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.

Malawi: Human Rights Activists celebrate adoption of amended HIV Law that removes rights-infringing provisions (Press Release)

PRESS RELEASE 28 November 2017

HUMAN RIGHTS ACTIVISTS CELEBRATE MALAWI’S ADOPTION OF AMENDED HIV LAW THAT REMOVES RIGHTS-INFRINGING PROVISIONS

Lilongwe – On Tuesday, 28 November, Malawi Members of Parliament voted to reject coercive and criminalising provisions that threatened human rights in a long-deliberated HIV (Prevention and Management) Bill.

Activists and people living with and affected by HIV celebrated outside Parliament after having protested for months against rights-infringing provisions in the HIV Bill, tabled earlier this year. The Bill, which had its origins in a 2008 Law Commission Report, included provisions to make HIV testing and treatment mandatory for select populations on a discriminatory basis, and provisions that would criminalise HIV exposure and transmission, amongst others.

Civil society and activists argued that these provisions would violate the Malawi Constitution, be at odds with international best practice, and compromise the country’s efforts to advance HIV treatment and prevention.

On Tuesday, Members of Parliament debated amendments to the Bill advanced by Members and its HIV Committee. Minister of Health, Hon. Atupele Muluzi, urged Members to endorse these amendments when adopting the Bill, emphasizing that criminalising HIV had negative public health implications. Parliament voted to support all the amendments proposed by the HIV Committee and, in addition, voted to delete a contentious provision relating to “deliberate infection” with HIV. After a second reading, the Bill was passed subject to these amendments.

Activists celebrate the passing of the amended HIV/AIDS Bill today in Lilongwe. — Activists celebrate the passing of the amended HIV Bill today in Lilongwe. (Source SALC)

“It is thanks to women activists who fought to have their voices heard that Parliament has recognised that abandoning human rights protections will only drive vulnerability to HIV,” said Sarai-Chisala Tempelhoff of the Women Lawyers Association (WLA Malawi). “When the evidence tells us women and girls should be at the forefront of our response to HIV, it is important to understand the criminalisation would only increase the risk of violence and abuse that Malawian women face; strengthen prevailing gendered inequalities in healthcare and family settings; and further drive stigma, fear and discrimination around HIV.”

“Mandatory testing and treatment and criminalization of HIV transmission and exposure are counter-productive to reaching the goals of the HIV response in Malawi. We are glad our voices have been heard through the work of organisations like ICW Malawi, the Coalition of Women Living with HIV/AIDS (COWLHA), the Female Sex Workers Association, the Women Farmers Coalition and others. Human rights have prevailed today in Malawi.” said Clara Banya of the International Community of Women Living with HIV (ICW) Malawi.

“We are elated that Parliament has chosen to endorse a law based on evidence and reason and not on stigma and fear. It is people who are most marginalized in our society who would suffer most under coercive and criminalising laws – these are people who need society’s support, not punishment.” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

Gift Trapence, Executive Director of the Centre for the Development of People (CEDEP), agreed, “While we urgently need to embrace key populations to advance human rights and the HIV response in Malawi, the Bill was proposing to create further barriers. While the amended version adopted by Parliament does not speak to key populations directly, we must celebrate that at least it hasn’t added to the legal barriers as initially proposed.”

MacDonald Sembereka, Executive Director of the Mango Key Populations Network said, “As actors in the sector we urge for the prompt assent and implementation of the Act as it is long overdue.”

“We commend and support the incredible advocacy of Malawian civil society and women activists in particular who have refused to be silenced into accepting compromises on punitive laws and policies,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The role of human rights in an effective HIV response is as important now as it has always been.”

“While some provisions remain that are perplexing and of which we should remain wary (such as those placing duties on people living with HIV to adhere to treatment), Parliament’s acceptance of the amendments in the Act is a victory for citizens and supporters of human rights in Malawi who resisted efforts to enact the Bill in its original form at all costs,” said Annabel Raw, health rights lawyer at the Southern Africa Litigation Centre (SALC).

Laurel Sprague, Executive Director of Global Network of People Living with HIV (GNP+) said, “GNP+ applauds the remarkable community effort that focused on education, current science and best practices. Women living with HIV, sex workers, and women lawyers led the way in explaining why punitive laws harm the HIV response and ensuring that a human rights approach is at the centre of Malawi’s HIV response.”

Statement by:

The AIDS and Rights Alliance for Southern Africa (ARASA)

The Centre for the Development of People (CEDEP)

The Centre for Human Rights Education, Advice and Assistance (CHREAA)

The Global Network of People Living with HIV (GNP+)

The International Community of Women Living with HIV (ICW) Malawi

The MANGO Key Populations Network

The Southern Africa Litigation Centre (SALC)

Women Lawyers Association, Malawi

ENDS

FOR MORE INFORMATION:

Lesley Odendal (Communications Lead, AIDS and Rights Alliance for Southern Africa) Email: communications@arasa.info; Tel: + 27 72 960 8991.

