US: Trevor Hoppe discusses the history and future of HIV criminalisation activism

What’s the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe

By Kenyon Farrow

From TheBody.com

December 12, 2017

After 30-plus years of states using laws to criminalize people living with HIV for exposure or transmission, the movement to change these laws has gained momentum. TheBody.com’s senior editor, Kenyon Farrow, sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology at the University at Albany, State University of New York (SUNY), to discuss the history and present-day activism detailed in his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).

Kenyon Farrow: Part of what I want to talk about is the kind of current activism movement that is beginning to emerge to take on these laws — some federal attempts and some state-level organizing. I think the dominant framework here is that the Ryan White Care Act is the reason why we have state laws criminalizing HIV, in that the first iteration of the bill told states that they had to have these laws on the books in order to get the money.

Trevor Hoppe: To certify, yeah.

KF: Right. But what you’re suggesting is, actually, these laws were already pretty well established by the time we even got to the Ryan White CARE Act for that to even have been the case.

TH: Yeah. You know, this is really a problem with the legal literature — where you can just sort of say anything and claim that it’s true. And so, we’ve had legal scholars making this argument without any evidence for decades now, where they just say, “Oh, it must have been the Ryan White Act.”

But Ryan White was in the 1990s and, by that point, almost all the states that were going to criminalize HIV had already done so. When I look at other states — such as Alaska, for example, they were debating whether to add an HIV-specific felony law. And they said, “Well, do we have to do this because of Ryan White?”

The lawmakers said: “No, no. We looked into it. All we have to do is certify that we could punish someone living with HIV under any law, whether or not it’s specific to HIV. So, no. Ryan White is not a reason to enact this law.”

So, you have lawmakers even acknowledging that Ryan White was not a factor in their decision. So, yeah. I think that’s a farce, really, that Ryan White is to blame.

KF: Got you. Yeah, so let’s talk more about the current moment. We’ve had a number of both national organizations that are taking on more of the work, either repealing or [creating] the framework of modernizing the HIV criminal codes, and then some local efforts to do so, as well. They have had a couple of recent legal successes. Well, I’ll say legal reforms — we can debate the level of whether it’s a success or a win, or some phase. So, you know, Iowa kind of being the first state, and now California and some other places are looking at reform bills.

So much of the narrative and the messaging around reforming the HIV criminal legal code is around this idea of modernization. What I hear a lot of advocates saying — and using to speak to lawmakers — is that these laws were created when we didn’t know how HIV was spread and there was a lot of panic and fear in the country. Now that we know that people who are on treatment and get to be undetectable can’t transmit the virus, then a number of other things that we understand about treatment and disease progression, and what have you — these are reasons why we need to reform the laws.

I’m curious to hear your take on the current moment. There’s more energy and focus on criminalization laws where HIV is concerned, and particularly this sort of modernization framework. How do you respond to it, based on your research?

TH: I guess what immediately comes to mind is: Who do you think is being punished under these laws? Do you think it’s really the middle class gay man living in San Francisco who’s being arrested? No. It’s the poor white woman living in the middle of Michigan: The people who are least likely to be on treatment and have access to treatment are being caught up in this wave of criminalization.

So, I am very wary of attempts to just tweak these laws — to only punish people, for example, who have detectable viral loads — because I think that’s really just kicking the can down the road. It avoids the hard question, which is: Is the criminal justice system the best tool, the right tool, the appropriate tool, to respond to these cases? Or are there public health interventions that might be better suited to respond to these individuals, who may not be disclosing their status or, you know, may be accused, at least, of doing so.

I really think that we have two possibilities emerging. We have states like California and Colorado, who have fully repealed several of their HIV-specific felony laws. Those were huge successes, I think. They were repealed, and that’s rare. Lawmakers do not like to repeal criminal statutes because they’re worried about looking soft on crime.

On the other hand, we have states like Iowa and Tennessee, in the Midwest and the South — which is really the hotbed of criminalization in the U.S. We see there that state legislatures are moving to expand their laws to include other diseases. Now, in Iowa, they also reduce the penalties in the most harmless cases to much lower levels. And that is a success. But I think the expansion to other diseases is a huge failure, in the sense that all you’re doing there is just further entrenching the idea that the criminal justice system is the right tool to handle these situations.

I think that’s wrong. I hope we don’t see more Iowas and Tennessees out there. I hope we see more Californias and Colorados.

KF: Thank you. I got into a lot of trouble for saying that a few years back.

TH: I get [it]. I understand; I know some of those activists on the ground in Iowa. I understand that they really felt like that was the best outcome that they could achieve in that political moment. So, I understand the political realities are challenging. That’s going to be true in all of the states where criminalization is most extreme. It’s really not the Californias and New Yorks of the world where we’re locking up dozens or hundreds of people living with HIV; it’s the Michigans and the Floridas and the Missouris of the country [where] we’re seeing those outcomes.

Getting a bill, a repeal bill, passed in Michigan and Florida –that’s a different beast altogether. So, I get why Iowa activists celebrated that move. I just think it’s ultimately shortsighted. But, for people like Nick Rhoades, who was convicted under Iowa statute and had that conviction tossed out after that reform, obviously, it was a huge victory.

But it’s a question to see who are going to be the future Nick Rhoades of the world under the new law. We don’t know that yet. But I would suspect there will be more cases down the road, rather than less cases, under this new law.

KF: In closing, I would just like to hear: Where do you think we should be going in terms of the legislative strategy, in terms of the legal change, and eradicating criminalization. But I’m also curious what you think [about] aspects of either public health, community-based programs for HIV or LGBT folks, or in poor communities or what have you.

One of my concerns is that, for instance, when Michael Johnson’s trial was happening, and I, with some other folks, were doing some of the advocacy to try to support his case, one of the things I became painfully aware of was [that] there was by no means a consensus among people living with HIV, among LGBT folks, among black folks that these laws are a bad idea. To me, it actually suggests that there is some other work that we have to do, in addition to the small set of people who are going to be doing the sort of legal advocacy piece.

