This is my speech at the Civil Society Caucus in Oslo on February 13, 2012. An international pre-conference to the UNAIDS meeting February 14 and 15, 2012:

http://vimeo.com/hivjustice/louisgay

Kommentar til NRK nyheter sitt sitatvalg av meg i morgennyhetene 27.2.2012.

I forbindelse med et intervju NRK gjorde med meg 23.2.2012 har kanalen valg å bruke en del av intervjuet hvor jeg forteller at to HIV-positive på vellykket medisinsk behandling, det vil si at de har udetekterbar virusmengde i blodet, kan ha ubeskyttet sex med hverandre.

Denne uttalelsen gjorde jeg i sammenheng med ”The Swiss statement”

http://www.aidsmap.com/The-Swiss-statement/page/1322904/

en sveitsisk undersøkelse fra 2008 gjort på heterofile par, hvor forskerne konkluderte med at det ville være trygt for par under disse forutsetningene å praktisere ubeskyttet sex, forutsatt at de ikke har andre seksuelt overførbare sykdommer.

Denne delen av intervjuet valgte NRK og ikke ta med.


Comment on Norwegian Broadcasting Corp. choice of how to quote me in the morning news 2/27/2012.

In an interview Norwegian Broadcasting Corp. did with me 2/23/2012 they chose to use a portion of the interview where I said that two HIV-positive on successful medical treatment, which means that they have undetectable viral load in the blood, may have unprotected sex with each other.

This statement I made in the context with the "The Swiss statement"


http://www.aidsmap.com/The-Swiss-statement/page/1322904/  

a Swiss study from 2008 done on heterosexual couples, where the researchers concluded that it would be safe for the couple under these conditions to practice unprotected sex, provided they do not have other sexually transmitted diseases.

This part of the interview Norwegian Broadcasting Corp. did not quote.

This is a translated and edited article I wrote, first published at the biggest website for gay people i Scandinavia: http://www.gaysir.no/artikkel.cfm?CID=14998

HIV criminalisation, “safer sex” and disclosure?

After following various posts and discussions about HIV criminalisation in Norway, I would like to contribute to both clarifying and problematizing this subject. It is in fact more complicated than what often appears.

Most HIV-positive and negative will probably agree that as a society we need to protect us from such an in general dangerous disease as HIV (although the disease is less somatic dangerous today because of successful medication). Psychosocially there are unfortunately many who feel that there has not become much easier to live with it.

Such protection rests primarily on: 1. Individual's ability to protect themselves, 2. The morality / ethics among the HIV-positive population (that they take responsibility to not spread the disease further by informing about their status and / or protect their sexual partners) and 3. Laws approved by the politicians and the judicial interpretation and application in criminal cases.

All three forms of protection are important and necessary. Often is the discussion about the emphasis between them. I will concentrate on the last.

Since morality / ethics are subjective sizes with few sanctions, it is inconceivable to me that the society should not have any laws for use in cases in which HIV-positive deliberately infect others. The laws will also be normative for what we as a society feel about right morals / ethics. In that way, they play an important educational role. This is also where it starts to get complicated.

Current penal code §155 (HIV-paragraph) reads:

"He who with reasonable grounds to believe he is infected with a serious communicable disease, willfully or negligently infects or expose another to a risk of being infected, shall be punished with imprisonment up to 6 years in cases of willful violation and imprisonment for up to 3 years at negligent violation. " (My translation). In addition, there are substantial sums in compensation to the complainant.

The law is a general preventive law. In each case where a person files a complaint for breaching it, it will be "... for crimes against society." You do not have to infect someone to be imprisoned in Norway. It is enough to have exposed someone to a potential infection. Of the 20 or so sentences so far, some of them apply to such cases.

If one should have such a strict law regarding HIV-infection is not my concern in this article. The arguments for it and against it ranges from that it could have been further sharpened (was last increased in the 90's) to total liquidation. Regardless of witch "camp" we belong to, there is a great paradox surrounding the law as nurturing and guiding for HIV-positive behavior.