Annabel Raw (Health Rights Lawyer, Southern Africa Litigation Centre) Email: AnnabelR@salc.org.za; Tel: +27 10 596 8538.

Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “. Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison. A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections. Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year. However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

US: New initiative launched by Equality Florida hopes to convince lawmakers to update laws exposing people with HIV to criminal prosecution

HIV Panic in Florida Is Turning Into a Health Catastrophe

The spread of HIV in Florida has outpaced any other state in the union, yet draconian laws turn getting tested into a risky legal gamble. Now a new initiative launched by Equality Florida aims to combat the virus through education, and maybe an update in the state’s legal statutes.

The HIV Advocacy Project hopes to better educate residents about the truth of living with HIV today — information Equality Florida hopes will convince lawmakers to update regulations that effectively expose individuals to criminal prosecution once their HIV status is known to them.

Alejandro Acosta is the coordinator for the project. He’s known his poz status for a while now. How long? He won’t say, in part because of the hefty risks that come with such disclosures in Florida. “I hesitate,” Acosta says, “because of how people can use that information.”

People living with HIV in the state can face up to 30 years in prison for failing to disclose their status to a consensual partner prior to any sexual contact, even if transmission is not possible. That means prosecutors can pursue convictions whether a partner contracts the virus or not, and whether or not the HIV-positive person uses a condom or has an undetectable viral load and cannot transmit the virus.

Three years ago a Palm Beach, Fla., prosecutor arrested one man and sought 10 separate charges for his alleged failure to disclose his status to one girlfriend. The prosecutor then went to the press, asking other members of the public to come forward if they’d had sex with the defendant in the previous eight years. Stories like that, Acosta says, do little to encourage people to get tested, since knowing one’s status is an essential element in the statute. That’s particularly troubling as Florida continues to see so many new transmissions, and those could just be the tip of the iceberg.

In 2016 alone, 4,972 people were newly diagnosed with HIV in Florida (more than any other state). Gay and bisexual men in Florida continue to live with a higher risk of transmission, as do trans women of color. Youth under 25, according to the Florida Department of Health, represented 16 percent of all new HIV infections in 2014. And Equality Florida estimates that over 20,000 people in the state are already HIV-positive but just don’t know it yet.

Hannah Willard, senior policy director for Equality Florida, says it’s important to acknowledge that HIV has “never stopped being an LGBTQ issue,” but it’s also “an issue of racial and economic injustice.” That’s one reason the Florida HIV Justice Coalition involves groups like Equality Florida and The Sero Project in collaboration with the Southern Poverty Law Center and the ACLU.

Florida’s HIV criminalization laws date back to the 1990 passage of the Ryan White Comprehensive AIDS Resources Emergency Act (or CARE Act); the federal law required states to criminalize deliberate transmission of disease. This was seven years before antiretroviral drugs turned HIV from a deadly disease to a manageable chronic condition and 17 years before the government officially announced that HIV-positive folks with undetectable viral loads could not transmit HIV. (That federal requirement has since been dropped from Ryan White.)

In 1997, Florida legislators added HIV to a list of diseases that were criminal not to disclose. That list also included other STIs like gonorrhea, herpes, and syphilis. The law provides confidentiality to those reporting a violation — a stipulation that activists say leaves room for misuse or abuse. A California study by the Williams Institute found that prosecutors disproportionately applied a similar law there to sex workers.

“We don’t yet know how these statutes are being used by law enforcement,” in Florida, Willard says, while noting some anecdotal evidence about reports motivated by revenge.

Acosta says poz individuals in the state fear a scorned lover could claim they weren’t told of their partner’s HIV status. Social stigma immediately taints those who are accused once allegations are made public, even if there’s no evidence that they failed to disclose their status. In a 2009 case, a woman faced prosecution based on multiple long-term relationships and was hit with separate charges for each individual sexual encounter.

Now two decades old, the Florida disclosure law hasn’t been updated, and therefore ignores conclusive evidence that those with HIV who are virally suppressed to undetectable levels are no longer at risk of transmitting HIV to sexual partners.

Acosta says there are significant repercussions to the way the law discourages people from finding out if they have HIV. He grew up in Puerto Rico and says two people he knew there died from HIV-related illnesses last year.

“Nobody should be dying of HIV these days,” he says. Proper and timely treatment can prevent HIV from entering the final, often terminal, stage of the disease (also known as AIDS).