TH: You know, I talk to a lot of people on the ground in different states. Their first reaction is always: “What can we do? How can we get involved?”

I think sometimes it’s great that there’s this excitement and energy and interest in reforming the laws. But the reality is that the first step is not to run to the Lansings or to the Raleighs of the world — not to the state capitals — [but] to start local. That will always be the first step: to see what you can really achieve at the local level.

Talk to the local health department and see where are they on this issue. Because we may think that they’re all on board. But I can just say from my experience traveling around the country, that’s not the case in a lot of places. Local health officials are really mixed as to what the appropriate response is to these cases.

We can [do] outreach to local health officials. We can also [do] outreach to prosecutors and judges, because they’re not medical experts. They have no training in HIV science. So, when someone comes before their court — a partner, for example, comes before the court — and testifies that they have to be tested for the next 10 years to know whether they were actually infected by this person, it goes unquestioned. Because [these officials] have no expertise or knowledge.

So, I think just starting a basic communication campaign, that if these individuals are going to be tasked with litigating HIV, they ought to be informed, at the very least. And I think once you’re informed, it’s hard to come to the same kinds of conclusions in these cases if you have the science at hand. There are gross exaggerations made about HIV — that it’s a death sentence, that these defendants are murderers, that you have to be tested for 10 years to know whether you were infected — and those kinds of claims have no factual basis. And so, I think we can [do] outreach to prosecutors and judges at the local level, quietly, behind the scenes, to see what we can achieve there.

I know people want to just get up and go to the state capital. I think in some cases that’s appropriate. But, before we get there, I think, start local. It’s really at the local level that these cases play out. I think we can have potentially more success in some states, very conservative states, at the very least, by starting local.

KF: OK, great. Thank you. Is there anything else that we didn’t get to talk about that you would like to mention before we go?

TH: Well, I would say — and I say this every time I get asked this question — I think, as a gay man, I know that many of us, our community, struggles with HIV. And many of us have had the experience of finding out that someone we had sex with is living with HIV. And maybe we didn’t know it. And maybe we didn’t ask, or whatever. But we have a lot of mixed emotions about those cases. It’s something that we have to deal with as gay men; that’s a reality that many of us are going to test positive at some point in our lives.

I would just say to keep an open mind, thinking about these criminal cases. Because most defendants are not that boogeyman that you have in your imagination — the man lurking in the shadows [who] is going to intentionally, maliciously infect you. That is really almost never whom the defendant resembles. It’s much more likely to be someone who used a condom, or had an undetectable viral load, or just couldn’t figure out, for a one-time sexual encounter, how to disclose their status in a very high-stigma environment.

So, yeah. That’s all I would say, is just keep an open mind. Know that the boogeyman is really not representative of most defendants in these cases.

This transcript has been lightly edited for clarity.

Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com.

Follow Kenyon on Twitter: @kenyonfarrow.

Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

Canada: Alberta courts urged to follow Ontario example and stop prosecuting people for not disclosing their HIV status

Alberta should curb prosecutions for HIV non-disclosure

The Ontario government announced Crown attorneys will no longer prosecute certain cases of HIV-positive people who don’t disclose their status to their sexual partner.

By:  Metro Published on Mon Dec 04 2017

Advocates are urging Alberta courts to stop prosecuting HIV-positive people who don’t tell their sexual partners their status, as long as they’ve been on medication for a certain length of time.

The call comes after a federal justice department report released Friday concluded that criminal law should generally not apply to people who are on HIV treatment, are not on treatment but use condoms, or engage only in oral sex.

The Ontario government also announced Friday, which was World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the HIV-positive person has had a suppressed viral load for six months.

Viral load refers to the amount of HIV virus in a person’s blood.

“It’s a huge step forward,” said Brook Biggin, founder of the Edmonton Men’s Health Collective and regional manager of the Community Based Research Centre for Gay Men’s Health.

“Our hope is that Alberta will make a sensible decision as well, and look at the evidence and follow suit.”

The announcement was made in response to the report, which was titled “Criminal Justice System’s Response to Non-Disclosure of HIV” and backed by analysis from the Public Health Agency of Canada.

The report found there is no realistic possibility of a person transmitting HIV if they have been on treatment and have an undetectable viral load.

Biggin said Canada is notorious for being “one of the worst countries” in terms of the number of recorded prosecutions for HIV non-disclosure.

The Canadian HIV Legal Network has recorded more than 200 prosecutions.

Because there is no specific law around non-disclosure in Canada, other laws are used to prosecute cases.

Offenders are often charged with aggravated sexual assault, with the idea being that a failure to disclose the condition invalidated consent, and that HIV could cause significant bodily harm.

Aside from often lengthy jail terms, those convicted have also faced mandatory designation as sex offenders.

“These are charges that ruin people’s lives,” Biggin said.

Veronica Jubinville, press secretary for Alberta Justice Minister Kathleen Ganley, said in an e-mailed statement that the ministry is taking the report into consideration.

“We are evaluating how this potential change could impact our courts and these types of cases in Alberta,” the statement reads.

Published in Metro News on Dec 04, 2017

Canada: Ontario decision to limit HIV criminalisation seen as a step forward but more still needs to be done

HIV-positive community says Ont. ruling is first step of long process

TORONTO — A move by the Ontario government to limit the prosecution of HIV-positive people who don’t disclose their status to sexual partners is being called a step in the right direction by those affected, but they say there’s much more progress to be made.

The government announced on Friday that people with low viral loads who don’t have a realistic chance of transmitting the disease can’t be charged with a crime if they don’t disclose their medical status to a sexual partner.

Previously, non-disclosure could lead to an aggravated sexual assault charge that landed convicted people on a sex offender list.

