HIV/AIDS Policy & Law Review 12(2-3) — December 2007 - CATIE

Canadian HIV/AIDS Legal NetworkHIV/AIDSPOLICY & LAWREVIEWVOLUME 12, NUMBER 2/3, DECEMBER 2007Legislation contagion: the spread ofproblematic new HIV laws in Western AfricaModel legislation can be a useful tool for fighting HIV/AIDS, but only if it is based on sound human rightsprinciples. In 2004, AWARE–HIV/AIDS prepared a model law on HIV for use in Western Africa. Severalcountries in the region have already drafted national laws based on the model law. In this article, RichardPearshouse reviews some of the key provisions in the model law, identifying a number of human rightsconcerns that should be addressed before such legislation should be considered as a model to be implementedby national legislatures.IntroductionIt has been almost 20 years since the Australian High Courtjudge Justice Michael Kirby warned of the spread of a dangerouskind of a virus, “highly inefficient laws.” 1 Even at thatearly stage of the epidemic, Kirby identified what he describedas “variant strains” of highly inefficient laws, such as laws providingfor the mandatory testing of vulnerable groups, or restrictionson the freedom of movement of people living with HIV.cont’d on page 5Production of the HIV/AIDSPolicy & Law Review hasbeen made possible, in part,by the contributions of theAmerican Bar Association(ABA) and the Law andHealth Initiative and theHealth Media Project ofthe Open Society InstitutePublic Health Program.Trilingual issueThis issue has been published in three languages:English, French and Russian — a first for theReview! The Russian version is located in themiddle of this volume, and its page edges areshaded grey.Special Section:Law and Health InitiativeThis issue of the Review includes a special sectionwhich contains a series of articles describinginterventions in Africa and Eastern Europe thatlink AIDS and human rights. These interventionswere piloted by the Law and Health Initiativeof the Open Society Institute Public HealthProgram.See page 59.Выпуск на трех языкахДанный выпуск журнала публикуется на трехязыках: английском, французском и русском– впервые в истории Обзора! Русская версиярасположена в середине данного тома;края страниц русской версии окрашены всерый цвет.

HIV/AIDS POLICY & LAW REVIEWPublished by the Canadian HIV/AIDS Legal Network1240 Bay Street, Suite 600Toronto, OntarioCanada M5R 2A7Tel: +1 416 595-1666Fax: +1 416 595-0094info@aidslaw.cawww.aidslaw.caProviding analysis and summaries of current developments inHIV/AIDS-related policy and law, the HIV/AIDS Policy & Law Reviewpromotes education and the exchange of information,ideas, and experiences from an international perspective.The editors welcome the submission of articles,commentaries and news stories.Managing Editor:David Garmaise dgarmaise@gmail.comEditor, Canadian Developments:Alison Symington asymington@aidslaw.caEditor, International Developments:Richard Pearshouse rpearshouse@aidslaw.caEditor, HIV/AIDS in the Courts — Canada:Sandra Ka Hon Chu schu@aidslaw.caEditor, HIV/AIDS in the Courts — International;Russian-language editor: Leah Utyasheva lutyasheva@aidslaw.caCoordinator: Vajdon SohailiTranslators: Roger Caron, Jean Dussault, Josée Dussault,Johanne Forget, Natasha Pakhomova, Liana IbragimovaTypesetting: Liane KeightleyFor the list of members of the Editorial Board of the HIV/AIDS Policy& Law Review, please visit www.aidslaw.ca/review.© Canadian HIV/AIDS Legal Network, 2007. We encourage thedissemination of the information contained in the Review and willgrant permission to reprint material, provided that proper credit isgiven. The editors kindly request a copy of any publication in whichmaterial from the Review is used.ISSN 1712-624XSubscriptionsThe HIV/AIDS Policy & Law Review is published three times per year.To subscribe, write to the address above.Annual rate:Within Canada: $CA 75.00International: $US 125.00 (payment in US funds required)Single or back issues:Within Canada: $CA 12.00International: $US 12.00 (payment in US funds required)The Review has been published since 1994. Issues 1(1) to 5(2/3) werepublished under the title Canadian HIV/AIDS Policy & Law Newsletter.Issues 5(4) to 9(2) were published under the title Canadian HIV/AIDSPolicy & Law Review.Current and back issues of the Review are available viawww.aidslaw.ca/review.For membership information, write to the address above or visitwww.aidslaw.ca/joinus.Production of the HIV/AIDS Policy & Law Review has beenmade possible, in part, by the contributions of the AmericanBar Association (ABA) and the Law and Health Initiativeand the Health Media Project of the Open Society InstitutePublic Health Program.The opinions expressed in this publication are those ofthe authors/researchers and do not necessarily reflect theofficial views of the American Bar Association (ABA), theLaw and Health Initiative and the Health Media Project ofthe Open Society Institute Public Health Program, or theCanadian HIV/AIDS Legal Network.About the Canadian HIV/AIDS Legal NetworkThe Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotesthe human rights of people living with and vulnerable to HIV/AIDS,in Canada and internationally, through research, legal and policyanalysis, education and community mobilization. The Legal Networkis Canada’s leading advocacy organization working on the legal andhuman rights issues raised by HIV/AIDS.About the American Bar Association (ABA)With more than 413,000 members, the American Bar Association(ABA) (www.abanet.org) is the largest voluntary professionalmembership organization in the world. As the national voice of thelegal profession, the ABA works to improve the administration ofjustice, promotes programs that assist lawyers and judges in theirwork, accredits law schools, provides continuing legal education,and works to build public understanding around the world of theimportance of the rule of law in a democratic society.About the Law and Health Initiative and the Health MediaProject of the Open Society Institute Public Health ProgramThe Open Society Institute (OSI) (www.soros.org), a private operatingand grantmaking foundation, aims to shape public policy to promotedemocratic governance, human rights, and economic, legal andsocial reform. The Law and Health Initiative and the Health MediaProject are parts of the OSI Public Health Program, which promoteshealth policies based on social inclusion, human rights, justice andscientific evidence. The Law and Health Initiative fosters civil societyefforts to advance health and human rights through use of legal remediesas creative tools to advance public health. The Health MediaProject aims to increase public awareness of health issues, especiallystigmatized health issues involving marginalized populations.We would like to hear your views and opinions. Letters to the editor, responses to specificComments? articles, and comments on the format of the Review are welcome and encouraged.2 HIV/AIDS POLICY & LAW REVIEW

CONTENTSFEATURESLegislation contagion: the spread of problematic new HIV laws inWestern Africa 1Drug treatment courts in Canada: an evidence-based review 12Use of soft law to address HIV/AIDS in Southeast Asia 18CANADIAN DEVELOPMENTSSupervised injection facility granted another temporary extension;legal action launched 21First test of WTO mechanism for procuring generic medicines undercompulsory licence, via Canada’s Access to Medicines Regime 23Two Charter challenges launched against Canada’s sex work laws 26Conservative government announces new anti-drug strategy 27Ottawa: Crack pipe program cancelled by city council 29In brief 30Alberta proclaims law authorizing forced HIV testingAnonymous HIV tests made available in ManitobaNew 60-second HIV test available in OntarioSafer needles mandated for Ontario healthcare facilitiesTwo new studies confirm higher hepatitis C and HIV infection amonginmate populationsINTERNATIONAL DEVELOPMENTSSouth Africa: Firing of Deputy Health Minister Madlala-Routledge 33China: Two steps forward, one step back for new AIDS rights organization 35Thailand: Report analyses barriers to ART for people who inject drugs 36Botswana and Swaziland: Report links violations of women’s rights to HIV 38UN agencies issue new guidelines for HIV testing 39In brief 41Singapore retains Penal Code provision criminalizing sex between menAPEC: Members adopt broad HIV workplace guidelinesHIV/AIDS IN THE COURTS – CANADASenior administrators of blood system acquitted of criminal charges intainted blood tragedy 42Federal Court says Crown not liable for HIV-positive inmate’s illness 43Criminal law and HIV transmission or exposure: four new cases 45cont’dVOLUME 12, NUMBER 2/3, DECEMBER 2007 3

In brief 46Application for judicial review allowed in case of HIV-positive refugee claimantHIV/AIDS educator’s application to stop deportation rejectedFederal Court rejects motion to stop deportation of HIV-positive woman to ZambiaCourt of Appeal rules that HIV status is not a reason for denying contact betweenchild and parentSettlement approved in case of improperly sterilized medical equipmentClaimants must establish entitlement to have damages assessed by HIV fund’s refereeHIV/AIDS IN THE COURTS – INTERNATIONALIndia: Court upholds patent law denying patents for slightly modified versionsof existing drugs 50Pardon granted to health care workers sentenced to death by Libyan court 52U.N. Committee holds that Columbia failed to protect right to benefits forsame sex couple 53South Africa: Constitutional Court protects privacy rights of people livingwith HIV 55Criminal law and HIV/AIDS: two new cases 56In brief 57Central Asia: Several HIV outbreaks linked to transfusions of tainted blood andpoor sanitary conditions in hospitalsRussia: Courts find authorities responsible in two cases of HIV transmissionin hospitalsSPECIAL SECTION — THE LAW AND HEALTH INITIATIVE:LINKING HIV/AIDS AND HUMAN RIGHTSPutting law and human rights on the agenda: an introduction to the articlesin this special section 59Integrating health, psychosocial and legal support for pregnant women inSouth Africa 61Increasing access to HIV testing and counselling while respecting human rights 63Comprehensive care: palliative care and legal services in South Africa 66Legal aid works! Harm reduction and legal services in Poltava, Ukraine 67Georgia: Anti-drug law violates human rights 69First HIV legal precedent in Kyrgyzstan: breach of medical privacy 70Swaziland: Widows fighting for their rights 72Responding to the rising tide of calls for the criminalization of HIVtransmission in southern Africa 73Home-based care: who is responsible? 74Documenting human rights violations against sex workers in Kenya 764 HIV/AIDS POLICY & LAW REVIEW

Legislation contagion: the spread ofproblematic new HIV laws in Western Africacont’d from page 1He noted thatthe virus of which I speak is notdetectable under the microscope. It isnonetheless a tangible development,which may be detected in a growingnumber of societies. In some ways,it is as frightening and dangerous asthe AIDS virus itself. It attacks notthe body of an individual but the bodypolitic. 2In the twenty years since this warning,a considerable number of countriesacross the globe have chosen toadopt national laws on HIV/AIDS.Frequently, these are general HIVlaws – i.e., wide-ranging, “omnibus”laws specifically about HIV.(Not all countries have adoptedgeneral HIV laws. Some jurisdictionshave chosen to revise existinglaws, such as those relating to publichealth or anti-discrimination — whileothers have not adopted specific legislation,but instead have establisheda national response in a frameworkpolicy document, such as a nationalstrategic plan.)While there is no established formatper se for the general HIV laws,there are now enough examples thatit is possible to identify common features,positive and negative. Often,such laws establish a national body toco-ordinate activities on HIV/AIDSand undertake surveillance; mandateeducation and information activities;provide for the safety of blood, tissueand organ supplies; establish the legalprinciples underpinning HIV testingand counselling; contain protectionsagainst HIV-related discrimination;and include guarantees regarding theconfidentiality of HIV status. HIVlaws can also provide for criminalpenalties for certain breaches of thelaw, and may even include specificoffences of transmission of, or exposureto, HIV.Practically unnoticed by those outsidethe region, Western Africa haswitnessed a proliferation of nationalHIV laws in the last few years. Since2005, seven national HIV laws havebeen passed in the region (in Benin,Guinea, Guinea-Bissau, Mali, Niger,Togo and, most recently, SierraLeone). 3 According to one observer,a further six countries currently havenational HIV bills under development.4 These developments makeWestern Africa one of the most “legislated”regions in the world (if notthe most legislated) when it comes toHIV.The development of so many HIVlaws so quickly has not come aboutby chance. Rather, it a consequenceof a project to promote a model lawon HIV in the region. 5Model lawIn September 2004, a small project,Action for West Africa Region–HIV/AIDS (AWARE–HIV/AIDS),held a workshop in N’djamena, Chad.Based in Ghana, AWARE–HIV/AIDSoperates across Western Africa. Itreceives USAID funding, and isimplemented by Family HealthInternational with additional fundingfrom US-based organizations such asPopulation Service International andthe Constella Futures Group. 6The stated purpose of the workshopheld in N’djamena was to adopta model law on HIV. A large numberof parliamentarians from the regionattended. Over the three daysof the meeting, a model law onHIV/AIDS for West and CentralAfrica (the model law) was adoptedby the participants, together witha plan to promote the model lawthroughout the region.Model laws are only usefulif they are substantivelygood laws; otherwise, theproblems and errors riskbeing repeated in lawsbased on the model law.Model legislation is a relativelycommon tool for law reform. Itinvolves the development of a legislative“template” which individualjurisdictions are free to modify andadopt. Model legislation offers theadvantages of sharing experiencesand avoiding the duplication of draftingseparate laws in each jurisdiction.VOLUME 12, NUMBER 2/3, DECEMBER 2007 5

Legislation contagionThe UN, for example, has model legislationagainst racial discrimination. 7Model legislation is also effective instandardizing legal approaches acrossjurisdictions with similar legislativeframeworks, including within countriesthat have a federal system ofgovernment.However, model laws are onlyuseful if they are substantively goodlaws; otherwise, the errors and problemscontained in the model riskbeing repeated in laws that are basedon the model law.The AWARE- HIV/AIDS modellaw is described in press releasesas addressing the need for “humanrights legislation in that region toprotect those who are infected andexposed to HIV.” 8 In its introduction,the model law notes that[t]he irrational fear of this infectionis fuelled by ignorance, leading toprejudices, discrimination and stigmatisationof PLWHA and those relatedto them. The violation of the humanrights of people affected or infectedby HIV/AIDS is of critical concern inthe prevention, treatment and managementof HIV/AIDS. 9There are several positive features ofthe model law, including:• provisions guaranteeing pre- andpost-test counselling;• provisions guaranteeing healthcare services for people livingwith HIV/AIDS (PLHIV);• protections of medical confidentiality;and• prohibitions of discrimination onthe basis of actual or perceivedHIV status, including in theworkplace, in educational facilities,in health care settings, andin relation to credit and insurancecoverage.However, when examined througha human-rights lens, the model lawcontains a number of problematicprovisions.The AWARE–HIV/AIDSmodel law through ahuman-rights lensThere exists specific guidance onhow human rights should be incorporatedinto HIV legislation. Forexample, the International Guidelineson HIV/AIDS and Human Rights(International Guidelines), whichwere developed at an series of expertconsultation meetings convened bythe U.N. High Commissioner forHuman Rights (OHCHR) and theJoint United Nations Programme onHIV/AIDS (UNAIDS), contain 12specific guidelines on how humanrights should be promoted and protectedin the context of the HIV/AIDSepidemic. 10The Handbook for Legislators onHIV/AIDS, Law and Human Rights(Handbook for Legislators), developedby the Inter-ParliamentaryUnion and UNAIDS in 1999, 11presents concrete measures thatlegislators and state officials cantake to implement the InternationalGuidelines.Unfortunately, many parts ofthe model law run counter to thisguidance.Education and informationArticle 2 of the model law providesfor the establishment of education andinformation campaigns in schools.One part of this Article states that “[i]tis forbidden to teach courses such asthe one provided for in this Article tominors without prior consultation withparents whose approval is requiredboth for the content and the materialsused for such as course.”Such an approach is at odds withthe reality of the age of first sexualintercourse in many countries. InMali and Guinea, for example, themedian age of first intercourse forgirls is 16. 12 Children’s access tohealth education should not be determinedby what their parents think isappropriate.Rather, comprehensive educationprograms that provide complete, factualand unbiased information aboutHIV prevention, including informationabout the correct and consistentuse of condoms, are crucial foradolescents and young adults in suchcontexts. Access to information aboutHIV/AIDS is a human right.The International Covenant onCivil and Political Rights (ICCPR)guarantees that all people have theright to “seek, receive and impartinformation of all kinds,” includinginformation about their health. 13 Theright to education is guaranteed bynumerous international legal instruments,including the Convention onthe Rights of the Child. 14The International Guidelinescall on states to take positive stepsto “ensure the access of childrenand adolescents to adequate healthinformation and education, includinginformation related to HIV/AIDSprevention and care, inside and outsideschool, which is tailored appropriatelyto age level and capacity andenables them to deal positively withtheir sexuality.” 15Disclosure obligationsand the “duty to warn”Article 26 of the model law requiresa person diagnosed with HIV todisclose his or her HIV status to a“spouse or regular sexual partner” assoon as possible and at most withinsix weeks of the diagnosis. The6 HIV/AIDS POLICY & LAW REVIEW

Legislation contagiontesting centre shall be required todisclose to spouses or sexual partnersafter six weeks, “provided all effortsare made to enable to partners tohave full understanding of thesituation.”This requirement is overly broad.Why is disclosure required by law,without regard to the degree of riskof transmission? Requiring this blanketdisclosure to every sexual partner— regardless of such things as thesexual conduct in question, whetherprecautions to prevent transmissionare taken, the PLHIV’s ability todisclose safely, and the PLHIV’s concernsabout repercussions — unjustifiablyinfringes privacy and exposesPLHIV to stigma, discrimination,violence and other abuse.Disclosure of HIV-positivestatus can be difficult forvarious reasons, not leastthe stigma and shame thatoften surround a diagnosisof HIV infection.Disclosure of HIV-positive statuscan be particularly difficult for variousreasons, not least the stigma andshame that still too often surround adiagnosis of HIV infection. In somecases — particularly for women —fear of violence may be a reason fornot notifying a partner. Some jurisdictionsinclude screening for domesticviolence or referral to specializedservices for victims of domesticviolence as part of the partner notificationprocess. 16 The InternationalGuidelines recommend voluntarypartner notification, but with provisionfor exceptional circumstances:Public health legislation should authorize,but not require, that health-careprofessionals decide, on the basis ofeach individual case and ethical considerations,whether to inform theirpatients’ sexual partners of the HIVstatus of their patient. Such a decisionshould only be made in accordancewith the following criteria:• The HIV-positive person in questionhas been thoroughly counselled;• Counselling of the HIV-positiveperson has failed to achieve appropriatebehavioural changes;• The HIV-positive person hasrefused to notify, or consent to thenotification of his/her partner(s);• A real risk of HIV transmission tothe partner(s) exists;• The HIV-positive person is givenreasonable advance notice;• The identity of the HIV-positiveperson is concealed from thepartner(s), if this is possible inpractice;• Follow-up is provided to ensuresupport to those involved, as necessary.17HIV testing issuesArticle 18 of the model law prohibitsmandatory HIV testing, but creates anumber of specific exceptions:• “when a person is indicted forHIV infection or attempt to infectanother person with HIV”;• when a person is indicted for rape;• “when determining HIV status isnecessary to solve a matrimonialconflict”;• organ, cell or blood donations; or• “when a pregnant woman undergoesa medical checkup.” 18Because of the invasive nature ofmandatory and compulsory HIVtesting, such testing violates an individual’sright to privacy and rightto bodily integrity. 19 HIV testingwithout consent is almost never justified20 and, as with other infringementsof human rights, requirescareful scrutiny of the justificationsclaimed.Compulsory testing of peopleindicted on charges of rape andHIV infection or attemptedinfectionLegislating compulsory HIV testingof people accused of such crimesshould be undertaken with extremecaution. The primary reasons are thatsuch testing:• does not provide timely or reliableinformation about the sexualassault survivor’s risks of contractingHIV infection; 21• is a misdirected, potentially negativeapproach to addressing theneeds of a sexual assault survivor;22• infringes on the rights of anaccused to bodily integrity, privacyand human dignity; and 23• might not facilitate the survivor’spsychological recovery. 24The presumed goal of compulsorytesting of accused sexual offendersis to provide an opportunity for victimsto receive post-exposure prophylaxis(PEP) where they may havebeen exposed to HIV. However, theVOLUME 12, NUMBER 2/3, DECEMBER 2007 7

Legislation contagionlaw should ensure that all victimsof sexual offences are given accessto PEP and counselling about PEP,regardless of whether compulsorytesting of sexual offenders is mandated.Compulsory testing toresolve a marital disputeRarely, if ever, will the resolutionof a matrimonial conflict requireforced HIV testing. Moreover, itis not recommended that HIV statusbe a ground for voiding a marriagebecause this would increase stigmaagainst people living with HIV.Compulsory testingof pregnant womenA UNAIDS policy statement on HIVtesting and counselling states that[r]egardless of the presence of riskfactors or the potential for effectiveintervention to prevent transmission,[pregnant] women should not becoerced into testing, or tested withoutconsent. Instead, they should be givenall relevant information and allowedto make their own decisions aboutHIV testing, reproduction and infantfeeding. 25The routine offer of HIV testing topregnant women (as distinct fromroutine testing, where testing is doneautomatically unless the personexplicitly refuses), accompanied bycounselling and informed consent,is an appropriate response that seeksboth to advance public health objectivesand to respect, protect and fulfilhuman rights.Criminalisation of HIVtransmission or exposureArticle 36 of the model law addressesthe issue of criminalization ofHIV transmission or exposure.Unfortunately, particularly given thecomplexity of this issue, Article 36is awkwardly drafted and unclear.For no apparent reason, the order ofthe sub-paragraphs is reversed in theFrench and English versions, andthere are clear discrepancies betweenthe texts of each version.One portion of Article 36 of themodel law creates an offence of “wilfultransmission.” It states, “Anyperson who is guilty of wilful transmissionof HIV shall be sanctionedwith … [penalty].” “Wilful transmission”is defined in Article 1 as transmissionof HIV “through any meansby a person with full knowledge ofhis/her HIV/AIDS status to anotherperson.” “HIV transmission” is alsodefined, with the clarification thatinfection “can occur through sexualintercourse, blood transfusion or thesharing of intravenous needle[s],skin piercing instruments orthrough [m]other-to-child transmission.”To the extent that criminal lawis used in the context of HIV, theInternational Guidelines recommendthat:[c]riminal and/or public health shouldnot include specific offences againstthe deliberate and intentional transmissionof HIV but rather shouldapply general criminal offences tothese exceptional cases. Such applicationshould ensure that the elementsof foreseeability, intent, causality andconsent are clearly and legally establishedto support a guilty verdictand/or harsher penalties. 26With respect to this section of Article36, it is appropriate to include actualknowledge of HIV infection as a necessaryprecondition of criminal liability.However, the phrase “throughany means” casts the net too widely,particularly in light of how “HIVtransmission” is defined in the modellaw. The effect might be to imposecriminal penalties in situations where:• a person practices safer sex,regardless of whether the persondisclosed to the sexual partnerand regardless of the actual riskof transmission;• a person takes steps to disinfectan intravenous needle or otherskin-piercing instrument, againregardless of whether there wasdisclosure and regardless of theactual risk of transmission; andThe model law does notaddress any of the social,cultural, economic andlegal factors that makewomen more vulnerableto HIV infection.• a mother transmits HIV to achild, including in utero or duringlabour and delivery, regardlessof precautions taken to reducethe risk of transmission andregardless of the actual risk oftransmission.Omissions in the model lawWomenAmong the “principles” enunciated inthe model law are the following:8 HIV/AIDS POLICY & LAW REVIEW

Legislation contagionThe government shall vigorouslyaddress conditions which increase thetransmission of HIV infection includingpoverty, gender inequality, traditionalpractices.…The government shall recognize theincreasing vulnerability of women andchildren and take actions to addresstheir specific needs.However, the model law does notmention women’s rights, nor doesit address any of the specific social,cultural, economic and legal factorsthat make women more vulnerableto HIV infection, and more prone toexperience adverse effects as a resultof HIV infection.PrisonersArticle 8 of the model law providesthat information on HIV be provided“in the most appropriate way” inall prison institutions. It gives theMinistries of Justice, Interior andHealth the power to implement thisarticle. Although it is implicit thatcertain details are to be established bysubsidiary legal regulations, Article8 provides no direction as to whatsuch regulations should include. Tobe effective, information about HIVneeds to be accompanied by the actualprovision of materials to preventHIV in prison settings, such as condomsand sterile injecting equipment.Other vulnerable personsThere is very little in the model lawon vulnerable persons or on programsto be directed towards them.National HIV lawsProponents of model law often citethe sovereignty of states as a “checkand balance” on model law. In otherwords, states remain free to adopt,adapt, modify or reject the templatelegislation in accordance with theirspecific context and needs.Given the experience of theN’djamena model law, such a viewis naïve. Despite the numerous provisionsthat are problematic from ahuman rights perspective, the modellaw is presented as model (i.e.,ideal or best practice) legislation.Indeed, all of the national HIV lawsin Western Africa have clearly beeninfluenced by the model law. Oneof them, the law recently passed inGuinea-Bissau, replicates the modellaw almost word for word.What usually happens is that thenational laws are based closely on theprovisions of the model law — withcertain modifications, additions andomissions, but following the samegeneral legislative framework. Forexample, the provisions on partnernotification and a health care professional’s“duty to warn” in the lawsfrom Niger, Mali and Togo are substantiallythe same as the correspondingmodel law provisions discussedabove.Sometimes, the national lawscontain additional provisions that arean extension of the same legislativeintent behind the model law. Wherethe model law’s provisions haveignored human rights law and principles,the corresponding provisionsin national laws may compound suchproblems. For example:• Article 2 of the Guinean law addsa further restriction (to the textfound in the model law) onHIV/AIDS education and informationby specifically providingthat it is forbidden to giveHIV/AIDS education to childrenunder 13.• Article 28 of the Guinean lawrequires mandatory HIV testingbefore marriage.• Article 50 of the Togolese lawprovides for periodic mandatorytesting of sex workers for HIV andsexually transmitted diseases. 27Despite the recommendation in theInternational Guidelines that therebe no HIV-specific offences, 28 all thenational HIV laws establish offencesof “wilful HIV transmission.” 29 Noneof the laws define “wilful,” whichomission runs counter to the cautionin the International Guidelines thatin the case of criminal transmissionor exposure offences, states “shouldensure that the elements of foreseeability,intent, causality and consentare clearly and legally established tosupport a guilty verdict and/or harsherpenalties.” 30Only the law of Togo providessome guidance as to the requisitemental element in establishing criminalguilt: Article 53 of this law saysthat it is a criminal offence for aperson to have “unprotected sexualrelations with the intention of transmittingthe virus or any other activityto wilfully spread the virus.”If a provision on criminal transmissionis to be included in law, theapplication of criminal sanctionsshould be limited to conduct thatshows this high level of maliciousintent, thus limiting the scope of thestate’s most serious legal tool andpenalties to those cases which areclearly deserving of such treatment.Other national laws are far morevague with respect to the conductthey would criminalize. For example:• Article 27 of the Benin lawmakes it a crime for any personVOLUME 12, NUMBER 2/3, DECEMBER 2007 9

Drug treatment courts in Canada:an evidence-based reviewDrug treatment courts (DTCs), which are judicially mandated treatment alternatives to theincarceration of illicit drug offenders, were introduced in Canada in late 1998. Recent announcementsfrom the federal government suggest that the drug treatment court model will continueto operate and expand in a number of Canadian jurisdictions. Two major evaluations of theseprograms — in Vancouver and Toronto — have been conducted. In this article, D. Werb etal. analyze the results of these evaluations. Their analysis reveals that, despite the evaluations,little is known regarding the success of DTCs in contributing to the long-term reduction of druguse and recidivism among their participants; and that the cost-effectiveness of these programsrequires further study. The authors conclude that further funding for DTCs in Canada should bedependent on the implementation of randomized controlled trials that measure the success ofthese programs in reducing drug use and recidivism in the long term; that measure the impact ofDTCs on societal end-points such as rates of crime and incarceration of injection drug users; andthat include components to measure the cost-effectiveness of DTCs compared with other interventionsaimed at reducing the negative effects of problematic drug use and drug-related crime.IntroductionDrug-related crime and the adversepublic health consequences of unsafedrug use continue to plague numerousurban centres in Canada and inmany other countries. 1, 2 At the streetlevel, drug markets and drug use continueto be strongly related to publicdisorder, as well as to acquisitive andproperty crime. 3, 4 Certain forms ofdrug use, such as injection drug use,have also been shown to seriouslycompromise the health of drug userpopulations. 5Though a growing number ofmunicipal governments, such as theCity of Vancouver, have structuredtheir responses to these issues usinga so-called “balanced approach”that includes the “four pillars” oflaw enforcement, prevention, harmreduction, and addiction treatment,recent evidence suggests that an overwhelmingemphasis on enforcementpersists, 6 and that this emphasis oftenundermines efforts to reduce healthrelatedharms among people whouse drugs. 7Despite this apparent imbalance,in March 2007, Canada’s governingConservative Party announced theintroduction of a National Anti-DrugStrategy that emphasizes a drugpolicy model focused exclusively onenforcement, prevention and treatment,8 and that also includes fundingfor extra-judicial treatment and diversionprograms for drug offenders.One such program embraced by thecurrent federal government is DTCs.DTCs are judicially-mandatedtreatment programs that offer analternative to jail time. 9 Generally,participants are selected from a poolof non-violent offenders charged withdrug-related crimes (most often possession,possession for the purposesof trafficking, or trafficking; generally,individuals charged with commercialtrafficking or violent offences areexcluded), and in most DTC modelsthe individual must plead guiltybefore entering the program. Onceenrolled, participants are regularlytested for use of illegal drugs andplaced in a treatment stream adjustedto their progress.Key to the DTC model is theparticipant’s regular attendance ata court in which a non-adversarialteam, generally made up of a judge,prosecutor, defence lawyer and treatmentcounsellor, collaborates in orderto address the participant’s progressand work towards treatment goals. 10All DTCs operate on the same principleof coercive, abstinence-basedaddiction treatment, with only limited11, 12tolerance for relapse.Since the establishment of thefirst DTC in Florida in 1989, over1600 DTCs have been instituted inthe U.S., and hundreds more are indevelopment. 13 In many U.S. jurisdictions,DTCs represent a key pointof contact between people who usedrugs and addiction treatment services.14 DTC programs were also implementedin Australia and the UnitedKingdom. 15 Numerous evaluations12 HIV/AIDS POLICY & LAW REVIEW

