Judging the epidemic A judicial handbook on HIV, human rights and the law UNAIDS / JC2497E (English original, May 2013) ISBN 978-92-9253-025-9 Copyright © 2013. Joint United Nations Programme on HIV/AIDS (UNAIDS). All rights reserved. Publications produced by UNAIDS can be obtained from the UNAIDS Information Production Unit. Reproduction of graphs, charts, maps and partial text is granted for educational, not-for-profit and commercial purposes as long as proper credit is granted to UNAIDS: UNAIDS + year. For photos, credit must appear as: UNAIDS/name of photographer + year. Reproduction permission or translation-related requests—whether for sale or for non-commercial distribution—should be addressed to the Information Production Unit by e-mail at: [email protected]. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of UNAIDS concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. UNAIDS does not warrant that the information published in this publication is complete and correct and shall not be liable for any damages incurred as a result of its use. Unless otherwise indicated photographs used in this document are used for illustrative purposes only. Unless indicated, any person depicted in the document is a “model”, and use of the photograph does not indicate endorsement by the model of the content of this document nor is there any relation between the model and any of the topics covered in this document. Judging the epidemic A judicial handbook on HIV, human rights and the law Acknowledgements The Joint United Nations Programme on HIV/AIDS (UNAIDS) is grateful to the staff of the Canadian HIV/AIDS Legal Network who wrote and coordinated the development of this handbook. Their dedication and comprehensive research for this work is deeply appreciated. UNAIDS also would like to acknowledge the guidance, input and advice provided by members of the Advisory Committee that informed the structure and content of the handbook. The members of the Advisory Committee were: • Hon. Justice Edwin Cameron, Constitutional Court of South Africa • Professor Amnon Carmi, Secretary‐General, International Organization for Judicial Training • Dr. Mandeep Dhaliwal, Director, HIV, Health and Development Practice, United Nations Development Programme • Hon. Justice Oagile Key Dingake, High Court of Botswana • Ms. Alda Facio, Director, Women, Gender and Justice Programme, United Nations Latin American Institute for Crime Prevention • Ms. Anne Tierney Goldstein, Human Rights Education Director, International Association of Women Judges • Ms. Genevieve Harris, Associate, International Drug Policy Consortium • Hon. Michael Kirby, Global Commission on HIV and the Law, and UNAIDS Reference Group on HIV/AIDS and Human Rights • Professor Dr. Krzysztof Krajewski, Head, Chair of Criminology, Jagiellonian University, Krakow, Poland • Ms. Adriana Ortega, Director, Gender Equity Office, Mexican National Supreme Court of Justice • Hon. Justice Marc Rosenberg, Court of Appeal for Ontario, Canada • Hon. Ajit Prakash Shah, Chairperson, Broadcasting Content Complaints Council of India • Hon. Justice Georgina Theodora Wood, Chief Justice of Ghana Table of Contents Acronyms viii List of Cases x Message xiv Foreword: A judge’s perspective xv Note to the reader xii Introduction 1 PART 1: The science and medicine of HIV 5 Chapter 1: How is HIV transmitted? 7 Chapter 2: HIV disease and treatment 9 HIV infection and progression 9 HIV treatment 9 HIV treatment and the reduction of HIV transmission 10 Importance of adherence to treatment and monitoring treatment effectiveness 10 Other health care needs of people living with or vulnerable to HIV 11 Chapter 3: Sexual transmission of HIV and living with HIV 13 Introduction 13 The sexual transmission of HIV 13 Heterosexual sex 14 Oral sex 15 Anal intercourse 15 Factors modifying the risk of transmission 16 Factors that reduce the risk of transmission 16 Condoms 16 Circumcision 16 Antiretroviral therapy and undetectable viral load 17 Factors that increase the risk of transmission 18 Stage of infection 18 Sexually transmitted infections (STIs) 19 Living with HIV: A chronic manageable condition 19 UNAIDS i PART 2: Legal decisions that promote human rights in the context of HIV 21 Chapter 4: Discrimination on the basis of actual or presumed HIV-positive status 23 Summary 23 Introduction 25 Common fact patterns coming before the courts 26 Human rights standards and discrimination based on actual or presumed HIV-positive status 27 International law 27 a) HIV as “health status” 27 b) HIV as a disability 28 National law 28 Adjudicating HIV-related discrimination cases: Factors to consider 29 1. Robust and