lifestyle.  They might even get charged and thrown in jail: better not to know! You have to ask then, is the law a good thing or is it causing a higher infection rate because people are not getting tested?  We need well thought-out guidelines in creating a law which must do more than simply punish.”

So many words of common sense here, so many arguments against criminalization of sexually transmitted infections that seem to fall on deaf ears.

Efforts in Ontario to change the way such cases are prosecuted – the case for prosecutorial guidelines – are stalled”. Read our update here. I’m sanguine enough to think that they will remain “stalled” for quite some time.

Now I do like diplomacy and I do like the Ontario working group’s approach. But it’s missing the sense of hurt, of outrage, of anger that is increasingly hard to suppress. Sometimes I think we need to get really, really angry. It may influence nobody, but it shows we are serious. Angry at the stigmatizing. Angry that the prevention work our community does is undermined by the courts. And angry at the absurdity of it all.

Let’s bring the curtain down on the theatre of the absurd. This latest volley – the herpes debacle – should signal that whether we’re in the UK or in Canada, we’ve had enough.

Earlier treatment has shown a reduction in risk of disease of about 40%. Further, in the same study with sero-discordant couples where the HIV positive partner began treatment between the T4 cell (CD4) range of 350 - 550 it was indicated the risk of HIV transmission to the HIV negative partner was reduced by 96%.

As per AIDSMAP reporting, this study lends some credence to the controversial Swiss statement, a document published by Swiss doctors stating that the risk from transmission through vaginal sex when one partner is on antriretroviral medication was extremely low.

The study recruited 1763 couples in Malawi, Zimbabwe, Botswana, Kenya, South Africa, Brazil, Thailand, India and the US.

The CD4 range for those enrolled was between the 350 - to 550 range, and they were ineligible for treatment at the time. The gender balance was even, and condom use was high.

What does this mean? For heterosexual couples this is good news. For men who have sex with men, more study will be needed.

Given the recent decision by a Candian judge that HIV is not a death sentence, and this new data about transmission reduction, it may influence further criminalization charges in Canada.

These studies only looked at couples. How to do extrapolate this information for different kinds of sex, and various multiple sex partners is another issue.

Despite concerns over treatment as prevention, treatment  is a potentially useful tool for sero-discordant couples, and for women in general.

It is my hope this will further diminish the reckless charges randomly occurring against people living with HIV in Canada. Despite this, we have a patch work of jurisdictions coming up with equally inequitable judgements.

As most are now aware, on June 24, 2011, New York passed, by a margin of 33-29, legislation that legalized same-sex marriage in all jurisdictions from Buffalo to Babylon -- an irony Iʼm thoroughly convinced wonʼt be lost on the decisionʼs many opponents. And in doing so, New York became the sixth state to legalize same-sex marriage -- following the precedent set by the Commonwealth of Massachusetts in 2004.

Yet let us not forget that the New York decision was passed by a slim margin, and that it was beset from the outset by a wealth of controversy. Indeed, we would be remiss were we to forget that the very same legislation met with defeat in the Empire State in both 2006 and 2009.

Nonetheless, it remains, at least for now, the law of the land in the nationʼs third most populous state -- a crucial point from the perspective of its supporters.

Yet with these observations in mind, I refuse to proceed as some knee-jerk reactionary or doomsayer resigned to the ultimate if not imminent demise of the New York decision. In fact, as opposition mounts, I see much that provides just cause for optimism. Let us begin with the fact that despite the fact that the State Senate was adamant about the inclusion of religious exemptions in the bill, the Senate vote marked the first time that a Republican-controlled legislature in any state has supported same-sex marriage legislation. Yes, the GOP came through this time, joining all but a singular Democrat in voting in favor of the bill. Let us further acknowledge the fact that a number of prominent Republican donors contributed to the campaign and lobbying efforts in support of the bill.

Of course, my tempered optimism about the New York decision must necessarily be situated within the broader context of American politics and public opinion. As things stand, same-sex couples still cannot marry in forty-four states, and in thirty of these states, governments have taken the steps of passing constitutional amendments that explicitly ban same-sex marriage. It is also worth noting that Minnesotaʼs Republican-controlled legislature -- the stomping ground of our much beloved Michele Bachmann -- has placed just such an amendment on its 2012 ballot. So yes, New York -- alongside Iowa, Vermont, New Hampshire, Massachusetts, Connecticut and the District of Columbia -- remains in the minority. But let us also not forget the fact that while marriage is not legal in Hawaii, Maine, New Jersey, Wisconsin, Illinois, Delaware, California, Nevada, Oregon and Washington, each of these states do provide (in many cases) comprehensive “marriage-like” rights to their residents. In purely statistical terms, this means that at least 35% of Americans now live in states where gay and lesbian couples can effectively attain at least many of the rights and responsibilities attached to that which we refer to as traditional marriage. I would suggest that this seems even more monumental considering the fact that only eleven years ago, no one in the United States was afforded such rights.