Ontario made the changes after studies showed that the risk of transmission is negligible if people are being treated for the disease or if appropriate precautions are taken.

Chad Clarke, 46, who served 39 months in prison for non-disclosure, said he cried when the announcement was made and said progress was being made to end what community advocates called the criminalization of HIV.

“I feel great because they’re listening to our voices,” said Clarke. “I look forward to see where we go … they just proved that you have them willing to sit down, and maybe Canada will sign on to this.”

However, advocates in the community say there are downsides to the ruling as well.

Jeff Potts, managing director of the support and advocacy group Canadian Positive People Network, said that decriminalizing only people with low viral loads means the community will be divided between people who are fortunate enough to get the medical treatment they need, and marginalized people who are not.

“At the end of the day, laws that criminalize people living with HIV for any reason, unless it can be proven there was intentional harm, are unjust,” said Potts, who has been HIV-positive for three decades.

“They don’t make sense, they don’t keep up with the science, it does nothing more than perpetuate stigma and further marginalize people who live with HIV.”

Potts said that some people will see this as a wrong step because of that division, but acknowledged that it’s important that the government has shown it understands there’s a conversation that needs to happen.

The government said Sunday it had no comment about any plans to further limit prosecution of HIV-positive people for non-disclosure.

Potts and Clarke spoke of the stigma that came with being HIV-positive and said that the fear of prosecution was “unbearable.”

Clarke, who was originally sentenced to four years in prison, says his daughter still won’t let him speak to his grandson, and said he still isn’t on speaking terms with his parents. He used to feel at home in Toronto’s Church and Wellesley neighbourhood, where there is a strong LGBTQ community, but has since moved to a small rural community because the area brings back too many bad memories

“Knowing that I’m on a national sex registry that puts me on the same category as people that actually harm children or dismember bodies when they do a sexual thing doesn’t make me feel to good,” said Clarke.

While Clarke is also calling for further changes to non-disclosure rules, he said the HIV community has to be mindful of how they carry on the fight and that they must focus on educating Canadians.

“We need to use our voices properly, hold them accountable, and educate,” said Clarke. “If we don’t educate and show them the love of this community, they’re not going to hold that door open for us no more.”

Malawi: Police officers urged to stop criminalising sex-workers due to their HIV status

Malawi law enforcers urged to desist from criminalizing sex-workers over HIV/AIDS status

LILONGWE-(MaraviPost)-The Malawi Police Services’ (MPS) officers have been urged to desist from criminalizing sex-workers due to their HIV and AIDS status when they come to conflict with the law.

This reduce cases of defaulting the drug prolonged-life, ARVs when are on remand cell as they become uncooperative with the law-enforcers

The call will also enhance cordial relationship men in uniform they have with sex-worker as they harbor criminals when playing their trade.

In an exclusive interview with The Maravi Post in the sidelines of World AIDSDAY that falls on December 1st yearly, Priest Mpemba, Kanengo Police Model station HIV/AIDS Coordinator, said time was ripe for officers handle sex-workers in line with human rights principles.

Mpemba who is also DNA Forensic Investigator observed that some law-enforcers criminalize sex-workers during sweeping exercises due to their serial status.

The HIV/AIDS coordinator added that the laws of land do not criminalize sex-work but the act of being conflict with the constitution including robbery and violence among others.

On legalization of sex work in the country, the DNA Forensic Investigators said the matter was a policy issue which the county’s leadership must trade carefully regarding to how the society perceives sex workers.

With extensive sensitization the station is taking on HIV/AIDS, Mpemba expects a cordial relationship between the police and the public in ending the HIV/AIDS pandemic in the country.

On skills handling suspects living with HIV and AIDS, the coordinator said that the station expects fewer lawsuits.

“This year’s World AIDS DAY commemoration must focus as well on how sex-workers are being treated in the society. They are into that trade with various reasons but their rights must be respected as human beings. This is the reason the station using its own resources has been into intensive sensitization on the virus.

“Our officers should also treat suspects especially those living with the virus with dignity as human that they continue taking medication when are on remand. This will reduce drug defaulters and ease lawsuits the station receives,” says Mpemba.

Speaking Friday on World AIDS Day, at the Blantyre Youth Centre The Minister of Health and Population, Atupele Muluzi said that right to health is a fundamental human right, everybody has the right to the enjoyment of the highest attainable standard of physical and mental health.

This year’s commemoration was under the theme ‘Right to Health: Access to Quality HIV Prevention and Treatment Services”.

Before the function, the Minister opened Umodzi Family Centre at Queen Elizabeth Central Hospital. The centre will help facilitate HIV testing and treatment, TB screaming and offer reproductive health services.

AIDS is no longer the high-profile public health menace it once was thanks to the discovery in 2011 that antiretroviral treatment can not only suppress HIV in the bloodstream and reduce the risk of spreading the virus, but also, some experts predict, eventually end the epidemic.

Published in the Maravi Post on Dec 3, 2017

Canada: HIV criminalisation is unacceptable states UNAIDS Director Michel Sidibé in Ottawa on World AIDS Day

Mylène Crête, The Canadian Press 1 December 2017

OTTAWA – The Criminalisation of people with HIV is unacceptable and must stop, UNAIDS Director Michel Sidibé said during his visit to Ottawa on Friday for World AIDS Day.

He spoke these words about an hour before Minister Jody Wilson-Raybould sends a signal to the criminal justice system to adapt to scientific advances in the treatment of the disease.

People are hiding, said Mr Sidibé. People ultimately do not go to services and when people do not go to services, they continue to infect their partners.

“A person who does not disclose his HIV status and transmits HIV to his sexual partner can be subjected to criminal charges in Canada, whether of assault or sexual assault. The consent given is no longer valid because of this omission.

Over the last 20 years, 59 people have been charged. In the majority of cases, these were charges of aggravated sexual assault. In more than 75 percent of cases, these people were found guilty even though more than half had not transmitted the disease.