Drug treatment courts in Canadaof mixed quality and rigour have provideddata regarding the effectivenessof DTCs in treating drug addictionand in reducing rates of recidivism. 16,17, 18, 19, 20, 21However, while hundredsof drug treatment courts in the U.S.regularly perform self-evaluations, 22there have been only a small numberof peer-reviewed DTC evaluations,and some of these have been identifiedas containing substantial methodologicalshortcomings. 23All drug treatment courtsoperate on the sameprinciple of coercive,abstinence-based addictiontreatment, with onlylimited tolerance forrelapse.Only three randomized controltrial (RCT) evaluations of DTCs havebeen conducted. One RCT evaluationconducted in Baltimore foundno statistically significant differencesbetween participants in the experimental(DTC) and control (judicial)groups in rates of crime, alcoholism,employment, mortality and strengthof family and social relationshipsthree years after acceptance into theBaltimore DTC. 24 Another RCTevaluation in Maricopa County,Arizona found that after 36 months,the experimental (DTC) group hada recidivism rate of 33 percent comparedto 44 percent for a control(judicial) group, and that this differencereached statistical significance. 25Finally, a RCT conducted in NewSouth Wales found no statistical significancebetween the experimental(DTC) and control (judicial) groupsone year after program completion. 26The Canadian experience withDTCs has been limited, with theopening of two DTCs in Toronto andVancouver in 1998 and 2001 respectively.27, 28 However, the recent establishmentof DTCs in Edmonton andRegina, 29, 30 federal funding of $13.3million allocated to the developmentof additional DTCs in Winnipeg andOttawa, 31 and the current government’semphasis on extra-judicialdiversion programs suggest that theseprograms are becoming more attractiveto Canadian policy-makers.Three central hypotheses drivethe expansion and popularity ofDTCs, namely that DTCs lowerratesof recidivism and drug use, 32and that DTCs are cost-effective. 33The first two have been proposed asevidence that DTCs effectively treatdrug addiction. 34 The argument thatDTCs are cost-effective is based onthe DTC’s alleged ability to relievepressure on correctional services byprocessing individuals with drugdependence who would otherwiseserve jail time. 35 However, it remainsunclear whether DTCs produce suchbenefits, and there has been limiteddiscussion regarding the impactsof coercion and the requirement ofabstinence on program effectiveness.Evaluations ofDTCs in CanadaTwo major DTC evaluations havebeen undertaken in Canada, in Torontoand Vancouver. It should be noted thatwhile an evaluation of the EdmontonDTC has also been conducted, thesmall sample size (seven) and an evaluationperiod of five months limitsgreatly the utility of this study. 36The Vancouver DTC evaluationThe Vancouver DTC evaluationemployed a non-randomized design.The authors identified the unfairnessof denying addiction treatment toindividuals who may benefit from itand the desire of pilot study staff torecruit the most eligible participantsinto the program as key obstacles torandomization. 37 The evaluation teamused a selected group of individuals,matched to the DTC participantgroup on key pre-specified variables,as controls. This control group (327people) was made up of volunteerincarcerated offenders and a virtualcohort of individuals who were tracedthrough probation files and electronicrecords of drug offenders with reportedaddiction problems.While the evaluators matched 166individuals from both the DTC groupand the comparison group on fivekey variables — ethnicity, gender,previous violent offences, age andprevious number of sentences — thissub-cohort of matched individualsdiffered significantly from the largerDTC group on age, ethnicity andgender. The results derived from acomparison of the matched participantsmay not, therefore, have necessarilyreflected the outcomes of theDTC group as a whole.Participants in the comparisongroup were also on average morelikely to be older, male and Caucasianthan those in the DTC group. Further,critical differences existed in thecriminal histories of the two groups’participants. Compared with participantsin the DTC group, participantsin the comparison group had spentdouble the average days in remand(153 vs. 75), more months in custodyVOLUME 12, NUMBER 2/3, DECEMBER 2007 13

Drug treatment courts in Canada(35.8 vs. 20.16) and were less likelyto have committed drug offences(29.1 percent vs. 67.7 percent). Thesedifferences at baseline between theDTC group and the comparison grouplikely affected the evaluation findings,and could potentially account for differencesin rates of post-program druguse and criminal recidivism betweenthe two groups.The Vancouver DTC was evaluatedover a span of approximately 3.5years, from December 2001 to March2005. During this time, 322 participantswere admitted, of which 34 (10.6percent) graduated and eight (2.5 percent)otherwise completed the program(meaning that they reduced their druguse substantially and met certain levelsof economic and social stability). Asof March 2005, 185 participants (57.5percent) had either withdrawn voluntarilyor been expelled, 25 (7.8 percent)were currently suspended, and 64(19.9 percent) were still participatingin the program. Six participants (1.5percent) died during their participationin the DTC. 38Of note, program participation hadno statistically significant bearing onthe rate of charges that participantsaccrued during the time they spentin the program. Additionally, nostatistical difference was observedbetween DTC participants and thecomparison group with regard toaccumulated post-program criminalcharges measured six monthsafter participation in the DTC. TheVancouver DTC evaluators did notcollect data related to post-programdrug use. Without this data there isno way to gauge the program’s successin this regard.The Toronto DTC evaluationThe Toronto DTC evaluation consistedof what the evaluators referredto as a “quasi-randomized trial,” inwhich the DTC participant group wascompared with two control groups.The primary comparison was madewith 64 participants who were eligiblefor drug treatment court butwho opted not to participate in theprogram and who were subsequentlyprocessed by the traditional judicialsystem. This group was referred toas the judicial comparison group.All DTC participants were followedfor approximately 18 months afteradmission to the program, and eachDTC participant was assessed on anumber of variables that includedsocio-demographic factors and indicatorsof drug use, criminal recidivismand health.The Toronto drugtreatment court evaluationdid not yield reliableinformation concerningpost-program drug use.Overall, when compared withDTC group participants, individualsin the judicial comparison grouphad a much higher rate of criminalactivity constituting a major incomesource prior to enrolment (23.3 percentvs. 6.9 percent), were youngerthan the DTC group (30.8 vs. 34.2),were more likely to be chronicallyunemployed (62.8 percent vs. 34.2percent), more likely to be female(48.4 percent vs. 24.1 percent), andhad used cocaine more often in the90 days prior to the DTC clinicalassessment (an average of 54.5 daysvs. 34.3 days) than their counterpartsin the DTC group.In general, the evaluators characterizedthe judicial comparison groupas generally more heavily marked bysubstance abuse and criminal activity.39 Some of the variables listedabove on which the groups’ participantsdiffered have been shown tobe associated with heightened risk ofdrug dependence and related harms,and injection drug use in particular,40, 41, 42, 43, 44among at-risk populations.Consequently, the DTC group includedoffenders who possessed fewerindicators of drug dependence thanthe judicial comparison group, andthe DTC group therefore presumablycontained individuals who had a betterchance of succeeding in treatmentas compared to those individuals inthe judicial comparison group.Additionally, because the judicialcomparison group was made up ofindividuals who were eligible for, butopted not to enter, the DTC group,the evaluators may have introduceda selection bias into the evaluationas DTC group participants may havebeen potentially more motivatedto seek and comply with treatmentthan those in the judicial comparisongroup.In the period from 1 April 1999to 1 October 1 2003, out of a total of365 participants, 57 (15.6 percent)“graduated” from the Toronto DTC,while 308 (84.4 percent) were eitherexpelled or withdrew from the program.45 With respect to the assumptionthat DTCs reduce recidivism,follow-up analysis shows that participantsin the Toronto DTC grouphad a reduced overall rate of chargesand convictions after participating inthe DTC program compared to their14 HIV/AIDS POLICY & LAW REVIEW

Drug treatment courts in Canadarate of charges and convictions priorto their enrolment in the program.However, a similar and significantdrop in criminal charges and convictionswas also present among thejudicial comparison group. 46The Toronto DTC evaluationdid not yield reliable informationconcerning post-program drug useand socio-economic status amongeither the DTC participants or thecomparison groups. Therefore, littleis known regarding the effect of theToronto DTC on its participants’post-program lives, and particularlyon its participants’ drug use patterns,in the long-term.Costs and costeffectivenessofthe Vancouver andToronto DTCsThe Vancouver DTC evaluationclearly outlined its costs over 3.5years and compared the cost-effectivenessof enrolling participants inthe program against the matchedcomparison group. In comparing thedirect cost of DTC participants whoeither withdrew or were dischargedfrom the program with their matchedcounterparts in the comparison group,the evaluation found direct costsavings in favour of the comparisongroup of approximately $6,000for individuals who withdrew and$10,000 for individuals who weredischarged from the DTC. However,in the smaller matched group of DTCgraduates and comparison groupmembers, a cost saving of approximately$4,000 was found in favourof the DTC graduates as compared toindividuals in the comparison group.Overall, the cost per person wasfound to be $21,265 for VancouverDTC participants and $13,117 for thematched comparison group, whichamounts to a disparity of approximately$8,000 between individualsin the DTC and those in the comparisongroup. As the evaluators of theVancouver DTC stated, “Overall, inorder to achieve cost efficiency witha DTC strategy, a larger number ofparticipants must exhibit positiveoutcomes (i.e., fewer convictions).According to the current data, thismight be feasible if the program wasin a position to graduate a higher proportionof participants.” 47This suggests that the ineffectivenessof the Vancouver DTC’s treatmentdelivery model may be theprimary reason for the low cost-effectivenessof the program. However,because of the lack of data on postprogramdrug use, Devlin and colleagueswere unable to include thecosts associated with continued druguse in their cost-benefit analysis,which limits the scope of their costevaluation.Finally, the total costs of theVancouver DTC during the period ofDecember 2001 to March 2005 were$4,058,819. 48 With 42 participantswho either graduated or completedthe program, the cost per graduate orcompleter was $96,639.The federal Department of Justiceallocated $1.6 million to fund theToronto DTC over a trial period offour years. However, this figure doesnot include the costs of treatment servicesand infrastructure provided bythe Centre for Addiction and MentalHealth (CAMH), which acted as theToronto DTC’s treatment partner.The Toronto evaluators did carry outa cost analysis of the DTC by calculatingall costs associated with thecourt component of the program andadding these costs to the estimatedcosts of treatment, community coordinationand sentencing. Using thismethod, the average cost per TorontoDTC client was found to be $42,564.On average, graduates cost $53,555,participants who dropped out of theprogram within the first three monthscost $29,748, and participants whoopted to stay in the program longerthan three months but who subsequentlywithdrew or were expelledcost $72,322. 49The focus of the drugtreatment courts onabstinence causes thoseindividuals characterized bysevere drug dependenceto often be at highest riskof “failing” the program.However, the evaluators wereunable to provide a figure for thetotal costs of the program, andexcluded many costs related to theDTC such as treatment or judicialservices provided in kind, the costof non-CAMH treatment providers,costs related to court-ordered treatmentincluded in sentencing (whichrefers to treatment carried out aspart of a sentence that is separatefrom the DTC program), and indirectcosts. 50Canadian media and at least oneresearcher have made the claim thatthe Toronto DTC is cost-effective,with treatment per DTC participantestimated at $3,000–$5,000 per year 51as opposed to the $48,000–$52,000annual cost of incarcerating anoffender. However, Canadian statis-VOLUME 12, NUMBER 2/3, DECEMBER 2007 15

Drug treatment courts in Canadatics show that for 83 percent of thosewho are incarcerated for drug-relatedcrimes, the median incarcerationperiod for offenders charged withpossession is 15 days, while for traffickingcharges the median incarcerationperiod is three months.52, 53Therefore, claims that DTCs representcost-savings when comparingannual rates of incarceration withannual rates of treatment misrepresentthe fact that the incarcerationperiods for offenders charged withdrug-related crimes are often muchshorter in length than DTC programs,and consequently have lower associatedoverall costs.The role of coercion andabstinence in DTC modelsDTCs operate on a principle of legalcoercion, in which the power of thecourts and the threat of incarcerationoperate as motivating factorsin promoting the DTC participant’streatment compliance. 54 However,evaluations examining the use ofcoercion in drug treatment deliveryhave so far produced inconclusive55, 56, 57, 58, 59findings.While the Vancouver and TorontoDTCs are treatment-oriented programs,both require their participantsto abstain completely from drug usein order to graduate. This focus onabstinence neglects the impact of therole of relapse on the natural historyof drug dependence. 60 An establishedbody of literature demonstrates thataddiction is a chronic and relapsingcondition, shaped by a multitude ofbehavioural and social-contextualcharacteristics that may not be amenableto abstinence-based programs61, 62in all cases.Finally, the DTC focus on abstinencecauses those individuals characterizedby severe drug dependenceto often be at highest risk of “failing”a DTC program. 63 As can be seenfrom past DTC evaluations, the mostdependent users often fail the programand are sent back to the judicialsystem, while less dependent individuals(who have a better chance ofmanaging their drug use and, consequently,of graduating) are rewarded;for example, in a study that sought toidentify predictors of retention amongDTC participants, those individualswho reported alcohol or marijuana astheir primary substance of choice andwho had fewer prior arrests were themost likely to successfully graduatefrom the DTC program. 64ConclusionThe evaluations of Canadian DTCshave so far failed to demonstrate thatthese programs are effective in reducingrates of recidivism and drug useamong program participants. Boththe Vancouver and the Toronto DTCevaluations, like many other DTCevaluations, suffer from methodologicalproblems (which are particularlysevere in the case of the Vancouverevaluation) that make it difficult toproperly assess the efficacy of theseprograms.Furthermore, the high failure ratesthat mark DTCs have the potential toexacerbate the interaction that drugoffenders have with the judicial system,as those who fail DTC programsare often returned to the traditionaljudicial system. This may resultin an increase in both the overallcosts to the judicial and correctionalsystem and the prolongation of theindividual’s placement within thesesystems, despite the failure of thesesystems to effectively address drugdependence.Given the many unknowns surroundingDTCs, particularly inthe Canadian context, the federalgovernment’s decision to expandthe Canadian DTC system thereforeappears premature. Whileevaluations of the Toronto and theVancouver DTCs have been carriedout, neither evaluation offers a comprehensiveanalysis of the effect ofthese interventions on their participants.Funding for DTCs in Canada,therefore, should be made dependenton the implementation of evaluativestudies that utilize randomizedcontrolled trial methodology andthat include a number of measures ofsuccess. Specifically, DTC evaluativestudies in Canada should includemeasures of long-term efficacy (i.e.,long-term measures of drug use andrecidivism) and safety; should measurethe impact of DTCs on societalend-points such as rates of crime andincarceration of injection drug users;and should include components tomeasure the cost-effectiveness ofDTCs compared with other interventionsaimed at reducing the negativeeffects of problematic drug use anddrug-related crime. Without thisadditional data, it is impossible tojustify the expansion of these programsin Canada.– Daniel Werb, Richard Elliott,Benedikt Fischer, Evan Wood,Julio Montaner, Thomas KerrDaniel Werb and Thomas Kerr are with theBritish Columbia Centre for Excellencein HIV/AIDS. Richard Elliott is withthe Canadian HIV/AIDS Legal Network.Benedikt Fischer is with the Centre for16 HIV/AIDS POLICY & LAW REVIEW

Drug treatment courts in CanadaAddictions Research of British Columbiaat the University of Victoria. Evan Woodand Julio Montaner are with both theBritish Columbia Centre for Excellencein HIV/AIDS, and the Department ofMedicine, University of British Columbia.Correspondence should be sent to ThomasKerr (drtk@cfenet.ubc.ca).1B. Fischer et al., “Illicit opioid use in Canada: comparingsocial, health, and drug use characteristics of untreatedusers in five cities (OPICAN study),” Journal of UrbanHealth 82 (2005): 250–266.2“Social and economic costs of illicit drugs,” UN Chronicle35 (1998): 7.3S. Brochu, Estimating the Costs of Drug-Related Crime,paper presented at the 2nd International Symposium onthe Social and Economic Costs of Substance Abuse, 1995,Montebello, Québec.4K. Pernanen et al., Proportions of Crime Associated withAlcohol and Other Drugs in Canada, Canadian Centre onSubstance Abuse, 2002.5E. Wood et al., “Inability to access addiction treatmentand risk of HIV-infection among injection drug users,”Journal of Acquired Immune Deficiency Syndromes 36(2)(2004): 750–754.6K. DeBeck et al., “Canada’s 2003 renewed drug strategy— an evidence-based review,” HIV/AIDS Policy & LawReview 11(2/3) (2007): 1–9.7J. Cohen and J. Csete, “As strong as the weakest pillar:harm reduction, law enforcement and human rights,”International Journal of Drug Policy 17 (2006): 101–103.8Government of Canada, The Budget Plan 2007,Department of Finance, 19 March 2007.9S. Belenko, Research on Drug Courts: A Critical Review2001 Update, The National Center on Addiction andSubstance Abuse, 2001.10C. La Prairie et al., “Drug treatment courts — a viableoption for Canada? Sentencing issues and preliminaryfindings from the Toronto court,” Substance Use & Misuse37 (2002): 1529–1566.11M. Devlin et al., Drug Treatment Court of VancouverProgram Evaluation: Final Evaluation Report, National CrimePrevention Centre, 2006.12C.W. Huddleston et al., Painting the Current Picture: ANational Report Card on Drug Courts and Other ProblemSolving Court Programs in the United States, National DrugCourt Institute, 2005.13Ibid.14S. Belenko.15“Drug courts’ three-year extension,” BBC News(online edition), 30 March 2006.16C. La Prairie et al.17M. Devlin et al.18K. Freeman, L. Karski and P. Doak, New South WalesDrug Court Evaluation: Program and Participant Profiles,Bureau of Crime Statistics and Research, 2000.19B. Lind, D. Weatherburn and S. Chen, New SouthWales Drug Court Evaluation: Cost-Effectiveness, NewSouth Wales Bureau of Crime Statistics and Research,2002.20J. Goldkamp et al, “Context and change: the evolutionof pioneering drug courts in Portland and Las Vegas(1991-1998),” Law & Policy 23(2) (2001): 141–170.21M. Kleiman, “Drug court can work: would somethingelse work better?” Criminology & Public Policy 2 (2003):167–169.22C.W. Huddleston et al.23J.F. Andersen, “What to do about ‘much ado’ aboutdrug courts?” International Journal of Drug Policy 12(5)(2001): 469–475.24D. Gottfredson et al., “The Baltimore city drug treatmentcourt: 3-year self-report outcome study,” EvaluationReview 29(1) (2005): 42–64..25S. Turner et al., “A decade of drug treatment courtresearch,” Substance Use & Misuse 37(12/13) (2002):1489–1527.26B. Lind.27M. Devlin et al.28L. Gliksman et al., Toronto Drug Treatment CourtEvaluation Project Final Report, National Crime PreventionCentre, 2004.29McCready Consultants, Evaluation of Edmonton’sExperimental Drug Treatment Court, ProstitutionAwareness and Action Foundation of Edmonton, 2006.30B. Pacholik, “Treatment mandate of new local court,”Regina Leader-Post, 3 October 2006.31Department of Justice, Expanding Drug TreatmentCourts in Canada, 2005.32W.G. Meyer and A.W. Ritter, “Drug courts work,”Federal Sentencing Reporter 14 (2001): 179.33S. Belenko.34W.G. Meyer and A.W. Ritter.35S. Belenko.36McCready Consultants.37M. Devlin et al.38Ibid.39L. Gliksman et al.40B. Fischer et al., “Illicit opiates and crime: results ofan untreated user cohort study in Toronto,” CanadianJournal of Criminology — Revue Canadienne de Criminologie43 (2001): 197–217.41C.M. Fuller et al., “Factors associated with adolescentinitiation of injection drug use,” Public Health Report 116(S1) (2001): 136–145.42E.L. Gollub et al., “Gender differences in risk behaviorsamong HIV+ persons with an IDU history: the linkbetween partner characteristics and women’s higherdrug-sex risks. The Manif 2000 study group,” SexuallyTransmitted Diseases 25 (1998): 483–488.43E. Roy et al., “Drug injection among street youths inMontreal: predictors of initiation,” Journal of Urban Health,80 (2003): 92–105.44Ibid.45L. Gliksman et al.46Ibid.47M. Devlin et al.48Ibid.49L. Gliksman et al.50Ibid.51A.L. Chiodo, “Sentencing drug-addicted offenders andthe Toronto drug court, Criminal Law Quarterly 45 (2001):53–100.52C. La Prairie et al.53Statistics Canada, Adult Criminal Court Data Tables1998/99, Canadian Centre for Justice Statistics, 2000.54R. Mugford and J. Weekes, Mandatory and CoercedTreatment, Canadian Centre on Substance Abuse, 2006.55D.D. Simpson, G.W. Joe, and G.A. Rowan-Szal, “Drugabuse treatment retention and process effects on followupoutcomes,” Drug and Alcohol Dependence 47 (1997):227–235.56D. Anglin, M. Brecht, and E. Maddahian, “Pretreatmentcharacteristics and treatment performance of legallycoerced versus voluntary methadone maintenance admissions,”Criminology 27 (1989): 537–557.57M. Brecht and M.D. Anglin, “Treatment effectivenessfor legally coerced versus voluntary methadone maintenanceclients,” American Journal of Drug & Alcohol Abuse19 (1993): 89–106.58J.J. Collins and M. Allison, “Legal coercion and retentionin drug abuse treatment,” Hospital and CommunityPsychiatry 34 (1983): 1145–1149.59J.A. Inciardi, Screening and Assessment for Alcohol andOther Drug Abuse Among Adults in the Criminal JusticeSystem, Centre for Substance Abuse Treatment, 1994.60G.J. Connors, S.A. Maisto, and D.M. Donovan,“Conceptualizations of relapse: a summary of psychologicaland psychobiological models,” Addiction 91 (1996):S5–S13.61A.I. Leshner, “Addiction is a brain disease, and it matters,”Science 278 (1997): 45–47.62P. Owen and G.A. Marlatt, “Should abstinence be thegoal for alcohol treatment?” American Journal on Addictions10 (2001): 289–295.63M.B. Hoffman, “The drug court scandal,” North CarolinaLaw Review 78 (2000): 1437–1527.64R.H. Peters, A.L. Haas, and M.R. Murrin, “Predictorsof retention and arrest in drug courts,” in S. Belenkoet al. (eds), National Drug Court Institute Review, Vol.II (Alexandria, Virginia: National Drug Court Institute,1999), 30–48.VOLUME 12, NUMBER 2/3, DECEMBER 2007 17

Use of soft law to addressHIV/AIDS in Southeast AsiaNon-binding agreements, or “soft law,” have played a role in influencinggovernment policy and reducing HIV vulnerability among constructionworkers in the Greater Mekong Subregion of Southeast Asia. In this article,David Patterson et al state that soft law sometimes offers advantages overtreaty law, but that challenges remain in the implementation of soft law.In recent years, most economies inSoutheast Asia have experiencedrapid economic growth and investmentin major infrastructure projects.While many of the mostly male constructionworkers for these projectsmay be internally mobile nationals,many others may be migrants (documentedor undocumented) from othercountries in the region.All of these workers are atincreased risk for HIV infectionbecause they have money to spend onalcohol and other drugs and sexualservices; they are far from their familiesand social support networks; andthey may not be reached by HIVprevention programs for local communities(where they exist) due tolanguage and literacy barriers. Whenthey return home, they may bringHIV and other infections to theirsexual and drug-injecting partners.Most governments in theSoutheast Asian region have shownlittle interest in ratifying existingtreaties on migrant workers’ rights. 1The International Convention onthe Protection of the Rights of AllMigrant Workers and Members ofTheir Families has only been ratifiedby the Philippines and Timor-Leste.Cambodia and Indonesia have signedbut not ratified the Convention.Only the Philippines has ratified theMigrant Workers (SupplementaryProvisions) Convention of theInternational Labour Organization(ILO).HIV-specific non-binding internationaland regional agreements offeradvantages over treaty law in thatthey can be created relatively quicklyand, if regional, they can be adaptedto local contexts. Monitoring mechanismscan also be more informal andflexible than the corresponding treatymechanisms.In November 1999, theAssociation of South East AsianNations (ASEAN) Task Force onHIV/AIDS (ATFOA) proposedthat “ASEAN governments adopta common policy recommendingthe integration of HIV preventionprogrammes as a precondition forconstruction and infrastructure developmentcontracts bidding and approval.”A regional inter-governmentalmeeting in Bangkok in October2003 adopted “Recommendationson Building HIV Resilience alongthe ASEAN Highway” (BangkokRecommendations) which incorporatedthis provision. 2In the 2001 Declaration ofCommitment on HIV/AIDS, all U.N.Member States undertook, “…by2005, to develop and begin to implementnational, regional and internationalstrategies that facilitate accessto HIV/AIDS prevention programmesfor migrants and mobile workers,including the provision of informationon health and social services…” 3The monitoring framework developedto measure the implementation ofthe Declaration also included referencesto mobile populations. 4 TheDeclaration was reaffirmed by theU.N. General Assembly in 2006. 5In 2004, six countries (Cambodia,China, Lao PDR, Myanmar,Thailand and Vietnam) agreed ina Memorandum of Understanding(Regional MOU), inter alia, to“…strengthen collaboration amongMinistries responsible for agriculture,construction, finance, health,home affairs, labour, public works,public security and transport sectorsto promote the updated BangkokRecommendations on infrastructureconstruction along the ASEANHighway Network…”The Regional Strategy on Mobilityand HIV Vulnerability Reductionin the Greater Mekong Subregion2002-2004 (Regional Strategy) wasdeveloped by the U.N. RegionalTask Force on Mobility and HIVVulnerability Reduction (UNRTF).In 2006, the Regional Strategy wasrevised and extended for the period2006-2008, and incorporated a referenceto the Regional MOU (albeitnoting that national implementationwas so far limited). 618 HIV/AIDS POLICY & LAW REVIEW

Use of soft law to address HIV/AIDS in Southeast AsiaIn 2005, an assessment tool wasdeveloped and administered inCambodia, Lao PDR, Thailand andVietnam to assess country recognitionof, and compliance with, these agreements.This national policy self-auditwas used to draw the attention ofgovernment and non-governmentstakeholders to their internationalcommitments and to stimulate discussionof, and commitment to, advancingthe policy reform process.Thailand, for example, reportedthat although it does not require anHIV impact assessment, it woulddevelop guidelines on how such anassessment should be undertaken.Thailand also committed to developinga policy on the integration of HIVprevention programs as a preconditionfor construction contracts biddingand approval. 7Thailand committed todeveloping a policy onthe integration of HIVprevention programsas a precondition forconstruction contractsbidding and approval.In June 2007, the health ministersof the countries that make up theAsia Pacific Economic Cooperation(APEC) endorsed guidelines forAPEC economies which referencethe ILO Code of Practice onHIV/AIDS and the World of Work,and which incorporate key elementsof the Bangkok Recommendations. 8Specifically, the APEC guidelinesrecommend that HIV impact assessmentsbe undertaken as part of thefeasibility study phase for infrastructureprojects, and that preconditionsfor bidding and approval include integrationof comprehensive gender-sensitiveoccupational health and HIVprevention programs.Case study: CambodiaThe national response to HIV inCambodia is coordinated by theNational AIDS Authority (NAA). In2004, the NAA convened a multisectoraltechnical working group(MTWG) on HIV and mobility. Amember of the MTWG, the Ministryof Public Works and Transport(MPWT), also created a MinisterialCommittee on HIV/AIDS. In 2005,this Committee developed its ownHIV action plan.Priority areas for advocacy andpolicy reform in the MPWT actionplan include the implementation ofthe Regional MOU as it relates tolarge infrastructure projects. Anadvocacy training workshop washeld for MTWG members in October2005. 9 The workshop included thedevelopment of an advocacy plan forthe adoption of a policy regarding theallocation of a budget for HIV activitiesin infrastructure projects.In 2006, the MPWT adopteda suite of policies on HIV/AIDS,including one explicitly designatedto implement obligations incurredunder the Regional MOU, which wasreferenced in the introduction andincluded as an annex. This policyprovides, inter alia, that “all budgetsin the bidding contracts on projectdevelopment programmes on publicinfrastructure construction shall besubmitted to the chairman of theAIDS Committee of the Ministryof Public Works and Transport forreview and recommendation to theministry management for approvalof prevention programmes againstHIV/AIDS and STD epidemics…” 10DiscussionThe experience of Cambodia demonstratesthat non-binding agreementsbetween states can promote nationalHIV policy reform consistent withinternational guidance and bestpractice.The challenges of implementationremain, and countries are reluctantto include HIV budgets in loanagreements, arguing that these fundsshould be provided as grants. Thereis as yet no general commitment fromdonors to include grants for HIVprevention activities in the budgets ofinfrastructure projects, although somefunders have supported such activitiesas part of their assistance. 11For Southeast Asia, advocacythrough regional bodies such as theUNRTF, ATFOA and APEC is neededto encourage donors to incorporatesuch grants routinely in infrastructureproject budgets. 12 The potential negativesocial and economic harms tobe addressed can be quantified usingtools developed for this purpose. 13As with treaties, there is stillthe risk that governments will taketheir obligations lightly. To date,the Regional MOU and the APECguidelines have only been endorsedby ministers of health. To increasenational engagement, such agreementsshould also be endorsed bynational HIV multi-sectoral bodiesand ministries with convening powers,such as the Ministry of EconomicPlanning or equivalent.– David Patterson, Tia Phalla,Thuan Nguyen and Sarun ImVOLUME 12, NUMBER 2/3, DECEMBER 2007 19

