Unit3 teachers notes

Unit three

Notes to accompany slides

Teachers Notes Seeking Justice for People Living with HIV Aim: By the end of this unit students will have a heightened awareness of the human rights dimensions of HIV.

Outcomes: Students will recognise how the legal system can be used to protect or to violate human rights of people living with HIV

Objectives:

Í Articulate a position on the pros or cons of criminalisation of HIV transmission Í Understand how protection of human rights in the context of HIV benefits individuals living with HIV and also helps reduce vulnerability of the general population to HIV

Methodology: Pair Reading, Listening/Reporting, Walking debate, personal journaling

Notes to accompany slides

The unit begins by challenging pupils to think about arguments for and against making HIV transmission a criminal act. This question is in fact the main focus on the unit and following insights into the implications of criminalization of HIV transmission, pupils will be asked to consider the question again towards the end of the unit.

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SHoULd HIV tranSmISSIon be a crImInaL act? Í In pairs note your reasons’ For’ and ‘ Against’.

For

Against

tHInK aboUt:

Who benefits from criminalization of HIV? Who does criminalization of HIV hurt?

Notes to accompany slides

Slide 3

Additional teachers’ notes 1. Many people living with HIV are reluctant to pursue cases because they fear the resulting publicity. But when a court case is won, it can benefit a large number of people living with HIV and help to strengthen positive attitudes towards them.

2. People often think that the judicial system is inaccessible to most vulnerable groups and is too bureaucratic, and that it is therefore incapable of providing timely and adequate responses to injustices caused by human rights abuses in the context of HIV. 3. Women are often disproportionately affected by criminalization as they are often the first to be diagnosed in a couple during ante-natal care.

3/9 The protection and promotion of human rights within the context of HIV are necessary from two important perspectives:

living with HIV have human rights just 1 People like everyone else. The right to health and the right to life are particularly important.

Public health goals of reducing vulnerability to

infection are affected when human rights of 2 HIV people living with HIV or at risk of HIV are not

respected. Where HIV is stigmatized, people will be reluctant to test for HIV or to seek treatment. They will be afraid to disclose their status. This creates a greater risk of infection.

Notes to accompany slides

Slide 4-6 A number of case studies are presented below. They present concrete examples of how courts of justice can enforce human rights, thus helping to improve daily life for people living with HIV and AIDS and strengthening HIV prevention and some examples of how courts of justice can impinge on the rights of PLHIV. For each case study pupils will be asked to think about:

Í Do you agree or disagree with the ruling of the court? Í Why do you agree or disagree? Í What are the wider implications of the rulings for other people living with HIV? 4/9

Teachers notes Recently laws that specifically criminalise HIV transmission and exposure have been enacted or are pending in many parts of the world. This is often driven by good intensions but in fact can undermine people’s human rights, negatively impact on public health and do nothing to address underlying drivers of HIV for those who are most vulnerable, particularly women.

There are many arguments put forward for and against criminalisation of HIV transmission. Everyone agrees that ‘deliberately’ or ‘recklessly’ transmitting HIV is wrong. But sometimes proving this can present numerous problems. Criminalisation of HIV can undermine the rights of people living with HIV, target the most vulnerable and deepen stigma The legal system which seeks to protect rights can expose people living with HIV to injustice instead.

People often think that the judicial system is inaccessible to most vulnerable groups and too bureaucratic, and that it is therefore incapable of providing timely and adequate responses to injustices caused by human rights abuses in the context of HIV.

Justice systems are in place to protect and guarantee human rights of all people but many people living with HIV are reluctant pursue cases because they fear the resulting publicity. But when a court case is won, it can benefit a large number of people living with HIV and help to strengthen positive attitudes towards them.

UNAIDS recommends that governments limit criminal sanctions for HIV transmission to cases where three conditions are met: 1. The person charged knows he or she is living with HIV; 2. The person charged acts with the intention of transmitting the virus; 3. The person charged actually transmits it.

A number of case studies are presented below. For each case study think about:

Í Do you agree or disagree with the ruling of the court? Í Why do you agree or disagree? Í What are the wider implications of the rulings for other people living with HIV ?

Notes to accompany slides

Case Study 1: The Right to Health Care for People Living with HIV Dentists are required to follow standard procedures for cleaning and sterilisation for all patients. These are designed to prevent transmission of HIV and other infections.

A person with HIV should be treated the same as all other patients and is protected under the law by equality legislation. It is both unethical and illogical to refuse patients whose status is known. In many cases a patient and a dentist will not know the HIV status of the patient and universal precautions should be applied to all patients regardless of their status.

This is a key form of stigma faced by people living with HIV worldwide.

5/9 Criminalization of HIV transmission refers to the application of criminal law to prosecute HIV transmission or exposure to the virus.

