Tag Archives: Human Rights

The End of Criminalization is Just Good Science

By Marlo Cottrell

As someone who has been living with HIV for over 20 years, I still remember my early years of having to live with this virus. When treatment was often limited and a large number of people were still dying. Trying to navigate through the overwhelming realization that I had to live with this disease, I will tell you that disclosure took practice and I didn’t always get it right as much as I tried. That is a reality for many. Through the decades, we’ve come so far and conquered the enormous summit to accessible treatment here in Canada, easier to manage medication and a life where living with this disease is not a death sentence, but a life with tangible hopes and dreams that flourish.

HIV criminalization has yet to reflect the highly treatable infection we see today; where an undetectable viral15138470_842377852570876_2454002420699421243_o load means the virus stops with us. The legal implications of living with this virus and not disclosing to a partner still garner someone the possibility of convictions of aggravated sexual assault, however. The harshest of sentences relegated to the worst of sexual assaults. Aggravated Sexual Assault: The Criminal Code also allows for increased penalties for sexual assault where the accused “wounds, maims, disfigures or endangers the life of the complainant.” Transmission does not necessarily have to take place. This carries the hefty sentence of the maximum of 10 years in prison and mandatory registration on the sex offender registry list. As a survivor of sexual assault, I find it the implications of this deeply disturbing, when we as human beings when engaged in consensual sex, have the option to protect ourselves. 1 in 5 people living with HIV do not know their status. As a former sex trade worker who advocated for safe sex on a daily basis, I used to tell my clients, “I don’t know where you’ve been and you don’t know where I’ve been. Out of respect for that fact, we need to protect ourselves and each other.” Today, as it stands, if we are undetectable and use a condom, we do not have to disclose. If we don’t use a condom, we must disclose but the risk is zero with an undetectable viral load. I think the crux of criminalization comes down to, who benefits from these laws? We know these laws are not a deterrent for the spread of HIV, which is what the intent was supposed to be. They only perpetuate and reinforce a false sense of security. The goal is to prevent new infections from occurring. I have sat with a former partner in the waiting room with his requisition form for an HIV test, both of us knowing that he should be tested. That crumpled requisition form landed in the bottom of a garbage can faster than you could imagine.

It is the promotion of zero stigma, zero discrimination and zero new infections that is at the heart of what gets people out and embracing an HIV test. The science has been in for a while now. It protects people from new infections when those of us living with this virus are able to know our status by wiping away the fear of shame and the heavy burden of stigma. HIV criminalization was set forth on a misguided course to protect us, but it does little more than further stigmatize a disease that we are conquering. The end of criminalization is just good science.

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My HIV status: I was a weapon

By Kenneth Pinkela

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“He’s HIV positive so it must be him…”

This is a direct quote from CPT Jordan Stapley, US Army JAG attorney and the prosecutor who brought charges against me on my 45th birthday – June 29, 2012.

Up to that point, I was a very happy and successful 27+ year career US Army officer, HIV+, healthy, long term non-progressor, actively serving my country.

On a day I should have been celebrating my 45th birthday, COL Michael Hargis, the military judge, presiding over my general courts martial said the words “guilty of all charges and specifications…” Life as I knew it was over…

It didn’t matter that I had volunteered for a polygraph, that there was no investigation or that my family was in the house.

It didn’t matter that I had volunteered for phylogenetic testing and actually introduced the government to Dr Mike Metzker of Baylor University…the scientist who successfully applied phylogenetics to the HIV virus and was able to demonstrate one strain of the virus was not like the other; thus proving a person is or is not the source of infection.

It doesn’t even matter that the primary witness has signed a sworn statement recanting and describing lies and coercion on the part of the Army prosecution.

I was charged under the Uniform Code of Military Justice (UCMJ), which defines Aggravated Assault as…

any service member offering or attempting to do bodily harm to another individual, through unlawful violence or force, whether or not the offer or attempt is consummated…

My charge sheet reads “Aggravated Assault for “exposing” a First Lieutenant to the Human Immunodeficiency Virus and inflicting grievous bodily harm or death…” and the aggravation is my HIV status…ME…I was a weapon.