As I see it, the New York decision is indeed grounds for celebration -- and despite continued opposition all is most definitely not lost. Interestingly as Canadians, we have long bewailed what we consider to be the archaic views on such things as marriage as well as so many other social issues held by our neighbors to the south. Yet how soon we forget that the legalization of same-sex marriage in Canada was itself no easy task, and in the broader scheme of things remains a relatively recent development. A simplified and albeit brief history lesson reminds us that Bill C-38 was passed by the House of Commons a mere six years ago on June 28, 2005, and by the Senate just twenty-one days later. And how quickly we forget that little more than a year later on December 7, 2006, the House of Commons effectively reaffirmed the legislation by a vote of 175 to 123, defeating a Conservative government motion to examine the matter once again. In other words, this represented the third vote supporting same-sex marriage taken by three Parliaments under three Prime Ministers in three different years.

Of course, we should hardly be surprised that the opposition in New York continues to rally, and indeed rally aggressively. And leading the cause is none other than Brian Brown, the President of the conservative National Organization for Marriage. Brownʼs first stated objective is to seek the defeat of those New York Republicans who helped support the same-sex marriage bill. Beyond this, Brown predicts easy passage of the Minnesota ban that his opponents believe if defeated would predict a broader nationwide support for same-sex marriage and strengthen efforts to repeal current legislation banning the same. Other conservative critics, including Brian Baum of the Alliance Defense Fund have even gone as far as to suggest that the votes cast in New York have done little more than create an “illusion of momentum.” A strange take, I think on what the majority of us tend to interpret as the exercise of democracy.

So where does this leave things? Strangely enough, in a state of what Iʼm calling optimistic confusion. First and foremost, I would argue that the New York decision does indeed add momentum to the emergence of a critical mass of both states and public opinion in support of same-sex marriage. This, I believe, stands in at least reasonable contrast to Brownʼs assumption that the repeal of the New York decision and the presumed success of the Minnesota bill would necessarily negate claims that support for same-sex marriage would prevail nationwide.

In fact, Fred Sainz of the Human Rights Campaign argues quite the opposite and sees the New York decision as having much broader and positive national repercussions. According to Sainz, the New York vote is more likely to convince judges and politicians nationwide -- including a hesitant President Obama -- that support for same-sex marriage is not only a mainstream viewpoint but also a winning political issue.

According to Sainz, “New York sends a message that marriage equality across the country is now merely a question of when not if.” Fellow advocates are suggesting an even more specific timetable -- seeing the goal as attainable by the year 2020.

No one can know, unequivocally, where the New York decision will take us. Needless to say, the repercussions will be felt far beyond its borders. But political strategies are slowly but surely taking form. Efforts are most definitely underway to repeal the Defense of Marriage Act (1996) that denies federal recognition of same-sex marriage, and even the reticent President Obama has admitted that his views are “evolving” as he asked for patience at a recent New York City fundraiser.

And if we are to take public opinion polls as a reasonable gauge of attitudes among Americans, both Gallup and the Associated Press suggest that a majority of Americans approve of same-sex marriage -- an interesting shift given the fact that public approval was well below 40% but a decade ago. And to elaborate this shift in public opinion, it is also worth noting that support for same-sex marriage appears especially pronounced among young Americans who have been exposed to far more positive media images of alternative sexualities -- a trend, suggest observers, that seems largely irreversible.

But Iʼd like to conclude by setting aside these broad generalizations, and by offering a very specific and perhaps one of the more telling (if not poignant) anecdotes from Fridayʼs vote -- the plight of New York Democrat Carl Kruger. Kruger was well known as one of the legislatureʼs most relentless opponents to same-sex marriage, but whose defenses were quickly demolished when the issue hit the legislator very close to home.

According to the New York Times, the gay nephew of the woman with whom Kruger lived became so furious at Krugerʼs opposition to the bill that two years prior, the nephew cut off contact with both -- ultimately devastating his aunt, Ms. Turano.

Reflecting upon the very human and personal consequences of his politics, Representative Kruger ultimately reversed his position and voted yes. That being said, while the road to same-sex marriage will indeed be bumpy, I firmly believe it is inexorable.

PositiveLite says: the following is an excerpt from a recent blog post from long-time activist and POZ magazine founder/publisher Sean Strub.  The full text oif the post is here.

Sean's welcome focus on the human rights issues raised by the seeming gallop towards treatment as prevention/"seek and treat", at least in Western Canada, is echoed by recent PositiveLite interviewee Michael Vonn, whose interview begins here.

Here is what Sean Strub said . .