It seems to be quite common that the healthcare-sector informs that HIV-positive do not have to disclose their status to sexual partners (it is actually not written in the law). Personally, I have been informed about this all the time in my meetings with an otherwise wonderful HIV-specialized medical staff.

Back in 2006 the Supreme Court (the only of its kind?) concludes, however that there exists a duty to disclose information even if you practice safer sex (http://hivnorge.no/id/248.0 and hivnorge.no/asset/469/ 1/469_1.pdf). So there is precedent from the Supreme Court that we have a legal duty of disclosure.

Furthermore, some parts of the healthcare-sector informs that if we practice safe sex as well, using condoms, we will avoid any penalties from the authorities. This is not completely wrong, but inaccurate. What is "safer sex" and what is meant by “use of condoms”?

The term "safer sex" indicates that no sex can be considered 100% safe. Often described as the concept of using a condom during anal and vaginal intercourse, but not for oral sex, if there is no contact with sperm or precum from the penis. It is often recommended to use a condom even for oral sex, but it is not normally defined as part of the term "safer sex".

Doctor Frank O. Pettersen at infectious medical ward at Ullevål Hospital responds to "Anna" about "safer sex" this way:

"Transmission from HIV-positive men to a HIV-negative man or woman who performs oral sex is considered a so-called safer sex as long as the one that sucks, do not get semen in the mouth." (Http://hivnorge.no/id/496.0)

Dr. Haakon Aars replies to a letter this way:

"There is a lot of sex you can have that are defined as "safer sex" in relation to infection. Such as mutual masturbation. Also sucking, if you do not ejaculate in your partner's mouth."
(Http://hivnorge.no/id/945.0)

Both doctors will take further proviso that oral sex is not without danger of infection under certain conditions, but none of them talks about using a condom for oral sex as part of the "safer sex" concept. This has also been the usual information I have received from the healthcare-sector. HivNorge (the biggest HIV organization in Norway) confirms in their brochure "HIV and criminal law in the Nordic countries", that the practice of safer sex rules out punishment according to the Penal Code, and that there is no legal obligation to disclose HIV-status to sexual partners.

In contrast to this is the judgment of the Court of Appeals, February 2010, where it is established that an HIV-positive who have oral sex with another without a condom, can be convicted for violation of §155. (Http://hivnorge.no/id/710.0)

Attorney Brynjar Meling said in an interview:

"I cannot see anything but that penal code §155 means a sex-ban for people who are infected with HIV …".

Further he says:

"... We imagine a hypothetical case where an HIV-positive has infected his girlfriend. To avoid being accused himself, he files a complaint about his previous girlfriend for exposing him to HIV-infection. Even though it is likely that he has known about her HIV-status, and used this to force her to remain in a relationship she wants out of, she is accused and convicted. "

When asked if this is a realistic example of how the law can also be used to give false accusations against people with HIV or put pressure on HIV-positive to remain "in place" in a destructive relationship, Meling answer a simple but clear "yes".
(http://hivnorge.no/id/509.0)

So where are we then, as HIV-positive? In the field between well-meaning organizations and health workers and the legal system conservative interpretation of the law? As a newly diagnosed, we are not faced by lawyers explaining the legal consequences of being HIV-positive. As defendants, we are not exempt from criminal liability, even if we acted in good faith. Politicians have so far failed to address the need for clearer definitions (even with the revised criminal penal code §237 and §238 these questions remain unanswered, and handed over to legal interpretation).

The best hope for a clarification is now at the Syse-committee, which until October 2012 will review the laws regarding serious communicable diseases. Is it allowed to hope for clearer guidelines?

Louis Gay
HIV-positive

Congratulations to Edwin J Bernard and the hardworking people from Civil society caucus on HIV criminalisation, for the fantastic OSLO DECLARATION ON HIV CRIMINALISATION:

http://www.hivjustice.net/oslo/

http://vimeo.com/37232529

http://blogs.poz.com/sean/archives/2012/02/hiv_justice_network.html

This is an interview I gave to HivNorge (the biggest HIV organization in Norway) and was published February 14, 2012. http://www.hivnorge.no/id/1069

To arms against the Penal Code

By Olav André Manum (translated by google translater and Louis Gay)

Louis Gay (pron.: /loi:/ /gi:/) is 39 years old. He has tested positive on a HIV test. He is also reviewed for violations of Penal Code §155, that is the law that makes it a crime to infect others with HIV or expose them to infection.