These statistics come from a report released Friday by the federal Department of Justice to examine the issue. He concludes that the evidence must include antiretroviral therapy and a person’s viral load.

For example, an HIV-positive people whose viral load is almost zero – 200 copies per millilitre of blood – who does not disclose their HIV status. should not be charged because they can not transmit HIV. It is the same scenario for those who use a condom or who just have oral sex.

Charges are relevant only in specific cases, such as when a partner is lying about his condition and intentionally transmitting the virus by adopting risky behaviors. On the heels of this report, Ontario announced on Friday that its prosecutors will no longer lay charges against people who have had a suppressed a viral load for six consecutive months and who do not disclose their condition to their sexual partners.

In Quebec, there is no time limit, but a team of 17 prosecutors is already ensuring that any charges filed meet the realistic transmission test of the Supreme Court in 2012 in Mabior. Under this criterion, a low viral load and the use of a condom do not entail the obligation for the HIV-positive person to disclose his condition.

In all, 27 people with HIV in Quebec were the subject of accusations since 1989, about one case per year.

Other provinces may choose to follow suit and issue their own guidelines. Minister Wilson-Raybould made a written declaration on Friday to work with her counterparts.

At the same time, the Liberal government announced $ 36.4 million to fund prevention and research activities on the disease.

UNAIDS Director, Michel Sidibé, was in Ottawa to launch his annual report with Minister of Health Ginette Petitpas Taylor and Minister for International Development Marie-Claude Bibeau.

In his report, he pointed out that global efforts to prevent HIV transmission were failing to raise the awareness of men.

On the African continent, only one-third of men are able to say whether they are HIV-positive. This contributes to the “infernal cycle” of transmission as older men infect young women, who in turn transmit the virus to other men, said Mr Sidibé.

Prevention must now take into account this “blind spot” By promoting safer sex practices among men and the importance of being tested for the disease.

Mr. Sidibé nevertheless praised prevention efforts around the world, pointing out that, for the first time, there are more people with the virus under treatment – 21 millions – than there are people with the disease.

Overall worldwide solidarity has really produced results, he concluded, results that no one would have imagined. (…) But I would like to conclude by saying that this is not the moment of complacency. This is the moment to redouble our efforts. This is the time to continue investing in this fight because we can end AIDS.

“Otherwise the epidemic could rebound and erase all the gains made since the onset of the disease in the 1980s.

Published in L’Actualité on Dec 1, 2017

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VIH: la criminalisation est inacceptable, selon le directeur d’ONUSIDA

Mylène Crête, La Presse canadienne

OTTAWA — La criminalisation des personnes atteintes du VIH est inacceptable et doit cesser, a affirmé le directeur d’ONUSIDA, Michel Sidibé, lors de son passage à Ottawa, vendredi, à l’occasion de la Journée mondiale du sida.

Il a prononcé ces paroles environ une heure avant que la ministre Jody Wilson-Raybould envoie un signal au système de justice pénale pour qu’il s’adapte aux avancées scientifiques dans le traitement de la maladie.

«Lorsqu’on punit, les gens se cachent, a constaté M. Sidibé. Les gens, en définitive, ne vont pas vers les services et quand les personnes ne vont pas vers les services, elles continuent à infecter leurs partenaires.»

Une personne qui ne divulgue pas sa séropositivité et qui transmet le VIH à son partenaire sexuel peut faire l’objet d’accusations criminelles au Canada, soit de voies de fait ou d’agression sexuelle. Le consentement donné ne tient plus en raison de cette omission.

Au cours des 20 dernières années, 59 personnes ont ainsi été accusées. Dans la majorité des cas, il s’agissait d’accusations d’agression sexuelle grave. Dans plus de 75 pour cent des cas, ces personnes ont été reconnues coupables même si plus de la moitié n’avaient pas transmis la maladie.

Ces statistiques proviennent d’un rapport publié vendredi par le ministère fédéral de la Justice pour examiner la question. Il conclut que la preuve doit inclure la prise d’un traitement antirétroviral et la charge virale d’une personne.

Par exemple, les personnes séropositives dont la charge virale est presque nulle — 200 copies par millilitres de sang — et qui ne divulguent pas leur état ne devraient pas être accusées puisqu’elles ne peuvent pas transmettre le VIH. Même scénario pour celles qui utilisent un condom ou qui se limitent à des relations sexuelles orales.

Des accusations sont pertinentes seulement dans certains cas précis, comme lorsqu’un partenaire ment sur sa condition et transmet intentionnellement le virus en adoptant des comportements à risque.

Dans la foulée de ce rapport, l’Ontario a annoncé vendredi que ses procureurs ne déposeront plus d’accusations envers les personnes qui ont une charge virale supprimée durant six mois consécutifs et qui ne dévoilent pas leur état à leurs partenaires sexuels.

Au Québec, il n’y a pas de limite de temps, mais une équipe de 17 procureurs s’assure déjà que toute accusation déposée respecte le critère de possibilité réaliste de transmission émis par la Cour suprême en 2012 dans l’arrêt Mabior. En vertu de ce critère, une charge virale faible et l’utilisation d’un condom n’entraînent pas l’obligation pour la personne séropositive de divulguer son état.

En tout, 27 personnes porteuses du VIH au Québec ont fait l’objet d’accusations depuis 1989, soit environ un cas par année.

D’autres provinces pourraient choisir d’emboîter le pas et émettre leurs propres lignes directrices. La ministre Wilson-Raybould s’est engagée vendredi dans une déclaration écrite à travailler avec ses homologues.

Au même moment, le gouvernement libéral annonçait 36,4 millions $ pour financer des activités de prévention et de recherche sur la maladie.

La prévention touche peu les hommes

Le directeur d’ONUSIDA, Michel Sidibé, était de passage à Ottawa pour le lancement de son rapport annuel en compagnie de la ministre de la Santé, Ginette Petitpas Taylor, et de la ministre du Développement international, Marie-Claude Bibeau.