Use of soft law to address HIV/AIDS in Southeast AsiaDavid Patterson(david.patterson@videotron.ca) isRegional Team Leader, Policy, Planningand Advocacy, for the Canada South EastAsia Regional HIV/AIDS Programme(CSEARHAP). Tia Phalla is NationalConsultant with the United NationsDevelopment Programme in Cambodia.Thuan Nguyen is Regional Policy,Planning and Advocacy Consultantwith CSEARHAP. Sarun Im is CountryProgramme Manager for Cambodia forCSEARHAP.1However, the ASEAN Vientiane Action Programme,adopted by ASEAN leaders in Vientiane, Lao PDR, on30 November 2004, proposes the “…elaboration of anASEAN instrument on the protection and promotion ofthe rights of migrant workers,” s. 1.1.4.6. On 13 January2007, ASEAN leaders adopted the Declaration on theProtection and Promotion of the Rights of Migrant Workers,which reiterated this commitment.2The Bangkok Recommendations were updated inYangon, Myanmar, in February 2004. L-N Hsu, MobilePopulations and HIV Vulnerability: Selected Responsesin South East Asia, United Nations DevelopmentProgramme (UNDP), 2002, at 13.3Declaration of Commitment on HIV/AIDS, U.N.General Assembly Resolution S-26/2, adopted 27 June2001, at para. 50.4Monitoring the Declaration of Commitment on HIV/AIDS:Guidelines on the Construction of Core Indicators, UNAIDS,2005.5Political Declaration on HIV/AIDS, U.N. General AssemblyResolution 60/262, adopted 2 June 2006.6Available at www.hiv-development.org.7Consolidated National Policy Self Audits: Cambodia,Lao PDR, Thailand and Vietnam, CSEARHAP, 2006. Atwww.csearhap.org.8Guidelines for Creating an Enabling Environment forEmployers to Implement Effective Workplace Practices forPeople Living with HIV/AIDS, APEC, 2007.9See Summary Report of the Workshop on Advocacy andPolicy Promotion Related to Mobility and HIV/AIDS, NAA,Cambodia, 2005. The workshop was conducted by PACTCambodia in cooperation with the NAA, with fundingand technical assistance from CSEARHAP.10Policies on HIV/AIDS Prevention in Response to Activitiesof Public Works and Transport Sectors in the Kingdom ofCambodia, official translation from Khmer, signed 18August 2006.11In 2001, the Japanese Bank for InternationalCooperation (JBIC) funded the reconstruction of theSihanoukville Port in Cambodia. Some 300 workers aday were employed on the project, and the sex industryaround the port flourished. In response, JBIC initiatedHIV prevention activities, implemented through the localhealth authorities and local and international non-governmentalorganizations. HIV/AIDS Prevention for MobilePopulation in Greater Mekong Subregion: Corporate SocialResponsibility in JBIC Infrastructure Projects, report of satellitemeeting at the 7 th International Congress on AIDSin Asia and the Pacific, Kobe, 2 July 2005. Atwww.jbic.go.jp12See statement titled Joint Initiative by DevelopmentAgencies for the Infrastructure Sectors to Mitigate the Spreadof HIV/AIDS, Toronto, Canada, 11 August 2006.13See HIV Impact Assessment Tool: The Concept and ItsApplication, UNDP, 2001.20 HIV/AIDS POLICY & LAW REVIEW

CANADIANDEVELOPMENTSThis section provides brief reports of developments in legislation,policy, and advocacy related to HIV/AIDS in Canada. (Cases before thecourts or human rights tribunals in Canada are covered in the sectionon HIV in the Courts – Canada.) The coverage is based on informationprovided by Canadian correspondents or obtained through scans ofCanadian media. Readers are invited to bring stories to the attentionof Alison Symington, editor of this section, at asymington@aidslaw.ca.Supervised injection facility granted anothertemporary extension; legal action launchedInsite, the supervised injection facility located in Vancouver, has been granted anothershort-term renewal of its exemption under Section 56 of the Controlled Drugs and SubstancesAct (CDSA). Meanwhile, seeking to end the ongoing uncertainty about the ability of Insiteto continue operating legally, two organizations have launched court actions.Insite has been open since September2003, providing safe injection materials,medically supervised injectionfacilities, and support and referralservices to people who inject drugs.Insite operates under an exemptionto the CDSA granted by the Ministerof Health. The original exemptionapplied through September 12,2006. On the eve of its expiration,the Minister allowed an extensionto December 31, 2007, stating thatadditional studies would need to beconducted on how supervised injectionfacilities affect crime, preventionand treatment. 1In October 2007, Health MinisterTony Clement issued a short newsrelease announcing that the Section56 exemption had been extendeduntil June 30, 2008. The newsrelease states that “[t]his extensionwill allow research on how supervisedinjection sites affect prevention,VOLUME 12, NUMBER 2/3, DECEMBER 2007 21

canadian developmentstreatment and crime to be continuedfor another six months.” 2 The rationaleis almost the same as that providedfor the previous extension.Legal actionIn August 2007, an application wasfiled in Supreme Court of BritishColumbia by the PHS CommunityServices Society (who operate thefacility) and two people who usethe facility. According to the statementof claim, both of the individualshave been addicted to heroin fornumerous years and test positive forhepatitis C. 3In their claim, the applicantsadvance two principal arguments.Firstly, they assert that should Insiteclose, or should they be otherwisesubject to the provisions of the CDSAthat criminalize the activities atInsite, they will face increased risksof overdose, infection, decline intheir mental and psychological wellbeingand other health-related complicationsfrom drug use. As a result,they argue, they will be unjustifiablydeprived of their rights to life, libertyand security of the person underSection 7 of the Canadian Charter ofRights and Freedoms. 4Secondly, they assert that the treatmentof the medical and social causesand consequences of addiction and,in particular, the services provided atInsite are matters relating to healthcare and, therefore, fall within theexclusive jurisdiction of the provincialgovernment. 5The applicants are asking theCourt to declare: (a) that Insite isa public health service within theexclusive jurisdiction of the provinceof British Columbia; (b) thatno CDSA exemption is required forInsite to operate lawfully; and (c) thatthe application of the CDSA to thosewho use the facility is a deprivationof their rights to life, liberty andsecurity of the person. In the alternative,they seek a declaration that anydecision of the Minister to refuseto grant an extension pursuant toSection 56 of the CDSA constitutesa violation of the plaintiffs’ rights tolife and security of the person underSection 7 of the Charter. 6A separate application was filedin the Supreme Court of BritishColumbia on behalf of the VancouverArea Network of Drug Users(VANDU). 7 VANDU is a non-profitsociety which has among its objectivesto improve the quality of lifefor people who use illicit drugs andto develop local networks of peoplewho will work to ensure public policiesare favourable to people who useillicit drugs.The VANDU application assertsthat at no time do the staff of Insitepossess or traffic any controlleddrug within the meaning of theCDSA Sections 4(1) and 5, and that,therefore, Insite does not require anexemption under Section 56 of theCDSA. 8 VANDU also asserts thatthe treatment of addicts is a medicalconcern to be dealt with by the provinciallegislature; 9 and that federalcriminal law and the conditions of aSection 56 exemption are, therefore,inapplicable to Insite to the extentthat they would ban or regulate thehealth-related activities carried outtherein. 10Furthermore, VANDU argues:• that the prohibition against thepossession of controlled drugs inthe CDSA violates the rights ofinjection drugs users to life, libertyand security of the person, asguaranteed under Section 7 of theCharter;• that because the prohibited drugsare addictive and the sanction forpossession includes imprisonment,the constant threat of theimposition of the law creates ahigh level of stress in injectiondrug users (IDUs), resulting inthreats to the liberty and securityof the person of the IDU;• that, moreover, the criminal lawprohibition effectively forces drugusers to choose between theirliberty and security of the person,and accessing service; and• that the state’s action in imposingthe prohibition has grossly disproportionateeffects of impairingIDUs’ health, thereby affectingtheir life, liberty and security ofthe person. 11VANDU also argues that Section56 of the CDSA is unconstitutionalbecause it contains no criteria orstandards for the exercise of theMinister’s discretion in grantingexceptions, thus violating Section 7of the Charter. 12VANDU is asking the Court todeclare the CDSA framework thatis regulating Insite’s operation to beconstitutionally invalid, and to issuean interlocutory order granting aninterim exemption to the staff andusers of Insite, pending the conclusionof the proceedings. If theCourt determines that some form ofexemption from the law is required,and agrees that CDSA Section 56 isunconstitutional, VANDU is askingthe Court to issue a constitutionalexemption for the staff and users,until such time as a constitutionallyvalid process for obtaining exemptionsis put in place. 13Neither the VANDU nor the PHSSociety applications have been heardin court yet.22 HIV/AIDS POLICY & LAW REVIEW

canadian developmentsTwo Charter challenges launchedagainst Canada’s sex work lawsIn March 2007, a constitutional challenge to Canada’s sex work laws was filedwith the Ontario Superior Court of Justice. Five months later, a second challengewas initiated in the province of British Columbia. These simultaneous,but separate, cases argue that significant portions of the sections of the CriminalCode of Canada related to adult sex work violate the free expression, liberty,security and equality provisions of the Canadian Charter of Rights and Freedoms.The Ontario case was brought bythree women, former and current sexworkers. 1 The B.C. case was initiatedby the Downtown Eastside SexWorkers United Against Violence(SWUAV). 2 The cases seek to strikedown Criminal Code sections 213(communicating for the purpose ofprostitution), 3 210 and 211 (the bawdyhouse laws), 4 and portions of 212 (theprocurement law). 5 Both cases arechallenging the laws on the basis ofsex workers’ rights to (a) free expressionand (b) life, liberty and securityof the person as enshrined in theCharter (sections 2 (b) and 7 respectively).The B.C. case also argues thatthe laws infringe sex workers’ equalityrights under the Charter (section 15).Selling sex is legal in Canada.However, Criminal Code sections210–213 prohibit almost all of theactivities surrounding the sale ofsexual services. The plaintiffs arguethat the criminal law regime governingadult sex work causes harms tosex workers by making it difficult forthem to work safely, exposing themto risks of severe violence.For example, both cases arguethat the communicating law forcessex workers wishing to avoid harassmentand arrest to enter the vehiclesof potential clients without sufficientopportunity to assess whether theclient is dangerous. The B.C. challengealso maintains that risks arise“because sex workers must workalone and/or at a distance from othersand travel to isolated or industriallocations to avoid attractingthe attention of police.” 6 SWUAV’sStatement of Claim also notes that“there is a disproportionate numberof missing women across Canadaknown to have engaged in sex workand whose disappearances have beenconnected to their occupation.” 7With respect to the bawdy houselaw, both challenges argue thatviolence is significantly reduced oreliminated in most indoor settings. 8The laws therefore prevent sex workersfrom establishing safer workingconditions. Both cases also maintainthat portions of the procuring provisiondeprive sex workers of the abilityto work together or for others ina way that might benefit their healthand safety. 9SWUAV also argues that the provisionssingle out sex workers fordifferential and discriminatory treatment.SWUAV maintains that thelaws have a negative impact on thetreatment of sex workers by the public,social and health service providers,employers and the police.This is not the first time that theseprovisions will be reviewed. In 1990,the Supreme Court of Canada upheldthe constitutional validity of the communicatingand bawdy house provisionsin a case called the ProstitutionReference. 10 In 1992, the SupremeCourt upheld the procuring provisionin R v. Downey. 11In addition, government committeeshave researched the topic andexplored possible reforms. Mostrecently, after holding consultationsacross the country, in December 2006the Parliamentary Subcommittee onSolicitation Law issued a report butfailed to fulfill its mandate to recommendspecific legal reform. 12If successful, these challengescould spur fundamental change in thecriminal law framework governingsex work in Canada.– Julie ShugarmanJulie Shugarman is a law student at theUniversity of Ottawa and interned withthe Legal Network in 2007. She hasbeen working with Pivot’s Sex Work LawReform Committee since it formed in 2003.See additional coverage relating to thisissue in the Canadian Developments sectionsof Issue 11 (2/3) and Issue 12 (1) ofthe Review.26 HIV/AIDS POLICY & LAW REVIEW

canadian developments1The legal team is being led by Osgoode Law ProfessorAlan Young.2Katrina Pacey, of Pivot Legal LLP, and Joseph J. Arvay, ofArvay Finlay, have been retained as co-counsel.3The Ontario case is challenging s. 213(1)(c); the B.C.case is challenging s. 213 in its entirety.4The bawdy house laws prohibit keeping or having controlover a location that is used for prostitution; living inor being found in that location; taking or directing peopleto that location; and permitting others to use that location.The Ontario challenge did not explicitly name s. 211in its Notice of Application.5The procurement laws being challenged prohibit facilitatingor managing another person’s sex work, referringclients, forming business relationships, and sharing incomefrom sexual services. The section being challenged inOntario is 212(1)(j). In B.C., all of s. 212 is being challengedwith the exception of subsections (g) and (i) and212(2).6SWUAV v. Her Majesty the Queen, Statement of Claim,August 3, 2007 at para 8(a).7Ibid. at para. 8(d).8Terri Jean Bedford, Amy Lebovitch and Valerie Scott v.Her Majesty the Queen, Notice of Application, March 20,2007 at para. 2(e).9The Ontario challenge, for example, highlights thats. 212(1)(j) makes it illegal to “hire managers, drivers, andsecurity personnel” (Notice of Application at para. 2(e)).10Reference re ss. 193 and 195.1(1)(c) of the CriminalCode (Man.), [1990] 1 S.C.R. 1123.11R. v. Downey [1992] 2 S.C.R. 10. It is worth noting thatevidence of the effects of the impugned laws as well asCharter jurisprudence have developed substantially sincethe Prostitution Reference and R v. Downey.12For commentary on the Subcommittee’s report, see:Canadian HIV/AIDS Legal Network, Stella and Maggie’s,Not Up to the Challenge of Change: A Comment on theReport of the Subcommittee on Solicitation Laws, February2006. Available via: www.aidslaw.ca/sexwork.Conservative government announcesnew anti-drug strategyOn October 4, 2007, Prime Minister Stephen Harper officially unveiled his government’sNational Anti-Drug Strategy, promising to crack down on what he termed “drug criminals”while acting with compassion towards their victims. First outlined in the March 2007 federalbudget, the new strategy comes with $63.8 million additional funding over two years. 1The stated priorities of the new strategyare to combat production anddistribution of illicit drugs; to createawareness of illicit drugs and theirnegative effects, particularly amongyouth; and to treat and rehabilitatethose with drug dependencies.According to the government, thesethree components together “form afocused approach to reducing thesupply of and demand for illicitdrugs, as well as addressing the crimeassociated with illegal drugs, leadingto safer and healthier communities.” 2The additional funding supplementsthe $385 million per yearalready directed towards drug-relatedprograms and initiatives. It includes$21.6 million to support law enforcementin combating the use of illegaldrugs, proactively targeting marijuanagrow operations, methamphetaminelabs and gangs.Ten million dollars will be spenton a prevention campaign directed atyouth and their parents. Drug dependencetreatment services will receivean additional $32.2 million, withparticular attention paid to programsfor youth, and First Nations and Inuitpopulations. 3 The government alsopromised to introduce mandatoryprison sentences for drug producersand sellers. 4Critics charge that the strategy isbased on ideology rather than evidenceand that it mimics the UnitedStates’ so-called “war on drugs”which has been ineffective at reducingdrug supply and consumptionin the U.S. Moreover, they say, itinappropriately treats drug addictionprimarily as a criminal matter, ratherthan an issue of public health. 5CommentaryWhile the Conservative governmenthas branded this strategy as “new,”the funding allocations bear a strikingresemblance to the previous strategy.Since enforcement already made upVOLUME 12, NUMBER 2/3, DECEMBER 2007 27

canadian developmentsalmost three-quarters of the government’sspending in the fight againstillicit drugs, the additional allocationsfor prevention and treatment havelittle impact in the overall distributionof funds. Law enforcement willcontinue to be the central focus of thestrategy, with prevention and treatmentgarnering approximately thesame percentage of funding as underthe previous strategy. 6Moreover, from both a publichealth and a human rights perspective,the absence of harm reductionas a “pillar” of the strategy shouldraise red flags. (The four pillars ofthe previous drug strategy were lawenforcement, prevention, treatmentand harm reduction. 7 ) Harm reductionprograms — including needleexchanges, methadone clinics andsupervised drug consumption facilities— have been shown in numerousstudies to lessen the harms associatedwith illicit drug use, including byreducing the transmission of HIV andhepatitis C. 8 Harm reduction is thereforeessential to a human rights-basedapproach to HIV/AIDS.The abandonment of harmreduction within Canada’s nationalapproach to illegal drugs may havea chilling effect on drug programs atthe provincial and municipal levels.It may also damage Canada’s reputationinternationally as a countryknown for including harm reductionas an element of its response to druguse and public health issues such asHIV and hepatitis C. It may alsohave implications for existing harmreduction programs that fall withinfederal jurisdiction, such as those infederal prisons.Finally, while it is not yet knownwhat will be included in the promisednew legislation regarding tougherpunishment for drug producersand sellers, the Prime Minister hasalready indicated that the governmentwill propose mandatory minimumsentences for people convicted ofserious drug offences. (It is worthnoting that the government triedto introduce mandatory minimumsentences during the last session ofParliament, but the effort was ultimatelyundone by amendments atthe committee stage, in part due tolobbying by the Legal Network andothers.)There is no evidence that mandatoryminimum sentences reduce druguse or the harms associated withit. Moreover, research shows thatincarcerating injection drug users isone factor contributing to the spreadof HIV in Canada. 9 Mandatory sentencingpolicies in the U.S. have alsobeen shown to have disproportionateimpacts of women, people of colourand members of marginalized communities.10 By taking away judges’discretion to sentence in accordancewith specific circumstances and mitigatingfactors in individual cases, justiceis poorly served.– Alison Symington1Department of Finance Canada, The Budget Plan2007: Aspire to a Stronger, Safer, Better Canada, tabled inthe House of Commons by the Honourable James M.Flaherty, P.C., M.P., March 19, 2007.2Ibid. at p. 257.3Ibid., p. 258.4“Prime Minister pledges crackdown on drug criminals,compassion for their victims,” speech by Prime MinisterStephen Harper, Winnipeg, October 4, 2007.5See, e.g., Canadian HIV/AIDS Legal Network, “Ottawaadopting failed U.S.-style ‘war on drugs’: new NationalAnti-Drug Strategy plays politics with people’s lives,” newsrelease, Toronto, October 1, 2007; AIDS Committee ofToronto, Harm Reduction and the Federal Government’sNew Anti-Drug Strategy, position statement, October 2007;and “Drug policy offers same old failures: ‘fresh approach’continues enforcement focus despite decades of costly,futile efforts,” Times Colonist (Victoria), October 10, 2007,p. A12.6Personal communication with Kora DeBeck, UrbanHealth Research Initiative, BC Centre for Excellence inHIV/AIDS. See also, K. DeBeck et al., “Canada’s 2003renewed drug strategy — an evidence-based review,”HIV/AIDS Policy & Law Review 11(2/3) (2006): pp. 1–11.7Government of Canada, Canada’s Drug Strategy: What isit? Cat. H 128-1/05-443-1, 2005.8See N. Hunt, A Review of the Evidence-Base for HarmReduction Approaches to Drug Use, Forward Thinking onDrugs – A Release Initiative, 2003.9Canadian HIV/AIDS Legal Network, MandatoryMinimum Sentences for Drug Offences: Why Everyone Loses,briefing paper, April 2006, pp. 1–2.10Ibid., pp. 3–4.28 HIV/AIDS POLICY & LAW REVIEW

canadian developmentsOttawa: Crack pipe programcancelled by city councilIn July 2007, Ottawa City Council voted to discontinue the Safer Crack Use Initiativeamidst controversy over the effectiveness of the harm reduction program.The program, which distributed saferinhalation equipment to people whosmoke crack, had been introduced onApril 1, 2005. The surprise motionto cancel the initiative was introducedby Councillor Rick Chiarelli, whoclaimed the program sent out “oneof the most ironic mixed messages amunicipal government could send.” 1The motion, which had the supportof Mayor Larry O’Brien, passed by avote of 15 to 7 on July 11. The programhad cost the city $7,500 annually,with the remainder of its $40,000budget coming from the provincialgovernment.The cancellation took effectimmediately. By cancelling the program,council acted contrary to theadvice of the city’s chief medicalofficer of health, Dr. David Salisbury.Salisbury repeatedly told councilthat the program was working — itwas saving lives, savings millionsin future medical expenses and wasgood for public health. 2 The kitswere intended to help prevent thespread of hepatitis and HIV. Theyincluded glass stems, rubber mouthpieces,brass screens, condoms, otheritems and educational materials.Abrasions on cuts on the lipsare common in people who smokecrack. Because crack pipes are frequentlyshared, users can be exposedto potentially infectious blood.Smoking is generally consideredsafer than injecting drugs, but studieshave shown that smokers remainat high risk of contracting HIV andhepatitis C (HCV). Ottawa is reportedlyexperiencing a boom in cracksmoking. Users in Ottawa have thehighest rate of hepatitis infection inCanada, and a high rate of HIV infectionas well. 3A study of over 500 Ottawadrug users by University of OttawaAssistant Professor Dr. LynneLeonard found that the practice ofsharing crack pipes had decreasedsignificantly after the safer crack useprogram was introduced. A switch indrug use behaviour from injecting tosmoking, a lower-risk behaviour, wasalso observed. They study also foundthat 4000 crack users came into contactwith health workers as a result ofthe program. 4However, Mayor O’Brien statedpublicly that he did not believe thatthe program was working, and thathe thought it foolish to give out toolsto do something which is detrimentalto health. Others who voted againstthe program felt that the city wasencouraging drug use by handing outthe pipes.The mayor has encouraged agenciesto instead focus on treatmentand, to that end, announced onAugust 18, 2007 that the city wouldspend $25,000 on a study to determinethe best way to help drug usersin Ottawa, including by building anew residential drug treatment facility.The money will be matched bythe province. O’Brien and OntarioMinister of Health Promotion JimWatson stated that the study will notconsider reinstating a crack pipe distributionprogram.In a letter to Mayor O’Brien andthe Ottawa city councillors, theCanadian HIV/AIDS Legal Networkurged the council to reconsidertheir decision. Joanne Csete, thenExecutive Director of the LegalNetwork, wrote that[c]ancelling the crack kit distributionprogram constitutes a huge stepbackwards, and not just in terms ofpublic health and human rights. Asyou heard from Ottawa’s chief medicalofficer of health, the program wasa sensible investment of taxpayer’sdollars, considering the savings to thepublic purse of preventing new casesof HIV and HCV infection. Yourconstituents deserve a responsible,effective response to drug addictionthat is based on sound evidence andrespect for human rights. You candeliver such a response by reinstatingthe Safer Crack Use Initiative….A coalition of community organizationsannounced in August that theywill keep the program going. TheAIDS Committee of Ottawa, five communityhealth centres, Centre 507, theYouth Services Bureau, the ElizabethFry Society and the Wabano Centre forAboriginal Health will spend $15,000to maintain the program until the endof 2007, amid hopes that long-termfunding will be in place by that time. 5VOLUME 12, NUMBER 2/3, DECEMBER 2007 29

canadian developmentsSafer crack use initiatives havealso been implemented in otherCanadian cities, including Vancouver,Winnipeg, Toronto, Montreal, Guelphand Halifax. However, there is concernthat some of these programscould also be cancelled in light of anemerging trend away from a harmreduction approach and towards alaw-and-order agenda.A similar program was discontinuedin Nanaimo, British Columbia,in June 2007. Vancouver IslandHealth Authority chief executiveoffice Howard Waldner stated thatthe program will be reconsidered “indue course.” In the Nanaimo case,harassment of community healthnurses and concerns expressed bysome residents and city councillorswere cited as the reasons for the programsuspension. 6– Alison SymingtonSee additional coverage of this issue in theCanadian Developments section of Volume12(1) of the Review.1D. Puddicombe, “Off the crack pipes; council kills ‘stupid’program; doc warns of HIV toll,” The Ottawa Sun, July12, 2007, p. 4.2J. Rupert, “Health agencies seek to resurrect crack-pipeprogram: it’s too valuable to let go, says official with InnerCity group,” The Ottawa Citizen, July 13, 2007, p. F1.3Ibid.4L. Leonard et al., “ ‘I inject less as I have easier accessto pipes’: injecting, and sharing of crack-smoking materials,decline as safer crack-smoking resources are distributed,”International Journal of Drug Policy, published online,2007. Available via www.canadianharmreduction.com/articles.php.5M. Gillis, “Piping up for addicts; coalition finds cash foraxed program,” The Ottawa Sun, August 1, 2007, p. 3.6J. Rudd, “Nanaimo halts crack-pipe handouts”, TimesColonist (Victoria) (on-line edition), June 21, 2007.In briefAlberta proclaims lawauthorizing forced HIVtestingOn 1 October 2007, Alberta’sMandatory Testing and DisclosureAct, and accompanying regulations,came into force. 1 The new Actreplaces an earlier act, the BloodSamples Act, 2 that was passed in2004 but was never proclaimed intoforce because the government decidedit wished to amend the legislationto resemble more closely a modelstatute drafted by the Uniform LawConference of Canada. 3The Act creates a mechanism forcertain persons exposed to bodilyfluids — such as firefighters, paramedicsand peace officers, as well asanyone providing emergency assistance— to get a court order forcingthe person who is the source of theexposure (“source person”) to providea bodily substance for testing forviruses such as HIV. The results ofthe test will then be disclosed to theexposed person.Under the Act, the exposed personmust apply to the Alberta provincialcourt within 30 days of the exposure.The application must be accompaniedby a physician’s report assessing thesignificance of the exposure. Bothdocuments must be served on thesource person and filed with the court.If the court orders the source personto provide a sample of a bodily substancefor testing, the local medicalofficer of health follows up with thesource person. Once the testing andanalysis is done, the results are providedto the physicians of both thesource person and the exposed person.The Act declares that it creates“a fair process which balances thedesire of individuals to know thehealth status of a person who mayhave exposed them to a disease andthe rights of individuals who arerequested to submit a bodily sample.”However, organizations such as theCanadian HIV/AIDS Legal Networkhave criticized such legislation asunnecessary, unjustified and, arguably,unconstitutional. 4– Richard ElliotRichard Elliott (relliott@aidslaw.ca) isexecutive director of the Legal Network.For the text of the Alberta statute andregulations, and copies of the relevant protocolsand forms for implementing the Act,see: www.health.gov.ab.ca/professionals/MTDA.html. For details of the Albertalegislation and similar legislation in severalother Canadian provinces, see the LegalNetwork’s 2007 publication Undue Force:An Overview of Provincial Legislationon Forced Testing for HIV, available viawww.aidslaw.ca/testing.30 HIV/AIDS POLICY & LAW REVIEW

canadian developmentsAnonymous HIV testsmade available inManitobaOn September 19, 2007, ManitobaHealthy Living Minister Kerri Irvin-Ross announced a $1.3 millioninvestment in testing, treatment andprevention of sexually transmittedinfections (STIs). 5 With this funding,Manitoba will create a formalHIV program.A notable component of theannouncement is expanded access toSTI testing services, including theintroduction of anonymous and rapidtesting for HIV. Quebec, Ontario,Newfoundland and Labrador, NewBrunswick, Nova Scotia, Alberta andSaskatchewan already offer anonymoustesting. 6The anonymous system allowspeople to be tested without givingtheir name or health card number.People who otherwise might not betested because of the stigma associatedwith HIV/AIDS infection aremore likely to be tested if anonymityis assured.In Manitoba, AIDS activistsestimate that close to 1400 peopleare living with HIV, and 400–500people are infected and do not knowit. 7 According to an editorial inthe Winnipeg Free Press, for yearsManitoba has resisted implementingthe sort of HIV testing and preventionprograms that exist in otherprovinces. “The new HIV programmeans Manitoba is finally admittingto having an HIV problem,” the FreePress said. 8Other aspects of the program willinclude investing up to $110,000 overtwo years in a coalition of community-basedorganizations working toaddress HIV/AIDS within immigrantand refugee communities; providingup to $100,000 to help develop culturallyappropriate resources on sexualhealth for Aboriginal youth; andproviding up to $270,000 in fundingto address sexual health promotionwithin the province’s gay, lesbian,bisexual, two-spirit and transgendercommunities.– Alison SymingtonNew 60-second HIV testavailable in OntarioThe Ontario provincial governmentannounced in June 2007 that it willmake free, anonymous rapid pointof-care(POC) tests available at 50sites across the province, includingcommunity health centres, sexuallytransmitted infection clinics andmidwifery clinics. Twenty-four ofthe sites will be newly designated,focusing on northern and rural communitiesin order to provide moreequitable access. 9As compared to traditional HIVtests where patients need to wait twoweeks to receive their results, rapidPOC tests provide almost immediateresults to those wanting to know theirHIV status. A drop of blood can betested for antibodies to HIV within60 seconds. Together with pre-testand post-test counselling, the entireprocess takes about 20 minutes.Tests that show a presence of HIVantibodies will require additionalblood analysis from a laboratory toconfirm a positive HIV test result. 10Ontario will be the first jurisdictionin Canada to offer the new formof testing. The Ministry of Healthestimates that the program will costapproximately $350,000 annually. 11Providing anonymous, rapid testscan help increase the number of peoplewho are getting tested, especiallyin high-risk communities that mayhave less access to, and more apprehensionof, traditional health services.Rapid tests can also be especiallyuseful in cases of sexual assault,occupational accidents with potentiallyHIV-contaminated materials,pregnant women going into labourand transient communities, whereimmediate results can allow peopleto get the information, treatment andsupport they require. 12Given the speed with which thetest can be administered however, therisk of compelling people to take atest without informed consent or withoutproper counselling increases. 13– Alison SymingtonSafer needles mandatedfor Ontario healthcarefacilitiesNew regulations under theOccupational Health and Safety Actwill make safety-engineered needlesor needle-less systems mandatory inOntario hospitals as of September1, 2008. 14 Similar requirements willcome into effect for long-term carehomes, psychiatric facilities, laboratoriesand specimen collection centresin 2009, and in other health careworkplaces (e.g., home care, doctors’offices, ambulances) in 2010.Safety-engineered needles helpprevent health care workers fromaccidental needlestick injuries. Whena worker’s skin is punctured with aused needle or medical sharp device,she or he may be exposed to bloodbornediseases, including HIV andhepatitis C. Unlike regular needles,the safety needles have plastic guardsVOLUME 12, NUMBER 2/3, DECEMBER 2007 31

canadian developmentsand retractable heads to reduce therisk of a stick.Annually, about 70 000 Canadianhealth-care professionals are accidentallypricked by needles, accordingto the Ontario Nurses’ Association,and about half of those injuries takeplace in Ontario. 15 Unions representingOntario’s health care workers hadbeen pushing for this regulation forseveral years and a private members’bill on the subject was introduced in2005. 16 Safety needles are alreadymandated in Saskatchewan andManitoba.– Alison SymingtonTwo new studies confirmhigher hepatitis C andHIV infection amonginmate populationsTwo studies featured in the July2007 Canadian Medical AssociationJournal had strikingly similar findings.In seven provincial prisonsunder study in Quebec, the overallprevalence of HIV infection was 3.4percent. It was significantly higheramong women (8.8 percent, comparedto 2.4 percent among men). 17The overall prevalence of hepatitisC (HCV) infection was 18.5 percent(29.2 percent for women and 16.6percent for men). 18 Both HIV andHCV infections were found mainlyamong injection drug users.Results from the study conductedin Ontario remand facilities (jails,detention centres and youth centres)demonstrated a prevalence rate forHIV infection of 2.1 percent amongadult males and 1.8 percent amongadult females (no young offenderstested HIV-positive). The prevalenceof HCV infection was found to be15.9 percent among men, 30.2 percentfor women, and 0.4 percent for youngoffenders. Those most likely to beinfected were older than 30 years ofage and injection drug users. 19The prevalence of HIV and HCVinfections in the general population isestimated to be 0.8 percent and 0.18percent respectively. 20Richard Elliot, Executive Directorof the Canadian HIV/AIDS LegalNetwork, stated in a commentaryaccompanying the articles that[n]either the high prevalence of HIVor HCV infections among prisonersnor its correlation to these risk activitiesis a surprise, even to correctionalauthorities. Nor is it any secret whatshould be done in light of this evidence.In studies conducted outsideprison, access to sterile injectionequipment has been shown time andagain to be one of the most importantHIV prevention interventions amongpeople who inject drugs. 21Elliot suggested that in the face ofthe Canadian government’s continuingdisregard of evidence such as thatfrom these studies, legal action maybe appropriate.– Alison Symington1S.A. 2006, c. M-3.5, as amended by S.A. 2007, c. 18;Mandatory Testing and Disclosure Regulation, A.R. 190/2007; available via www.health.gov.ab.ca/professionals/MTDA.html. See: Order in Council, O.C. 400/2007,12 September 2007; at www.qp.gov.ab.ca/documents/orders/orders_in_council/2007/907/2007_400.html.2S.A. 2004, c. B-4.5.3Uniform Law Conference of Canada, MandatoryTesting and Disclosure Act (Draft and Commentary). Atwww.ulcc.ca/en/us/Uniform_Mandatory_Testing_and_Disclosure_Act_Draft_En.pdf.4E.g., see Canadian HIV/AIDS Legal Network, UndueForce: An Overview of Provincial Legislation on Forced Testingfor HIV.5Province of Manitoba, “More than $1.3 million investedto create Manitoba HIV program, reduce spread of sexuallytransmitted infections, promote sexual health,” newsrelease, Winnipeg, September 19, 2007.6C. Sanders, “Anonymous HIV tests overdue,” WinnipegFree Press, September 19, 2007, p. A16.7Ibid.8“Editorial: HIV testing is smart,” Winnipeg Free Press,September 20, 2007, p. A14.9Ontario Ministry of Health and Long-Term Care,“New 60 second test and expanded testing programprovides more options for HIV testing,” backgrounder,June 22, 2007. At www.health.gov.on.ca/english/media/news_releases/archives/nr_07/jun/hivtesting_bg_05_20070622.pdf.10Ontario Ministry of Health and Long-Term Care,“McGuinty government advances new options for HIVtesting,” news release, Toronto, June 22, 2007.11“Ontario to offer 60-second HIV Test,” CBC News(online), June 22, 2007.12 Canadian HIV/AIDS Legal Network, Prevention andProtection: Enhancing Both HIV Testing and HumanRights in Canada, 2007. Available via www.aidslaw.ca/testing.13Ibid., p. 25.14Needle Safety, Ontario Regulation 474/07, made underthe Occupational Health and Safety Act, August 22, 2007.15S. Rennie, “Ontario to supply safety needles,” Globeand Mail, August 24, 2007, p. A6.16See D. Garmaise, “Health care workers push for use ofsafer hypodermic needles,” HIV/AIDS Policy & Law Review11 (1) (2006): pp. 18–19.17C. Poulin et al., “Prevalence of HIV and hepatitis Cvirus infections among inmates of Quebec provincial prisons,”Canadian Medical Association Journal 177(3) (2007):252–256, p. 254.18Ibid., p. 254.19L. Calzavara et al., “Prevalence of HIV and hepatitis Cvirus infections among inmates of Ontario remand facilities,”Canadian Medical Association Journal 177(3) (2007):257–261, p. 257.20Ibid.21R. Elliot, “Deadly disregard: government refusal toimplement evidence-based measures to prevent HIV andhepatitis C virus infections in prisons,” Canadian MedicalAssociation Journal 177(3) (2007): 262–264 at 262.32 HIV/AIDS POLICY & LAW REVIEW