The case is fully investigated, but the prosecutor has not yet decided whether charges should be brought.

Gay is reported to the police by a former expartner. He insists that he has informed about the risk of infection, although the expartner later denied this in his statement to the police. The expartner, however, felt that the responsibility to avoid infection had to be divided between the two adults, and that the choice of having consensual sex with infectious Louis was the expartner alone.

- It was during an episode of oral sex without a condom - which of course is defined as safer sex - that we had an accident and I started to bleed. When the expartner later tested positive, we both took it for granted that it was I who was the source of the infection, says Gay. He is Norwegian as any, but have a French last name because his grandfather was French.

It was only when the expartner wanted them to give each other a second chance, but Gay said that no, that the violation of Penal Code §155 was presented.

- I felt great sorrow to have infected another with HIV, said Gay, adding that the complaint, just added to the burden. It has not been easy to live with the thought that he should have infected another, but luckily Gay got fast access to a psychologist. This as well as support from friends has helped him to see things in perspective and to take up the fight against what he see as an unfair and useless law. He insists that this fight is a HIV-political or a legal political struggle, and not be tied to any population group.

A useless provision

- The law is useless because it does not meet the purpose, namely to protect the community against the spread of HIV, he says. He believes that the provision affects individuals without protecting society precisely because it puts the responsibility for preventing the spread of the HIV on the HIV-positive alone. It does not help that a potential partner or lover are informed about HIV status and it does not help if they say they are helping to share the responsibility. The law as it has been practiced in Norway and in relation to Louis Gay puts responsibility on the people living with HIV alone.

This means that it is better not to know about your HIV status, and it causes that it is better to keep quiet about what you know than to inform about it. As long as you do not know, you can not be held liable and many cases of infection occur while people with HIV are unaware of their own status. The fact that the law is practiced so that the responsibility lies only with the HIV-positive alone can easily make each HIV-positive a victim of revenge or anger from expartners or former sexual partners. There are also examples of that the provision have been used to keep the HIV-positive into a relationship he or she wants to break out of.

- Police have compared the my HIV-virus with my expartners virus. They are of different types, meaning that it is not I who have infected my expartner. Nevertheless, I can be prosecuted for having potentially exposed another of infection, says Gay.

Taking up the fight

The negativ impact Gay felt because of the filed complaint and that he felt betrayed by people who had said in advance that they would line up, he has worked through by taking up arms against the provision. He has read about criminal law regarding HIV, studied other issues that have been up in court and agree that since the provision is used the way it is, then he might go to jail.

But Gay is also clear that he wants his case to be prosecuted. He wants to answer for it in court and he wants an acquittal. He wants an acquittal to result in a precedent, meaning that this judgment and its conditions will be decisive for the outcome of similar cases. The dropping of charges will not give Gay what is looking for, namely to help reveal how unjust and inappropriate these provisions in the Penal Code is.
- There are a lot of good therapy in taking up the fight, says Gay.

This Law takes away HIV-positive people their legal rights

Gay stresses that the times he has been questioned by the police he has been properly and correctly treated. Yet he feels without legal rights. This past year he had a new partner. This partner is HIV-negative. -It has been an incredible effort to build up the confidence we need to each other as a couple, he says - not least because I have experience that trust and promises can be broken.

The fact that the two have done it, he believes, is due not least to those among other things, that they agreed to journal at Gays doctor that they are both aware of the situation and the responsibility that comes with. The conclusion made by Gay, however, is that the law as it is, even after the audit and divisions in the Penal Code sections 237 and 238, undermine and subvert his right to a stable relationship, a love life and sex life.