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Turn on your speakers Circulate the hand out 3 “HIV Criminalisation Court Cases”

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With the person beside you discuss the wider implications of the your judgement of the case.

Listen to the following case studies and decide whether you agree or disagree with the ruling.

Case Study 2: The Right to Employment for People living with HIV The risk of a football player passing HIV on to anyone else in a football game is almost negligible. While theoretically it is possible, there has been no case ever reported in a contact sport. If the footballer was bleeding and being treated by someone else, you would expect universal precautions (such as using gloves) to be used regardless of the individual’s status to protect the person treating them. It is worth noting that HIV only lives for a small time outside the body and would have to get into someone else’s bloodstream to infect them.

Case Study 3: The right to education for children living with HIV The school argued that it had only wanted to defer the application until the child was older and “past the biting stage.” However infection with HIV in this way is very unusual. There have only been a couple of documented cases of HIV transmission resulting from biting. In these particular cases, severe tissue tearing and damage were reported in addition to the presence of blood. This is not a reasonable argument for rejecting the child’s application. (source www. avert.org) Wider implications of judgement: The AIDS Law Project’s (ALP) SouthAfrica criticised the judgement for allowing a school to effectively exclude a child with HIV as long it “defers” the application, rather than to reject the child outright. The judgement provides no guidance as to the basis on which such a deferral may take place, how long the application may be deferred and what steps a school should take to accommodate children with HIV. They concluded that the judgement could serve as a precedent for other settings where service providers wish to exclude children living with HIV. (Source: Canadian hiv and aids Legal Network and UNAIDS, Courting Rights, UNAIDS Best Practice Collection, 2006)

Notes to accompany slides

Case Study 4: Guilty or Not Guilty- not as simple as it sounds This wife and mother was found guilty of transmitting HIV to her husband. The only evidence was that she had tested HIV-positive and he had never taken an HIV test. It is therefore not known who transmitted HIV. She had disclosed her status to her husband.

Zimbabwe Lawyers for Human Rights are now appealing the conviction based on the unconstitutionality of the law.

Case Study 5: How guilty was he?

Saliva does contain HIV, but the virus is only present in very small quantities and as such has never been known to cause HIV infection. The judgement therefore is not backed up by any scientific knowledge.

Source: Zimbabwe News 3 July 2012

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This case highlights the particular vulnerability of women to criminal prosecution. The judgement serves as a disincentive to women to go to antenatal clinic or to disclose their status to their partner. If Mlilo had not disclosed her status, her husband would not have been able to accuse her of transmitting HIV. If both couples know their status they can live healthy lives with support of treatment and can plan for further pregnancies in a safe way that mimimises the risk of HIV transmission to children.

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there are many arguments for and against criminalisation of HIV transmission.

Generally people agree that someone who ‘deliberately’ or ‘recklessly’ transmitting HIV to others should be punished?

But sometimes proving someone deliberately transmitted HIV to another can present numerous problems and the legal system which should protect rights can expose people living with HIV to injustice instead.

Source of story: The Criminalization of HIV Transmission and Exposure, Justice Edwin Cameron Constitutional Court of South Africa, Public Lecture hosted by the Canadian hiv and aids Legal Network Osgoode Hall, Toronto Friday, June 12, 2009 Case Studies 4 and 5 highlight what is known as criminalization of HIV transmission.

In recent years laws that criminalize HIV transmission and exposure have been introduced in many countries and increasingly existing criminal laws are being used to prosecute people for transmitting HIV or exposing others to HIV infection.

Í 63 countries have HIV specific criminal laws. Í The number of countries with known prosecutions is 43 (as of February 2012).

Notes to accompany slides

Slide 7 7/9

Why might criminalisation affect women more?

Criminalisation can often impact more on women as women are more likely to be tested (during pregnancy) so they are more likely to know their status. Women are often at risk of violence when they disclose their status.

Criminalisation can reinforce inequality and put women at even greater risk while doing nothing to address the reasons why they are more vulnerable.

Notes to accompany slides

Slide 8 Í Pupils stand in a line in the middle of the classroom Í An agree sign is put on one wall and a Disagree sign is put on the oppostire wall Í Teacher reads out a series of statements from Hand Out Í Pupils decide to agree with the statements or disagree with the statements Í The size of the step they take towards the sign should reflect how strongly you agree or disagree

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PuPIls stand In a lIne In tHe mIddle of tHe Classroom

Í Listen to the following statements Í Take a step towards the sign you agree with most. The size

of the step should reflect how strongly you agree or disagree with the statement

Notes to accompany slides

Slide 9 9/9

Undertake further research and then organise a class debate on the following motion:

 ‘the application of criminal law to HIV transmission is justified’