When you hear those words “aggravated assault” you, like any average person, you envision some type of violent physical attack …but none of that could be farther from the truth.

My case, like many other HIV Criminalization cases both in the US and in Canada rarely, if ever, have any “element” of a crime.

What’s extraordinary to my case different than the state specific HIV criminal laws, no US President or session of the US Congress has never included HIV in any manner into the Uniform Code of Military Justice.  HIV criminalization continues, without authorization, unchecked via case law, ignorance and stigma.  All at the expense of the lives of military members who just happen to be living with HIV.

I am now 49 years old, unemployed, on public assistance, a convicted felon, my career pension and benefits are gone, including medical care for both combat related injuries and my HIV, but I’m not dead yet.

The network of HIV Criminalization advocates in the US and Canada is amazing! I’m not going to stop until what happened to me can NEVER happen again!

HIV is NOT a CRIME!

HIV is NOT a Violent ACT!

HIV is a virus…a virus that over 1.3 million in the United States and Canada are living with…STOP criminalizing us!

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Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers

Research and report by: Eric Mykhalovskiy, York University, Colin Hastings, York University, Chris Sanders, Lakehead University, Michelle Hayman, University of Toronto & Laura Bisaillon, University of Toronto 

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For some time now, growing concerns have been voiced by African, Caribbean and Black (ACB) activists, people living with HIV, and AIDS service organizations (ASOs) that ACB people living with HIV are negatively portrayed and overrepresented in Canadian newspaper stories about criminal HIV non-disclosure cases. We investigate those alarming concerns in our report, “Callous, Cold and Deliberately Duplicitous”: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers.

Our report explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases in Canada. Our analysis is based on 1680 English-language Canadian newspaper articles about HIV non-disclosure criminal cases in Canada written between 1989-2015. Overall, our findings show that newspapers are indeed a source of profoundly stigmatizing representations of ACB men living with HIV. This should be of great concern because the mainstream media are an important source of public information about HIV as most Canadians do not have close, first-hand knowledge of HIV, people living with HIV or crime.

­Our quantitative findings overwhelmingly support community concerns about overrepresentation. For example, 68% of the articles focus on racialized defendants. Black men, and specifically Black immigrant men, are exceptionally overrepresented in our data. They are featured in newspaper articles three times more often than would be warranted on the basis of the proportion of all defendants they represent. Moreover, this overrepresentation holds true over time. Finally, newspaper coverage is highly concentrated on a small number of sensationalized cases involving four Black men. For example, almost half (802/1680, or 49%) of all coverage since 1989 is concentrated on just four racialized people.

Our qualitative analysis focuses on four Black men living with HIV who have received extensive newspaper coverage. Once more, our findings unequivocally support community concerns about the negative and stereotypical ways ACB men living with HIV are represented. For example, we show how they are represented as dangerous, “foreign others.” One way this happens is when newspaper stories are told in criminal justice time, a technique that objectifies people within a “crime story” genre, treating them primarily as criminal subjects whose personal circumstances are largely ignored. A second way that ACB men living with HIV are represented as dangerous occurs when representations of racialized difference and immigration status are associated with constructions of moral blameworthiness and public health threats. This happens, for example, by including photographs of defendants, by referring to so-called “rare” strains of HIV that originate in African countries, and by identifying defendants by country of origin.

Despite the disconcerting findings, we conclude the report on a hopeful note with possibilities for deepening and extending alternative ways of writing about and representing HIV criminalization. The profound silencing, othering and objectification of ACB defendants in newspaper coverage of HIV non-disclosure criminal cases calls for strategies that create a positive presence, in mainstream media, for ACB men living with HIV. Efforts to work toward that end are underway by ASOs and other organizations that are a part of African, Caribbean and Black communities. We hope that our report will help to inform ongoing public discussion of this issue at such events as the African, Caribbean and Black HIV/AIDS Awareness Day.

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Criminalization of HIV Non-Disclosure in Canada

By: The Canadian HIV/AIDS Legal Network 

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In Canada, people living with HIV can be charged and prosecuted for not disclosing their HIV-positive status to a sexual partner in some circumstances. What does disclosure to a sexual partner look like? The act of disclosing one’s HIV status means telling someone you are having sex with that you are HIV-positive. This can include anyone with whom you have a sexual relationship, including your spouse, a regular sexual partner, or someone you might have sex with only once.