INTERNATIONALDEVELOPMENTSThis section provides brief reports on developments in HIV/AIDS-relatedlaw and policy outside Canada. (Cases before the courts or human rightstribunals are covered in the section on HIV in the Courts – International.)We welcome information about new developments for future issues ofthe Review. Readers are invited to bring cases to the attention of RichardPearshouse, editor of this section at rpearshouse@aidslaw.ca.South Africa: Firing of Deputy HealthMinister Madlala-RoutledgeOn 8 August 2007, South Africa’s President Thabo Mbeki dismissed theDeputy Health Minister, Nozizwe Madlala-Routledge. 1 The President’soffice stated that the dismissal was because Madlala-Routledge had traveledwithout permission to Madrid to attend the International AIDSVaccine Initiative Conference. 2 HIV/AIDS activists and other supporters ofMadlala-Routledge believe that the Madrid incident merely provided Mbekiwith a long sought-after excuse to remove his Deputy Health Minister. 3According to media reports, Madlala-Routledge undertook the trip on theunderstanding that approval waspending; however, upon arrival inSpain, she was informed that herrequest had been denied by Mbeki. 4Mbeki is widely considered anAIDS denialist because he has consistentlyrefused to acknowledgethat HIV is the cause of AIDS. 5 Hisgovernment only began makingantiretroviral treatment availableto people living with HIV/AIDS in2004, several years after much lesswealthy African countries took theinitiative. 6 Mbeki is supported byHealth Minister Manto Tshhabalala-Msimang, who has been dubbed “DrVOLUME 12, NUMBER 2/3, DECEMBER 2007 33

international developmentsBeetroot” and “Garlic Manto” by hercritics for advising people living withHIV/AIDS to eat more garlic, beetroot and potatoes as solutions to thevirus. 7During her time in the SouthAfrican government, Madlala-Routledge introduced antiretroviraltreatment into the military, denouncedAIDS denialism and made calls formore people to get tested for HIV. 8Such activities were widely creditedas improving the image of the SouthAfrican government internationallyand among South Africa’s civil societyorganizations. 9The main achievement of Madlala-Routledge’s period as Deputy HealthMinister was the development of anaggressive National Strategic Plan(NSP) on HIV/AIDS and SexuallyTransmitted Infections, designed toguide the country’s response toHIV/AIDS from 2007 to 2011. 10In response to criticism followingthe XVI International AIDSConference in Toronto in August2006, the government revived theSouth African National AIDS Council(SANAC), an inter-ministerial committee,under the new leadership ofSouth Africa’s Deputy President,Phumzile Mlambo-Ngcuka. 11 WhenHealth Minister Tshhabalala-Msimang fell ill towards the endof 2006, Mlambo-Ngcuka askedMadlala-Routledge to rewrite thenational AIDS strategy. 12 In March2007, the government formallylaunched the NSP.The stated objectives of the NSPare to provide comprehensive careand treatment for people living withHIV/AIDS and to strengthen thenational health system. The primaryaims are to reduce the number ofnew HIV infections and to reducethe impact of HIV and AIDS on individuals,families, communities andsociety. The NSP focuses on fourmain priority areas: prevention; treatment,care and support; human andlegal rights; and monitoring, researchand surveillance. 13Earlier governmental HIV/AIDSinitiatives had been criticized asbeing poorly-developed and ineffective.In 2000, the South AfricanDepartment of Health developed afive-year plan to combat HIV/AIDS.In November 2003, the governmentannounced a second plan to makeantiretroviral treatment publiclyavailable. The latter initiative tookeffect in March 2004.One year later, in March 2005, theinitiative was already falling shortof its targets for treatment access.By February 2007, the number ofpatients receiving antiretroviral treatmentconstituted only 36 percent oftarget. 14The new NSP was acclaimed as a“credible plan with clear targets.” 15The plan aims to reduce the nationalHIV incidence rate by 50 percentby 2011. The NSP says that bythat year, an appropriate package oftreatment, care and support servicesshould be provided to 80 percentof people living with HIV and theirfamilies. 16 Unlike previous governmentalHIV/AIDS initiatives, theNSP emphasizes human rights, genderequality, protection of childrenand cooperation between governmentand civil society groups. 17AIDS activists in South Africa andaround the world have expressed concernthat without Madlala-Routledgeat the helm of the NSP, the plancould falter. 18Madlala-Routledge’s dismissalwas widely condemned. StephenLewis, the former special envoy forAIDS in Africa, stated that her firing“was a dreadful setback against thepandemic, a blow to those fightingit internally and a blow to those outsidewatching developments in SouthAfrica.” 19The Joint Civil Society MentoringForum, an organization that representsover twenty health and researchorganizations in South Africa,described the dismissal as “a majorsetback to the development of a unifiednational response to HIV/AIDS,so crucial to the effective implementationof the NSP.” 20Subsequently, the government hasdemanded payment from her of outstandingdebts dating back to 1996,as well as reimbursement for theunauthorized trip to Spain. Madlala-Routledge’s supporters allege sheis being victimized and humiliatedby what they term the government’s“selective debt collecting.” 21 TheTreatment Action Campaign (TAC)launched a fund to provide shorttermfinancial assistance to Madlala-Routledge. 22TAC has also written Mbekirequesting the reinstatement ofMadlala-Routledge as well as theimmediate dismissal of Tshabalala-Msimang “on the basis of the currentdismal state of our health system andher poor performance.” 23 TAC contendsthat “our people continue to dieand become infected because of lackof leadership and deliberate obstructionfrom Health Minister MantoTshabalala-Msimang.” 24– Courtney AshtonCourtney Ashton is a student at theUniversity of Toronto Faculty of Law andis volunteering with the Legal Networkthrough Pro Bono Students Canada.34 HIV/AIDS POLICY & LAW REVIEW

international developments1South African Government Information, “PresidentMbeki relieves Deputy Minister of Health,” news release,Pretoria, August 8, 2007. At www.info.gov.za/speeches/2007/07081008151001.htm.2South African Government Information, “Publishingof the president’s letter,” news release, Pretoria,August 11, 2007. At www.info.gov.za/speeches/2007/07081308151001.htm.3TAC, “President Mbeki: Do not dismiss Deputy-MinisterNozizwe Madlala-Routledge. Can our people trust youon HIV/AIDS?” August 9, 2007. Atwww.tac.org.za/nl20070809.html.4International AIDS Vaccine Initiative, “IAVI states factsrelating to dismissal of South African Deputy HealthMinister,” August 10, 2007. Atwww.iavi.org/viewfile.cfm?fid=463895AVERT, “AIDS in South Africa: treatment, transmissionand the government,” updated September 12, 2007.At www.avert.org/aids-south-africa.htm.6K. Butler, “A president in denial, a ravaged nation deniedhope,” The Independent, August 10, 2007. Athttp://news.independent.co.uk/world/africa/article2851447.ece.7M. Wines, “Taking on apartheid, then a nation’sstance on AIDS,” New York Times, September 8,2007. At www.nytimes.com/2007/09/08/world/africa/08madlala.html?_r=1&oref=slogin.8TAC, “President Mbeki: Do not dismiss ….”9Ibid.10SANAC, HIV & AIDS and STI Strategic Plan for SouthAfrica 2007–2011, March 2007. Atwww.info.gov.za/otherdocs/2007/aidsplan2007/.11AVERT, “The history of AIDS from 2003 onwards.”updated June 2007. At www.avert.org/aidshistory.htm.12M. Wines.13SANAC.14Joint Civil Society Mentoring Forum, South AfricanAntiretroviral Programme Treatment Gap, May 2007. Atwww.jcsmf.org.za/?q=node/40.15TAC, “HIV/AIDS denialism is dead.” At www.tac.org.za/AidsDenialismIsDead.html.16AVERT, “AIDS in South Africa…”17Joint Civil Society Mentoring Forum, South Africa’sNational HIV Strategy (2007-2011): An Opportunity forHealth Equity, an Embodiment of Health Rights, June 2007.At www.jcsmf.org.za/?q=node/114.18TAC, “Open letter: commitment to National StrategicPlan,” August 21, 2007. At www.tac.org.za/documents/OpenLetterToDeputyPresident.pdf.19L. Ensor, “Fury over Mbeki’s axing of Madlala-Routledge,” Business Day (undated). Atwww.businessday.co.za/Articles/TarkArticle.aspx?ID=2935537.20Joint Civil Society Mentoring Forum, “Civil societyoutrage over dismissal of the deputy minister of health,”news release, Braamfontein, August 16 2007. Availablevia www.alp.org.za/modules.php?op=modload&name=News&file=article&sid=376.21“Govt screws tighten on Madlala-Routledge’sfinances,” Mail and Guardian Online, August 26, 2007. Atwww.mg.co.za/articledirect.aspx?articleid=317536&area=%2fbreaking_news%2fbreaking_news_national%2f.22Information on the fund, called “The Support GoodGovernance — Support Nozizwe Madlala-RoutledgeFund,” can be found via www.tac.org.za.23“Govt screws tighten…” .24TAC, “Open Letter…”China: Two steps forward, one stepback for new AIDS rights organizationA new AIDS law centre has been established in China, and continues to operate,despite a pre-Olympics crackdown on AIDS groups by Chinese authorities.AIDS law centreSince January 2007, Asia Catalyst (aU.S.-based non-profit organization)has been working with China OrchidAIDS Projects (COAP, a BeijingbasedNGO) to assist it to establish anew project: the Korekata AIDS LawCenter. The center plans to litigatecases of discrimination against peopleliving with HIV/AIDS (PLHIV),transmission of HIV through bloodtransfusions (a widespread problemin China), and other issues.The center’s name symbolizes thefounders’ commitment to promotingregional cooperation. KojimaKorekata was a lawyer and later chiefjustice of Japan’s Supreme Court. Inthe late 19 th century, his cases establishedthe independence of Japanesecourts, and were among the earliestto promote rule of law in Asia.Asia Catalyst’s role in this projectis to assist COAP with strategic planning,budgeting, fundraising, capacity-buildingand international outreach.At the request of the KorekataCenter, Asia Catalyst also published aresearch report on how countries havehandled HIV outbreaks in their bloodsupplies; the report included policyrecommendations directed to the governmentof China. 1Gradually, over the past few years,China has begun to permit somesmall, grassroots NGOs to form onthe ground. While heavily restricted,these groups have done remarkablework in organizing PLHIV, men whohave sex with men, and people whouse drugs. Their programs includeoutreach, counselling and preventiveservices.Increasingly, some of these groups— notably, the Aizhixing HealthEducation Center led by Wan Yanhai— have also conducted legal advoca-VOLUME 12, NUMBER 2/3, DECEMBER 2007 35

international developmentscy and legal research. A few, such asBeijing-based Yirenping, have begunto litigate cases of transmission ofHIV through blood transfusions.The Korekata Center plans tobring these activities together in oneplace, litigating selected high-impactcases, publishing materials, holdingworkshops and establishing anetwork of lawyers and NGOs, linkingthem to AIDS law organizationsglobally.Government crackdownon AIDS groups aheadof Olympic gamesThe Korekata Center encounteredobstacles after being swept up in apre-Olympics crackdown on AIDSgroups. To launch the Center, AsiaCatalyst and COAP planned to hold aninternational conference on AIDS andlaw in China on August 2–3, 2007.The conference was to havebrought together in Guangzhourepresentatives of the AIDS LawProject (South Africa), the Lawyers’Collective (India), the Thai TreatmentAction Group, the CanadianHIV/AIDS Legal Network andTemple University Law School(U.S.). There, they were to meet withabout fifty PLHIV, lawyers, scholarsand representatives from ChineseAIDS NGOs from around the country.Conference participants planned toshare their experiences in litigatingblood transmission and discriminationcases in China and internationally,and to strategize ways to coordinatefuture work.However, on July 26, 2007, thehotel in Guangzhou contacted COAPstaff in Beijing and informed themthat police had ordered the hotel tocancel the conference. That evening,security agents in Beijing detainedLi Dan, the executive director ofCOAP, for twenty-four hours. COAPand Asia Catalyst were informedthat the combination of AIDS, lawand foreigners was “too sensitive.”Authorities feared that the meetingwould affect the official launchon August 8, 2007 of the one-yearcountdown to the Beijing Olympics,thus marring China’s public image.In August, the crackdown spread:Police forbade a planned meeting ofsupport groups of PLHIV in Henanprovince and shut down two Henanoffices of COAP that provided aid tochildren affected by AIDS.The experience was discouraging.Chinese AIDS lawyers and activistsprivately expressed frustration that“we can’t even hold so much as ameeting” and worried that the fightagainst AIDS would grind to a haltfor a year until the Beijing Olympicsconcluded.However, AIDS groups in Chinahave carefully continued to moveforward. Since August, some smallmeetings of AIDS groups havesuccessfully convened around thecountry. Though the conference wascancelled, the Korekata AIDS LawCenter continues to make plans. For2008, these will include: developingpamphlets and resource guides onChinese AIDS law, for both lawyersand PLHIV; developing a certificationcourse for Chinese lawyers onAIDS law; and publishing materialson AIDS law in other countries in theChinese language.– Sara (Meg) DavisSara (Meg) Davis (catalystasia@gmail.com)is founder and director of Asia Catalyst(www.asiacatalyst.org).1Asia Catalyst, AIDS Blood Scandals: What China Can Learnfrom the World’s Mistakes, September 2007. Available viawww.asiacatalyst.org.Thailand: Report analyses barriersto ART for people who inject drugsThe HIV epidemic among people who use drugs mars Thailand’sreputation as a success story in the global fight against AIDS.A new report has revealed that people who use drugs still faceserious obstacles in obtaining needed health care. 1HIV prevalence among people whoinject drugs has remained extremelyhigh, steadily increasing from over 40to over 50 percent over the last two36 HIV/AIDS POLICY & LAW REVIEW

international developmentsdecades. 2 Indeed, the Thai governmenthas acknowledged that the HIVinfection rate among people whouse drugs “has sustained itself at anunacceptably high level in Thailandsince the very beginning of the epidemic.”3The report, prepared by the ThaiAIDS Treatment Action Group(TTAG) and Human Rights Watch(HRW), found that many healthcare providers either do not knowor do not follow HIV/AIDS treatmentguidelines and continue todeny antiretroviral treatment (ART)to people who need it based on theirstatus as people who use drugs, evenif they are in methadone treatmentprograms.The report also found that peoplewho use drugs and who do receiveART are unlikely to tell their physiciansabout their drug use, or to seekinformation about drug dependencetreatment from their physician, outof fear of reprisal. This fear is notunfounded: The report confirms thatmany public hospitals and clinics inThailand share information aboutdrug use with law enforcement, bothas a matter of policy and in practice.The government has providedminimal support for harm reductionservices for people who use drugs,notwithstanding the proven effectivenessof such services. Thailand’slimited harm reduction programs areseriously undermined by the government’songoing, repressive anti-drugcampaigns.Police regularly interfere with theefforts of people who use drugs toseek health services by harassingclients outside of drug treatmentcentres and by using the possessionof sterile syringes, or presence at amethadone clinic, as a basis for layingdrug charges.During research for the report,a police superintendent in ChiangMai — the site of many extrajudicialexecutions during the 2003 “waron drugs” — acknowledged thathis office maintained a blacklist ofsuspected people who use drugs andsaid that possession of clean needles,although legal, was a legal basis for apolice officer to question someone onthe blacklist.The deputy secretary general ofthe Office of the Narcotics ControlBoard (the coordinating and policymakingbureau for drug controlefforts) confirmed that despite thefull legality of syringe possession, inpractice clean syringes are sometimestaken by police officers as evidenceof drug use.Peer outreach workers play a keyrole in ensuring access to lifesavinginformation and services to peoplewho use drugs. But the report foundthat routine harassment and arrest bypolice (sometimes at or near methadoneclinics), as well as the lastingeffects of the drug war, created majorobstacles to outreach work. In turn,the harassment of people who usedrugs directly impacts the effectivenessof peer outreach programs.Many Thais who use drugs spendtime in pre-trial detention or prison,often cycling in and out of governmentdetention facilities. Accordingto the report, incarcerated people whouse drugs have an even harder timeobtaining needed services and preventioncare.The research found that ART isavailable only on an extremely limitedbasis to prisoners; and further,that the government has failed to takemeasures to ensure that fundamentalservices (medical care, harm reduction,drug dependence treatment, psychosocialsupport) are linked in thegeneral community, or with servicesprovided on entry to, or exit from,prison.In June 2007, Thailand introducedits 2007-2011 National AIDS Plan.The plan recognizes its failures incombating HIV and AIDS amongpeople who use drugs and amongprisoners, and proposes to scale upefforts to ensure that they can accessto HIV and AIDS prevention, careand treatment services. 4This commitment follows anumber of other public undertakingsthat have, to date, remainedunfulfilled. In its report to the UNGeneral Assembly Special Session(UNGASS) on HIV/AIDS in 2006,the Thai government acknowledgedthat “little has been done to addressspecific challenges” of providingHIV testing and counselling, careand support and ART for people whouse drugs, and recommended that thegovernment “act quickly” to scaleup outreach, related harm reduction,ART and other HIV/AIDS servicesfor people who use drugs. 5At UNGASS itself, the governmentpledged to promote and implementHIV prevention and harmreduction services for all thosewho need them; to increase accessto methadone maintenance; and toenable and empower people whouse drugs to take measures to reduceunsafe injecting practices and to entertreatment programs. 6These commitments must be followedby prompt and forceful actionto address the systematic violationsof human rights against people whouse drugs and against prisoners bylaw enforcement and health careproviders, as well as the widespreadprejudices by government and civilsociety against them. If Thailandfails to take such steps, it will con-VOLUME 12, NUMBER 2/3, DECEMBER 2007 37

international developmentstinue to encourage the course of itsepidemic among some of Thailand’smost marginalized people.– Rebecca Schleifer, Paisan Suwannawongand Karyn KaplanRebecca Schleifer (schleiferr@hrw.org) isan advocate for HRW’s HIV/AIDS Program.Paisan Suwannawong is the director ofTTAG, and Karyn Kaplan is the director ofpolicy and development at TTAG.1TTAG and HRW, Deadly Denial: Barriers to HIV Treatmentfor People Who Use Drugs in Thailand, 2007. Available viawww.hrw.org.2Thailand Ministry of Public Health and WHO RegionalOffice for South-East Asia (WHO-SEARO), ExternalReview of the Health Sector Response to HIV/AIDS inThailand, 2005, pp. 10, 26.3Thailand Ministry of Public Health, Towards UniversalAccess by 2010: Thailand National HIV and AIDS Program,2006.4Thailand Ministry of Public Health, Department ofDisease Control, Book 1: National Plan for Strategic andIntegrated HIV and AIDS Prevention and Alleviation 2007-2011: Key Contents, National Committee for HIV andAIDS Prevention and Alleviation, 2007, pp. 8, 11–15, 19,28, 30.5Thailand, Follow-Up to the Declaration of Commitment onHIV/AIDS (UNGASS) Country Report, 2006, p. 19.6Thailand Ministry of Public Health, Towards UniversalAccess by 2010: Thailand National HIV and AIDS Program,2006.Botswana and Swaziland: Report linksviolations of women’s rights to HIVIn May 2007, Physicians for Human Rights (PHR) released a report investigating thelinks between discriminatory views against women in Botswana and Swaziland andsexual risk-taking and, in turn, extremely high HIV prevalence in those countries.The report also examines the role of women’s lack of political and economic powerin those countries, and the connection to HIV infection. 1According to UNAIDS, HIV prevalenceof 39 percent was reportedamong young women (15–24years) attending antenatal clinics inSwaziland, while HIV prevalencerates among women in Botswanawere as high as 47 percent in somedistricts. 2The report outlines the results ofa population-based study designedto assess factors contributing to HIVinfection. The study was conductedin 2004 and 2005 with 1268 respondentsin Botswana and 788 participantsin Swaziland. In addition, 24people living with HIV/AIDS inBotswana and 58 people living withHIV/AIDS in Swaziland were interviewed,along with key informants inboth countries. 3According to the report, four keyfactors were found to contribute towomen’s vulnerability to HIV:• women’s lack of control oversexual decision-making (includingthe decision to use a condom)and multiple sexual partners byboth women and men;• the prevalence of HIV-relatedstigma and discrimination (whichhinders testing and disclosure ofstatus);• gender-discriminatory beliefs,which were associated with sexualrisk-taking; and• a failure of traditional and governmentleadership to promotethe equality, autonomy and economicindependence of women.In interviews, persons living withHIV/AIDS noted that women’s dependenceon men creates greater vulnerabilityto HIV. Testimony revealedthat women’s lesser statusin both countries fosters ongoing harmto women even after they becomeinfected, and increases the precariousnessof their ability to meet basicneeds for food, shelter and transport.The interviews revealed that manyHIV-positive women are forced toengage in risky sex with men in38 HIV/AIDS POLICY & LAW REVIEW

international developmentsexchange for food for themselvesand their children. As one intervieweeput it, “Woman are having sexbecause they are hungry. If you givethem food, they would not need tohave sex to eat.” 4The reports details inequalitiesbetween men and women reflectedin the laws of both countries. Forinstance, intimate partner and maritalrape are not criminalized in Botswana.Under customary law, women lackindependent legal capacity and aresubjected to the guardianship of theirfathers, brothers, uncles or husbands.In Swaziland, women are assignedlegal status equivalent to that of aminor child upon marriage. Domesticviolence is not criminalized, and maritalrape is excluded from domesticgeneral assault and rape laws. 5Interviewees indicated that womenin Botswana and Swaziland frequentlydo not have the option to make decisionsabout having sex due to theirlesser legal status. According to oneHIV-positive interviewee, “Here inSwaziland, the husband is the one thatbosses you around so there is nothingyou can do without him. My rights liewith my husband. He decides whetherwe use condoms. I don’t have achoice about prevention.” 6The report offers comprehensiverecommendations. The recommendationsfocus on increasing the financialself-sufficiency of women, providingfood aid in the short term, enactingwomen’s rights and protection legislationin both countries, shoring upgovernmental institutions that addresswomen’s issues, and offering financialsupport for local women’s andAIDS NGOs.The report encourages the U.S. toinstitute changes to programs administeredby USAID to clearly identifygender inequality as a key issue propellingthe AIDS pandemic, and torequire that a gender focus be incorporatedinto PEPFAR-funded prevention,treatment and care programs.The U.S. is also encouraged toincrease PEPFAR’s financial investmentin programs that promote women’sand girls’ access to income andother resources, support primary andsecondary education for girls, andpromote the strengthening of women’slegal rights. Finally, the reportsays that U.S. and country programsshould only undertake mass HIV testingwhere confidentiality and otherrights are respected.“National leaders, with the assistanceof foreign donors and others,are obligated under internationallaw to change the inequitable social,legal, and economic conditions ofwomen’s lives which facilitate HIVtransmission and impede testing, careand treatment,” said PHR’s SeniorResearch Associate Karen Leiter, leadinvestigator of the study. 7 – Kate KraussKate Krauss (kkrauss@phrusa.org) is mediacoordinator for PHR’s Health Action AIDSCampaign.1Physicians for Human Rights, Epidemic of Inequality:Women’s Rights and HIV/AIDS in Botswana & Swaziland:An Evidence-based Report on Gender Inequity, Stigma andDiscrimination., May 2007. Available viahttp://physiciansforhumanrights.org.2UNAIDS/WHO, AIDS Epidemic Update: December 2006,pp 13–14.3The study on which the report is based was designedand implemented by PHR and two local field partners:Members of the Faculty of Nursing at the University ofBotswana in Gaborone, Botswana; and Women and Lawin Southern Africa Research Trust (WLSA) in Mbabane,Swaziland.4Physicians at p. 115Ibid., pp 28–38 and 74–86.6Ibid. at p 12.7Personal conversation with the author, April 2007.UN agencies issue newguidelines for HIV testingIn May 2007, UNAIDS and the World Health Organization (WHO)issued Guidance on Provider-Initiated HIV Testing and Counselling inHealth Facilities (the Guidelines). 1 The Guidelines position health careprovider-initiated testing and counselling (PITC) as a tool to increasethe uptake of HIV testing and recommend an “opt-out” approach toPITC, where individuals must specifically decline the HIV test if theydo not want it performed.The Guidelines recommend thisapproach to HIV testing for allpatients, irrespective of epidemic setting,whose clinical presentation mightresult from underlying HIV infection;as a standard part of medical care forall patients attending health facilitiesVOLUME 12, NUMBER 2/3, DECEMBER 2007 39

international developmentsin generalized HIV epidemics; andmore selectively in concentrated andlow-level epidemics.The Guidelines recognize, however,that in the case of vulnerablepopulations or low-level epidemics,an opt-in approach, where the patientmust affirmatively agree to the test,may be more appropriate than theopt-out approach. 2The Guidelines recommend that,regardless of whether an opt-out oropt-in approach is chosen, pre-testinformation and counselling shouldbe provided. However, they submitthat two elements of pre-test counsellingunder the Voluntary Counsellingand Testing (VCT) model — riskassessment and prevention counselling— can be moved to post-testcounselling in a PITC setting. TheGuidelines justify this approach onthe basis that health care providersmay be pressed for time. TheGuidelines also suggest that, dependingon local conditions, healthcareproviders consider counsellingpatients pre-test in group health informationtalks. 3Nevertheless, the Guidelines maintainthat pre-test counselling mustmeet certain minimum standards,such as explaining to patients whytesting is recommended, what thebenefits and risks of testing are, andthat treatment is available regardlessof the outcome of the test. 4 TheGuidelines state that verbal consentto HIV testing suffices — i.e., thatwritten consent is not required. 5The Guidelines emphasize thatpost-test counselling is integral toHIV testing. They recommend, inthe case of positive test results, providingemotional support in additionto advising the patient of treatmentoptions and methods to prevent transmission.6 In the case of negative testresults, the Guidelines suggest advisinghigher-risk individuals to undertakerepeat testing during subsequentvisits to health centres. 7According to the Guidelines, PITCshould be accompanied by adequateHIV-related prevention, treatment,care and support, as well as concurrentsocial, policy and legal efforts,to ensure an environment responsiveto the needs of people living with, orat risk of contracting, HIV/AIDS. 8Although access to anti-retroviraltreatment (ART) is not an absolutepre-requisite for PITC, the Guidelinessubmit that PITC efforts must beaccompanied by a reasonable expectationof access to ART “within theframework of a national plan toachieve universal access to [ART] forall who need it.” 9The Guidelines differ in someimportant respects from recommendationsmade by the UNAIDSReference Group on HIV and HumanRights (the Reference Group) duringthe drafting process. 10 In September2007, following the issuance of theofficial Guidelines by UNAIDS andWHO, the Reference Group issueda statement recognizing the efficacyof the PITC model in increasing thequantity of HIV tests administered. 11However, the Reference Group said,an opt-in approach is preferable to anopt-out approach, in order to ensurethat consent is voluntary and that thesecurity of person is respected. 12The Reference Group recommendedthat in future UNAIDS andWHO, together with health facilitiesundertaking HIV testing, developand adopt a model code of conductfor practitioners of HIV testing andcounselling, whether the opt-out oropt-in approach is adopted. 13 Thiswould supplement the Guidelines’existing plan for monitoring andevaluating the implementation of thePITC model.– Madhavi SwamyMadhavi Swamy is a student at theUniversity of Toronto Faculty of Law andis volunteering with the Legal Networkthrough Pro Bono Students Canada.See R. Jürgens, “Increasing access to HIVtesting and counselling while respectinghuman rights” in the Special Section of thisissue for a discussion of the response fromthe Open Society Institute to the UNAIDSand WHO Guidelines.1UNAIDS and WHO, Guidance on Provider-Initiated HIVTesting and Counselling in Health Facilities, May 2007.Available via www.unaids.org2Ibid., p. 5.3Ibid., p.36.4Ibid., p.9.5Ibid., p.36.6Ibid., pp.10, 39.7Ibid., p.41.8Ibid., p.30.9Ibid. at p.810The Reference Group was set up in 2002 to adviseUNAIDS on matters relating to HIV and human rights,and comprises advocates, jurists, ethicists, people livingwith HIV, and people working in NGOs, academiaand the community sector. In January, 2007, before theGuidelines were finalized, the Reference Group issuedComments on the Draft Document: Guidance on Provider-Initiated HIV Testing and Counselling in Health Facilities,January 2007. At http://data.unaids.org/pub/Guidelines/2007/RGcomments-PITCguidance.pdf.11UNAIDS Reference Group on HIV and Human Rights,Statement and Recommendations on Scaling Up HIV Testingand Counselling, September 2007. Athttp://data.unaids.org/pub/ExternalDocument/2007/20070905_rghr_statement_testing_en.pdf.12Ibid., p. 3.13Ibid., p. 4.40 HIV/AIDS POLICY & LAW REVIEW

