Criminalization

VIENNA/GENEVA, 15 March 2019—A coalition of United Nations Member States, United Nations entities and leading human rights experts meeting at the Commission on Narcotic Drugs in Vienna, Austria, today launched a landmark set of international legal standards to transform and reshape global responses to the world drug problem.

The International Guidelines on Human Rights and Drug Policy introduce a comprehensive catalogue of human rights standards. Grounded in decades of evidence, they are a guide for governments to develop human rights compliant drug policies, covering the spectrum from cultivation to consumption. Harnessing the universal nature of human rights, the document covers a range of policy areas, from development to criminal justice to public health.  

The guidelines come at an important moment, when high-level government representatives are convening at the Commission on Narcotic Drugs to shape a new global strategy on drugs. Under the mounting weight of evidence that shows the systemic failures of the dominant punitive paradigm, including widespread human rights violations, governments are facing growing calls to shift course.

“Drug control policies intersect with much of the 2030 Agenda for Sustainable Development and the pledge by Member States to leave no one behind. Approaches that violate human rights and fail to curb the illicit drug trade are leaving a trail of human suffering,” said Mandeep Dhaliwal, Director of the United Nations Development Programme’s HIV, Health and Development Group. “For countries who are ready to place human dignity and sustainable development at the heart of their drug control policy, these guidelines offer valuable guidance to promote more effective and humane drug control policy.”

Seeking to promote the rule of law, the guidelines feature recommendations across the administration of justice—including discriminatory policing practices, arbitrary arrest and detention and decriminalization of drugs for personal use—and articulate the global state of human rights law in relation to drug policy, which includes ending the death penalty for drug-related offences.

At least 25 national governments—from Argentina to South Africa—have scrapped criminal penalties for the possession of drugs for personal non-medical use, either in law or in practice, setting an example for others to follow. The United Nations system has jointly called for decriminalization as an alternative to conviction and punishment in appropriate cases.

“Punishment and exclusion have been instrumental to the war on drugs,” said Judy Chang, Executive Director of the International Network of People who Use Drugs. “The time has come to privilege human dignity over social isolation and champion human rights, putting an end to the shameful legacy of mass incarceration.”

Beyond moving away from a punitive approach to drugs, the guidelines make clear that a human rights approach is critical in improving people’s enjoyment of the right to health, to live free from torture and to an adequate standard of living. In accordance with their right to health obligations, countries should ensure the availability and accessibility of harm reduction services, which should be adequately funded, appropriate for the needs of vulnerable groups and respectful of human dignity.

“Ninety-nine per cent of people who inject drugs do not have adequate access to harm reduction services and are left behind in the progress against HIV,” said Michel Sidibé, Executive Director of UNAIDS. “More than 12% of people who inject drugs are living with HIV and over half have hepatitis C. The only way to advance progress is to put people at the centre, not drugs.”

The guidelines highlight the importance of protecting the rights of farming communities—especially women—to arable land. Consistent with international standards, they suggest that governments temporarily permit the cultivation of illicit drug crops when necessary to allow for smooth transitions to more sustainable livelihoods. Thailand’s success in supporting opium famers to transition to alternative livelihoods is one such example.

“Human rights should not just inform critiques of the response to drugs worldwide, they should also be the main drivers of its reform, underpinning checks and balances to break cycles of abuse,” said Julie Hannah, Director of the International Centre on Human Rights and Drug Policy, University of Essex, United Kingdom of Great Britain and Northern Ireland. “Fighting inequality and injustice is a more effective way of addressing the global drug problem than prisons and police,” she added.

The guidelines will support United Nations Member States, multilateral organizations and civil society to integrate the United Nations Charter and the Universal Declaration of Human Rights into national and global policy-making.

UNDP

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UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

On the night of 6 February 2009 in Georgetown, Guyana, seven transgender women were rounded up by the police and detained for the weekend. The following Monday, in the Georgetown Magistrates Court, they learned that they had been charged with cross-dressing. They pleaded guilty, were convicted and were each ordered to pay a fine. But not before being admonished by the Magistrate that they were “confused about their sexuality.”