In 2012, the Supreme Court of Canada ruled that a person living with HIV has a legal duty to disclose their HIV-positive status before having sex that poses a “realistic possibility of transmission.” The Court determined that using a condom and having a low or undetectable viral load (the amount of HIV in a person’s blood) negated “a realistic possibility of transmission of HIV.” More than 180 people have been charged to date with HIV non-disclosure.

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, one of the most serious offences in the Criminal Code. People living with HIV have been charged even if they had no intention to transmit HIV, engaged in behaviours that posed little or even no risk of transmission, and did not in fact transmit HIV to their sexual partners.

The current, overly-broad use of the criminal law increases stigma and discrimination against people living with HIV, spreads misinformation about HIV, undermines public health initiatives and ultimately leads to human rights violations. When people living with HIV still experience overt discrimination and physical violence, disclosure is not easy, especially for those on whom criminalization has a disproportionate impact: women, Indigenous people, migrants and members of the African, Caribbean and Black communities. Furthermore, by equating HIV non-disclosure with aggravated sexual assault, Canadian law harms both people living with HIV and survivors of sexual violence.

But we’ve seen some positive developments in recent years.

In 2014, more than 75 prominent Canadian medical experts signed an important consensus statement, which has been an important tool for advocates and has since been used by defense lawyers representing people living with HIV, judges and scientific experts testifying in court with some positive impacts already emerging.

On World AIDS Day (December 1, 2016), federal Minister of Justice Jody Wilson-Raybould made a historic statement acknowledging the problem of the over-criminalization of HIV non-disclosure and the need for the criminal justice system to adapt to better reflect the current scientific evidence on HIV transmission. Federal Minister of Health Dr. Jane Philpott, echoing this sentiment, has noted that HIV criminalization in Canada is both a problem and a priority for the government to address.

More recently, the Ontario Working Group on Criminal Law and HIV Exposure has called for an immediate moratorium on all prosecutions in cases of HIV non-disclosure while exploring law reform options and working with the province to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law. Since Canada’s Minister of Justice, and Attorney General of Canada, has denounced the overly broad use of the criminal law in Canada, why does Ontario continue to unjustly prosecute people living with HIV? Tell Ontario’s Attorney General, the Honourable Yasir Naqvi, to stop unjust HIV-related prosecutions: click here to send your message.

Here’s hoping that both federal and provincial attorneys general listen and take action.

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Faces of HIV – Thirty

By Shayne Woodsmith, Faces of Edmonton

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In 1982, Ross Armstrong, a man described by his friend Charles Bidwell, as “full of playful spirit, comfortable in his own skin and so open in expressing himself,” earned his spot to swim for Canada in the first ever Gay Olympic Games. Ross won a silver medal in the 200 metre butterfly and was quoted saying, “There were no losers. The first and the last were cheered equally.” He also learned that organization combined with a political commitment is what produces mass awareness and supported action. This was the spirit of Ross, a man committed to honesty, integrity, and change.

In 1984, Ross Armstrong was diagnosed with AIDS, the first AIDS diagnosis in Edmonton. Shortly after his diagnosis, he became a part of the AIDS Network of Edmonton team (now known as HIV Edmonton), and emerged as the public face of AIDS in Edmonton. Ross died on July 1, 1986, two short years after his diagnosis.

The challenges and suffering Ross endured and the courage he displayed during those first years of the local epidemic led HIV Edmonton to name the hub of their agency, the drop-in centre, the Ross Armstrong Centre. A safe, caring place for HIV positive individuals to meet, have a cup of coffee, or share a nutritious community meal. Breakfast is served every Monday and Friday morning and lunch is served on Wednesdays. Ross Armstrong Week, held Monday and Friday in the middle of each month, provides access to grocery cards, health supplies (multi-vitamins and liquid meal replacement) and hygiene products (razors, shampoo, etc.).