international developmentsIn briefSingapore retainsPenal Code provisioncriminalizing sexbetween menOn 23 October 2007, the governmentof Singapore struck down a provisionof its Penal Code prohibiting oral andanal sex between consenting heterosexualadults, but retained a provisioncriminalizing sex between men. 1Member of Parliament Siew KumHong supported the repeal of the latterprovision by sponsoring a publicpetition which delivered 2341 signaturesto Parliament from a broadcross-section of Singaporeans. Athree-day online campaign initiatedby a Singaporean activist garnered afurther 8000 signatures from aroundthe world.In addition, the InternationalGay and Lesbian Human RightsCommission wrote to SingaporeanPrime Minister Lee Hsien Loongdescribing how retaining the provisioncriminalizing sex between menwould relegate lesbian, gay, bisexualand transgender (LGBT) people tothe status of second-class citizens,with no protection from discriminationand no rights as sexual minorities.Opponents of the repeal arguedthat gay men are not a legitimateminority community in Singaporeand that sex between men is not a“victimless crime because oral andanal sex spread HIV and AIDS.” 2The Prime Minister contended thatrepealing the Penal Code provisioncriminalizing gay sex would ultimatelynot provide LGBT people acceptancein Singaporean society sincethe majority of Singaporeans areopposed to “granting [gay individualsthe] same rights as heterosexual menand women.” In his view, repealingthe provision would polarize thenation and it was preferable for “gayrights” to evolve gradually. 3– Sandra Ka Hon ChuSandra Ka Hon Chu (schu@aidslaw.ca) isa senior policy analyst with the CanadianHIV/AIDS Legal Network.APEC: Members adoptbroad HIV workplaceguidelinesIn September 2007, at the 15 th AsiaPacific Economic Cooperation(APEC) Economic Leaders Meetingin Sydney, Australia, the 21 assembledleaders endorsed wide-rangingguidelines on HIV in the workplacefor APEC member economies. 4The guidelines are based on twopublications from the InternationalLabour Organization (ILO): the Codeof Practice on HIV/AIDS and theWorld of Work and Implementing theILO Code of Practice on HIV/AIDSand the World of Work. The guidelinesalso address issues not coveredin the Code such as gender, childrenwho work, and migrants and mobilepopulations.The guidelines are intended for thegovernments of APEC member economies,public and private employers,business associations, workers, tradeunions and other worker organizations,organizations of people livingwith HIV, and all other groups withresponsibilities and activities relatedto HIV and AIDS in workplace settings.The guidelines are an exampleof a “soft law” approach to policydevelopment. 5Development of the guidelineswas supported by Health Canada duringits period as Chair of the APECHealth Task Force. The Health TaskForce will work closely with organizationssuch as the ILO and the AsiaPacific Business Coalition on AIDSto ensure the guidelines are disseminatedand promoted in APEC membereconomies from 2008 onwards.– David PattersonDavid Patterson(david.patterson@videotron.ca) is an HIV,law and human rights consultant based inMontreal, Canada.1International Gay and Lesbian Human RightsCommission, “Singapore update: law against homosexualsto remain,” 24 October 2007. Available viawww.iglhrc.org.2Ibid.3Ibid.4Available at www.apec.org. Click on “APEC Groups”– “SOM Special Groups” – “Health Task Force”, and lookfor “Current Activities.”5See also D. Patterson, “Use of soft law to addressHIV/AIDS in Southeast Asia” in this issue.VOLUME 12, NUMBER 2/3, DECEMBER 2007 41

HIV/AIDS IN THECOURTS – CANADAThis section presents a summary of Canadian court cases relating toHIV/AIDS or of significance to people with HIV/AIDS. It reports on criminaland civil cases. The coverage aims to be as complete as possible, andis based on searches of Canadian electronic legal databases and on reportsin Canadian media. Readers are invited to bring cases to the attention ofSandra Ka Hon Chu, Editor of this section, at schu@aidslaw.ca. All of thearticles in this section were written by Ms Chu.Senior administrators of bloodsystem acquitted of criminalcharges in tainted blood tragedyOn 1 October 2007, the Ontario Superior Court of Justice acquitted senior administratorsof the blood system on charges of criminal negligence causing bodily harmand common nuisance related to the infection of haemophiliacs with HIV in 1986and 1987. 1 The victims, whose names were withheld due to a publication ban, hadall used HT Factorate, a blood coagulation product used to treat haemophilia andmanufactured by Armour, a pharmaceutical company based in New Jersey.Four counts of criminal negligenceand one count of common nuisancehad been brought against Armour,one of its senior officers, the Directorof the Bureau of Biologics in Canada,the Chief of the Blood ProductsDivision and the National Directorof the Blood Products Services of theCanadian Red Cross, who had beeninvolved in the manufacture, licensingand distribution of HT Factorate.Each count of criminal negligencewas identical but for the time periodcovered (from seven to 18 years)and the identity of the four allegedvictims, three of whom had died ofAIDS related illnesses. The nuisancecharge covered a period of overthree years and involved victims inOntario, British Columbia, Manitobaand Alberta. Armour had also been42 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – canadacharged with failing to report a productdeficiency under the Food andDrug Act. 2HT Factorate was heat-treated tokill pathogens such as HIV but theprocess did not work. The criminalcharges alleged that the accused knewthe product was potentially tainted andfailed to act to prevent its distributionand to warn recipients of the danger.A conviction of criminal negligencerequired the Crown to demonstratethat the accused showed awanton and reckless disregard forthe lives and safety of users. On thecommon nuisance charge, the Crownneeded to show that their actionsdeviated from what a reasonable personwould do in the circumstances.After providing a summary of theevidence, including the developmentof scientific knowledge about HIV,the treatment of haemophilia, and theseries of events up to and beyond theHIV infections in question, MadamJustice Benotto held that the “evidencetaken as a whole establishesa thoughtful, careful and consideredcourse of conduct” on the part of theaccused.Furthermore, she said, the “allegationsof criminal conduct on the partof these men and this corporationwere not only unsupported by theevidence, they were disproved.” InMadam Justice Benotto’s view, themedical information available at thetime confirmed that screening bloodplasma for HIV was an additional levelof security and that a withdrawal ofHT Factorate was unnecessary. Sheconcluded that the accused had actedprofessionally and reasonably in theface of a public health problem.Despite his acquittal, Dr. Perrault,the National Director of the BloodProducts Services of the CanadianRed Cross, faces six additional criminalcharges of common nuisance in acase scheduled to begin this year inHamilton. Perrault is alleged to haverisked public health by neglecting toproperly test donors, implement testingfor blood-borne viruses and warnthe public of danger regarding hepatitisC and HIV.1R. v. Armour Pharmaceutical Co., [2007] O.J. No. 3733(QL).2In May 2005, the Canadian Red Cross pled guilty todistributing a contaminated drug, a violation of the Foodand Drug Act. It was fined $5,000 for its role in the HIVinfections, the maximum penalty for the charge. The RedCross also agreed to give $1.5 million to the Universityof Ottawa for a research endowment fund and a scholarshipfor family members of those affected.Federal Court says Crown not liablefor HIV-positive inmate’s illnessIn March 2007, the Federal Court held that Brian Donald Hickey, an HIV-positivefederal penitentiary inmate, failed to establish on a balance of probabilities a causallink between the over-prescription of an antiretroviral medication (ART) by prisonhealth care employees and the development of peripheral sensory neuropathy, apainful form of nerve damage. 1 The Court also held that the Crown was not liablefor the harm caused by the negligence of an independent contracting physician.As a result, Hickey’s action for negligence against the Crown was dismissed.Hickey first discovered he was HIVpositivein June 1996, while he wasincarcerated at the Matsqui Institutionin British Columbia and was referredto an outside physician in Octoberand November 1996 to receive medicalcare and treatment from an HIVspecialist. The HIV specialist recommendedthat Hickey commence acourse of ART.The prison’s institutional physicianagreed, but erred in the amount heVOLUME 12, NUMBER 2/3, DECEMBER 2007 43

hiv/aids in the courts – canadaindicated should be administered toHickey. Hickey took the incorrectdosage between November 1996 andJanuary 1997. Hickey developedperipheral neuropathy shortly afterthe administration of the ART; hissymptoms continued after he stoppedtaking the medication and persisted atthe time of the trial.Madam Justice Hansen consideredwhether Hickey was precludedfrom suing Correctional ServicesCanada (CSC) in light of a previousFederal Court decision holdingthat the Crown was not liable for theharm caused by the negligence of anindependent contracting dentist toan inmate who was incarcerated in acorrectional facility operated by theCSC. 2Madam Justice Hansen foundthat since the prescribing doctor inthe federal penitentiary was an independentcontractor, the case was notdistinguishable from the previousFederal Court decision and, therefore,no action could be taken against theCrown for his negligence. Althoughthe principles articulated in the previousFederal Court decision weredeterminative of the outcome of thecase, Madam Justice Hansen ruledthat it was nonetheless “importantfrom the Plaintiff’s perspective tohave the negligence claim consideredon its merits.”While it was established duringtrial that peripheral neuropathy couldbe attributed to either the ART orto Hickey’s HIV infection, MadamJustice Hansen held that Hickey’speripheral neuropathy was morelikely related to his HIV, given thelimited period he took the incorrectdosage, and given that neuropathycaused by HIV takes a longer periodof time to resolve than neuropathycaused by medication.Madam Justice Hansen foundthe testimony of the Crown’s expertmedical witness persuasive concerningthe relatively short period of timefor damage arising from the ART tobe repaired once the medication isstopped. In contrast, suppression ofthe HIV virus to permit the body torepair the cell damage underlyingperipheral neuropathy would be amuch longer process.Hickey also argued that CSC has alegislated duty to provide health careto the inmates in accordance withrecognized community standards; thatsince CSC is in a fiduciary relationshipwith the inmates, this imposes ahigher standard of care on CSC; andthe CSC should be held liable fortorts about which it knows or shouldhave been aware.In Madam Justice Hansen’s view,there was insufficient evidence — i.e.concerning whether there were staffpharmacists at the relevant time whomay have detected the error; concerningwhether checks were in place toavoid recording errors; and concerningthe level of knowledge or theexpected level of knowledge of themedical staff having regard to whatwas known about antiretroviral drugs— to support the argument.At trial, Hickey advanced a newargument that had not been previouslydisclosed to opposing counselcentring on section 74 of theCorrections and Conditional ReleaseAct. This provision stipulates thatCSC “shall provide inmates with theopportunity to contribute to decisionsof the Service affecting the inmatepopulation as a whole, or affecting agroup within the inmate population,except decisions relating to securitymatters.”Hickey’s counsel argued that theconsequence of contracting physicianswithout first consulting withinmates is that as between the inmateand CSC, the institutional physicianis to be considered a CSC servant,agent or employee, and the Crownshould therefore not be shielded fromliability. Madam Justice Hansen heldthat since the argument advanced didnot arise from the negligence claimor Hickey’s pleadings, a challengeof this nature ought to be advancedby way of judicial review, and so theCourt ought not to consider the argumentfurther.1R v. Hickey, [2007] F.C.J. No. 345 (QL).2Oswald v. Canada, [1997] F.C.J. No. 203 (QL).44 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – canadaCriminal law and HIV transmissionor exposure: four new casesTwo years imprisonmentfor woman who “ought tohave known” that she wasHIV-positiveOn 16 January 2007, the OntarioSuperior Court of Justice convictedSuwalee Iamkhong, a landed immigrantfrom Thailand, of criminalnegligence causing bodily harm andaggravated assault for knowinglyinfecting her husband with HIVthrough unprotected sex. 1Prior to coming to Canada,Iamkhong worked as an exotic dancerin Hong Kong, where she testedHIV-positive in 1995. Iamkhongrefrained from having sex after shelearned of her HIV status. Shortlyafter, Iamkhong moved to Canada towork as an exotic dancer in a Torontoclub and underwent various medicaltests before beginning her employment.Iamkhong testified that shebelieved an HIV test was amongthe medical tests she underwent.When her employer indicated hertests results were “okay,” Iamkhongunderstood this to mean that she didnot have HIV.Iamkhong subsequently begunwork as an exotic dancer in theToronto club where she met herhusband, who she married in 1997.In 2004, Iamkhong became sickwith meningitis and tested HIVpositivewhen she sought treatment.Iamkhong divulged her HIV statusto her husband who also tested HIVpositive.Charges were laid againstIamkhong in May 2004 and her trialcommenced in October 2007.Although Iamkhong claimed shedid not know that she was HIV-positive,Justice Todd Ducharme ruledthat she ought to have known, andthat a “reasonable person” wouldhave sought further testing and information.On 16 August 2007, JusticeDucharme sentenced Iamkhong totwo years’ imprisonment. JusticeDucharme also rejected Iamkhong’sapplication for a stay of proceedingsbased on unreasonable delay, holdingthat much of the total delay of 29months between the date of her arrestand the opening of the trial had beenthe responsibility of the defence.Crown drops chargesagainst woman forallegedly failing todisclose her HIV statusIn May 2007, the Crown droppedan aggravated sexual assault chargeagainst a woman for allegedly failingto disclose her HIV-positive statusto a man she had sex with. 2 JenniferMurphy had maintained the man wasfully aware of her health status andthat a condom was used. Two witnesses,who Murphy had ensuredwere present when she disclosed herHIV status to the man, had been preparedto testify on her behalf.In 2005, Murphy had been convictedof sexual assault and sentencedto one year of house arrest and threeyears probation for failing to tell asoldier from the Canadian ForcesBase Borden in Ontario with whomshe had sex that she was HIV-positive.At the time, the Departmentof National Defence issued a warningto Canadian Forces personnel inCanada, encouraging them to see adoctor if they had had sexual contactwith Murphy, and circulated claimsof her “lewd behaviour.”Although the latest charge againstMurphy was ultimately dropped, thedecision to charge her in the firstplace, despite the exculpatory evidence,was ostensibly facilitated bythe stigmatization arising from herfirst conviction. At the time, variousmedia sources described Murphy as“preying upon men in the marriedquarters and in the men’s barracks atthe Ontario base,” 3 while investigatorsalleged she frequented thesingle-living quarters on the base,making “direct sexual advances tomale residents.” 4Man accused of failingto disclose HIV-positivestatus convicted of 15counts of aggravatedsexual assaultCarl Leone pled guilty to 15 countsof aggravated sexual assault for havingunprotected sex with 20 womenbetween 1997 and 2004 withoutdisclosing his HIV status. Leoneoriginally faced 20 counts of aggravatedsexual assault. Leone’s pleabargain was announced on 27 April2007 in the Ontario Superior Court ofJustice, eight weeks into his trial andjust before the first of his victims wasscheduled to testify. 5VOLUME 12, NUMBER 2/3, DECEMBER 2007 45

hiv/aids in the courts – canadaFive of the 20 women had testedpositive for HIV since having sexwith Leone. 6 A court-imposed publicationban prevented disclosure of thevictims’ names or any other identifyinginformation.Leone was arrested by Windsorpolice in June 2004, seven years afterhe had tested HIV-positive at theWindsor Essex County Health Unit.The Crown and Leone’s counsel indicatedthere would not be a joint submissionat the sentencing, and Leonewas ordered to undergo a psychiatricevaluation to determine whetherhe should be declared a dangerousoffender.Leone’s sentencing was adjournedto December 2007 to allow the filingof the psychiatrist’s report, at whichtime a hearing on the Crown’s dangerousoffender application wouldproceed. If Leone is declared adangerous offender, he could facean indefinite prison term subjectto review every seven years. TheCrown has indicated that if it doesnot succeed with the application, itwould seek to have Leone designateda long-term offender, which statuswould subject Leone to a lengthyperiod of supervision after his eventualrelease from prison. 7Thirty-month sentencefor three counts ofaggravated sexualassaultIn April 2007, an HIV-positive formerbodyguard from the DemocraticRepublic of the Congo pled guiltyto three counts of aggravated sexualassault for having unprotected sexwith three Sudbury women betweenSeptember and December 2005without disclosing his HIV status. 8Fidel Mombo MacKay, who hadbeen imprisoned in Sudbury sinceDecember 2005, was sentenced to anadditional 30 months imprisonment.MacKay learned he was HIVpositivewhile receiving medicaltreatment for injuries suffered in acar accident in November 2002. InDecember 2005, the Greater SudburyPolice arrested MacKay in relationto a Canada-wide warrant issued bythe Saskatoon police against MacKayfor having unprotected sex withoutinforming his partner of his HIV status.MacKay was arrested while hewas in bed with one of the victims.After his arrest, police releasedMacKay’s picture to the media, urgingindividuals who had sex with himto seek medical advice and to contactthem. This resulted in two moreSudbury women coming forward. Ofthe three women, one tested positivefor HIV after having unprotected sexwith MacKay.In addition to his prison term,MacKay’s name was entered in thefederal government’s national registryof sex offenders, his DNA was placedin the federal DNA databank, andhe was prohibited from possessingweapons for 10 years. At the time ofhis sentencing, MacKay was expectedto be returned to Saskatchewan torespond to the original charges thatresulted in the Canada-wide warrant.1P. Small, “HIV-positive stripper infected husband, courthears,” The Toronto Star (on-line edition), 5 June 2007.2“Crown withdraws case against woman charged withspreading HIV,” The Telegram, 15 May 2007.3S. Taylor, “Military’s concern over HIV on base legitimate,”Esprit de Corps (on-line edition), 27 March 2005.4“Woman charged with HIV assault denied bail,” CTVNews (online), 30 March 2005.5D. Schmidt, “Plea ends HIV trial; Leone admits guilt in 15sex assaults,” The Windsor Star, 28 April 2007, p. A1.6D. Schmidt, “Positive HIV test drove Leone to tears, trialtold,” The Windsor Star, 17 April 2007, p. A3.7D. Lajoie, “Leone sentencing delayed; report neededbefore deciding if he should be deemed a dangerousoffender,” The Windsor Star, 25 July 2007, p. A5.8B. Vaillancourt, “Man with HIV jailed for having sex with3 women,” The Sudbury Star, 12 April 2007, p. A1.In briefApplication for judicialreview allowed in caseof HIV-positive refugeeclaimantOn 2 August 2007, the Federal Courtallowed Mary Okeny Olal’s applicationfor judicial review of a decisionof the Refugee Protection Division ofthe Immigration and Refugee Board(IRB). The IRB had concluded thatOlal and her four children were notConvention refugees or personsin need of protection under theImmigration and Refugee ProtectionAct. 1In her application, Olal claimedthat her HIV-positive status, amongother factors including her ethnicAcholi identity, would subject herto discrimination in Uganda. The46 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – canadaIRB responded by noting that theUgandan government had takenmeasures to fight AIDS and that theavailability of health care, whileimperfect and expensive, underminedthe applicant’s claim of persecutionon this ground.In its decision, the IRB did notrefer to written evidence regardingOlal’s possible persecution inUganda, including a statement from apurported expert in human rights violationsin Uganda claiming that Olalwould be perceived by the Ugandangovernment as a political opponentand that she would be persecuted.The Federal Court ruled that whileit is open to the IRB to concludethat Olal’s claim was not credibleon most issues, the IRB has a dutyto identify relevant evidence that isdirectly contradictory to its conclusion,and explain why it decided thatsuch evidence is not credible. TheCourt decided that because the IRBhad failed to do so, the IRB decisionshould be set aside and the matterreferred to a differently constitutedIRB panel for re-determination.HIV/AIDS educator’sapplication to stopdeportation rejectedOn 21 September 2007, the FederalCourt denied an application for stayof removal for David Nyachieo,Electa Nyachieo and their three children.2The principal applicant, DavidNyachieo, migrated from Kenya tothe United States in 1999 and livedthere with his family until 2004,when most of the Nyachieo familyentered Canada. At the time,the applicants made refugee claimsalleging persecution in Kenya froma member of the Kenyan Parliament.They claimed they were threatenedbecause David Nyachieo made effortsto raise awareness about humanrights, HIV/AIDS and female genitalmutilation in the community.The applicants’ initial claims forrefugee protection were rejected bythe Refugee Protection Division ofthe Immigration and Refugee Board(IRB), which found a lack of fearor risk for the applicants and theabsence of grounds to believe that, ifremoved to Kenya, they would be indanger. The applicants sought a judicialreview of that ruling, which wasdismissed.A subsequent motion for a Pre-Removal Risk Assessment (PRRA)was rejected in January 2007, and anapplication to have the applicants’refugee claim re-opened on humanitarianand compassionate groundswas denied in August 2007. Theapplicants filed a new and pendingapplication to judicially review thelast decision.On 5 September 2007, an agentof Canada Border Services Agency(CBSA) made the decision to deportthe family, on the basis that no exceptionalcircumstances existed whichwould justify a deferral. The applicantsargued that a stay of removalshould be granted pending the dispositionof their humanitarian andcompassionate application for judicialreview.The Federal Court held that therefusal to defer the removal orderwas reasonable, and that that theapplicants’ claim of irreparable harmattributed to the disruption of theapplicant children’s studies had notbeen proven. Furthermore, the Courtheld that the fact that a person has anoutstanding application for humanitarianand compassionate relief is nota sufficient ground to defer removal,since the application could be pursuedoutside Canada.Federal Court rejectsmotion to stopdeportation of HIVpositivewoman toZambiaOn 28 August 2007, the Federal Courtdismissed a motion by Rabecca Diafor a stay of removal scheduled for 31August 2007. 3 Dia, who is HIV-positive,left Zambia for Canada in 2003to escape her alcoholic and abusivehusband, who is also a polygamist.Dia’s initial claim for refugee statuswas rejected on the basis that shewas not “credible,” which the Courtdid not elaborate upon. A subsequentPre-Removal Risk Assessment(PRRA) was negative, and a removalorder was issued against her.In her application for a stay ofremoval, Dia claimed that her recentparticipation in a movie which washighly critical of Islamic polygamy inZambia would come to the attentionof both her husband and the Zambianauthorities. Although Federal CourtJustice Harrington did not indicatein his decision how Dia argued thiswould ultimately affect her, he heldthat the PRRA officer was entitled togive the movie “short shrift” as theevidence did not demonstrate that Diawould be subject to risk of persecutionby the authorities for speakingout against polygamy.Nor did Justice Harrington indicatehow Dia argued her HIV status wouldimpact her in Zambia. Nevertheless,he stressed that although the PRRAofficer did not specifically deal withDia’s HIV status, under section 97of the Immigration and RefugeeVOLUME 12, NUMBER 2/3, DECEMBER 2007 47

hiv/aids in the courts – canadaProtection Act, a risk caused by aninability of a country to provideadequate health or medical care doesnot constitute a risk to life or a riskof cruel and unusual treatment orpunishment. Justice Harrington ruledthat, in any case, HIV treatment isavailable in Zambia, and Dia wouldbe returning to Lusaka (the capitalcity), where HIV treatment is morereadily available.Court of Appeal rulesthat HIV status is nota reason for denyingcontact between childand parentOn 12 February 2007, the Courtof Appeal of Alberta allowed theappeal of a decision dismissing theappellant’s application for a contactorder granting him access to a threeand-a-half-year-oldgirl, to whom theappellant acted as a parent for thethree years immediately followingher birth. 4The appellant had sought a contactorder against the biological parents ofthe child. The appellant had been ina relationship with the male respondentfor six and a half years, duringwhich time they befriended thefemale respondent who was also in along term same-sex relationship.The parties decided that the femalerespondent would attempt to birthchildren, one child for each couple,utilizing assisted conception, withthe male respondent donating thesperm. The child was born in May2003, and lived with the appellantand the male respondent in theirhome and as a family until the twomen separated in June 2006.Since the separation, the respondentshad refused to allow the appellantto have contact with the child,citing the appellant’s HIV-positivestatus as one reason for denyingcontact. In August 2006, the appellantapplied unsuccessfully underAlberta’s Family Law Act (FLA) fora contact order granting him accessto the child. The appellant had submittedbefore the chambers judgethat he was the parent of the childor stood in the place of a parent inaccordance with Section 48 of theFLA.While the chambers judge recognizedthe significant relationshipbetween the appellant and the child,he determined that the respondents’wishes as guardians were entitled toconsiderable weight. The judge furtherdetermined that the appellant hadnot shown how contact with the childwould contribute to her best interests,given that her parents had decidedotherwise.In the Court of Appeal’s view,the evidence established that therewere three adults who had significantrelationships with the child and thatthe appellant stood in the place of aparent to the child. Furthermore, theCourt said, the reasons given for thedenial of contact by the two respondents,including the appellant’s HIVpositivestatus, were an inadequatefoundation upon which to refuse thecontact order.The Court stated that the trialjudge had failed to take into accountthe benefit derived from additionalaffection from someone who hasbeen directly involved in the child’sparenting since birth, as well as thepotential for emotional harm occasionedby the sudden withdrawal ofparental attention and support. TheCourt ruled that the appellant wastherefore entitled to reasonable accessto the child.Settlement approvedin case of improperlysterilized medicalequipmentOn 16 August 2007, the TrialDivision of the Newfoundland andLabrador Supreme Court approved asettlement agreement in a class actionon behalf of 333 patients and spousesof patients of a medical clinic whereimproperly sterilized equipment wasused. 5The hospital board responsiblefor the clinic realized gynaecologicalequipment was not being properlysterilized in March 2003. It correctedthe problem and issued a pressrelease notifying the public that theproblem had been discovered andcorrected. The board also sent lettersto patients requesting them toundergo medical testing at the hospitalto determine whether they hadcontracted HIV, hepatitis B, hepatitisC, chlamydia or gonorrhoea.While none of the patients sustainedinfections, the plaintiffsalleged that the board had breachedits duty of care and violated patients’privacy by conducting medical testingin such a manner that the identitiesof patients became obvious toother patients and thereby knownin the small community where theylived. The settlement required theboard to pay compensation of $450to uninfected patients and $100 touninfected spouses, and to offer apublic apology. The agreement alsoimposed measures on the hospitalboard to ensure improper sterilizationdid not reoccur.The Court held that the test tobe applied in approving settlementsof class actions is whether a settlementis fair and reasonable and in thebest interests of the class as a whole.48 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – canadaAfter reviewing the evidence, theCourt ruled that the agreement metthe goals of class action members,that proceeding to trial might not yieldbetter results and would involve moretime and expense, that the class actionmembers had adequately participatedin the negotiation of the settlements,and that there was an adequate planfor notifying members of the settlementapproval that was in place.Claimants mustestablish entitlement tohave damages assessedby HIV fund’s refereeOn 16 March 2007, the OntarioSuperior Court of Justice provideddirections as to the interpretation andapplication of its June 2006 orderrequiring provincial and territorialgovernments to pay Multi-Provincial/Territorial Assistance Program(MPTAP) benefits to individualclaimants to an HIV fund establishedby the Canadian Red Cross Society. 6The MPTAP was established in1993 by the provinces and territoriesto provide financial assistance topersons directly infected with HIVthrough the blood system in Canada.The Canadian Red Cross Societyhad also made available a fund ofmoney (the HIV fund) to meet theclaims of various groups of personswho had contracted HIV from bloodproducts supplied by the society. Thefund was established pursuant to theCanadian Red Cross Society Plan ofArrangement and Compromise (theplan).A dispute had arisen amongstcounsel as to the identity of the HIVclaimants who were meant to benefitfrom the order. The provinces andterritories contended that the orderwas only meant to cover those claimantswho had applied to the HIV fundwithin the timeline required under theplan, whose claim arose as a result ofan HIV infection from blood withinthe meaning of the plan, and whoare also entitled to an assessment ofdamages in accordance with the plan.Counsel for certain claimants arguedthat an HIV claimant need only havemade a claim to the HIV fund inorder to qualify under the order.Justice Blair held that, for thepurposes of securing MPTAP benefits,claimants must establish anentitlement to have their damagesassessed by the plan’s referee. Thiswould require a confirming letterfrom counsel for the trustee of theHIV fund stating that claimants areentitled to have damages assessed bythe referee, subject to proving thatthat their claims arise as a result of anHIV infection from blood within themeaning of the plan. The latter couldbe proven by providing the CanadianBlood Agency with the necessaryinformation to allow the agency toconfirm that a government programhas already accepted that individual’sclaim for compensation on the basisthat he or she was infected with HIVfrom the Canadian blood supply.1Okeny Olal v. Canada (Citizenship and Immigration), 2007F.C. 811 (CanLII).2Nyachieo v. Canada (Minister of Citizenship andImmigration), [2007] F.C.J. No. 1216 (QL).3Dia v. Canada (Minister of Public Safety and EmergencyPreparedness),[2007] F.C.J. No. 1130 (QL).4D.W.H. v. D.J.R., [2007] A.J. No. 187 (QL).5Rideout v. Health Labrador Corp., [2007] N.J. No. 292(QL).6Canadian Red Cross Society (Re), [2007] O.J. No. 937(QL).VOLUME 12, NUMBER 2/3, DECEMBER 2007 49