A continuing disregard and trampling of the human rights of people with HIV drives this epidemic and until we recognize and address this fact, we will not defeat AIDS. This is no more clearly evident than in the fact that HIV-related stigma is today increasing, not decreasing.

There is no more extreme manifestation of stigma than when government incorporates discrimination into the law, like with Jim Crow laws, or apartheid, or criminalizing people with HIV.

These laws are driven by a political and public policy leadership, abetted by the media, that increasingly, insultingly and irrationally defines people with HIV principally as viral vectors or potential infectors, as a dangerous population, a threat to society that must be regulated and controlled.  

This is not just in criminal prosecutions but it is also seen in HIV prevention and treatment policy-making that is veering towards the coercive, abandoning respect for individual autonomy and opening the door to tyranny, paternalistic or otherwise.

It is vital for all of us to understand how anti-retroviral treatment can reduce one's infectiousness, or provide some protection against infection for those who are negative. 

That fact, for many is reason enough to start treatment, including some who do not medically need treatment for themselves, like those with high CD4 counts.  But it is wrong for anyone to assume everyone who has HIV "should" be on treatment in order to reduce infectiousness. 

To encourage healthier HIV positive people--those with high CD4 counts for whom it has not yet been proven will receive a net benefit from anti-retroviral treatment--to commence treatment while downplaying or disregarding the risks of serious long-term side effects is unethical and dangerous.

So while we advocate for treatment to be made available to all who need it, including the millions who will die in the next few years if they do not get it, we must also make sure that ethical challenges inherent in so-called "test and treat"--promoting treatment for a public health objective, at the potential expense of the individual person with HIV--are addressed. 

The Associate Director of the CDC, Harold Jaffe, says it is not clear that "test and treat" "benefits the infected people themselves and indeed it may be harmful".  He notes that test and treat "falls foul of the normal ethical standards of clinical medicine, which is to act in the best interests of patients."

Writing about test and treat, the Economist noted "people do not like taking medicine, particularly if they have no symptoms." 

For test and treat to achieve the desired societal benefit, they write, "all those people, or, at least, the vast majority of them, would have to be persuaded to take (anti-retroviral drugs). That is difficult enough when someone is ill. The latest report from UNAIDS suggests that almost one in five of those put on the drugs stops taking them within a year. It will be even harder to persuade the asymptomatic to pop a daily pill or two for the public good."

An avalanche of funding has provided an army of strategists and publicists to work with public health and community organizations to promote treatment to those for whom there is no scientific justification for such treatment.  That is appalling, especially when only 1/3 of those in immediate medical need of treatment are able to get it.

We must never forget harms that have been perpetrated in the name of a supposed public good and we must not, even inadvertently, contribute to those harms.

If we respect individual autonomy, we must provide objective information about both the potential rewards and risks of treatment without creating a false sense of urgency or need.  To do otherwise is profoundly unethical.

Pioneering AIDS doctor Joseph Sonnabend, wrote last week that "Respect for the autonomy of the individual may be the most important of the principles that form the foundation of medical ethics."

John Christman described an attribute of personal autonomy as: "the capacity to be one's own person, to live one's life according to reasons and motives that are taken as one's own and not the product of manipulative or distorting external forces."

The Economist noted test and treat will require a very high level of participation in order for it to work.  What if too few agree to participate for it to be effective? 

Do those of us with HIV present enough of a public health danger to trigger the use of legal mechanisms to intervene and force us to take treatment against our will?

There are times when we, as a society, impose medical treatment on some citizens, even against their will.  We do that with criminals.  Might those who refuse treatment for the "common good" ultimately be considered criminals? Will they be seen as socially irresponsible, labeled enemies of society, selfish or unconcerned about spreading HIV?  Have we begun to stigmatize those who, for whatever reason, have chosen not to take treatment?

NAM's newsletter asked the question bluntly:  "How long will it be before legislators--or judges--conclude that failing to take available treatment should be considered as contributory negligence in cases of HIV transmission or exposure?"

Defining those of us with HIV as a threat to society and manipulating or coercing us into treatment, rather than empowering us to access healthcare and make well-informed treatment decisions for ourselves, is a dangerous threat to our rights.

Moreover, it will continue to fuel the epidemic, further disenfranchise the most at-risk populations and erode trust in the healthcare system, making people at risk less likely to get tested and, for those who need or want it, less likely to access treatment.

We are not criminals and we do not consent to coercion. 

Another important section of the Denver Principles reads that people with HIV have the right "To full explanation of all medical procedures and risks (and) to choose or refuse their treatment modalities."

We must be vigilant against a creeping criminalization of our existence, be vigilant against those will sacrifice our human rights at the altar of a perceived public good, and to be vigilant against the "arrogance of the well" that operates from an unstated but clear belief that we--those of us living with HIV--are "less than"; are inferior beings with inferior rights to their arrogant supremacy