Photography Credit: Shayne Woodsmith
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Faces of HIV – Twenty Nine

By Shayne Woodsmith, Faces of Edmonton

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“I was involved in organizing the first prayer vigil for people with AIDS. We held that in the chapel of the Edmonton General Hospital and we did prayers all night long. We scheduled people to be there and invited people to come pray for those who had AIDS and those who were affected by AIDS. This was in the initial years in the mid-eighties. I went away from this city in the year of 80/81 on a sabbatical from the university, and I had heard something about this rare condition that was being detected in Los Angeles and San Francisco. So when I came back to Edmonton from Texas, people were talking about people coming down with this condition called AIDS, where you don’t die of AIDS, you die from some condition that is acquired because of an immune system deficiency.”

“I used to play volleyball with the first person in Edmonton diagnosed with AIDS—Ross Armstrong. When he came down with it, he was put in the U of A hospital, where I worked. So I would go up to visit him everyday. And everyone was gloved and gowned and masked, and they really didn’t want to go into his room because they were afraid. They had no idea how this was transmitted so they would sort of put his tray of food into the room and then I would go in and visit him and bring his food tray to him. I would say, ‘Ross, I’m sorry I have to look like an alien, but it’s really to protect you from me giving you anything.’ So I would sit on the bed and hug him. Nobody was doing that. And, of course, he died. He was the first person in Edmonton to be publicly known to have AIDS.”

“Even my husband at the time, he came down with AIDS, and when he died in 1989, at his funeral, nobody would say that he had AIDS. We were just enraged. We fought to make it public so it would start being addressed. We had been together for seven years, and he was playing around, and for some reason I didn’t get it.”

“I was the minister of the Metropolitan Community Church and when the folks like Michael Phair got together and applied for a grant to do something about AIDS, they couldn’t receive the grant because they weren’t established as a not-for-profit organization, and they didn’t have charitable status and all the rest of this. I was a friend of Michael’s, so he asked if the church could take our cheque, and I said, ‘Yes.’ And then we paid whatever bills he submitted to us. So we enabled them to work for a year until they got their own not-for-profit. So yes, I was sort of in on the ground floor.”

“The one good thing that came from AIDS is that the community solidified and worked together to face this threat … There are some of us old farts still kicking around from back them, but we probably lost about a generation. As a minister, I did funerals, memorial services, and certainly talked to the people who had HIV. I didn’t get to talk to many parents because so many parents, when they found out their kid had AIDS, they were also finding out that their kid was gay, so they were so in shock that most of them didn’t want to talk to a minister.”

Photography Credit: Shayne Woodsmith
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Faces of HIV – Twenty Eight

By Shayne Woodsmith, Faces of Edmonton

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“Visual AIDS is an archive project that started, I think, twenty-six years ago. It was started pre-HIV medication so when a lot of artists were dying off. Artists and friends of artists in the New York area were concerned that their art practices would be forgotten, and all their work would just be thrown out. It started as a grassroots foundation and it grew. So now it’s the largest archive of work and acts as a hub. The work doesn’t always deal directly with HIV, but they deal with issues revolving around HIV such as vulnerability.” “Lately I’ve been interested about the issue of criminalization surrounding HIV, specifically of non-disclosure of HIV where people have been charged, particularly in Edmonton actually—which has some of the most heinous criminal charges laid against people who were convicted of sexual assault, administering biological substances, or attempted murder for not telling their partners they have HIV and then having some kind of intimacy or sexual contact, regardless of transmissions. I don’t know why Edmonton has a gross history of that. It’s just ignorance.” “The courts strengthened the idea that consent should be the ultimate protection so that people with HIV were seen as having negated consent for not disclosing, so that’s the genesis of where these problems became exponential. How do you undo this idea of consent if we’re medicating people in order that they can have autonomy to make their own decisions about consenting and telling people if they’re positive? Does that have to happen? It used to be the case that the courts in Canada would accept the idea that someone’s virological load or ability to transmit is negated because they’re on medication. So the courts went a step further and asked that people use condoms so the only two conditions they would accept without disclosure were if they met those two conditions—they had to have a negligible viral load and they have to had used a condom. Otherwise potentially the law has the ability to come down with these awful charges. It’s fascinating to me, and it also makes me very angry.”