meaningful protection against discrimination 29 2. Protecting public health seldom justifies blanket exclusions of people living with HIV 31 3. An individual assessment is required before disqualifying a person living with (or perceived to be living with) HIV from employment or educational opportunities 33 Highlighted cases 37 South Africa: Court prohibits HIV-based employment discrimination 37 Hoffmann v. South African Airways, Constitutional Court of South Africa, Case CCT 17/00 (2000) 37 European Court of Human Rights: Court finds that refusal to grant a residence permit because of HIV-positive status is unjustifiable discrimination 40 Kiyutin v. Russia, European Court of Human Rights, 10 March 2011, app. 2700/10 40 Chapter 5: The criminal law and HIV non-disclosure, exposure and/or transmission 43 Summary 43 Introduction 45 Adjudicating cases of HIV non-disclosure, HIV exposure and/or transmission in a sexual context: Factors to consider 48 1. The science on HIV and HIV transmission risk 48 a) HIV transmission 48 Conditions required to transmit HIV from one person to another 48 Transmission routes 49 Activities with negligible or no risk of HIV transmission 49 Factors known to reduce the risk of sexual transmission 49 Factors known to increase the risk of sexual transmission 49 b) HIV infection 51 Key facts 51 c) Proving HIV transmission 51 ii 2. Evidence of a culpable mind 52 a) Malicious intent to transmit HIV 52 b) No intent to transmit HIV 53 3. Defences 54 a) Consent and disclosure 54 b) Use of reasonable precautions to protect a partner 55 c) Fear of violence, abandonment or other abuse 56 4. Prosecutions for vertical transmission of HIV 56 5. Sentencing in HIV exposure or transmission cases 58 Highlighted case and guidance England: Court rules that informed consent to the risk of HIV transmission is valid defence 59 R v. Dica [2004] EWCA Crim 1103, Court of Appeal (England and Wales) 59 United Kingdom: Crown Prosecution Service (CPS) issues guidance for criminal prosecutions related to HIV transmission 61 The Crown Prosecution Service (CPS), Legal Guidance on Intentional or Reckless Sexual Transmission of Infection: Key provisions (England and Wales) 61 Chapter 6: Sexual assault and domestic violence 67 Summary 67 Introduction 69 Human rights standards and protecting women from violence 70 International law 70 National laws 71 Adjudicating cases involving domestic violence and sexual assault: Factors to consider 71 1. A range of situations covered by domestic violence legislation 71 a) Types of domestic relationships 71 b) Forms of domestic violence 72 2. Protection orders: Legal interventions to prevent domestic violence 72 3. A range of situations covered by sexual violence legislation 74 4. Marital rape 75 5. Evidentiary considerations 78 a) Cautionary rules and corroboration requirements 78 b) Complainant’s previous sexual conduct 78 c) Alternative arrangements for giving evidence 79 6. Privacy concerns 80 Highlighted case 81 Brazil: The Inter-American Commission on Human Rights found that the state failed to meet its due diligence obligation to tackle domestic violence 81 Inter-American Commission on Human Rights, Report No. 54/01, Case 12.051, Maria da Penha (Brazil), 16 April 2001 81 iii Chapter 7: Drug laws, harm reduction and the rights of people who use drugs 85 Summary 85 Introduction 87 Human rights standards and drug laws 88 International law 88 National laws 90 Adjudicating cases involving drug possession: Factors concerning HIV to consider 90 1. The proportionality test and incarceration for drug offences 90 a) Is incarceration a necessary response for drug-related offences? 92 b) To what extent can incarceration result in the achievement of the desired objectives? 92 c) Does the response go beyond what is needed? 93 2. Drug dependence treatment considerations related to sentencing 94 3. Prosecutions in relation to harm reduction services 95 4. How is the criminal law enforced against people who use drugs? 96 Highlighted cases 97 United States: Supreme Court upholds significant deviation from the sentencing guidelines 97 Brian Gall v. United States of America, S. Ct. No 06–7949 (2007), Supreme Court of the United States, 2007 97 Argentina: Supreme Court declares criminalisation of drug possession for personal consumption unconstitutional 99 Arriola, Sebastian and Others, Case No. 9080, Supreme Court of Argentina, 2009 99 Canada: Supreme Court holds that the federal government must grant a supervised injection facility an exemption from criminal liability under national drug laws 101 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, Supreme Court of Canada, 2011 101 Chapter