Dans ce rapport, il souligne que les efforts mondiaux pour prévenir la transmission du VIH échouent à sensibiliser les hommes.

Sur le continent africain, seulement un tiers des hommes sont capables de dire s’ils sont séropositifs. Cela contribue au «cycle infernal» de la transmission puisque des hommes plus âgés infectent de jeunes femmes, qui à leur tour transmettent le virus à d’autres hommes, a expliqué M. Sidibé.

La prévention doit maintenant tenir compte de cet «angle mort» en faisant la promotion de pratiques sexuelles sûres auprès des hommes et de l’importance d’être testé pour la maladie.

M. Sidibé a tout de même salué les efforts de prévention partout sur la planète en soulignant que, pour la première fois, davantage de personnes porteuses du virus sont sous traitement — 21 millions — qu’il y a de personnes atteintes.

«Ensemble, la solidarité globale a vraiment produit des résultats, a-t-il conclu. Des résultats que personne n’aurait imaginés. (…) Mais je voudrais conclure en disant que ce n’est pas le moment de la complaisance. C’est le moment de redoubler nos efforts. C’est le moment de continuer à investir dans cette lutte parce que nous pouvons mettre fin au sida.»

Sans quoi l’épidémie pourrait connaître un rebond et effacer tous les acquis faits depuis l’apparition de la maladie dans les années 1980.

Canada: Canadian organisations issue joint statement on the federal Justice Minister report “Criminal Justice System’s Response to Non-Disclosure of HIV.”

AN IMPORTANT, MODEST ADVANCE ON WORLD AIDS DAY Federal and Ontario governments take first steps toward limiting unjust HIV criminalization, but must work with community and experts to go further The following statement is issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization: December 1, 2017—

Today, after years of advocacy by community organizations, both the federal and Ontario governments have finally recognized the need to limit the “overcriminalization of HIV” in Canada. They have each taken a first step toward that end— specifically, by recognizing that a person living with HIV who has a suppressed viral load should not be criminally prosecuted, because this is at odds with the science. This morning, the federal Justice Minister released her department’s long-anticipated report, “Criminal Justice System’s Response to Non-Disclosure of HIV.”

The report contains a number of important conclusions warranting a more limited application of the criminal law than is currently the case. In particular, the report explicitly recognizes that HIV is first and foremost a public health matter, that the use of the blunt instrument of the criminal law should be a matter of last resort, that the application of the criminal law to HIV non-disclosure is likely to disproportionately affect people Indigenous, gay and Black people. The report also recognizes that it is problematic, in at least some circumstances, to use the law of sexual assault to deal with allegations of HIV non-disclosure.

Meanwhile, the Ontario Attorney-General and Minister of Health have released a joint statement confirming that “HIV should be considered with a public health lens, rather than a criminal justice one, wherever possible,” and that in light of the overwhelming scientific consensus for cases where an individual has a suppressed viral load for six months, Ontario’s Crown Prosecutors will no longer be proceeding with criminal prosecutions in such cases.

These are welcome first steps. But what is needed is deeper, broader reform. Earlier this week, the Canadian Coalition to Reform HIV Criminalization (CCRHC) released a joint Community Consensus Statement endorsed by more than 150 organizations across the country, from the HIV sector and beyond. Developed through several months of cross-country consultation, the statement shows clear consensus against the current overly broad use of the criminal law in Canada against people living with HIV and the urgent need for action from federal, provincial and territorial governments.

The Community Consensus Statement declares that, in accordance with international guidance, criminal prosecutions should be limited to cases of actual, intentional transmission of HIV. It also specifically identifies circumstances in which criminal prosecution for alleged HIV non-disclosure is clearly inappropriate. In particular, the Community Consensus Statement declares that HIV related criminal charges are not appropriate where a person living with HIV engaged in activities that, according to the best available scientific evidence, posed no significant risk of transmission, which activities include: § oral sex; § anal or vaginal sex with a condom; and § anal or vaginal sex without a condom while having a low viral load.

It is encouraging, therefore, that Justice Canada’s report recommends that the criminal law should not apply to people who have a suppressed viral load.

Furthermore, Justice Canada recommends that: The criminal law should generally not apply to persons living with HIV who: are on treatment; are not on treatment but use condoms; or, engage only in oral sex (unless other risk factors are present and the person living with HIV is aware of those risks), because the realistic possibility of transmission test is likely not met in these circumstances.

These conclusions need to be reflected in clear prosecutorial directives issued by federal and provincial Attorneys General. However, the announcement today by the Attorney General of Ontario – which province accounts for more than half the prosecutions to date in Canada – falls well short of this, as it only commits to refraining from prosecutions in cases where someone has a suppressed viral load.

These conclusions by Justice Canada should also be recognized by judges across Canada when they are called upon by prosecutors to apply the existing legal framework, under the law of sexual assault as it has been interpreted by the Supreme Court of Canada.

However, it remains that case that prosecuting HIV non-disclosure as sexual assault is misguided and damaging, not only to people living with HIV but also to the integrity of the law of sexual assault. We therefore welcome Justice Canada’s conclusion that, in the absence of intent to transmit HIV to a sexual partner, sexual offences are not appropriate.

As declared in the Community Consensus Statement released earlier this week, HIV non-disclosure must be removed from the reach of sexual assault law. We note that the Ontario Attorney General has explicitly echoed the call by the Canadian Coalition to Reform HIV Criminalization to examine potential Criminal Code reform.

Canada: Ontario will no longer prosecute people who don't disclose their HIV status if they have a suppressed viral load

Ontario to curb prosecution of HIV non-disclosure cases

Crown attorneys will not prosecute cases of HIV-positive people who do not disclose they have HIV if they have had a “suppressed” viral load, or amount of HIV, in their blood for six months.

The Ontario government announced Friday, World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the person who is HIV-positive has had a suppressed viral load for six months.