Photography Credit: Shayne Woodsmith
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Human Trafficking & HIV in Canada

By Karen McCrae, ACT Alberta

Human trafficking is a serious crime that ranks amongst the most severe forms of exploitation worldwide. It is an issue that often evokes images of young girls coerced in brothels in distant countries, children enslaved on cocoa plantations, or exhausted men forced to work in captivity at sea. However, human trafficking is also happening right here in Canada.

Human trafficking is the act of forcing or deceiving an individual into providing sex or labour for personal gain. Right here in our own country, women, children, and men are working long hours for no pay in dirty and degrading conditions or are being forced to engage in sex acts against their will.

ACT Alberta (Action Coalition on Human Trafficking) has been responding to human trafficking in Alberta since 2008. We work collaboratively with law enforcement, government agencies, and non-government organizations to coordinate services for victims of human trafficking, provide training and education, research and collect data on human trafficking, and build capacity for community-based responses.  We do not discriminate and will assist any victim of any kind of trafficking

The breadth of this issue in Canada is hard to measure as human trafficking is a hidden crime. However, according to the International Labour Organization in 2005, “approximately 12.3 million people were held in forced labor, of which 2.45 million had been trafficked into forced labor. Of those, approximately 1.4 million people were trafficked into the sex sector, the majority of them women and girls.”

Our numbers of referrals have doubled on average Karen Picevery year and we expect our numbers to continue to increase. This is a major problem that Albertans need to be aware of as victims are living and working unrecognized around us – hidden in plain sight.

Although much remains unknown, one thing is certain – trafficked people live out their lives in fear and shame. They are at heightened risk of oppression, violence, and serious health issues. Those who have been trafficked for the purpose of sex are at a much higher risk of contracting HIV, as “[…] the rate of infection is higher among sex workers than the general population [and] many women in the sex sector are victims of trafficking.” (UNAIDS, 2007). Victims are tightly controlled by those trafficking them, who will often not let them call their parents, connect with their children, or speak to friends, let alone receive proper medical care, including safer sex options and birth control. More research is urgently needed to determine the rate of HIV infection amongst those who have been victims of human trafficking, both locally and globally.

Existing research shows that HIV and human trafficking are inextricably linked.  “Denying human rights to any one person perpetrates an injustice that has ramifications far beyond the local level.  Indeed, it cripples globally-supported attempts to stem the spread of [HIV] that has no regard for gender, age, race, marital status, sexual orientation, immigration status, or religion.” (Sippel, 2010). Many of those who have been trafficked come from backgrounds of poverty, addiction, child abuse, or mental illness. Aboriginal peoples in Canada are documented to be disproportionately affected by trafficking due to colonialism and discrimination and it is estimated that Aboriginal peoples, although they make up only 4% of the population, account for 12% of all new HIV infections (Statistics Canada, 2011).

Newcomers to Canada, including Temporary Foreign Workers, students, and visitors, are also disproportionately affected. In addition to being targeted by traffickers, newcomers to Canada from countries where HIV is endemic make up only 2.5% of the Canadian population but account for 16.9% of all new HIV infections (PHAC 2014).

Traffickers know how to use vulnerabilities to their own advantage and they lure victims with hopes and dreams for a better future. In ACT Alberta’s experience, victims often know their traffickers – they may be boyfriends, friends, employers, drug dealers, or others in positions of power. Traffickers deceive, manipulate, or force victims into engaging in sex or labour, using their power over an individual to control them.

If you suspect human trafficking, I urge you to call 911, Crime Stoppers or your local law enforcement. Human trafficking is violent and perpetrators of this abuse are often dangerous. If you suspect human trafficking is occurring, report it – do not get involved.  To end human trafficking, we need community collaboration and support for the most vulnerable among us.  We have a responsibility to stand up against this abuse.

To learn more about human trafficking in Alberta and Canada, visit their website.

 

UNAIDS, Summary of the 2008 Report on the Global AIDS Epidemic
UNAIDS, Guidance Note on HIV and Sex Work (New York: UNAIDS, 2009)
International Labour Organization, ―A Global Alliance against Forced Labor: Report of the Director-General
Human Rights, HIV and AIDS, and the Sex Sector: A Brief Overview, Serra Sippel, President, Center for Health and Gender Equity (CHANGE)
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