HIV/AIDS IN THE COURTS– INTERNATIONALThis section presents a summary of important international cases relatingto HIV/AIDS or of significance to people living with HIV/AIDS. Itreports on civil and criminal cases. Coverage is selective. Only importantcases or cases that set a precedent are included, insofar as they come tothe attention of the Review. Coverage of U.S. cases is very selective, asreports of U.S. cases are available in AIDS Policy & Law and in Lesbian/GayLaw Notes. Readers are invited to bring cases to the attention of LeahUtyasheva, editor of this section, at lutyasheva@aidslaw.ca.India: Court upholds patent lawdenying patents for slightlymodified versions of existing drugsIn August 2007, the Madras High Court struck down a petition by the Swiss pharmaceuticalcompany Novartis to declare the anti-evergreening provision in Indianpatent law invalid. 1 Evergreening is the practice of effectively extending the patenton a drug by filing a new patent for a marginal modification to that drug, such as achange in its shape, dosing range or color. 2 The Court’s decision is critical for globalaccess to essential medicines in the form of affordable generic drugs from India. 3In 2006, Novartis filed a petitionwith the Madras High Court to strikedown Section 3(d) of the IndianPatents Act, 1970, amended by ThePatents (Amendment) Act of 2005(the Patents Act), which denies patentabilityto “the mere discovery ofa new form of a known substancewhich does not result in the enhance-50 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – internationalment of known efficacy of that substance….”Novartis argued that thePatents Act was:• non-compliant with India’sinternational obligations underthe agreement on Trade RelatedAspects of Intellectual PropertyRights (TRIPS) of the WorldTrade Organisation (WTO),which India signed in 1995; and• illogical and vague, and thuscould lead to the arbitrary exerciseof power by the PatentController, offending the equalityprovision in the IndianConstitution. 4In response to Novartis’ claim thatSection 3(d) takes away the right tohave an invention patented, which isguaranteed under Section 27 of theTRIPS agreement, the Court ruledthat it did not have jurisdiction todecide this question, since it couldnot override the dispute resolutionmechanism of the WTO, which isfixed in the TRIPS agreement. 5In relation to the second claim,Novartis contended that, given thatSection 3(d) grants a patent to a newform of a known substance onlywhen the latter results in the enhancementof the known efficacy of thatsubstance, the Indian Parliamentought to have provided guidanceas to what constitutes “efficacy” or“enhanced efficacy” in this provision,since otherwise it places widediscretion in the hands of the PatentController.The Court, defining efficacy in thisinstance to mean “therapeutic efficacy,”responded that “[P]arliament isnot an expert … [and] always thinksit wise to use only general expressionsin the Statute, leaving it to theCourt to interpret it depending uponthe context in which it is used andthe facts that are available in eachcase.”The Court added that both thePatent Controller and the patentapplicant are further aided by theExplanation attached to Section 3(d),which is capable of “being workedout and understood in a normalmanner” by both parties, and whichgives guidance as to which forms ofa substance shall be considered thesame substance unless a significantimprovement in efficacy is shown.The Court concluded that, especiallywith regard to laws dealing with economicissues, such as the Patents Act,it should give large latitude to theLegislature. 6While Novartis has lost this case(and has decided not to appeal), itmight nevertheless challenge thePatents Act at the WTO.India has a US$5 billion pharmaceuticalindustry; 65 percent ofthe drugs are sold to the developingworld and poorer people in the developedworld. 7 According to the NGOMedecins Sans Frontières (MSF),84 percent of the AIDS drugs that itprescribes to its patients worldwidecome from Indian generic drug companies.8CommentaryImportantly, the judgment of theMadras High Court allows continuedaccess to affordable drugs. 9 Itshould be noted, however, that withthe amendment of the Indian patentlaw in 2005, which marked thecompletion of India’s transition froma process patent regime (under whichthe generic drug industry flourished)to a product patent regime (which hasbeen criticized for giving primacy tothe interests of pharmaceutical companies),it will now be easier for thepharmaceutical companies to obtainpatents in India.– Madhavi SwamyMadhavi Swamy is a student at theUniversity of Toronto Faculty of Law andis volunteering with the Legal Networkthrough Pro Bono Students Canada.For more discussion of Indian patent lawand the development of the Novartis case,see HIV/AIDS Policy and Law Review 10(2)(2005): 29–30; and 12(1) (2007): 35.1The Patents (Amendment) Act, No. 15 of 2005.2W. Kondro, “Supreme Court rules against drug patent‘evergreening,’ ” Canadian Medical Association Journal175(12) (2006): 1508.3MSF, “After Indian court ruling, MSF hands over petitionwith 420,000 signatures to Novartis,” news release, 8August 2007. Available via www.msf.org.4Novartis AG et. Al. v. Union of India et. Al. (August 6, 2007),Madras W.P. Nos.24759 and 24760 of 2006.5Ibid., paras. 6–8.6Ibid., paras. 10–18.7A. Gentleman, “Indian law on generic drugs is upheld,”International Herald Tribune, 6 August 2007. Available viawww.iht.com.8MSF.9A. Gentleman.VOLUME 12, NUMBER 2/3, DECEMBER 2007 51

hiv/aids in the courts – internationalPardon granted to health care workerssentenced to death by Libyan courtOn 24 July 2007, five Bulgarian nurses and a Palestinian doctor sentencedto death in Libya for intentionally infecting children with HIV were extraditedto Bulgaria and pardoned by Bulgarian President Georgi Parvanov.The medical workers, who beganworking at Al Fateh Hospital inBenghazi, Libya in 1998, weredetained in February 1999 during aninvestigation into an HIV outbreak atthe hospital. Initially, six Bulgarians,one Palestinian and nine Libyanswere accused of infecting the childrenas part of a ploy with Israel’ssecret service, the Mossad, to undermineLibya. 1The trial commenced on 7February 2000. 2 In 2002, thePeople’s Court in Tripoli, whichaddresses matters of state security,acquitted all defendants of conspiracyand referred the case to the criminalcourt to hear the charges of deliberatelycausing the infection. 3 On 6May 2004, five of the Bulgarians andthe Palestinian doctor were sentencedto death by firing squad. The sixthBulgarian was acquitted. 4On appeal, on 25 December 2005the Libyan Supreme Court overruledthe death sentences and ordered aretrial. The retrial ended in a seconddeath sentence for all six medicalworkers, delivered on 19 December2006. 5 The judgment was upheld onappeal to the Supreme Court on 11July, 2007. 6On 17 July 2007, the High JudicialCouncil of Libya overruled the decisionof the Supreme Court and commutedthe death penalty to life inprison, after the families of the infectedchildren accepted a compensationpackage of approximately US$1 millioneach. 7 Initially, the families hadinsisted on compensation of US$10million per infected child. 8The medical workers werereleased from prison on 24 July and,in accordance with the 1984 prisonertransfer agreement between the twocountries, were flown to Bulgariawhere they were pardoned. 9 ThePalestinian doctor had previouslybeen granted Bulgarian citizenshipso that he could also be transferred toBulgaria. 10Bulgarian Prime Minister SergeiStanislav attributed the release of themedical workers largely to Bulgariajoining the European Union (EU) onJanuary 2007. 11 The EU, memberstates and even private corporationschannelled large amounts of aid intoLibya to help resolve the case. TheEU also established treatment programsin Libya for the children, builtmedical facilities and supplied medicalequipment. 12Bulgaria transferred approximatelyUS$57 million of Libya’s debt to afund created to provide treatment tothe infected children, but noted thatthe cancellation of the debt was a gestureof goodwill, and not an admissionof the medical workers’ guilt. 13The trial of medical workers lastednearly eight years, despite considerableevidence of their innocence.In 2001, two of the world’s leadingAIDS experts, Dr Luc Montagnierand Dr Vittoria Colizzi investigatedthe hospital and concluded that thespread of HIV was the result of poorsanitary conditions. 14 They tracedthe source of the infection to a singlesubtype of the HIV virus which wasbrought into the hospital by an identifiedchild in 1997, well before thearrival of the medical workers. 15Further, some of the children wereinfected after the medical workerswere arrested. 16 On 3 September2003, during the medical workers’first trial, Dr Montagnier presentedthe findings of his investigation incourt. 17 In Dr Montagnier’s opinion,the medical workers were chargeddespite scientific evidence of theirinnocence because “[t]he hospitalneeded a scapegoat.” 18 The case hasbeen described by many as not “acriminal case, but a political game.” 19The medical workers allege that,during their confinement, they weretortured to extract confessions. 20On 22 March 2002, twenty Libyanofficers were arrested for allegedlytorturing the medical workers. On 7June 2005, the Tripoli court acquittedall nine officers charged. 21 Many ofthe officers then accused the medicalworkers of slander; however, on 27May 2007, a Libyan court acquittedthe workers of these charges. 22In 2007, Bulgarian prosecutors laidtorture charges against many of theofficers and indicated that they planto pursue the case. 2352 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – internationalThe 426 children were infectedwith HIV between April 1997 andMarch 1999. At least fifty of thechildren have since died. 24– Courtney AshtonCourtney Ashton is a student at theUniversity of Toronto Faculty of Law andis volunteering with the Legal Networkthrough Pro Bono Students Canada.For previous discussion of this case seeHIV/AIDS Policy and Law Review 9(3)(2004): 61; and 11(1) (2006): 51.1E. Rosenthal, “Libyan court upholds death sentences inHIV case,” New York Times, 11 July 2007.2“Timeline: Bulgarian medics’ trial in Libya,” Sofia NewsAgency, 15 November 2005.3H. Saleh, “Libya court rejects HIV plots charges,” BBCNews, 12 February 2002.4“Chronology: Libya HIV trial of Bulgarian medics,”Reuters (on-line), 19 December 2006.5Ibid.6“Timeline.”7Ibid.8M. Brunwasser, “Workers arrive in Bulgaria after beingfreed,” New York Times, 24 July 2007.9Ibid.10Ibid.11Republic of Bulgaria, “Sergei Stanishev: welcome home,the drama is over,” news release, Sofia, 24 July 2007. Atwww.government.bg/cgi-bin/e-cms/vis/vis.pl?s=001&p=0137&n=000443&g=.12E. Rosenthal.13“Bulgaria signs agreement to transfer $57M of Libya’sdebt to international fund for HIV-positive children,”Kaiser Daily HIV/AIDS Report, 5 September 2007.14E. Rosenthal.15Physicians for Human Rights, Open Letter on DeathSentence for Bulgarian Nurses, Palestinian Doctor, 23 June2007. At www.bta.bg/site/libya/en/08experts.htm.16E. Rosenthal.17Ibid.18Ibid.19M. Brunwasser.20“Medical workers sentenced to death in HIV infectioncase were tortured during incarceration,” Kaiser DailyHIV/AIDS Report, 10 August 2007.21“Timeline.”22“Medical workers in Libyan HIV infection case acquittedon slander charges,” Kaiser Daily HIV/AIDS Report, 29May 2007.23“Medical workers sentenced…”24“Deal could save foreigners accused in Libyan HIVcase,” CBC News (online), 10 July 2007.U.N. Committee holds thatColombia failed to protect rightto benefits for same sex coupleOn May 14 2007, the U.N. Committee of Human Rights found that Colombia breachedequality provisions of the International Covenant on Civil and Political Rights (ICCPR) 1 whenit rejected a pension transfer to a member of a same sex couple. 2 The Committee statedthat the refusal to grant X his same sex partner’s pension amounts to discrimination onthe basis of sexual orientation, which is prohibited under Article 26 of the ICCPR.In September 1994, after his partnerY had died following a relationshipof 22 years, during which they livedtogether for seven years, X lodged anapplication with the Social WelfareFund of Colombia seeking a pensiontransfer. In 1995, the fund rejectedX’s request, on the grounds that thelaw did not permit the transfer of apension to a person of the same sex.X instituted an action for protectionin Bogotá Municipal CriminalCourt, seeking a response from theBenefits Fund of the ColombianCongress. On 14 April 1995, theCourt dismissed the application onthe grounds that there had been noviolation of fundamental rights.There followed a series of unsuccessfulappeals in Colombian courts:• On 15 September 1995, theBogotá Circuit Criminal CourtNo. 18 rejected the application,finding that there were nogrounds for protecting the rightsin question.VOLUME 12, NUMBER 2/3, DECEMBER 2007 53

hiv/aids in the courts – international• In October 2005, the Bogotá HighCourt upheld the lower court’sdecision.• In 2000, the CundinamaraAdministrative Court rejected X’sapplication on the grounds of thelack of constitutional or legal recognitionof homosexual unions asfamily unions.• Also in 2000, the Council ofState upheld the ruling of theAdministrative Court, arguingthat under the Constitution, thefamily is formed through naturalor legal ties between a man and awoman. 3X then filed a complaint to the U.N.Human Rights Committee. In hiscomplaint, X claimed that he wasdiscriminated against on the groundof sexual orientation and that this discriminationviolated several articlesof the ICCPR: Article 2(1), protectionof rights without distinction; Article3, equal rights of men and women;Article 5, prohibition of limitationand restriction of rights guaranteedin the ICCPR; Article 14(1), equalitybefore the courts; and Article 17(1),interference with privacy.X also claimed that the refusal ofthe Colombian courts to grant him apension on the grounds of his sexualorientation violated his rights underArticle 26 of the ICCPR. Article 26guarantees equality and equal protectionof the law to everyone withoutany discrimination, prohibits anydiscrimination, and guarantees to allpersons equal and effective protectionagainst discrimination on any ground,including sex.The U.N. Human RightsCommittee discussed in detail thealleged violation of Article 26 of theICCPR. It noted that X was not recognizedas the permanent partner ofY for pension purposes because courtrulings based on national law foundthat the right to receive pension benefitswas limited to married couplesand members of heterosexual de factomarital unions.In response to the claims madeby X, the representative of theColombian government had arguedthat “the state party has no obligationto establish a property regime similarto that established [for heterosexualcouples] for all the different kinds ofcouples and social groups, who mayor may not be bound by sexual oremotional ties.” 4However, in earlier jurisprudence,the Committee had stated that theprohibition against discriminationunder Article 26 includes discriminationbased on sexual orientation. 5The Committee had also previouslyfound that differences in benefitentitlements between married couplesand heterosexual unmarried coupleswere reasonable and objective,because the couples in question hadthe choice to marry or not, with allensuing consequences. 6However, in this case, theCommittee noted that (a) it was notopen to X to enter into marriage withhis same-sex permanent partner; and(b) the national law of Colombiadoes not make a distinction betweenmarried and unmarried couples, butrather between homosexual and heterosexualcouples.The Committee concluded that thedistinction between same-sex partners,who are not entitled to pensionbenefits, and unmarried heterosexualpartners, who are so entitled, is notreasonable and objective, and thatthere is no evidence to justify sucha distinction. Thus, the Committeefound that Colombia had violatedArticle 26 of the ICCPR by denyingX’s right to his life partner’s pensionon the basis of his sexual orientation.In light of this finding, theCommittee decided that it is not necessaryto consider the claims madeunder other articles of the ICCPR.The Committee ruled that X is entitledto reconsideration of his requestfor a pension without discriminationon grounds of sex or sexual orientation.As a party to the ICCPR and theOptional Protocol to the ICCPR,Colombia is obligated to provide aneffective and enforceable remedy in acase where there has been a violationof the treaty. 7 Colombia also has anobligation to publish the Committee’sfinding, to take steps to prevent similarviolations of the ICCPR in the future,and to report on the measures taken togive effect to the findings within 90days of the date of the ruling. 8– Leah Utyasheva1International Covenant on Civil and Political Rights, 1966,entered into force 23 March 1976.2U.N. Human Rights Committee, Communication No.1361/2005: Colombia, 14/05/2007/ CCPR/C/89/D/1361/2005 (Jurisprudence).3Ibid., para. 2.7.4U.N. Human Rights Committee, Communication No.1361/2005, para. 7.1.5U.N. Human Rights Committee, Communication No.941/2000, Young v. Australia, Views of 6 August 2003,para. 10.4.6U.N. Human Rights Committee, CommunicationsNos. 180/1984, Danning v Netherlands, Views of 9 April1987, para. 14; and 976/2001, Derksen and Bakker v.Netherlands, Views of 1 April 2004, para. 9.2.7Art. 2 of the ICCPR and the Optional Protocol to theICCPR, 1966, entered into force 23 March 1976.8U.N. Human Rights Committee, Communication No.1361/2005, para. 10.54 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – internationalSouth Africa: Constitutional Court protectsprivacy rights of people living with HIVOn 4 April 2007, the Constitutional Court of South Africa set aside the judgmentof the Johannesburg High Court and ruled that applicants’ rights to privacy,dignity and psychological integrity were violated by publication of their HIVstatus without their consent in the case of NM and Others v Smith and Others. 1In March 2002, the names of threeHIV-positive women were publishedin a biography of a politician Patriciade Lille. The three women allegedthat their names had been publishedwithout their prior consent, and thattheir rights to privacy, dignity andpsychological integrity were violated.They sued for damages in theJohannesburg High Court, namingde Lille, the author of the biography,Charlene Smith, and the publisher,New Africa Books, as respondents.Between 1999 and 2001, the threewomen participated in a clinical drugtrial that ended after concerns wereraised regarding illness and fatalitiesamong trial participants. The threewomen participated in a subsequentinvestigation during which theirnames were disclosed (and mentionedin the final report of the investigation).De Lille, known for her stand in relationto the rights of people living withHIV, participated in the investigation.A description of de Lille’s work onHIV/AIDS was published in her biography,together with the names andHIV status of the three plaintiffs.In May 2005, the High Court heldthat the defendants acted reasonably indisclosing private information, notingthat nothing suggested that the informationcontained in the inquiry reportwas confidential. The Court said thatthe defendants could not be held liablefor the disclosure of the three women’sHIV status, but that the publisherwas liable for damages subsequent tothe book’s publication. The publisherwas ordered to pay each plaintiff damagesof 15,000 Rand (approximatelyUS$2,240) and to delete from all copiesof the book in its possession anyreferences to the plaintiffs’ names.In the case before theConstitutional Court, the applicantscomplained that the High Court hadfailed to protect their rights to privacy,dignity and psychological integrity.The Constitutional Court stated that[d]isclosure of an individual’s HIVstatus … deserves protection againstindiscriminate disclosure due to thenature and negative social context thedisease has as well as the potentialintolerance and discrimination thatresult from its disclosure. The affirmationof secure privacy rights within… [the] Constitution may encourageindividuals to seek treatment anddivulge information encouraging disclosureof HIV which has previouslybeen hindered by fear of ostracismand stigmatisation…. As a result, it isimperative and necessary that all privateand confidential medical informationshould receive protection againstunauthorised disclosure. 2The Court further stated that theassumption that others are allowedaccess to private medical informationonce it has left the hands of authorisedphysicians and other personnelinvolved in the facilitation of medicalcare is fundamentally flawed. TheCourt said that this assumption failsto take into account an individual’sdesire to control information abouthim or herself and to keep it confidentialfrom others. 3The Court held that de Lille andSmith did not sufficiently pursueefforts to establish if the necessaryconsent had been obtained, and concludedthat the publication of the HIVstatus of the applicants constituted awrongful publication of a private fact,and so the applicant’s right to privacywas breached by the respondents. 4In respect to the claim that theapplicants’ dignity was violated, theCourt stated that there is nothingshameful about living withHIV/AIDS, but that it is neverthelessan affront to an infected person’sdignity for another person to disclosedetails about the infected person’sHIV status or any other private medicalinformation without his or herconsent. 5 The Court thus concludedthat the respondents violated the dignityand psychological integrity ofthe applicants, and that no evidencewas presented that the disclosure wasin the public interest.The majority of judges assertedthat the invasion of privacy wasintentional, and that the respondentswere aware that the applicants hadnot given their consent to the disclo-VOLUME 12, NUMBER 2/3, DECEMBER 2007 55

hiv/aids in the courts – internationalsure (or that the respondents at leastforesaw the possibility that the consenthad not been given).The majority judgment notesthat as campaigners in the field ofHIV/AIDS, the respondents knewwell that their conduct was wrong,and that the disclosure of privatefacts was likely to invade the privacyrights of the applicants. 6 The Courtalso raised the amount of damagespaid to each applicant to 35,000 Rand(approximately US$5,230).Mark Heywood, of the NGOAIDS Law Project, commentedthat this is the first case heard bythe Constitutional Court which wasbrought by very poor people who hadtried, in vain, to protect their privacyrights against invasion by very powerfulpeople. 7– Leah UtyashevaFor previous discussion of this case, seeHIV/AIDS Policy and Law Review 10(2)(2005): 53.1NM and Others v Smith and Others (CCT 69/05) [2007]ZACC 6 (4 April 2007). The full text of the judgment isavailable via www.saflii.org.2Ibid. at para. 42.3Ibid., para. 43.4Ibid., para. 45.5Ibid., para. 47.6Ibid., para. 63.7Mark Heywood, “Power, AIDS stigma and the law.”At www.alp.org.za/index.php?catid=38.Criminal Law and HIV/AIDS: two new casesRussia: Man sentencedto three years andthree month in prisonfor HIV transmissionOn 1 June 2007, the BeloyarskiyRegional Court in the Russian oblastof Sverdlovskaya sentenced a manto three years and three months inprison for intentionally transmittingHIV to two women. 1Ch was diagnosed with HIV in2001 and was warned about criminalresponsibility for HIV transmission.During the period from 2002 to 2005,Ch had sexual relationships with twowomen; both later tested HIV-positive.Russian law makes it a crime to(a) knowingly expose someone toHIV (punishable by up to one yearin prison); and (b) transmit HIVwhen the person knew he or shewas HIV-positive (punishable by upto five years in prison). NegligentHIV infection by medical personnelis also a crime (punishable by up tofive years in prison, and deprivationof license and right to practice). HIVtransmission committed against twoor more people or against a minor ispunishable by a prison term of up toeight years. 2This article of the Criminal Codeis supplemented by a annex, whichexcludes criminal responsibility forHIV exposure and transmission incases where the partner knew aboutthe risk and voluntarily consented tosexual relations.According to commentaries to theCriminal Code, 3 condom use can beused as defence in charges againstHIV exposure, but it is not clear ifthis defence has actually been used incourt. 4 Russia is a civil law country;there are not many known prosecutionsfor HIV transmission.– Leah UtyashevaAustralia: Court deniesapplication to appealconviction of man whoargued HIV does notexistIn January 2006, Parenzee wasconvicted of three counts of endangeringlife on the basis that he hadunprotected sexual intercourse withthree women when he knew he hadHIV and had been advised of the riskof HIV transmission if he were toengage in unprotected sex.The prosecution had argued thatParenzee knew that the acts werelikely to endanger the life of each ofthe women, and that he was recklesslyindifferent as to whether their liveswere endangered. One of the womenlater tested HIV-positive. Parenzeewas sentenced to nine years in prison.Parenzee applied for permissionto appeal his conviction to theSupreme Court of South Australia,56 HIV/AIDS POLICY & LAW REVIEW

hiv/aids in the courts – internationalclaiming there had been a miscarriageof justice because at trial hislegal representatives did not havethe opportunity to call importantexperts. Parenzee claimed that newevidence showed (a) that HIV cannotbe proven to exist, (b) that, even ifit existed, it cannot be demonstratedthat HIV can be transmitted by sexualintercourse; and (c) that there is noevidence that AIDS was causedby HIV. 5On August 24, 2007, Parenzee’sapplication for permission to appealwas refused by the Supreme Court ofSouth Australia (Court of CriminalAppeal). The judges held that thematerial before them overwhelminglysupported the conclusion that HIVexists and is identifiable, that HIVcan be transmitted by sexual intercourse,and that it causes AIDS. 6– Leah Utyasheva1“Three years in prison for double HIV transmission”(“Za dvoinoe zarazhenie VICH dali tri goda kolonii”),Rambler Planeta (online), 3 June 2007.2Criminal Code, 1996, # 63-FZ [Russian Federation], art.122.3Commentary to the legislation is composed byacademic experts in the field and used as handbooks.4A.V. Naumov (ed). Commentary to the Criminal Code ofthe Russian Federation, Moscow: (Yurist, 1997). See also,Commentary to the Criminal Code, Legislation of Russia atwww.labex.ru.5R v Parenzee [2007], SASC 143, Supreme Court ofSouth Australia, 27 April 2007.6R v Parenzee [2007] SASC 316, Supreme Court of SouthAustralia (Court of Criminal Appeal), 24 August 2007.In briefCentral Asia: SeveralHIV outbreaks linked totransfusions of taintedblood and poor sanitaryconditions in hospitalsOn 27 June 2007, 17 health workersin Shymkent, Kazakhstan wereconvicted of criminal negligence bythe Shymkent Court, following anHIV outbreak among children whoreceived blood transfusions. 1 Themedical workers received sentencesranging from several months to eightyears in prison.However, four senior health officialswere given suspended sentences,much to the outrage of victims’ families.2 Medical workers in Shymkentclaim that the convicted doctors were“scapegoats,” and that the source ofthe outbreak has still not been definitivelypinpointed. 3The defendants claimed that thechildren contracted HIV through mother-to-childtransmission. The motherswere tested and found HIV-negative.A medical investigation conducted bythe U.S. Centers for Disease Controland Prevention identified transfusionsof tainted blood as the source of theShymkent HIV outbreak. 4In Central Asia, blood transfusionsare commonly used “to fortifya healthy body and remedy diseasesthat are not blood related,” a practicethat, according to experts, is unnecessaryand not medically proven. 5According to some reports, thecauses of the outbreak lie in thegeneral poor quality of health careand lack of resources. Court recordsshow that syringes and catheters atShymkent’s three children’s hospitalswere routinely reused. The judge inthe case also listed evidence of negligence,abuse of patients and theft ofhealth funds. 6The outbreak resulted in 118 childrenbecoming infected with HIV.Since 2006, 10 of these children havedied. 7 Since the Shymkent case,transfusions of tainted blood havebeen linked to HIV outbreaks in otherCentral Asian countries: in March2007, in Andijan, Uzbekistan, ninepeople became infected with HIV;in July 2007, in Osh, Kyrgyzstan, 22people were infected with HIV, 17 ofthem children. 8– Leah UtyashevaRussia: Courts findauthorities responsiblein two cases of HIVtransmission inhospitalsIn March 2007, the Voronezh CentralDistrict Court awarded 3.5 millionrubles (approximately US$141,000)in moral damages to X as a result ofVOLUME 12, NUMBER 2/3, DECEMBER 2007 57

hiv/aids in the courts – internationala case involving negligent HIV transmissionin a health institution. 9In 2005, X received tainted bloodproducts in a maternity hospital inthe Voronezh region in the south ofRussia. She later tested HIV-positive.A criminal prosecution was launchedagainst the director of the blood bank,but was later discontinued becausean amnesty was granted by the StateDuma (federal parliament) to certainclasses of cases in connection withthe 100 th anniversary of the Duma.Meanwhile, X sued the local bloodbank and the department of healthfor damages. In finding in favour ofthe plaintiff, the Court ruled that thefact that the criminal case was discontinuedhas no bearing on the lawsuit,and that the blood bank and thedepartment of health must thereforepay X moral damages.In September 2007, in anothercase, the Pushkinsky MilitaryGarrison Court awarded four millionrubles (approximately US$161,000)to Vyacheslav Temnikov, a militaryofficer who was infected with HIVand hepatitis C in a military hospitalin 2001.During an operation, Temnikovsustained a heavy blood loss, his lifewas in danger and the medical personnelperformed a “direct” bloodtransfusion with blood taken from 10soldiers and officers, one of whomlater tested HIV-positive. The prosecutordecided not to lay criminalcharges in this case. 10As these cases show, in Russiapeople infected with HIV as a resultof medical negligence can receivemonetary compensation for damages,but criminal prosecution of negligentHIV transmission by health personnelis rare.– Leah Utyasheva1“Doctors in Kazakhstan convicted for criminal negligencefollowing HIV outbreak among children whoreceived blood transfusions,” Kaiser Daily HIV/AIDS Report,June 28, 2007.2“Doctors in Kazakhstan on trial for medical malpracticefollowing HIV outbreak among children who receivedblood transfusion,” Kaiser Daily HIV/AIDS Report, March20, 2007.3“Probe ordered in Kyrgyzstan HIV outbreak,” Radio FreeEurope, Radio Liberty, July 30, 2007.4“Doctors in Kazakhstan convicted… ”5“Doctors in Kazakhstan on trial… ”6Ibid.7“HIV outbreaks linked to blood transfusions discoveredin Central Asia since Kazakh doctors were convictedof criminal negligence,” Kaiser Daily HIV/AIDS Report,September 18, 2007.8Ibid.9“Voronezh court estimated HIV transmission wasworth 3,5 million of rubles,” Newsland (online), March14, 2007.10“Officer infected with HIV won case against Ministry ofdefence,” Agency of Social Information, October 8, 2007.58 HIV/AIDS POLICY & LAW REVIEW

THE LAW ANDHEALTH INITIATIVE:LINKING HIV/AIDSAND HUMAN RIGHTSThe Open Society Institute (OSI) is a private operating and grant-making foundationthat aims to shape public policy to promote democratic governance, humanrights, and economic, legal and social reform. In 2005, OSI’S Public Health Programlaunched the Law and Health Initiative (LAHI). LAHI supports the integration oflegal and paralegal advocacy into community-based health services, as well as litigationand law reform related to public health. In this special section of the HIV/AIDSPolicy & Law Review, we present a series of articles that attest to the range of interventionsthat LAHI has piloted — and that other funders can support — to make thelink between AIDS and human rights a reality. Each of the articles is written by LAHIstaff, consultants, partners or grantees from Africa and the former Soviet Union.The special section was edited by Jonathan Cohen, Project Director for LAHI.Putting law and human rights onthe agenda: an introduction to thearticles in this special sectionFor the Open Society Institute (OSI),linking legal advocacy to health carethrough the Law and Health Initiative(LAHI) came naturally. After yearsof funding in global health, OSI andits partner foundations in Africa,Eastern Europe and the formerSoviet Union had developed a richunderstanding of the health needs ofsocially marginalized groups such aspeople who use drugs, sex workers,Roma, people living with HIV/AIDS,and people in palliative care.These populations demanded morethan just health care. They wantedVOLUME 12, NUMBER 2/3, DECEMBER 2007 59