Still unclear

- For what does the revisions in general terms mean by that it shall not apply to a marriage-like relationship, he asks. -When is a relationship akin to marriage, must people have lived together under the same registered address for two years, or is it enough that they live together? The law says nothing about this.

- And what about that condom use should be exempt from punishment? Does that mean you have to use condoms during oral sex? And what about rimming? Do you have to use licking-rubber if it should be considered as safe sex? For me all these questions just are as unclear as before, and they do not make a sexual life as HIV-positive any easier.
Gay stresses that he is not opposed to that to infect others with intent should be a criminal offense. He only says that other parts of the Criminal Code provisions should be used.

Of one thing he is certain: If he had known what experience he would get as an HIV-positive who are open about his status, private, at work and in public, he would never had said anything. Then life would have become easier. Now he's going to stay the course so he can fight against an unjust and inappropriate provision of the Criminal Code.

Penal Code provisions on HIV alone does not protect the community from infection, he says. - We need much clearer laws that also makes partners jointly responsible for their own protection and additional information to the public, so that knowledge increases and prejudices are reduced. The fact that more people are discovering earlier diagnosis and possibly choose openness is the best protection society can acquire.

February 13, 2012 I was invited to participate at the "Civil society caucus on HIV criminalisation" in Oslo. This was a pre-meeting to the  High Level Policy Consultation on the Science and Law of Criminalisation of HIV Non-disclosure, Exposure and Transmisson 14-15 of February 2012 in Oslo, by UNAIDS. I gave this speech:

I am Louis. I am 40 years old and HIV-positive.

It’s my understanding you represent some of the elite addressing the complexity surrounding HIV criminalization? I’m not a part of that elite.

Instead I’m going to tell you a very personal story witch reflects what’s going on in Norway, today. By doing this I will reveal information witch is not meant for the public, but to me it’s important to let you know.

My story is about how unanswered love turned in to an attempt to force me to give an already broken relationship, a second chance. If not? I would be reported to the police, accused of passing on the HIV-virus. In Norway, like in a lot of countries, this is a criminal act.

I said no, and was reported.

The psychological impact on me was devastating. At the time I saw no other choice than to end my life. Thank God, that didn't happen. I got professional help in time. The fact that the complainant after being with me sexually tested positive, made me feel an endless shame and sorrow.

We both explained to the police about this one occasion of “safer sex” encounter, where the complainant cuts me during oral sex. And of course there was blood. It was an accident none of us saw coming, but I believed back then that this had to be the point of infection? I explained how I had warned the complainant about me being contagious; this was denied by the complainant in the police report.

The allegations and the threats didn't occur until months after the complainant tested positive and had a new partner in life.

Being an open HIV-positive is hard enough. Being accused and a suspect in a police investigation like this, even harder.

People we both love, slowly made their choices and I was left to be alone. It was a fucking hard time!

But it was also the reason that I changed my mind about letting other people inflict such a heavy burden upon my life. I decided to take whatever control I could gain, back. I went public.

Whether that was a wise choice, I can't tell yet? It's too early. What I do know, is that there are so much work to be done. Being able to live with HIV, with the same legal rights to a sexual life as everyone else, will continue for some time. And I hope that my choice of chairing this story in public will help that process.

Today, this case has turned my life upside down once again. Only a few weeks ago I learned from the Prosecutors, that the investigation concluded that I in fact was not the one who infected the complainant. We had different viruses!

To me, at least, it means that everything I had to go thru was based on lies to me, my friends and the police.

So what do the Prosecutors do about this? They recommend prosecuting me, anyway! Because, regardless the fact that I didn't infect the complainant, it's still criminal to put others at risk of an infection even if the other person was already HIV-positive. And this we will probably never know? They have still not reached a final conclusion. At this point I could probably report the complainant to the police my self, putting me at risk of a re-infection?

All in all, it leaves us HIV-positives, with this splended example of how the society best think they can protect them selves against new HIV-infections.

This year, 2012, will be the year where the politicians get the chance to change the law. A commission (where Kim Fangen over there is a member), is given the chance to recommend the politicians to change the future of criminalization of HIV-positives, if they choose too?

