Non-Discrimination Law Guide

posted: 04/04/2011

The first ever Handbook on European Non-Discrimination Law is now available. It offers practical guidance to help people with discrimination claims at the UK’s Courts and Tribunals. Since the UK made the Human Rights Act part of UK law almost all discrimination cases are dealt with in the UK. The handbook is based on the decisions made by the European Court of Human Rights at Strasbourg and the European Court of Justice in Brussels.

The handbook is intended for advice workers, human rights organisations, equality bodies like the UK's Equality and Human Rights Commission, as well as lawyers, judges, and prosecutors.

It contains the context and background to European non-discrimination law (including the UN human rights treaties), discrimination categories and defences, the scope of the law (including who is protected), and the grounds protected, such as sex, sexuality, disability, age, race and nationality.

It’s been published jointly by the European Union Agency for Fundamental Rights (FRA) and the European Court of Human Rights, and is the first comprehensive guide to all European non-discrimination law.
 

"The Guide will improve access to justice for victims of discrimination across Europe. It sets out the complicated system of rules in a simple and comprehensive manner. It is fitting that this successful joint venture should be launched as we prepare for the accession of the European Union to the European Convention on Human Rights."
Jean-Paul Costa president of ECtHR

Handbook on European Non-Discrimination Law

European Anti-Discrimination Law Review

Behind Bars – HIV Prosecution Harm

posted: 09/12/2010

Behind Bars is a collection of interviews exposing how criminal laws on HIV transmission are affecting people’s working and private lives, all around the world.

Personal Prosecution Tales
The personal stories illustrate the dilemmas faced by doctors, lawyers, researchers and advocates. They include the stories of

• a doctor who was forced to aid a police investigation against her ethical principles,
• a woman living with HIV who prosecuted her former partner, and
• a lawyer who advocated in an HIV transmission case.

There is little research showing precisely what effect HIV prosecutions have. But prosecutions further marginalise people already vulnerable to HIV infection, including women, men who have sex with men, sex workers and people who use drugs. Legislation and legal practice is different in every country around the world, and we need to learn more about the effect of using criminal law on HIV in each country. By fuelling stigma, prosecutions undermine the HIV efforts to prevent, treat and care.

World of Prosecutions
From the UK to the USA, Mali to Mozambique, Azerbaijan to Australia, criminal laws are increasingly being used to prosecute HIV transmission or exposure. But, as the interviews reveal, criminal law is a blunt instrument for HIV prevention.

More denial, secrecy and fear
Behind Bars show how a simplistic ‘law-and-order’ response to HIV intensifies a climate of denial, secrecy and fear and provides a fertile breeding ground for the spread of HIV.

Paying the prosecutions price
Prosecuting wilful transmission of HIV is proving a costly intervention - in terms of time and money spent on investigating individuals’ private lives and determining the burden of proof – and seems to have had limited impact on HIV prevention.
 

Contributor Jan Albert, Professor of Infectious Diseases at the Karolinska Institute Sweden, says:
“Since I’ve been an expert witness in court trials, my personal opinion regarding people living with the virus has changed. In my experience the accused are seldom ‘criminals’. There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media. There will be more and more HIV infected people living in Sweden, and the rest of the world. Do we want to turn a proportion of our population into potential criminals every time they have sex?”

Kevin Osborne, Senior HIV Advisor for IPPF, said:
“These stories show that criminalisng the transmission of HIV is actually undermining our efforts to prevent the spread of HIV. Fear of prosecution deters people from coming forward for testing and counselling; policing the bedroom effectively drives the problem underground.”

Video campaign
The Behind Bars videos and interviews can be found at International Planned Parenthood Federation. The short campaign video highlights the impact of prosecutions. The film is available on YouTube and on the IPPF website.

The video is two-minutes long, stylised and artistic, showing the humanness of sex, of relationships and of HIV. The people in the film share their own, diverse stories (they are not professional actors), and many are living with HIV. It builds on the Declaration of Sexual Rights and purposefully focuses on sex – irrespective of how, where, with whom and why people have sex.

HIV and Law Book

posted: 28/10/2010

HIV & the criminal law  is now for sale. The book was launched as a free web resource during the International AIDS Conference in Vienna, and now you can buy it in print from the NAM shop.
 

HIV & the criminal law explores the issues relating to the criminalisation of HIV exposure and transmission around the world, with information on current laws and practice internationally.

Produced in a handy A5 size, HIV & the criminal law is normally £34.95, but you can buy it with £5 off, at their special introductory price of £29.95.
 