With support from the Faculty of Law University of the West Indies Rights Advocacy Project, U-RAP, the group challenged the nineteenth century Guyanese law that bars men from dressing like women, and women from dressing like men “for an improper purpose”. On 13 November 2018, Guyana’s final court of appeal, the Caribbean Court of Justice (CCJ), ruled unanimously that the law violates the Constitution of Guyana and is therefore void.

“No one should have his or her dignity trampled on, or human rights denied, merely on account of a difference,” CCJ President, Adrian Saunders, said.

For U-RAP Co-Coordinator and law lecturer Tracy Robinson, this was a step towards addressing the unequal power and unequal life chances of many Caribbean people. 

"Laws do not apply evenly to everyone: those with the least resources and those marginalized are at greatest risk. Trans women are not the only ones who face lives which are cut short by state action and state inaction. There are many other instances in which we leave out and exclude those who are integral and part of our societies,” Ms Robinson said.

HIV is one manifestation of the way vulnerable communities are left behind. In the region, HIV prevalence among key populations is much higher than among adults generally. For example, among transgender women in Guyana—one of the few Caribbean countries with data on this population—the HIV prevalence is 8.4%, compared with 1.7% among all adults. Relevant Caribbean data indicate that HIV prevalence among gay men and other men who have sex with men ranges between 1.3% and 32.8%. The combination of discriminatory laws, stigma and discrimination and the relative lack of friendly services for members of key populations drives people underground, blocking them from HIV prevention and treatment services.

But in some countries, partners are acting to challenge the constitutionality of discriminatory laws held over from the colonial era. Through a case also supported by U-RAP, Caleb Orozco challenged the law in Belize that made “carnal intercourse against the order of nature,” which includes anal sex, a crime punishable by up to 10 years imprisonment. On 10 August 2016, Belize became just the second independent Commonwealth Caribbean country to decriminalize sex between men, and the first to do so through its courts.

And in Trinidad and Tobago the High Court ruled in favour of Jason Jones on 12 April 2018, finding that sexual activity between consenting adults should not be criminalized. This ruling was cited in the landmark Indian Supreme Court decision in 2018 decriminalizing gay sex.

UNAIDS is contributing to community engagement and communication around these issues, including supporting public forums in Belize and Trinidad and Tobago and the sensitization of journalists reporting on the transgender community in Guyana.

For the litigants, these victories are one step forward in a long journey towards equity.

“It forces communication between families and their lesbian, gay, bisexual and transgender relatives. It encourages people who are lesbian, gay, bisexual or transgender to come out the closet. It forces institutions to think about their administrative practices and the discrimination they justified based on that law. It forces homophobic people to acknowledge that the constitution covers everyone,” Mr Orozco said.

Litigant and co-founder of Guyana Trans United, Gulliver Quincy McEwan, said “It was very important for us to be heard and get justice.”

Prosecutions of people living with HIV for acts that pose no risk of HIV exposure or transmission prompt scientists to issue a statement urging the criminal justice system to use science when considering prosecution of HIV non-disclosure, exposure or transmission

AMSTERDAM/GENEVA, 25 July 2018—A group of 20 leading HIV scientists from around the world have issued a scientific consensus statement urging governments and people working in the legal and justice systems to pay close attention to the significant advances in HIV science to ensure that science informs the application of criminal law in cases related to HIV.

“Science has greatly advanced in recent years which has been critical in allowing countries to make evidence informed decisions in their HIV programming,” said Michel Sidibé, Executive Director of UNAIDS. “With all the new scientific advances now available we need to continue to use science as evidence to deliver justice. No one should face criminalization because of a lack of information or understanding by the justice system about the risks of HIV transmission.”

The expert group of scientists, convened by UNAIDS, the International Association of Providers of AIDS Care (IAPAC) and the International AIDS Society, warn that an overly broad and inappropriate application of criminal law against people living with HIV remains a serious concern across the globe. Around 73 countries have laws that criminalize HIV non-disclosure, exposure or transmission, and 39 countries have applied other criminal law provisions in similar cases.

“Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted well before the preventive benefit of antiretroviral therapy or pre-exposure prophylaxis was fully characterized,” said José M. Zuniga, IAPAC President and Chief Executive Officer. “Most people living with HIV who know their status take steps to prevent transmitting HIV to others. Laws that specifically criminalize HIV non-disclosure, exposure, or transmission thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.”