I don’t have to explain to you what I wish for?

I didn't know how it was to love someone for real until I was more than 30 years old and I don't want to lose that feeling again just because I got HIV. What I have experienced has frightened me, so I know I have to fight it and I will!

Two times I have performed this manuscript in public. First time was at World Aids Day 2011. Second time was at the Syse-committee (who is put together by the Norwegian parliament to look into the law regarding decriminalization of HIV and other illnesses) 9th of January 2012.

My name is Louis Gay. I am 39 years old and HIV-positive.

I have been reported to the police, by one person, for breaking §155 (Norwegian HIV-criminalization law).

I have, by another person, been threatened with the same.

Those two do not know each other. What they have in common, are that both had a close emotional and sexual relationship with me.

Both knew that I was contagious.

Both expressed that it was their responsibility, as adult and responsible people, to choose me as their sexual partner.

Later when I did not want to continue the relationships, neither emotional nor sexual, they pushed this responsibility on me with the law on their side.

The relationships that did not last, ended in threats about police reports and eventually one report to the local police.

To day I know that the law text it self and the courts interpretation of it, makes this my responsibility and only mine!

The law is to protect the society. In every case where a person reports an HIV-positive to the police, it is “…for a crime against society”. The complainants own choices, responsibilities and actions are subordinated.

This takes away all incentives for the complainant, to critically review their own participation, before they report an HIV-positive to the police.

It is the police that investigate and the State Attorney Office that decides whether an investigation ends in prosecution or not. It is possible to argue that unjustified allegations will be “filtered” away from the justice system. But only us that have experienced it know how it sucks up everything in your life, leaving nothing but ruins.

It has been impossible for me to get hold of any data regarding how many violations of §155 that have been dropped compared with those being prosecuted. Neither Oslo police district nor the Attorney General Office has been able to provide any information about this subject.

Most people understand that the shame coming with being reported to the police, alone is enough to choose an anonymous life.

In different discussion forums for HIV-positive people, I have seen others telling stories like mine. One man writes:

“I have been in a relationship witch now is over, with an HIV-positive guy. I am not HIV-positive my self. I was tested regularly and we always used a condom.

We had a partly open relationship. I never told those I had sex with that my boyfriend had HIV. I felt that since I had tested myself and was negative, it had nothing to do with anybody. It was between me and my boyfriend and nobody else. I never took any chances with others and was always “safe”.

What I am wondering is if it was wrong not to say anything? One of the guys found out that my ex had HIV and now he is pissed and will not accept that I am negative and believe I have put him to the risk of an infection. He is threatening me with an attorney. I believe this had nothing to do with him and that I have done nothing wrong. I can not infect anyone with something I do not have myself.

Should I have informed him or did I do the right thing keeping it to myself?”

According to §155 everyone that have sex with an HIV-positive “…have reason to believe they are contagious”. There is no 100 % safe sex.

We might be a small group, but we need to be addressed.

With my own experiences I have felt on my body the enormous personal strain of living with this threat hanging over my shoulder. Just because I am HIV-positive.

Later I have tried to live together with an HIV-negative partner. We went to counseling together with a specialist and a doctor, to be on the “safe side”. We followed the guidance we got about protection and responsibility, in the way the health sector recommends “safe sex” and a sexual life within the boundaries of the HIV-negative partner. Never the less I made myself a criminal on a weekly basis, according to the court systems strict interpretation of the law, where even not “safe sex” (like the term usually is defined in information material) exempts for criminal liability.

Therefore I am depending on that my partners, old ones and new ones never change their personal view of a divided responsibility for our common sexual life together. If that happened it could mean new rounds of threats and reports to the police, for me.

This makes it impossible for me to have the trust and faith in my partners. In stead I am always suspicious with people that really just want the best for me.

To be living in a free and knowledgeable country, this is an unworthy situasion.

It is the task of politics to decide the laws. It must be a better way to protect the society, than making all HIV-positive humans criminals?

Please, help us to a more dignifying life.