Viral load is the amount of the HIV virus in a person’s blood.

The announcement was a response to the federal justice department’s report titled “Criminal Justice System’s Response to Non-Disclosure of HIV,” released Friday.

The report, backed by analysis from the Public Health Agency of Canada, concludes that the criminal law should generally not apply to people who are on HIV treatment (which suppresses their viral load and makes transmission unlikely), are not on treatment, but use condoms, or engage only in oral sex.

“The realistic possibility of a transmission test is likely not met in these circumstances,” the report concludes.

The federal report recognized that HIV “is first and foremost a public health issue,” and concluded that non-disclosure prosecutions disproportionately affect people who are Indigenous, gay and Black.

While the province’s announcement to limit prosecutions was seen as modest progress, a number of organizations quickly pointed out that the government should only be prosecuting cases where there was actual, intentional transmission of HIV.

Ontario has been criticized by advocates as being a world leader in unjustly prosecuting HIV-positive people, typically charging them with aggravated sexual assault for failing to disclose their HIV status to their sexual partner.

Published in the Star on Dec 1, 2017

Philippines: LGBTQ rights groups and advocates appeal to government authorities and medias to "Stop HIV shaming"

‘Stop HIV shaming’: When status is not the story

Here are guidelines for government authorities and media groups in handling cases and stories involving persons living with HIV

MANILA, Philippines – When agents of the Philippine Drug Enforcement Agency (PDEA) arrested 11 men in a drug bust at a hotel in Taguig City on Monday, November 27, the agency revealed more information than necessary during its press conference the following day.

Aside from announcing the raid yielded P387,000 worth of party drugs, PDEA showed mug shots of suspects and even mentioned that one of them is positive for HIV.

Immediately, mugshots photos of the suspects and keywords like “gay men,” “orgy,” and, “HIV” appeared in headlines and social media posts referring to the raid.

Netizens and advocates from the lesbians, gays, bisexuals, transexual, and queer (LGBTQ) community slammed the PDEA and media outlets that carried the angle for baring the mugshots and the disclosure of one’s HIV status. They argued that, by doing so, PDEA and the media outlets only helped perpetuate the stigma attached to the LGBTQ community and people living with HIV.

Unfortunately, this incident took place only 3 days before the world observes the World AIDS Day on Friday, December 1.

Guidelines for authorities

Disclosing to the media that one of the suspects tested positive for HIV was unnecessary, according to Senator Risa Hontiveros and several LGBTQ rights groups and advocates, like Dakila, Red Whistle, Pedal HIV, and UP Babaylan.

Their appeal to government authorities is the same: Stop HIV shaming. (READ: [DASH of SAS] Better police handling, media coverage of drugs and HIV needed)

“While the use of prohibited drugs is illegal, their sexual orientation and HIV status are unimportant and should have been treated with utmost sensitivity and respect,” UP Babaylan said in a statement.

While PDEA has since apologized, Hontiveros said in a statement released on Wednesday, November 29, that PDEA and law enforcement agencies should train themselves on the ethics and protocols in the proper handling of persons living with the human immunodeficiency virus (PLHIV).

“I welcome PDEA’s apology, but we cannot ignore the mental and emotional damage already inflicted on the said person. Living with HIV is not a crime. Whatever legal and criminal charges he is facing, testing positive for HIV has nothing to do with them,” Hontiveros said.

Hontiveros added that government agencies like PDEA should be at the forefront when it comes to fighting the stigma attached to PLHIV.

“Our authorities should help in telling the public that the HIV-AIDS epidemic can be effectively addressed and that persons living with HIV should have their rights protected. Our authorities should not aid the further stigmatization of those living with the disease,” she added.

Media reporting

Advocates, on the other hand, chided media groups that carried the angle for their unethical and sensational reporting. According to them, media groups that unnecessarily highlighted the HIV reference violated the confidentiality clause stated in the Republic Act 8504 or the Philippines AIDS Prevention and Control Act of 1998.

Article 6 of the HIV law generally aims to promote confidentiality in handling all medical information, particularly the identity and status of PLHIV. (INFOGRAPHIC: How is HIV transmitted?)

In the Philippines, there are no clear guidelines and prohibition in media on HIV disclosure. Bills filed by Dinagat Island Representative Kaka Bag-ao and Senator Risa Hontiveros seek to address this gap by strengthening the confidentiality clause of the current HIV law.

Globally, groups observe the following ethical guidelines and principles in reporting about HIV and AIDS:

  • Accuracy is critical.
  • Misconceptions should be debunked.
  • Clarity means being prepared to discuss sex.
  • Balance means giving due weight to the story.
  • Journalists should hold all decision makers to account.
  • Journalists should ensure that the voices and images of people living with and affected by HIV and AIDS are heard and seen.
  • Journalists should respect the rights of people with HIV and AIDS.
  • Particular care should be taken in dealing with children.
  • Discrimination, prejudice, and stigma are very harmful.

These guidelines were echoed by the Center for Media Freedom and Responsibility (CMFR), a media watchdog.

In a phone interview with Rappler, CMFR editorial manager Lawrence Idia said journalists bear the responsibility of discerning which information to report to the public.

“On the part of the media, when you obtain information, you should also make sure that it does not cause any harm or violate privacy. In this case, the stigma should not have been reinforced,” he said in a mix of English and Filipino.

Idia said setting guidelines for the media on reporting sensitive issues like HIV and AIDS would be good starting point in helping break the stigma.

Fighting the stigma

Advocates agreed that the actions of PDEA and some media groups greatly affected the country’s fight against the stigma attached to PLHIV and against the health epidemic in general. 

Last August, the Department of Health (DOH) cited the latest data from the UNAIDS Report on global HIV epidemic states, and announced that the Philippines has the “fastest growing” HIV epidemic in Asia-Pacific.