Most prosecutions have occurred based on perceived risk of HIV transmission through sexual activity. Some have also occurred for biting, spitting or even scratching. Prosecutions, and convictions, have often been influenced by a lack of knowledge or appreciation of scientific evidence regarding the possibility of transmission of the virus. In many instances, they have been influenced by deep-rooted stigma and fear associated with HIV, which still exists despite the huge advances in HIV treatment and prevention.

“We support this globally relevant expert consensus statement, for which we have been long-time advocates,” said HIV Justice Network’s Senior Policy Analyst Sally Cameron, on behalf of the Steering Committee of HIV Justice Worldwide, a global civil society coalition campaigning to end unjust prosecutions. “HIV criminalization is a growing global phenomenon that unfairly targets people living with HIV through criminal prosecutions and harsh penalties. This welcome statement makes the case that our current understanding of HIV science, alongside key human rights and legal principles, does not support this miscarriage of justice.”

The peer-reviewed consensus statement, endorsed by 70 additional scientists from around the world, was released today in the Journal of the International AIDS Society. It describes scientific evidence on the possibility of HIV transmission under various circumstances, the long-term impact of HIV infection and the means of proving HIV transmission so that it is better understood in criminal law contexts.

Based on a detailed analysis of the best available scientific evidence on HIV transmission and treatment effectiveness, the statement notes that there is no possibility of HIV transmission through saliva as a result of biting or spitting, even where saliva contains small quantities of blood. There is no to negligible possibility of HIV transmission where a condom is used correctly during sex, or where a partner living with HIV has an undetectable viral load.

In addition, effective antiretroviral therapy, low viral load, the use of pre-exposure prophylaxis (antiretroviral drugs taken by an HIV-negative person before a possible exposure), or post-exposure prophylaxis (antiretroviral medicines taken after a possible exposure) all significantly reduce the possibility of HIV transmission.

International guidance on HIV in the context of the criminal law recommends that “proof of causation, in relation to HIV transmission, should always be based on evidence derived from a number of relevant sources, including medical records, rigorous scientific methods and sexual history” (Ending overly broad criminalization of HIV non-disclosure, exposure and transmission: critical scientific, medical and legal considerations).

The experts recommend strongly that more caution be exercised when considering criminal prosecution, including careful appraisal of current scientific evidence on HIV risk and harms. The consensus statement is expected to help policymakers, prosecutors and courts be guided by the best available science and thereby avoid the misuse of the criminal law, as is currently happening in many countries worldwide.

Read the full Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

Sitting across from the bustling main Geneva train station, the lime-green block structure called Quai 9 stands out. The building houses a supervised drug injection centre run by the non-governmental organisation,  Première Ligne. Quai 9 (track 9 in English) also provides primary health care services as part of its harm reduction drop-in centre to people who use drugs.

On the occasion of UNAIDS 41^st meeting mid-December of the Programme Coordinating Board, the Switzerland government organized a visit for UNAIDS board members.

The visit highlighted how addressing the needs of injecting drug users through a public health and human rights-based approach,  considerably reduces the risks of  HIV infection and links people to health care.

The Swiss Ambassador to the United Nations, Mr Valentin Zellweger recalled how in the 1980s and 1990s, Switzerland had one of the highest incidence of HIV in Europe among people who inject drugs. In response to the crisis, Switzerland, introduced a “four pillars” policy, which focused on prevention, treatment, harm reduction and law enforcement.

One of the outcomes was setting up drug injection centres and increasing collaboration between the police and health care clinics.

As a result, HIV infections among people who inject drugs in Switzerland dropped precipitously.

Earlier in the week, Ms Ruth Dreifuss, former President of Switzerland, Health minister and current chair of the Global Commission on Drug Policy, had addressed UNAIDS board members. Ms Dreifuss, who spearheaded the four pillars policy during her tenure, said the evidence that harm reduction and decriminalization of drug use spoke for itself. She urged member states to leave no one behind by ensuring that drug use is treated as a public health issue. That call was further emphasized by members of the NGO delegation. 

UNAIDS Deputy Executive Director Luiz Loures commended Switzerland for its innovative, multi-sectoral approach to harm reduction. He said that UNAIDS would continue advocating for evidence-informed, human-rights based AIDS responses such as Quai 9.