THE LAW AND HEALTH INITIATIVElegal services to defend against violenceand discrimination, strongerlaws to protect their rights as patients,and greater literacy in human rightsto defend their interests before thepolice, health providers and otherauthorities. With its long experiencefunding law reform and human rightsadvocacy, OSI was ideally positionedto fill this need.Nowhere was this need more acutethan in the field of HIV/AIDS. Withbillions of dollars flowing to AIDSprograms in poor countries, law andhuman rights were missing from theagenda. Funding rightly focused onscaling up access to antiretroviraltreatment and, to a lesser extent, onexpanding prevention, testing andpalliative care services. But peopleliving with, and affected by,HIV/AIDS, marginalized and stigmatizedsince long before AIDS camealong, wanted more than medicine.Women widowed by HIV soughtlegal defence against disinheritance,eviction and violence. Drug userswanted somewhere to complain whenpolice confiscated their sterile syringesor conducted crackdowns outsidemethadone programs. People in palliativecare needed help writing wills,finding guardians for their childrenand applying for social grants. Forall of these populations, health literacywas not enough: they also wantedlegal literacy so they could defendtheir rights, confront abuse and trulyfocus on living positively.LAHI was created in 2005 to tryto address some of these needs. Thearticles in this special section providea snapshot of the work that LAHI isdoing.Suzanne Maman and her colleaguesfrom KwaZulu-Natal, SouthAfrica describe a unique interventionto include legal education and referralin a package of HIV post-test supportfor pregnant women. They hypothesizethat legal protection againstviolence and discrimination willempower pregnant women to disclosetheir HIV status to their intimate partnersand thereby improve their clinicaloutcomes.This intervention is particularlycritical as governments move tostreamline HIV testing and counsellingunder new guidance providedby UNAIDS and WHO. As RalfJürgens and colleagues describe, itis more critical than ever to ensurethat human rights protections form ameaningful part of HIV testing initiatives,particularly for women.Also in South Africa, JoanMarston and Tamar Ezer describean initiative to bring together lawyersand palliative care providers todefend the rights of people with terminalillness. This initiative, whichencompasses issues ranging fromwills and estates to access to painmedication, illustrates how legal servicesform a key component of comprehensivehealth care for the dying.With South Africa having explicitlycommitted to human rights interventionsin its HIV and AIDS and STIStrategic Plan for 2007-2011, it ishoped that such interventions willsoon become national policy.The need for HIV-related legalservices is no less acute in the formerSoviet Union, where rampantpolice abuse and other violationsagainst people using drugs fuel injection-drivenHIV epidemics. MaximDemchenko, a lawyer in Ukraine,describes a direct legal aid project fordrug users begun with the support ofOSI’s International Harm ReductionDevelopment Program (IHRD).LAHI and IHRD are also fundinglegal services for drug usersin Georgia, where the Parliamentrecently passed legislation imposinga range of harsh administrative sanctionsagainst drug use. In a countrywhere nearly 65 percent of HIVcases stem from injection drug use,this represents a substantial threat topublic health. Describing this legislativedevelopment, Nina Kiknadzeand David Otiashvili argue that lackof government appreciation for evidence-baseddrug policy representsone of the main threats to Georgia’sresponse to HIV.Given the reality that private foundationscannot meet the entire demandfor legal services, test case litigation isa core part of LAHI’s strategy to providelegal assistance to people livingwith HIV/AIDS. Erik Iriskulbekovand Asylgul Balybaeva describe alandmark case in Kyrgyzstan broughtby LAHI grantee ADILET to vindicatethe privacy rights of a personwith HIV who was involuntarilyfilmed for a television documentarywhile in hospital with advanced AIDS.In the Southern African context,Tamar Ezer argues that test case litigationprovides a source of hope towomen in Swaziland, where a newconstitution provides an explicit guaranteeof equality in a country besetby patriarchal laws, gender-basedviolence and the highest rate of HIVin the world.Other articles in this special sectionfocus on the legislative frameworkgoverning national responsesto HIV/AIDS. As of five years ago,according to the United Nations, onlyone-third of countries worldwide hadadopted legal measures outlawingdiscrimination against populationsvulnerable to HIV.Unfortunately, parliaments thatdo undertake to enact HIV-specificlaws sometimes do so in a manner60 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEthat is hostile to human rights. Thisis most evident in a wave of legislativeinitiatives in East, West andSouthern Africa that impose significantlyover-broad criminal penaltiesto HIV transmission or exposure, andimpose mandatory HIV testing atcertain stages of life. Delme Cupidodescribes an effort to reach a consensusbetween HIV/AIDS, humanrights and women’s rights groupsin Southern Africa on the need toaggressively prosecute gender-basedviolence while not criminalizing HIVtransmission.In East Africa, Anne Gathumbidiscusses a highly neglected area ofHIV legislation, that of the rightsand responsibilities of home-basedcaregivers. MaryFrances Lukeradescribes the human rights impact ofcriminalizing prostitution in Kenya,and the need to reform colonial-eraprostitution laws to better protect sexworkers from violence, discriminationand marginalization.Whether through integrating legalservices into HIV/AIDS programs,supporting test cases, or urging rightsbasedlaw reform, LAHI has a criticalrole to play in advancing human rightsresponses to HIV. It is an honourfor us to share our experiences in thepages of the HIV/AIDS Policy and LawReview. We invite other grant makersto join us in harnessing the power ofthe law to bring HIV and AIDS to heel.– Jonathan CohenIntegrating health, psychosocial and legalsupport for pregnant women in South AfricaCan combining HIV testing with legal support help pregnant women disclose their HIV statussafely to their partners? Suzanne Maman and her colleagues describe the South Africa HIVAntenatal Care Post-Test Support Study (SAHAPS), a unique intervention to include legal educationand referral with a package of post-test support services in KwaZulu-Natal, South Africa.Disclosure of HIV status has beenassociated with a number of positiveoutcomes including reduced anxietyand depression and increased socialsupport. Disclosure may also havenegative repercussions for people,including stigma and discrimination,violence and abandonment. 1Disclosure of HIV status to partnerspresents an opportunity for couplesto communicate about risk reductionand plan for the future.There are many barriers to disclosure,including fear of negativerepercussions such as violence anddiscrimination. One of these barriersmay be the lack of legal protections,or access to such protections, in theface of violence, threats of violenceor other human rights abuses.A systematic review of the literatureon the rates, barriers andoutcomes of HIV status disclosureindicates that women who test in thecontext of antenatal care are leastlikely to disclose, and most likely tosuffer negative social consequenceswhen they do disclose. 2 For thisreason, disclosure is thought to bea critical barrier to women’s uptakeof Prevention of Mother-to-ChildTransmission (PMTCT) services.Despite growing evidence ofeffective interventions using shortcourse zidovudine 3, 4, 5 or single dosenevirapine, 6 which reduce mother-tochildtransmission by 37–50 percent,an estimated 235 000 children areHIV-infected in South Africa. Anational PMTCT strategy in SouthAfrica was implemented in 2002,and South Africa now has the largestPMTCT program globally with 2525sites (60 percent of all public healthfacilities). 7Even with the infrastructure tosupport PMTCT, it is estimated thatonly 23 percent of pregnant womenin South Africa access voluntarycounselling and testing (VCT) services,8 that 55.6 percent of HIV-positiveVOLUME 12, NUMBER 2/3, DECEMBER 2007 61

THE LAW AND HEALTH INITIATIVEwomen receive the single-dose NVP, 9and that only 13 percent of womenadhere to correct breastfeeding practices.10 As a result, the mother-tochildtransmission rate remains high(22.4 percent). 11SAHAPS is a randomized controlledtrial designed to evaluatethe efficacy of enhanced post-testsupport, including legal support, forHIV-positive and HIV-negative pregnantwomen in Durban, South Africa.Through this study, 1495 women willbe enrolled in a public health clinicthat serves one of the poorest townshipsin Durban.Women will be randomized toreceive either the standard PMTCTservices, or a model of PMTCT thatincludes enhanced and integratedpost-test support. The clinic has hada PMTCT program in place since2001, though low uptake of these servicesremains a persistent challengeat this site.The SAHAPS study will determinewhether providing women withenhanced, integrated post-test supportfollowing HIV testing will result inbetter outcomes, including higherrates of participation in PMTCT,greater risk reduction between partners,and better psychosocial outcomesfor women. We hypothesizethat these outcomes will be mediatedthrough higher rates of disclosureamong women who receive theenhanced post-test support.The enhanced support available towomen in SAHAPS includes:• a health education video immediatelyprior to HIV pre-test counsellingthat begins to raise women’sawareness of the decisions thatthey will need to make regardingHIV testing, disclosure and participationin PMTCT programs;• HIV pre- and post-test counsellingsessions that build on thestandard counselling protocolsby offering more opportunities todiscuss barriers to disclosure andrisk reduction with counsellors;• two additional post-test counsellingsessions that coincide withthe six- and 10-week postpartumimmunization visits that womenmake to the clinic for their infants(these additional post-test sessionswill include a focus on legaleducation, partner testing andfamily planning);• access to an ongoing post-testsupport group; and• access to legal services.The enhanced post-test support isdesigned to comprehensively addressthe health, psychosocial and legalissues that pregnant women facewhen learning of their HIV status. Toour knowledge, this is the first timethat legal support will be integrateddirectly into HIV counselling servicesat a clinic for pregnant women.The legal needs of pregnantwomen in South Africa most oftenrelate to domestic violence, childsupport and access to resources. Thelegal needs of HIV- positive pregnantwomen are not substantively differentthan those of other pregnantwomen, though their needs are oftenexacerbated because of dire resourceconstraints and the stigma and discriminationthat they face as a resultof their infection.Research nurses will be trainedto provide basic education on legalrights to women in the second posttestcounselling session that womenreceive six weeks postpartum. Thenurses will raise women’s awarenessabout some of their rights. Womenwho need legal assistance will beinvited to schedule an appointmentat a legal aid outreach clinic that wewill establish at the clinic. The legalclinic will be run by the University ofKwaZulu-Natal Campus Law Clinicand staffed by an attorney, severalcandidate attorneys and groups offourth year law students.The legal component of the trialwill be evaluated by measuring women’sknowledge of their legal rightspre and post-intervention. Case studiesof women who access the legalservices will be developed to describethe impact of these services.The SAHAPS study is beingconducted at a time when recentchanges in national and internationalHIV testing policies have reducedthe emphasis placed on counselling.Counselling has been portrayed as a12, 13barrier to uptake of HIV testing.The central goal of the revised HIVtesting policies is to expand the numbersof individuals who are awareof their HIV status, so that treatmentcoverage goals can be realized.While increasing treatment coverageis unquestionably an important publichealth goal, there are concerns thattesting in the absence of adequatesupport may lead to adverse outcomesfor individuals, particularlywomen.The evidence from women’s experienceswith HIV testing suggeststhat women need more counsellingand support, not less, to minimizenegative psychosocial outcomes andto maximize the benefits of HIV preventionand treatment services. TheSAHAPS study is designed to evaluatethe impact of enhanced and integratedpost-test support for women.The inclusion of legal services in theintervention arm will not only addressthe common concern that violationsof human rights are a deterrent to62 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEdisclosure, but more broadly will shedlight on the link between legal servicesand women’s health.– Suzanne Maman, Dhayendre Moodley,Allison Groves and Elaine SmithSuzanne Maman (maman@email.unc.edu)and Allison Groves are with the Universityof North Carolina at Chapel Hill, Schoolof Public Health, Department of HealthBehavior and Health Education. DhayendreMoodley and Elaine Smith are with theNelson R. Mandela School of Medicine,Department of Obstetrics and Gynaecology,Women’s Health and HIV Research Unit.1World Health Organization, Gender Dimensions of HIVStatus Disclosure to Sexual Partners: Rates, Barriers andOutcomes, Report No. WC 503.7, 2003.2A. Medley et al, “Rates, barriers and outcomes of HIVserostatus disclosure among women in developing countries:implications for prevention of mother-to-child transmissionprograms,” WHO Bulletin 82(4) (2003): 299–307.3F. Dabis et al, “6-month efficacy, tolerance, andacceptability of a short regimen of oral zidovudine toreduce vertical transmission of HIV in breastfed childrenin Côte d’Ivoire and Burkina Faso: a double-blindplacebo-controlled multicentre trial,” Lancet 353(9155)(1993): 786–792.4S.Z Wiktor et al, “Short-course oral zidovudine forprevention of mother-to-child transmission of HIV-1in Abidjan, Côte d’Ivoire: a randomised trial,” Lancet353(9155) (1999): 781–785.5N. Shaffer et al, “Short-course zidovudine for perinatalHIV-1 transmission in Bangkok, Thailand: a randomisedcontrolled trial,” Lancet 353(9155) (1999): 773–780.6L.A. Guay et al. “Intrapartum and neonatal single-dosenevirapine compared with zidovudine for preventionof mother-to-child transmission of HIV-1 in Kampala,Uganda: HIVNET 012 randomised trial,” Lancet354(9181) (1999): 795–802.7D.J. Jackson et al, “Operational effectiveness and 36week HIV-free survival in the South African programmeto prevent mother-to-child transmission of HIV-1, AIDS21 (2007): 509–5168Department of Health (South Africa), Annual Report2004/2005, 2005.9D.J. Jackson et al.10Ibid.11Ibid.12P. Van de Pierre, “HIV voluntary counselling and testingin community health services,” Lancet 356(9224) (2000):86–87.13U.S. Centers for Disease Control and Prevention(CDC), Advancing HIV Prevention: New Strategies fora Changing Epidemic, MMWR Recommendations andReports 52, 2003, pp. 329–332.Increasing access to HIV testing andcounselling while respecting human rightsTwo days after the World Health Organization (WHO) and UNAIDS released thefinal version of their Guidance on Provider-initiated Testing and Counselling in HealthFacilities (“the Guidelines”), 1 OSI’s Public Health Program issued an updated versionof its paper on Increasing Access to HIV Testing and Counseling While Respecting HumanRights. 2 Since then, as Ralf Jürgens reports, the paper has served as the basis for astatement and recommendations on scaling up HIV testing and counselling issued bythe UNAIDS Reference Group on HIV and Human Rights. 3 In addition, it has helpedinform guidance currently being developed by WHO and the U.N. Office on Drugsand Crime (UNODC) on HIV testing for prisoners and for people who use drugs.A first draft of the OSI paperhad been widely disseminated inDecember 2006, and served as thebasis for extensive comments providedby OSI and others on a draft ofthe WHO and UNAIDS Guidelines(released in November 2006).OSI’s paper is based on a reviewof the literature and extensive consultationswith people providing servicesto, or shaping policy for, populationsvulnerable to HIV in sub-SaharanAfrica, Asia, Eastern Europe, LatinAmerica and North America. Itfocuses on the issues raised by proposalsto “routinize” HIV testing inlow- and middle-income countries.Importantly, while most of theliterature and policy-making aroundHIV testing has concerned itself primarilywith sub-Saharan Africa or theVOLUME 12, NUMBER 2/3, DECEMBER 2007 63

THE LAW AND HEALTH INITIATIVE“hidden epidemic” in high-incomecountries, the paper also seeks toaddress how this debate affects vulnerablepopulations in other parts ofthe world where the epidemic is oftenvery different.Main conclusionsThe following is a summary of themain conclusions on the OSI paper:1. No controversy — the needto scale up counselling andtestingThe paper starts from the premisethat greater access to HIV counsellingand testing is both a publichealth and a human rights imperative.2. VCT is not enough — newapproaches must also beimplementedIn addition to the traditional model ofclient-initiated voluntary counsellingand testing (VCT), new approachesto HIV counselling and testing mustbe implemented in more settings, andon a much larger scale than has sofar been the case. While it will beimportant to continue — and scaleup — efforts to improve and betterresource VCT, there is agreementthat this alone will not be sufficientto achieve vastly scaled-up access toHIV testing and counselling.3. Informed consent to HIVtesting is criticalIn order to make it feasible forhealth-care providers to offer HIVtesting to all their patients, in somesettings it may be justified to relax,to some extent, pre-test counsellingrequirements.From both a human rights and publichealth perspective, cumbersomeprocedures for pre-test counselling arenot required. However, both humanrights and public health imperativesrequire that regardless of whether personsare routinely offered an HIV testin a health care setting or whether theyinitiate HIV testing themselves, suchpersons be able to seek and receivesufficient information to enable themto give informed and truly voluntaryconsent to testing. These imperativesalso require that people receive posttestcounselling, and that confidentialityof test results and of the act ofseeking a test are guaranteed.4. Considering an alternativeto opt-out testing: opt-inPITCAccording to the WHO and UNAIDSGuidelines, HIV testing is recommendedas a standard part of medicalcare for all patients attending healthfacilities in countries with generalizedHIV epidemics, as well as undercertain other circumstances. TheGuidelines recommend an “opt-out”approach to such provider-initiatedtesting and counselling (PITC),meaning that individuals would haveto specifically decline the HIV test ifthey do not want it to be performed.The OSI paper suggests thatanother way to rapidly scale upaccess to HIV testing that may be aseffective as a matter of public health,and more respectful of human rights,would be to routinely offer and recommend“opt-in” HIV testing andcounselling. Experience has shownthat where implementation of an optinapproach is adequately supported,it can be as successful as an opt-outapproach in increasing the numberof people who test for HIV. As well,the opt-in approach has the potentialto have a positive impact on accessto care, treatment and prevention— similar to what could be achievedusing an opt-out approach.Ultimately, any form of PITC— whether opt-in or opt-out — willhave to be carefully monitored andevaluated to ensure that, in practice,when providers offer and recommendtesting, patients give informed andvoluntary consent to the test.5. VCT may not be enough— but scaling up VCT isessentialEfforts to scale up access to HIV testingand counselling, which currentlyfocus on PITC in formal health settings,need to devote greater attentionto how client-initiated VCT servicescan be improved and scaled up, particularlyfor socially marginalizedgroups.Scaling up access to VCT is particularlyimportant because largenumbers of people do not use formalhealth services and may need otherways to gain access to HIV testingand counselling, especially if theylive in rural areas poorly served bythe health care system, are mobile,or belong to vulnerable communitiesthat face stigma and discrimination inhealth settings.6. Linking HIV testing scaleupwith scale-up of ART andevidence-based preventionAccess to evidence-based preventionmeasures and to antiretroviral therapy(ART) remains limited in many countriesand many settings, particularlyfor the most at-risk populations.Countries need to recognize that HIVtesting is never a goal in itself, butrather is linked to larger prevention,care, treatment and support goals.Consequently, the efficacy of testingpolicies and programs is partiallydetermined by the availability ofeffective prevention, care, treatmentand support programs. Efforts to64 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEscale up access to HIV testing andcounselling will have to be coordinatedand integrated with increasedefforts to scale up access to ART andto evidence-based prevention.7. Moving from human rightsrhetoric to real action onhuman rightsIncreasing testing and counsellingmust go hand in hand with muchgreater investment in real protection— in practice, and not just on paper— from HIV-related discriminationand abuse, particularly for women,children and adolescents, sex workers,men who have sex with men,people who use drugs, and prisoners.To date, few countries have costed,budgeted and implemented nationalprograms that would secure legal andhuman rights protections for peopleliving with, affected by, or vulnerableto, HIV/AIDS. If scale-up of HIVtesting is to reach its goals, HIVrelatedhuman rights must become amuch higher priority.8. Gathering necessary evidenceIn order to be able to assess whetherincreased uptake of testing allowscountries to achieve prevention andtreatment goals, more information isneeded about the number of peoplewho obtain their test results; disclosetheir HIV status; ultimately changetheir sexual or drug using behaviours;and access care and treatment,including ART. More research isalso needed to capture the experienceof HIV testing and that of peoplewho may be at risk of adverse outcomes.9. The need for technicaland financial resourcesScaling up HIV testing and counsellingwill require significant human andfinancial resources. Currently, theseresources are lacking, creating a seriousrisk that countries will fail to scaleup access to HIV testing and counselling;will do so without creating theenabling environment necessary tomaximize the benefits of testing andminimize its potential harms; or willdivert resources from other essentialefforts, such as (a) increasing accessto evidence-based prevention and antiretroviraltreatment, and (b) humanrights interventions.10. Opposing compulsoryand mandatory testingMandatory and compulsory HIVtesting continues to occur in manycountries and contexts, in violation ofethical principles and basic rights ofconsent, privacy and bodily integrity.There are concerns that making testingmore routine — particularly incountries that adopt approaches underwhich people are tested unless theyspecifically decline the test — may,in practice, result in even moreinstances of HIV testing without consent.Countries need to amend laws,policies and practices on order toprohibit mandatory testing, and facilitateaccess to VCT, prevention, care,treatment and support.Other relateddevelopmentsSince it was launched in June,OSI’s paper on Increasing Access toHIV Testing and Counseling WhileRespecting Human Rights has servedas the basis for a number of documentsand policy statements on HIVtesting and counselling.One of them is a statement onscaling up HIV testing and counsellingissued by the UNAIDSReference Group on HIV and HumanRights. 4 The statement is addressedto WHO and UNAIDS, national governments,donors, health care providers,NGOs and others involved orinterested in efforts to scale up accessto HIV counselling and testing as partof global efforts to achieve universalaccess to HIV prevention, treatment,care and support by 2010.In its statement, the ReferenceGroup welcomes the WHO andUNAIDS Guidelines and calls for“rapid action to scale up access toHIV testing and counselling, withfull funding and programmatic attentionto the protections to patientsprovided in the guidance.” In thisspirit, the Reference Group raisessome concerns and makes 21 recommendations,urging WHO, UNAIDS,national governments, donors andothers involved to move quickly toaddress them.The Reference Group points outthat “in many countries there aremany abuses around the manner inwhich HIV testing and counsellingare conducted.” It expresses concernthat implementation of the guidance“may lead to further abuses, ratherthan to increased benefits for humanrights and public health” unless governmentsput in placesufficient measures prior to and duringimplementation of provider-initiatedtesting and counselling to ensure thatthe three prerequisites, outlined bythe [Guidelines], for provider-initiatedtesting and counselling are indeed inplace:• access to HIV prevention, careand support services, includinga reasonable expectation thataccess to antiretroviral therapywill become available in the nearfuture as part of a national plan toachieve universal access to antiretroviraltherapy;VOLUME 12, NUMBER 2/3, DECEMBER 2007 65

THE LAW AND HEALTH INITIATIVE• sufficient capacity of health careproviders to implement providerinitiatedtesting and counsellingunder the conditions of informedconsent, confidentiality and counselling;and• sufficient programmatic attentionto protecting people from stigmaand discrimination.In addition, the OSI paper has helpedinform a background paper 5 and apolicy statement on HIV testing andcounselling for prisoners. Thesewere commissioned in July 2007 byUNODC and WHO. The two agenciesrecognized that while the WHOand UNAIDS Guidelines brieflyaddress issues related to HIV testingand counselling for prisoners, there isa need for more in-depth analysis ofthese issues, to respond to two majorconcerns:• firstly, that there is a risk that theWHO and UNAIDS Guidelineswill be misinterpreted and usedto justify more routine forms ofHIV testing that fail to ensure thatprisoners provide truly informedconsent; and• secondly, that, on the other side,there is a risk that prisoners willbe left out of efforts to scale upaccess to HIV testing and counselling,and continue being leftout of efforts to scale up accessto prevention, treatment, care andsupport.The background paper was first discussedat an international consultationon HIV testing and counsellingfor prisoners held in Varna, Bulgaria,on 26 September 2007. In November2007, the draft policy statement onHIV testing and counselling for prisonerswas scheduled to be disseminatedto solicit feedback from a widerange of experts. It is expected thatthe policy statement will be finalizedin early 2008. A similar process willbe used to develop a policy statementon HIV testing and counselling forpeople who use drugs.– Ralf Jürgens, Jonathan Cohen,Françoise Girard and Chris BeyrerRalf Jürgens (rjurgens@sympatico.ca) is aformer executive director of the CanadianHIV/AIDS Legal Network and currently aconsultant to OSI. Francoise Girard is directorof OSI’s Public Health Program. ChrisBeyrer is a professor at the Johns HopkinsBloomberg School of Public Health.1WHO and UNAIDS, Guidance on Provider-initiated HIVTesting and Counselling in Health Facilities, 2007. Availablevia www.unaids.org.2R. Jürgens, Increasing Access to HIV Testing and CounselingWhile Respecting Human Rights — Background Paper, OSI,August 2007. At www.soros.org/initiatives/health/articles_publications/publications/testing_20070907.3UNAIDS Reference Group on HIV and Human Rights,Statement and Recommendations on Scaling Up HIV Testingand Counselling, 2007.At http://data.unaids.org/pub/ExternalDocument/2007/20070905_rghr_statement_testing_en.pdf.4Ibid.5UNODC and WHO, HIV Testing and Counselling forPrisoners – Draft Background Paper, September 2007.Comprehensive care: palliative careand legal services in South AfricaA fundamental and neglected part of the global response to HIV and AIDS,palliative care is also a critical entry-point for legal services. As TamarEzer and Joan Marston write, providing legal services to patients in palliativecare can both protect human rights and improve health outcomes.In South Africa, a newly-formed referencecommittee of palliative careand legal service providers is carryingforward an initiative to integratelegal and human rights advocacy andservices into hospices and palliativecare programs. In a country where5.54 million people are infected withHIV — almost 13 percent of thepopulation — and where the infectionrate among pregnant women is 30.2percent, 1 this comprehensive package66 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEof services is crucial for addressingboth acute physical needs and thesocial dimensions of the epidemic.Palliative care aims to improvethe quality of life for patients andfamilies facing life-threatening diseasesby relieving pain and sufferingthrough the provision of physical,psychosocial and spiritual care. 2Dealing with legal and human rightsissues that arise is thus a natural partof this holistic approach. Providinglegal services to people in palliativecare not only can protect their rights,but also can reap improvements intheir health, well-being and qualityof life.People living with HIV/AIDSoften face complicated legal questionsrelated to the disposition ofproperty, planning for children,gaining access to social benefits,and combating discrimination inemployment, housing and education.Children, elderly caregivers andchild- and youth-headed householdsare particularly vulnerable to humanrights abuse.The reference committee initiativeaims to create the partnershipsnecessary between the palliative careand legal communities for the provisionof comprehensive services thatenable both pain management and thetackling of important social concerns.With a robust legal community inaddition to a growing network ofhospice and palliative care providers,South Africa is an ideal place to pilotsuch an integrated initiative.Based in Cape Town, the referencecommittee is made up of threeworking groups composed of legaland palliative care practitioners fromacross South Africa. The workinggroups focus on the need for materialsstraddling both the palliative careand legal disciplines; the integrationof legal services in hospices; andadvocacy for improving access topalliative care (including pain relief)in the public sector as a basic humanright.Projects already underway includea joint paralegal and palliative caremanual on comprehensive end-oflifeservices, a university law studentplacement in a hospice to defend therights of palliative care patients, anda background paper and curriculumexploring legal arguments and mechanismsto promote palliative care asa human right. It is hoped that theproject will serve as a model for theintegration of health and legal servicesin other disciplines and regions.– Tamar Ezer and Joan MarstonTamar Ezer (tezer@sorosny.org) is aProgram Officer with the Law and HealthInitiative at OSI. Joan Marston is theAdvocacy Officer with the Hospice andPalliative Care Association of South Africa(www.hospicepalliativecaresa.co.za).1South African Department of Health, National StrategicPlan for HIV, AIDS, TB and STIs 2007-2011.2World Health Organization Definition of Palliative Care,2002. At www.who.int/cancer/palliative/definition/en/print.html.Legal aid works! Harm reductionand legal services in Poltava, UkraineDrug users’ inability to protect their rights makes them easy targets for extortion andfalse arrest by law enforcement officials, writes Maxim Demchenko, a lawyer fromPoltava. In response, a legal aid project supported by LAHI and OSI’s InternationalHarm Reduction Development Program (IHRD) has succeeded in defending drugusers against criminal charges and changing the attitudes of some police officers.Ukraine has obligations under bothnational and international law torespect the human rights of people livingwith HIV and those who are vulnerableto HIV infection from the useof illicit drugs. For these obligationsto be met, the cooperation of all governmentauthorities, particularly theInternal Affairs agencies, is essential.VOLUME 12, NUMBER 2/3, DECEMBER 2007 67