According to the report, the new HIV cases among Filipinos more than doubled from 4,300 in 2010 to 10,500 in 2016.

“Just reading the comments from the articles about the buy-bust is disheartening. This stigma against the LGBTQ+ Community and people with HIV/AIDS should not be tolerated,” Dakila communications director Cha Roque said.

In any case, this drawback did little to dampen the spirits of advocates who are at the frontlines in the goal to raise awareness about HIV and AIDS.

“We need to be constantly talking about how our society deals with the LGBTQ+ community. Dakila believes that as much as we celebrate that ‘love wins,’ we shall also remember that with love comes the right to express yourself, and not to be discriminated for it,” added Roque. – Rappler.com

US: Exploring the link between HIV criminalisation, the threat of long prison sentences, racial inequalities and plea bargains

Michael Johnson, HIV Disclosure, and the Coercive Nature of Plea Bargains

On Sept. 21, 2017, Michael Johnson, a former college wrestler, entered a no-contest plea in the St. Charles Circuit Court in Missouri. He was sentenced to 10 years in prison, which includes time served for the four years he has already spent behind bars.

As readers might remember, Johnson was arrested in 2013 and charged with non-disclosure of his HIV status to six sexual partners. Johnson said that he had disclosed; the prosecution argued that he hadn’t and that one of Johnson’s partners later tested positive for HIV.

In a trial rife with racism and homophobia, the young black gay college student was convicted and sentenced to 30 years in prison. He appealed and, in April 2017, the state supreme court upheld his right to a new trial.

However, Missouri’s laws around HIV non-disclosure are among the harsher in the country. Under the state’s statute, originally passed in 1988 and made harsher in 1997 and 2002, HIV non-disclosure before sex is a felony. So is HIV transmission. It doesn’t matter whether a condom was used; what matters is whether defendants can prove that they told their partner before having sex.

If he had taken his chances at a new trial, Johnson risked a 100-year prison sentence if another jury of twelve found him guilty.

Johnson’s experience, complete with the threat of a century in prison, might seem shocking, but the reality is that plea bargains are extremely common.

Plea Bargains: An Everyday Occurrence

Nearly all felony convictions — 94% at the state level and 97% at the federal level — are the result of plea bargains.

This has even been acknowledged by the U.S. Supreme Court, coincidentally in a case that originated in Missouri. In August 2007, college student Galin Frye was arrested and charged with driving with a revoked license. Because he had been convicted of the same offense three times before, the state of Missouri charged him with a class D felony, which carried a maximum sentence of four years. Three months later, the prosecutor sent Frye’s attorney a letter offering two plea bargains. If Frye pled guilty to the felony charge, the prosecutor would recommend that Frye serve only 10 days of a three-year sentence. This still meant that Frye would be saddled with a felony record (and have to spend 10 days in jail). The second offer reduced the charge to a misdemeanor, which carried a maximum sentence of one year behind bars; the prosecutor would recommend that Frye serve only 90 days. These offers, the letter continued, would expire on Dec. 28, one week before Frye’s Jan. 4 court hearing.

But Frye’s attorney didn’t bother to tell his client about the letter or the plea offers. Two days after the offer had expired, on Dec. 30, 2007, Frye was again arrested for driving with a revoked license. Frye pled guilty and, though the prosecutor requested 10 days in jail, the judge sentenced Frye to three years in prison. It was only after he had been sentenced that Frye learned about these plea offers. He filed for post-conviction relief, arguing that, had his attorney told him about the letter, he would have accepted the misdemeanor plea bargain.

His case made it to the Supreme Court, which, in 2012, sided with him. Writing for the majority, Justice Anthony Kennedy acknowledged the overwhelming significance of the plea bargain: “‘[H]orse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.'” But, by the time the decision was issued, Frye had already served his sentence.

When he was arrested in 2013, a year after the Missouri v. Frye decision, Michael Johnson had no prior criminal record. However, he was a black gay man being tried in St. Charles, a county that is 90% white and among the country’s top 100 conservative counties. During his summation, the prosecutor freely admitted to intentionally including prospective jurors who considered gay sex a sin. The jury deliberated for just over two hours before convicting Johnson of five of the six counts and recommended 30 years in prison.

“Pleas Are the Norm and Trials Are Not”

Even those facing charges for the first time have a high incentive to accept a plea rather than wait (and wait and wait) for their constitutional day in court.

Mariame Kaba is the director and founder of Project NIA, a nonprofit organization based in Chicago that works toward ending youth criminalization and incarceration. She told TheBody.com that in her years working with criminalized youth, less than a quarter of those facing criminal charges have ever taken their case to trial. “Pleas are the norm,” she said, “Trials are not.” The threat hanging over each defendant’s head is that, if he or she exercises the constitutional right to a trial and loses, the prosecutor will demand the highest possible penalty. If people plea bargain, they can receive a more lenient sentence.

In 2009, Robert Suttle pled guilty to HIV non-disclosure. In Louisiana, where Suttle had been arrested and was facing trial, intentional exposure to HIV carries a possible ten-year prison sentence. When his attorney told him that he could plead guilty and instead serve two years of probation, he decided to do just that. “They already have evidence that you are HIV positive,” he explained to TheBody.com. “You know your status, which shouldn’t be a crime, but the burden is on you to prove that you did disclose.” Facing the chance that a guilty verdict would mean a decade in prison, Suttle opted for what he felt was the lesser punishment.

Like many defendants, Suttle was never in the room when his attorney and the prosecutor hashed out a possible plea bargain. In fact, he told The Body, he had already started working in another state by the time his attorney and the prosecutor began negotiations.. It was only after pleading guilty that he learned that he would not only spend two years on probation, but also six months behind bars and 15 years on the sex offender registry. “I pled to something not fully understanding the implications,” he reflected.