Contact NAM for more details, or to place an order, on 020 7840 0050 or by emailing.
 

Rolling Back HIV Prosecutions

posted: 03/08/2010

While over 600 people have now been convicted worldwide of transmitting or exposing others to HIV, and some countries are making new laws for prosecuting HIV, there is some good news.

Ghana, Mauritius and other countries have rejected a ‘model law’ that proposed prosecuting HIV transmission; in the Netherlands a new policy makes prosecutions for unintentional transmission unlikely; and Sierra Leone has ended its policy of prosecuting mother to child transmission. In England and Wales, work with police, prosecutors and expert virologists have helped make successful prosecutions a rarity.
 

UNAIDS Priority
Susan Timberlake of UNAIDS stated at a International AIDS Conference session that it was now a “corporate priority” of UNAIDS to “remove punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV”.
She said that it was essential that advocacy does not just consider laws, but also must dealwith law enforcement and access to justice.
 

Working with legislative bodies to remove laws is an extremely complex and time-consuming process that requires political know-how and can backfire.
 

Harm Reduction - Working with Police and Prosecutors

Timberlake suggested law enforcement approaches (engaging with the police, prosecutors and judges who make decisions on taking cases forward or not) can be more productive than risking law repeal which could backfire and make the situation worse. She said that any countries that do not yet have prosecutorial guidelines should make these high priority.

In England and Wales, because helpful law reform is unlikely, a lot of effort has been put into reducing the harm of prosecutions – and as a result of HIV prosecution and investigation guidelines few cases get to court, and convictions are now rare.
 

An English court accepted expert scientific evidence that showed the limits of phylogenetic analysis (the scientific evidence comparing the viral strains of the complainant and the accused). At first prosecutors presented phylogenetic analysis as providing definitive proof that the accused must be guilty. However expert evidence showed that two viral strains can seem closely related without there being any certainty about who had infected who. It is now a key part of police investigation guidelines and prosecution policy to use phylogenetic analysis. This evidence seriously weakens most prosecution cases and convictions are now rare.
 

Knowledge, Representation and Stigma

More still needs to be done to improve people with HIV’s knowledge of laws and their rights (‘legal literacy’) and access to legal support and services. This needs to be linked with broader efforts to reduce HIV stigma and discrimination.
 

New Book on HIV and Criminal Law

This International Conference meeting also saw the publication of HIV and the Criminal Law, a new guide to the use of the criminal law in prosecutions related to HIV transmission, written by Edwin Bernard and published free online by NAM.

Videos

The video of the meeting is now online at aidsmap
The video of Edwin's presentation and press conference

Sources
Criminalising Transmission

Tactics to Stem Tide of Prosecutions

HIV and the Criminal Law

posted: 22/07/2010

A new book, HIV and the Criminal Law, has just appeared online from NAM/aidsmap. It will also be published on paper in the autumn.

HIV & the Criminal Law is about criminalisation of HIV transmission and exposure and the effects this has on individuals and society. It is written for people living with HIV, advisers, policy and lawmakers, people in the criminal justice system, and journalists.

George House Trust's policy expert Chris Morley helped with the production of the book by commenting and making suggestions on some of the chapters.

Here's the book's contents which available to read in full here

• Preface By The Hon. Michael Kirby AC CMG and Edwin Cameron, Justice of the Constitutional Court of South Africa
• Introduction - How this resource addresses the criminalisation of HIV exposure and transmission
• Fundamentals - An overview of the global HIV pandemic, and the role of human rights and the law in the international response to HIV
• Laws - A history of the criminalisation of HIV exposure and transmission, and a brief explanation of the kinds of laws used to do this
• Harm - Considers the actual and perceived impact of HIV on wellbeing, how these inform legislation and the legal construction of HIV-related harm
• Responsibility - Looks at two areas of responsiblity for HIV prevention: responsibility for HIV-related sexual risk-taking and responsibility to disclose a known HIV-positive status to a sexual partner
• Risk - An examination of prosecuted behaviours, using scientific evidence to determine actual risk, and how this evidence has been applied in jurisdictions worldwide
• Proof - Foreseeability, intent, causality and consent are key elements in establishing criminal culpability. The challenges and practice in proving these in HIV exposure and transmission cases
• Impact - An assessment of the impact of criminalisation and HIV – on individuals, communities, countries and the course of the global HIV epidemic
• Details: international resource and individual country data - a summary of laws, prosecutions and responses to criminalisation of HIV exposure or transmission internationally, and key sources of more information.

Ordering paper copies of the book

If you want to buy a paper copy when this appears in the autumn please email NAM