THE LAW AND HEALTH INITIATIVEThe reality, however, is that it iscommon practice among law enforcementbodies in Ukraine to arrest drugusers, confiscate their narcotic substances,register them on official lists,and initiate criminal proceedingsagainst them.Such conduct is encouraged bydocuments in the Ministry of InternalAffairs of Ukraine that still authorizecriminal proceedings for illegal preparation,purchase or storing of a relativelysmall amount of psychoactivesubstances for personal use (Article309(1)). A majority of persons prosecutedthrough this article are thosewho suffer from drug dependencyand are themselves victims of organizeddrug crime. Unless this lawis repealed or amended, it will beimpossible to improve the conductof law enforcement officials towardsdrug users and, in turn, to reduceHIV vulnerability.Drug users in Ukraine cannot adequatelyprotect their rights. Knowingthis, law enforcement officials institutecriminal proceedings againstthem without any policy justification,leading to severe overcrowding inprisons and jails.Prisons in Ukraine are notdesigned to accommodate the presentnumber of sentenced persons,a majority of whom are chemicallydependent and living with HIV/AIDS. As a result, incarceration conditionsdo not meet even the existingsanitary and hygienic norms requiredby Ukrainian legislation, let aloneinternational human rights standards.Currently, police officers arerequired to submit regular performancereports based on a seriesof indicators, one of which is thenumber of criminal cases institutedfor crimes in the area of illegal drugtrafficking. This compels officers toinstitute criminal cases with no validevidence in order to avoid beingfined, which is contrary to the goalsof both the criminal law and publichealth.In the city of Poltava, it is quitecommon to charge drug users (amajority of whom are HIV-positive)with unsolved crimes not even relatedto drug use. Police officers deliberatelymake false accusations, justifyingtheir illegal actions by claimingthat drug users are guilty of some sortof offence in any case.Coercive and illegal interrogationmethods, including threats of physicaland psychological violence, andthe use of unmediated withdrawalfrom opiates as a form of physicalduress, are used to extort confessionsfrom accused persons, after whichthey sign the relevant documentswithout knowing their content or thelikely outcomes of their action.Through a combination of humanrights monitoring of police investigations,awareness-raising among lawenforcementofficials, and meetingswith top officials of the agencies ofthe Ministry of Internal Affairs, it hasbeen possible for civil society organizationsto significantly lessen theseabuses.In 2005, with the support ofthe Soros-funded InternationalRenaissance Foundation (IRF) andthe cooperation of the law firmYUREKS, the NGO Light of Hopeestablished a Legal Assistance Centreat its harm reduction program inPoltava. Over 100 drug users, peopleliving with HIV, or their relativeshave received some form of legalassistance.A number of drug users werefound not guilty of criminal chargesas a result of lawyers pointing tothe lack of evidence to prosecutetheir case. The mere presence ofa powerful and professional legalorganization working closely withdrug users has changed the attitudeof even some of the most hardenedmembers of the Ministry of InternalAffairs, which has helped to preventa significant number of human rightsviolations.The IRF-funded project alsoincludes educational workshops forvarious branches of the police andprosecutors to educate them aboutharm reduction and antiretroviraltreatment for HIV. The workshopsemphasize that police are, first andforemost, members of the community,with a responsibility to protectother citizens.Our experience has shown thatintensive and continuous awarenessraisingamong police is one of thekey ways to foster tolerant attitudestowards drug users and people livingwith HIV/AIDS. These workshopsare so essential that we conduct themeven when we do not have the fundsto do so. Also, as a result of theworkshops, we have succeeded inestablishing constructive partnershipswith the top officials of the city andregional departments of the Ministryof Internal Affairs of Ukraine.In spite of this progress, the samehuman rights violations that we initiallyobserved three years ago arestill particularly acute in the Poltavaregion, particularly in the towns ofKremenchuk, Lubny and Khorol.These violations are not limited tothe criminal justice sphere. We havealso observed many instances ofdenial of high-quality health care,involuntary disclosure of HIV statusby health workers, and refusalto admit children living with, oraffected by, HIV/AIDS or addictionto kindergartens.68 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEWe will continue to work on theseissues, as we have since 2003. In ashort time, we have gained experiencein protection of the rights andfreedoms of our clients, improved ourrelationships with local authorities,and earned a positive image as anorganization that can stand upfor the rights of its most marginalizedclients.– Maxim DemchenkoMaxim Demchenko(slnadiya@kot.poltava.ua) is ExecutiveDirector of the charitable association Lightof Hope in Poltava, Ukraine.Georgia: Anti-drug law violates human rightsAt a time when the Georgian government should be protecting the human rights of people whouse drugs, Parliament enacted a law that specifically aims to increase stigma against drug users byimposing a range of administrative sanctions against them, Nina Kiknadze and David Otiashvili write.In July 2007, legislation entered intoforce in Georgia imposing a rangeof administrative sanctions againstpeople who use drugs in order toincrease social stigma against druguse. The legislation deprives drugusers of several rights and privilegesfor a period of three years. Theserights include: the right to drive avehicle; the right to hold a medicallicense; the right to advocate as alawyer; the right to teach and takepart in educational institutions; theright to participate in state or localpublic administration bodies; certainvoting rights; and the right to manufacture,purchase, store and carryfirearms.The situation of drug use andrelated harms (such as HIV infection)has worsened in Georgia in the lastten years. According to a 2005 publicopinion survey, the general publicviews the drug use as the secondmost serious problem in Georgia afterunemployment. 1Injecting drug use presents oneof the most serious threats to publichealth in the country. As many as63.9 percent of all identified casesof HIV occur among injecting drugsusers. Still, the government hasundertaken no concrete steps toadequately respond to this problem.There is a dire lack of treatmentoptions, especially for drug usersfrom lower social classes who cannotafford to pay for treatment. Existingdrug programs are outdated, and evidence-basedtreatment is lacking.In 2005, only 603 drug users wereestimated to have entered treatmentin Georgia, although the demandfor treatment was much higher.Thousands of drug users are on waitinglists for opiate substitution treatment,which is the most effectiveproven treatment for opioid addiction.This huge gap results from significantfunding cuts in recent years inthe government’s budget for addictiontreatment. Government fundingfor prevention, treatment, rehabilitation,harm reduction and researchhas decreased from 430,000 GEL(US$275,475) in 1997 to 50,000 GEL(US$32,032) in 2006.Civil society organizations identifythe main barriers to addressingGeorgia’s drug problem as lack ofpolitical acknowledgement of thereal problems underlying, and causedby, drug use — as well as a weakcommitment on the part of decision-makersto solve these problemsin an evidence-based way. Provenevidence-based interventions areseverely neglected.The government employs a simplistic,but politically expedient, prohibitionistapproach as the main toolfor solving drug problems. Georgianlegislation qualifies any drug offenceas a severe crime and criminalizesdrug use itself. Yet this strict criminalapproach has not been effective toreduce drug problems in Georgia (oranywhere else for that matter).VOLUME 12, NUMBER 2/3, DECEMBER 2007 69

THE LAW AND HEALTH INITIATIVEIt is in this context of failed drugpolicy that Georgia’s ProsecutorGeneral introduced the additionaladministrative restrictions describedabove. Defending these restrictionsin July 2007, the Deputy ProsecutorGeneral, Nika Gvaramia, said that[t]he main weakness of the old legislationwas that no one was informedabout the drug use of other people.If you look in the archives of theAdministrative Court, you’ll besurprised how many famous peopleyou’ll find there fined for drug use.But this information was not known tothe society…. We have not hardenedthe sanctions for drug users, we haveonly introduced new administrativerestrictions that will make the use ofdrugs shameful and that will destroythe “attractive icon” of the drug user.We built a new type of stigma —everyone will know about the personwho uses drugs and he won’t be ableto even go out. After this, people willthink twice about whether it’s worthto continue using drugs, and otherswill not want to find themselves in thesame situation. 2This intentional infliction of socialstigma against a socially marginalizedgroup is a cause of great concern.The restriction of rights contemplatedby the Prosecutor General’s bill failto comply with Georgia’s obligationsunder international human rights law.They treat people unfairly becausethey belong to a particular group orhave a particular characteristic.The restrictions will cause labellingand further isolation of drugusers from the general society, whichwill lead to even greater stigma anddiscrimination. These measures willpose a serious obstacle to the implementationof public health and socialprograms, including drug treatment,harm reduction, and HIV preventionand treatment programs.Finally, the proposed sanctionswill make it difficult for health professionalsto reach people who usedrugs, meaning that drug users willlose the opportunity and stimulus toseek medical and social assistance.This will further foster prejudicialattitudes toward drug users, andwill direct efforts toward punishing“offenders” rather than understandingand assisting people in need.– Nina Kiknadze and David OtiashviliNina Kiknadze (nkiknadze@osgf.ge) isproject director of the Law, Media andHealth Program at the Open SocietyGeorgia Foundation. David Otiashvili isDirector of the Addiction Research Center,Union Alternative Georgia.1J. Javakhishvili et al, Drug Situation in Georgia – 2005,Southern Caucasus Anti-Drug Programme, 2006.2N. Gvaramia, speech delivered at “Addiction,Rehabilitation, and the Criminal Justice System,” a conferenceorganized by Penal Reform International and theNorwegian Rule of Law Mission to Georgia, Tblisi,July 6, 2007.First HIV legal precedent in Kyrgyzstan:breach of medical privacyA recent court case of a breach of the privacy rights of a person living with HIV/AIDSin Kyrgyzstan is the first of its kind in Central Asia, write Erik Iriskulbekov and AsylgulBalybaeva. ADILET, the NGO that brought the case to court, is one of only a fewNGOs in Central Asia that provide legal assistance related to HIV and AIDS.After learning he was HIV-positive,Mirlan (not his real name), a formerinjecting drug user, sought medicalassistance at the Regional HIV/AIDSPrevention Centre (RAPC) in Jalal-Abad, Kyrgyzstan. Shortly thereafter,in autumn 2005, regional televisionreporters approached the chief physicianof the RAPC, Dr Aibolov (nothis real name), and requested andreceived permission to prepare avideo of the centre’s work to be70 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEtelevised on the eve of the WorldAIDS Day.After informing the reportersabout the problems and achievementsof his institution, Dr Aibolovproceeded to suggest that the reportersfilm HIV patients in the RAPC.Although filming patients withouttheir consent would constitute a grossviolation of medical secrecy laws andprofessional conduct, Dr Aibolov’sapparently wanted to increase theprofile of his centre in the media anddiversify reporting of HIV/AIDS inthe country.By that time, Mirlan was a patientat RAPC awaiting a transfer to a cancerhospital by his infectious diseasespecialist. Dr Aibolov offered Mirlanan interview with the reporters, buthe flatly refused. At that point DrAibolov suggested to the reportersthat they film Mirlan withouthis consent. From a window in DrAibolov’s office, with Dr Aibolovholding open the curtains, the reportersfilmed Mirlan sitting on a benchin the enclosed courtyard of theRAPC awaiting his infectious diseasedoctor. Mirlan was clearly identifiedin the footage as a person living withHIV/AIDS.A regional television station subsequentlybroadcast the video recordingof Mirlan, prompting a swiftand hostile reaction from residentsof the small provincial town whereMirlan lived. Mirlan’s life immediatelyturned into one of continuousvictimization. He could not show upin the street without being jeered atand insulted. People pointed fingersat him, refused to serve him at storesand other facilities, and drove him outof public places. Friends and familyturned their back on him and refusedto allow him to see his own childrenor even visit his native village.The families of both Mirlan andhis wife left their village. Mirlan’schildren also faced persecution andinsults, with other kids calling them“AIDS carriers” and chasing themfrom school. The life of Mirlan andhis family life became unbearable.He eventually despaired, stopped takinghis medicine and tried to commitsuicide. His condition deterioratedrapidly.Apparently because of this emotionalexperience, Mirlan’s mothertook to her bed and died. It was asthough she could not physically survivesuch disgrace and public ostracism.The tragedy of his mother’sdeath prompted Mirlan to seek legaladvice from the Public FoundationLegal Clinic (known as ADILET),which specializes in defending therights of people living with HIV andother vulnerable groups. Mirlanhoped to defend his rights and topunish those responsible for misfortunesthat fell upon him and hisfamily. Tragically, he was not ableto witness the outcome, as he died inhospital the day after his consultationwith the attorney.Following Mirlan’s death, hisattorney initiated legal proceedingsrelated to the statutory offence committedby the RAPC chief physician.Dr Aibolov was accused of anunjustified breach of medical secrecyregarding Mirlan’s HIV status, resultingin grave consequences.The subsequent trial was difficultand complicated, largely due to deepprofessional solidarity among physicians(making it difficult to call expertwitnesses), intense pressure exertedby the defendant, Dr Aibolov, andthreats that hospital officials who testifiedtruthfully would lose their jobs.On some occasions, Dr Aibolovopenly threatened physical harmagainst witnesses and court officials.Opposing counsel received intimidatingvisits from strangers dressedlike police colonels and professionalthugs. These difficulties were aggravatedby the victim’s family’s lackof trust in judicial system itself and,hence, lack of faith in an independenttrial and fair adjudication.Nevertheless, investigative agenciesmounted inculpatory evidenceagainst Dr Aibolov, leading himto plead guilty and receive a justcriminal penalty. The actions of thereporters, however, went unpunished.Although the victim’s attorneyattempted to hold the televisionreporters equally to account, threetimes he was denied permission toinstitute legal proceedings.This landmark case, the first ofits kind in Central Asia, is instructivein many ways. First, HIV/AIDSis still a relatively young epidemicin Kyrgyzstan, meaning that manyissues such as the privacy rights ofpeople with HIV remain unexplored.Second, it is important to view thiscase as not simply a medical issue,but as an issue with social, economicand even political ramifications thatultimately have far-reaching effectsacross Kyrgyzstan. Finally, thiscase is the first legal precedent inKyrgyzstan related to HIV/AIDS.Thus, it is hoped that this storywill send a signal to all institutionsand agencies working on HIV/AIDS,and will lead to increased HIVrelatedjurisprudence in the countryand region.– Erik Iriskulbekov and Asylgul BalybaevaErik Iriskulbekov (erik_lawyer@mail.ru)is Project Coordinator for the legal clinicAIDLET.Asylgul Balybaeva is a lawyer at the clinic.VOLUME 12, NUMBER 2/3, DECEMBER 2007 71

THE LAW AND HEALTH INITIATIVESwaziland: Widows fighting for their rightsThe AIDS epidemic in Swaziland — the world’s most severe — has wrought a generation ofwidows facing deep discrimination and violence. But the enactment of a new constitution,and support for the legal empowerment of women, provide new hope, Tamar Ezer writes.At 42.6 percent, Swaziland has thehighest prevalence of HIV infectionin the world, and life expectancy hasdropped to 33 years. 1 The burden ofthis epidemic has fallen on widowswith special severity, increasing boththeir number and vulnerability.AIDS has dramatically magnifiedthe effects of discriminatoryinheritance laws and of a legal andpolicy vacuum that denies womenadequate protection. 2 Disempoweredand financially dependent widows aremore vulnerable to the disease sincethey may be forced to participate inthe practices of widow inheritance, 3polygamy and prostitution in order tosurvive. 4Impoverished widows also havereduced capacity to cope with the diseaseshould members of their familiesbecome infected. 5 As one journalistexplained, “Women who lose theirhusbands to AIDS — and who mightthemselves be HIV-positive — canill-afford to sacrifice an inheritancethat may go some way towards compensatingfor the loss of a breadwinner,or subsidizing the purchase ofantiretroviral drugs.” 6Moreover, women widowed byAIDS are particularly vulnerable toabuse by relatives. Widows have tocontend with widespread propertygrabbing, eviction from their homes,witchcraft accusations 7 and, sometimes,even the loss of their children.Women in polygamous families haveto further split any meagre inheritancethey do receive.SWAPOL (Swaziland PositiveLiving), a grassroots organizationthat works to empower andimprove the quality of life for womenand children affected by AIDS inSwaziland, has made it its mission toassist these women. Siphiwe Hlophe,SWAPOL’s Director, speaks with fervourof the plight of the women withwhom she works and of the need forjustice. She recounts one heartbreakingstory after another. One womanwhose husband passed away refusedto let her brother-in-law “inherit” her.As a result, he cut down the branchesof all her fruit trees, and she nowlives in a barren land.Another widow was accused ofwitchcraft and had her home andbelongings burned. Relatives thenthreatened to kill her, and she nowlives in hiding with five young grandchildren(the oldest is nine) withSWAPOL’s support. When the policewere contacted about this case, theyresponded that it was a family matterand so they could do nothing.However, these widows are notpassively accepting their victimization;rather, they are fighting forrecognition and justice. They areworking with SWAPOL to documentthe abuses they have suffered inpreparation for advocacy and litigation.And, the time is ripe for action.Swaziland’s new Constitution, thefirst one in 30 years, proclaims,“Women have the right to equaltreatment with men and that rightshall include equal opportunities inpolitical, economic and social activities.”8In July 2007, SWAPOL’s TengetileHlophe attended the video-advocacyinstitute of WITNESS, an organizationthat trains human rights defendersto integrate video advocacy intheir work. The hope is that this willbring “unseen images, untold storiesand seldom heard voices to theattention of the audiences who holdthe power to create lasting change.” 9Tengetile is eager to put these newskills to use and has already identifiedfive widows to participate in the makingof a documentary. The widows ofSwaziland will not be silenced.– Tamar EzerFor more information on SWAPOL, pleasesee www.swapol.net.1U.S. Department of State, Background Note: Swaziland.Available at www.state.gov/r/pa/ei/bgn/2841.htm; “AIDSscourge in Africa shows urgent need for new women’sagency: UN envoy,” United Nations News Service, March17, 2006.2Under Swazi Law and Custom, governing the majorityof the population, women and girls are unable toinherit, and a male heir will always take over the familyproperty, no matter how distant the family relationship;R. T. Nhlapo, “The legal situation of women in Swazilandand some thoughts on research,” in J. Stewart and A.Armstrong (eds), The Legal Situation of Women in SouthernAfrica (Harare, Zimbabwe: University of Zimbabwe Press,1990), 97, 124–125; Z. Hlanze and L. Mkhabela, BeyondInequalities: Women in Swaziland (Harare, Zimbabwe:Women and Law in Southern Africa, 1998), 25. This situationis not unique to Swaziland; it is a serious problemthroughout sub-Saharan Africa. As one newspaper put72 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEit, widows are denied inheritance, and the husband’srelatives “are cashing in on AIDS. Women are left withnothing but the disease;” S. Lafraniere, “AIDS and customleave African families nothing,” New York Times, February18, 2005, at A1.3Under this practice, the widow is herself “inherited” bya relative of her husband.4R. S. Strickland, To Have and To Hold: Women’s Propertyand Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa, International Center for Research onWomen, 2004, p. 5; L. K. Altman, “Female Cases of H.I.V.Found Rising Worldwide,” New York Times, November24, 2004, p. A11; L. Garrett, “Polygamy, poverty, andoppression of women are fueling AIDS epidemic inAfrica,” Seattle Times, July 10, 2000, p. A3.5R.S. Strickland, p. 11.6J. Hall, “Swaziland: For women, constitution is a curate’segg,” International Press Service, February 22, 2005.7Accusations of witchcraft against widows are notuncommon. This phenomenon stems from the pervasivebelief that the widow is an outsider with questionableloyalties. Witchcraft accusations are further fueled byfears and misunderstandings surrounding HIV/AIDS.8Swaziland, Constitution § 28(1). The Constitution goeson to explicitly state, “A surviving spouse is entitled toa reasonable provision out of the estate of the otherspouse whether the other spouse died having made avalid will or not and whether the spouses were marriedby civil or customary rites;” § 34(1).9Email from Kelly Matheson at WITNESS to Janet Havenat the Open Society Institute Information Program,February 27, 2007.Responding to the rising tide ofcalls for the criminalization of HIVtransmission in southern AfricaFaced with the enduring injustice of HIV transmission through sexual violence,African women’s groups are increasingly supporting legislative proposals to criminalizedeliberate transmission of HIV. In this article, Delme Cupido describesefforts to forge a consensus between these groups and human rights activistsconcerned about the adverse consequences of HIV-specific criminal laws.Against a backdrop of increasingcalls for harsher sentences for sexualassault and rapes that result in HIVinfection, as well as for the criminalizationof harmful HIV-relatedbehaviour, the Open Society Initiativefor Southern Africa (OSISA) andthe AIDS and Rights Alliance ofSouthern Africa (ARASA) hosteda consultative meeting on June 11,2007 on the criminalization of wilfultransmission of HIV. The meetingwas attended by diverse members ofcivil society, including people livingwith HIV and rights-based HIVactivists and faith-based communitiesfrom a range of countries withinthe Southern African DevelopmentCommunity (SADC).Advocates for the rights of womenargued forcefully that marriage, insouthern Africa, heightens women’svulnerability to HIV, and expressedconcerns about harmful HIV-relatedbehaviour related to the subordinateposition of women within marriageand other relationships. They viewedlaws criminalizing HIV-specific riskbehaviours as helping to address thisvulnerability.Human rights activists and peopleliving with HIV, on the other hand,maintained that HIV-specific legislationwas both undesirable andunnecessary. The meeting ultimatelyagreed on four common positionstatements, paraphrased here:• Position statement one: Womenare more vulnerable to HIVtransmission as a result of varioussocial, economic and politicalfactors, and steps should be takento address these.• Position statement two: Victimsof both gender-based violenceand non-consensual HIV transmissionhave a legitimate demandfor justice, but the primaryproblem to be addressed is lackVOLUME 12, NUMBER 2/3, DECEMBER 2007 73

THE LAW AND HEALTH INITIATIVEof access to justice and the lackof sensitivity of our laws to theplight of women.• Position statement three: In thecontext of harmful HIV-relatedbehaviour, the law should be usedto protect the rights of vulnerablegroups, and should onlybe used when the harmful HIVrelatedbehaviour is intentional.Where existing criminal lawsare adequate, they ought to beused (instead of creating a newoffence).• Position statement four:Criminalizing [wilful transmission]of HIV/AIDS and placingresponsibility for transmissionsolely on those who know theirstatus are inappropriate. The roleof government, public health,policy and education in reducingharmful HIV-related behaviourcannot be ignored.These four position statements representan important step forward inachieving a regional consensus onthis divisive issue in AIDS law andpolicy. It is critical that a diversecross-section of civil society continueto inform national, regional and internationaldebates on the criminalizationof HIV transmission and riskbehaviour.– Delme CupidoDelme Cupido (DelmeC@osisa.org) isHIV/AIDS Programme Officer and Lawand Health Initiative Coordinator at OSISA.Home-based care: who is responsible?Home-based care is a critical element of national responses to HIV and AIDS.However, governments have largely delegated the responsibility for homebasedcare to community and faith-based organizations. In this article, AnneGathumbi argues that governments should articulate the rights and responsibilitiesof care-givers in national HIV/AIDS legislation and policy.Haga was diagnosed with AIDS in2000 at the age of 63, after havingbecome bedridden with opportunisticinfections. Due to her age, neitherher family nor her doctors suspectedshe could be HIV-positive until shehad already developed full-blownsymptoms. Upon diagnosis, Haga’sdoctors advised her family to take herhome because a continuous hospitalstay would end up being too costly.One of her daughters took her intoher house to provide the necessarycare. With the support of a nursewho made weekly visits to the houseto monitor how Haga was respondingto the medications she was given,Haga’s condition was successfullyturned around. She is now back inher own house and is living a fulllife, save for monthly visits to thedoctor for antiretroviral therapy.This situation is not unique toHaga’s family. It is now widelyacknowledged that home-based careoffers a more viable alternative tomany people living with HIV thanhospital-based care. In sub-SaharanAfrica, the high prevalence of HIVcontinues to exert pressure on alreadyweak health systems, leaving themseverely constrained and grosslyunder-resourced. Poor and run-downfacilities, lack of medication, overcrowdingand a shortage of healthcare providers are among the manychallenges that characterize publichealth institutions.The increasing numbers of peoplebecoming infected with HIV andrequiring care, including many healthworkers themselves, will only weakenthe system further. In this context,home-based care becomes a viableoption for easing pressure on hospi-74 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEtal-based care. In addition to beingless costly, home-based care involvesan integrated approach that combinesclinical and nursing care with psychosocialsupport.Home-based care enables the creationof a social support network offamily, relatives and friends of theinfected person while, at the sametime, providing patients with medicationand access to health workerson a regular basis. An additionaladvantage of home-based care is thatthrough caring for the sick at home,those who offer support learn moreabout HIV and ways of prevention.An increasing number of agencieshave adopted home-based care as amodel of providing care for peopleliving with HIV. According to a representativeof CARE Internationalin highly AIDS-affected Kisumu,Kenya, “the CARE team is convincedthat this is a better option. Not onlydo patients get good medical andother support, but the costs involvedmake the care much more accessibleto the very poor, who bear the bruntof the epidemic.” 1Governments, too, have adoptedhome-based care and articulated policydocuments promoting the conceptas a way of easing pressure on alreadyover-stretched health care facilities.Some governments have moved a stepfurther and have invested resourcesin the development of guidelines andmanuals for use in training of community-basedcare givers. For the mostpart, however, NGOs, especially faithbasedorganizations (FBOs) and community-basedorganizations (CBOs),have stepped in to train caregiversand, in some instances, offer themmaterial or financial support.Unfortunately, governments haverelied heavily on NGOs, FBOs andCBOs to meet the need for homebasedcare without clearly articulatingthe rights and responsibilitiesof caregivers. A glaring gap in thedelivery of home-based care, forexample, is the failure by governmentsto articulate how caregiverscan obtain the materials needed tocare to the sick. Caregivers are leftto obtain materials on their own andoften spend meagre savings on necessitiessuch as plastic bags, cottonwool, swabs, razor blades, scissors,plastic containers, disinfectants, cleanpieces of cloth, soap, towels, bandagesand clean water.Governments are also silent aboutwho is responsible for meeting thenutritional needs of people livingwith HIV, leaving this responsibilityto charitable individuals and organizations.With home-based care thrivingon voluntary services rendered bycare givers, it is unrealistic to expectthem to shoulder the additional burdenof food provision in circumstancesof high poverty.Even countries that have enactedpolicy and legislative frameworkson HIV/AIDS, such as Kenya, havefailed to clearly acknowledge therights and responsibilities of caregiversin their national legislation.Section 2 of Kenya’s recently-enactedHIV/AIDS Prevention and ControlAct of 2006 elaborately defines thevarious categories of health care providersand health services in the contextof HIV, but completely fails tomention home-based caregivers as akey pillar of health service provision.Indeed, there is no mention of homebasedcare in the entire Act.Section 19 of the Act also addressesaccess to health care services andupholds the principle of non-discriminationin access to health care on thebasis of HIV status. Subsection 19(2)calls upon the government to takesteps to ensure access to essentialhealth care services, including affordablemedicines for those living withand at risk of HIV infection.Here, too, there is a failure by thegovernment to recognize or rendersupport to home-based care services.The fact that home-based care giversare not formally included in thecategory of “providers” implies thatthey may not be able to obtain postexposureprophylaxis or HIV medicationin the event of an occupationalexposure. Needless to say, the needsof women — who, in the vast majorityof cases, are the caregivers oftheir infected partners, children andextended family members — do notfind expression in this law.The omission of home-based carefrom national HIV/AIDS legislationnot only represents a failure by thegovernment to recognize the fact thatthe home-based care system currentlysustains most sick people, but it alsocontradicts established and far-reachingpolicy guidelines for home-basedcare provision in the treatment ofHIV/AIDS. This would appear to bea case of giving with one hand andtaking away with the other. Thereis an urgent need for governmentsto realize that whether care is providedin a hospital setting or within ahome care setting, caring for the sickrequires having the necessary tools oftrade and employment protections.Home-based care is a complicatedenterprise that should not be viewedas a “quick fix” to the burden of caringfor increasing numbers of peopleliving with HIV. Moreover, it shouldnot provide an avenue for governmentsto abdicate to their populationsthe responsibility of providing primaryhealth services.To give meaning to existing homebasedcare policies, governmentsVOLUME 12, NUMBER 2/3, DECEMBER 2007 75

THE LAW AND HEALTH INITIATIVEshould invest in the development ofvarious models of providing homebasedcare, should conduct studiesto determine which models are mostcost-effective, and should makecommitments for scaling up the bestmodels. Developing viable and costeffectivemodels of implementinghome-based care will ultimately easethe burden on home-based caregiversand enable them do their work withminimal difficulties.– Anne GathumbiAnne Gathumbi (agathumbi@osiea.org) isa program officer with the Law and HealthInitiative and the Open Society Initiative forEast Africa.1Interview with CARE International staff, Kisumu,August 2007.Documenting human rights violationsagainst sex workers in KenyaThe human rights of sex workers are an increasing concern for prominent women’srights organizations such as the Federation of Women Lawyers (FIDA). AsFIDA-Kenya’s MaryFrances Lukera writes, documenting human rights abusesagainst sex workers is critical to responding to Kenya’s HIV epidemic.The criminalization of sex work inKenya has not resulted in eradicatingsex work or even reducing the numberof people involved in the industry.The Kenyan legal framework on sexwork was inherited from the colonialgovernment. It is, at best, unclearand, at worst, a tool that has in manyways facilitated a significant amountof violence against sex workers.Kenyan law criminalizes bothprostitution and living on the earningsof prostitution. 1 By effectively criminalizingsex workers, the law increasestheir vulnerability to violence andexploitation because it forces themfurther underground, hinders theiraccess to health and legal services,and increases the stigma attachedto sex work. This is particularlytroubling in the wake of HIV andAIDS, which can be transmitted fasterthrough sex work if laws and policiesfail to recognize and positively dealwith the presence of sex workers andtheir clients in the country.In response to this situation, FIDAKenya, an NGO working towardsthe realization of a just society thatis free from all forms of discriminationagainst women, is conducting aresearch study on the legal and policyenvironment relating to sex workand the forms of human rights violationsexperienced by sex workers inKenya. By so doing, FIDA Kenyahopes to highlight the plight of sexworkers as a particularly vulnerablegroup in the context of Kenya’s HIVepidemic. The study will providemuch-needed first-hand informationon the human rights situation of sexworkers so as to inform interventionson their behalf.Research undertaken so far revealsthat sex workers experience differentlevels of violence at the hands ofthe police and other law enforcementsectors, that sex workers fear beingarrested, and that sex workers believethat complaints of police misconductwill not be taken seriously.Sex workers are exposed to humanrights infringements by the veryauthorities that are supposed to protectthem. The risk of violence fromclients is also high. Furthermore,sex workers may experience abusefrom intimate partners, members ofthe general public and pimps. Sexworkers feel that they are widelyconsidered immoral and deserving ofpunishment.The criminalization of sex work inKenyan law contributes to an environmentin which violence against76 HIV/AIDS POLICY & LAW REVIEW

THE LAW AND HEALTH INITIATIVEsex workers is tolerated, leaving themless likely to be protected. Therefore,many sex workers consider violence“normal” or part of their job, andthey lack any information or awarenessabout their rights. As a result,sex workers are reluctant to reporthuman rights violations. Even ifthey do report, their claims are oftendismissed. The violators are rarelybrought to justice or even charged.This suggests a desperate and urgentneed to end the violators’ impunityand to recognize and protect sexworkers’ human rights in Kenya.The many adverse health consequencesof violence against sexworkers cannot be overestimated.Sex work is highly stigmatized. Sexworkers are often subjected to blame,labelling, disapproval and discriminatorytreatment. Violence has a directand indirect bearing on sex workers’ability to protect themselves fromHIV and maintain good sexual health.Sex workers find it difficult to negotiatesafer sex with intimate partnersand clients in the context of physicaland sexual violence (and threats ofviolence) perpetrated against them.This situation is not unique tocommercial sex workers in Kenya.In a recent survey conductedamong Vietnamese sex workers inCambodia, 30 percent reported thatthey had been sexually coerced byclients who were unwilling to put ona condom. It is hoped that the FIDAstudy will add to the critical body ofknowledge on sex workers’ healthand human rights.– MaryFrances LukeraMaryFrances Lukera(maryfrances@fidakenya.org) works withFIDA in Kenya, a grantee of LAHI andOSI’s Sexual Health and Rights Project(SHARP). This article is drawn fromresearch led by Catherine Mumma forFIDA. As part of this research, the followingdocuments were consulted:N. Fick, Coping with Stigma,Discrimination and Violence: Sex WorkersTalk About Their Experiences, Sex WorkerEducation and Advocacy Taskforce(SWEAT), Cape Town, South Africa, 2006.J. Dorf, Sex Worker Health and Rights:Where is the Funding?, OSI Sexual Healthand Rights Project (SHARP), 2006.World Health Organization, ViolenceAgainst Women and HIV/AIDS: CriticalIntersections – Violence Against SexWorkers and HIV Prevention, InformationBulletin Series, No. 3, 2005.1Laws of Kenya, Penal Code, Chapter 63.VOLUME 12, NUMBER 2/3, DECEMBER 2007 77