But it’s not simply the threatened sentence that pushes many towards plea bargains. Kaba noted that many youth, particularly those who are low-income youth of color, are assigned bail amounts that their families cannot afford, which results in them spending lengthy amounts of time in jail as they await their day in court. “And,” Kaba added, “Jail is hellish.” In addition, more often than not, they’re assigned public defenders who are overloaded with other cases and unable to provide any shadow of time-intensive, let alone zealous, representation.

At the same time, the hammer of the criminal justice system doesn’t fall equally on everyone. “Race is involved in the criminal punishment system at every level,” Kaba reminded TheBody.com. Black people are up to ten times more likely to be arrested than people of other ethnicities. Black people are also 10% more likely than whites to be either remanded to jail before trial or unable to afford bail; they are also more likely to be offered pleas involving incarceration rather than probation.

HIV criminalization follows that same pattern. The Williams Institute found that, in California, white men were significantly more likely to be released without charge (61% of HIV-specific criminalization cases). But black men, while making up 14% of people living with HIV in California, made up nearly one-fifth (19%) of those criminalized because of their HIV status. The disproportion for black women was even higher: Though they are only 4% of the state’s population living with HIV, they make up 21% of those who have had contact with the criminal justice system because of their status.

As reported previously, HIV criminalization has long been used as a prosecutorial threat, even if HIV-specific charges are never filed in court. In New Orleans, Women With a Vision organizes with low-income African-American women, many of whom are living with HIV. Policy director Nia Weeks, who previously worked as a public defender, noted that the city’s district attorney often threatens to upcharge (or increase criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty.

Race and Place Matter

When considering whether to take a chance at trial or to accept a plea bargain, race and place matter.

Kaba of Project NIA has co-founded campaigns to support abuse survivors criminalized for self-defense. She points to the case of Ky Peterson, a black trans man incarcerated in Georgia for shooting the man who raped him. When he was taken to a clinic for a rape exam, the woman conducting the exam told him that he didn’t look like a rape victim. The police and prosecutors didn’t believe him either, instead accusing Peterson, whom they assumed to be a woman, of luring the man into a trailer with promises of sex and setting him up to be robbed by his brothers.

After a year in jail, Peterson signed a plea agreement for what he thought was involuntary manslaughter and a ten-year sentence. (According to the court transcripts, however, Peterson actually pled guilty to voluntary manslaughter and was sentenced to 20 years.) “He knew that people were not going to believe him, that as a black trans man he was raped,” Kaba stated.

But it’s not just race and place. There’s also understanding — or a lack of understanding — about HIV. Suttle, a black man living in Shreveport, Louisiana, recalled that the prosecutor in his case was a black woman; the judge was a black man. “We have people in places of power prosecuting people based on their limited knowledge of HIV: that it is a death sentence,” he explained. At the same time, he recalled, he didn’t know anything about HIV criminalization — or resources to help him fight the charges. “People now have resources — the Sero Project, the Center for HIV Law and Policy, advocates to consult with, opportunities to reach out and get more information rather than relying on courts to be fair,” he reflected. At the same time, he realizes that many people remain unaware that such resources exist and, like him, sit in court feeling alone and desperate. “That means there’s a lot more work for us to do,” he said.

In Missouri, with the threat of a 100-year sentence hanging over his head, Michael Johnson, a black gay man living with HIV, might also have feared that a jury would not believe him.

“It takes a lot here for people to be open about their HIV status,” said Devin Hursey, a member of the steering committee for the U.S. People Living With HIV caucus and a member of the Missouri HIV Justice Coalition. Hursey lives in Kansas City, a three-hour drive across the state from St. Charles, where Johnson was tried and convicted. “Prevention workers are very progressive, but the average Missourian, unless they know about public health and the way that HIV is transmitted, is not.”

Hursey, now age 27, still remembers learning about HIV in 7th grade when the Dramatic Health Education Project through the Coterie Theater performed at his junior high. “They did two monologues,” he recounted. “The actors told stories of people living with HIV.” But, he acknowledges, that particular learning experience doesn’t happen in every school.

Symptoms of the System

The white, conservative suburb of St. Charles is approximately 15 miles from the suburb of Ferguson, where the police killing of 18-year-old Michael Brown sparked protests both locally and nationwide. St. Charles is also less than 25 miles from St. Louis, where police officer Jason Stockley was recently acquitted in the 2011 fatal shooting of Anthony Lamar Smith. His acquittal triggered weeks of protest, which were often met by police violence.

Not that Missouri’s racial tensions are restricted to St. Louis and its suburbs, Hursey reminded TheBody.com. Last year, the state passed a law allowing prosecutors to charge schoolchildren, regardless of age, with a class E felony for a school fight in which someone is injured. Class E felonies carry a penalty of up to four years in prison. Missouri already has a high suspension rate — and the highest racial disparity among suspensions in the nation. During the 2011 to 2012 school year, the state suspended 14.3% of its black elementary schoolchildren at least once; in contrast, only 1.8% of white schoolchildren were suspended. Missouri elementary schools go from kindergarten to fifth grade, meaning that their students range from ages five to ten.

For Michael Johnson, pleading guilty means that parole is his next hope of an earlier release. But parole practices in Missouri have long been fraught with opportunities for parole board members to humiliate prisoners seeking early release. One parole commissioner, who was particularly known for humiliating and intimidating parole applicants, has since resigned, but Johnson will still face an uphill battle not only to obtain parole but also not to be returned to prison for a petty parole violation.

As they regroup and plan to continue supporting Johnson, HIV activists recognize that the struggle doesn’t end with Johnson or even the repeal or modernization of HIV criminalization statutes. Charles Stephens, executive director of the The Counter Narrative Project, which advocates around issues that impact black gay men, told TheBody.com: “Racist sentencing practices in the criminal justice system have been a key tactic in the practice of white supremacy throughout history. Michael Johnson is very much a victim of this system. We must continue to recognize that the struggle against HIV criminalization is also connected to the struggle against mass incarceration and racism.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.