But it still happens, particularly when people don’t realize they are HIV-positive until they are physically ill. That’s a failure in testing. Others have known they were HIV-positive but never realized it can be managed as a chronic condition. That’s an issue with education, and Acosta says a big part of his job will be making sure the public knows how to control transmission through proper health care.

“[I] worry about bad policy that makes access to treatment harder, discourages people from learning their status, or creates laws that are outdated and based on fear and stigma, not science,” Acosta says.

Willard is optimistic that policy opinions across the state’s political spectrum are beginning to change through effective lobbying. She notes a bill that would have changed the law to apply only when there was a “substantial risk of transmission” won a unanimous vote in the state Senate’s Criminal Justice Committee, but died before a full Senate vote. Still, it proved strong bipartisan support could be rallied. Willard says, “I’m very optimistic and see forward movement in 2018.”

Stopping HIV transmission in Florida also requires fighting social stigma. In a state with a large Latin immigrant population, that means challenging a number of prejudices: “You have a huge number of Haitians, Jamaicans, Salvadorans with different cultural, religious, and machismo issues,” Acosta says.

The impact hurricanes Irma and Maria will have on HIV prevention and treatment in Florida and Puerto Rico aren’t yet known, but will likely linger for years. Advocates like Acosta know their complex jobs are made more difficult by laws that put people in legal crosshairs for failing to disclose their HIV-positive status — unless they don’t know they are poz.

“It goes against every policy for public health because it incentivizes not getting tested,” Acosta says.

Published in the Advocate on Nov 20, 2017

US: "Punishment is the wrong approach to infectious disease control"

Should we punish the sick?

Would you consider calling the police if a coworker showed up at work one day with the flu? As absurd as that may sound, recent developments suggest that the notion of punishing people who are ill is becoming more entrenched and pervasive in American society.

Although new laws have cropped up in several states targeting diseases as diverse as meningitis and hepatitis, no disease is more widely criminalized than HIV. This year, on World AIDS Day (observed annually on Dec. 1), many advocates and public health organizations will be celebrating the dramatic advances in decreasing the number of new infections made possible by successful treatment and prevention.

In major urban cities around the globe — including London, Sydney and San Francisco — health departments are implementing powerful new tools to stop HIV transmission that are working. These include pre-exposure prophylaxis, or PrEP, which can greatly reduce the risk of infection when taken daily. In addition, it has come to light that treating HIV with antiretroviral medications help prevent its spread by rendering people living with HIV virtually noninfectious.

But while these advances are certainly promising, they do not tell the whole story.

The problem is that laws written in response to the AIDS epidemic remain stuck in 1985. HIV-specific criminal laws passed in the 1980s and 1990s at the height of America’s AIDS scare remain on the books. Law enforcement and prosecutors continue to vigorously enforce them, despite their lack of medical knowledge and sometimes without any legal justification. These moves are simply reactionary, based on stigmatizing views of HIV that unfairly punish innocent individuals.

Many HIV-related statutes make it a crime for people living with HIV to engage in a wide range of behaviors without first disclosing their HIV status—regardless of whether HIV could have been plausibly transmitted through their actions. Sometimes mistakenly referred to as “HIV transmission laws,” they make no mention of transmitting the disease or even putting a partner at risk of infection. For example, in Michigan, the law criminalizes any “sexual penetration” without disclosing one’s status—an overly broad formulation that includes many behaviors that cannot transmit HIV. Most HIV-specific state laws are felonies with harsh penalties, ranging from several years to life in prison.

Some states have laws so broadly written that they can be also used to punish a range of harmless nonsexual behaviors. In Tennessee, for example prosecutors regularly charge people living with HIV who spit at or bite police officers.

To that point, a recent report coauthored by the Centers for Disease Control (CDC) and the Department of Justice found that 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission, such as biting or spitting.

Michigan’s law is so badly written that one creative prosecutor used it to convict a woman for giving a lap dance in 2009. A detective explained the incident to the court with a graphic depiction of the woman’s genitals touching the man’s nose. That no one has ever contracted HIV via nasal contact mattered little under Michigan’s questionable (to say the least) law.

In a dozen cases reviewed during research for my book, “Punishing Disease,” accusers falsely claimed that it would take many years to know if a defendant had infected them. But most conventional HIV tests have only a three-to-six month “window” after exposure before patients can receive definitive test results. Court testimony in many cases almost invariably came long after that time period had elapsed.

These inaccurate suppositions directly impact sentencing. In a 2004 case in Davidson County, Tenn., the accuser claimed she wouldn’t know whether the defendant infected her for 10 years. The judge accepted her ignorant claim, ordering the defendant to serve 10 years’ probation and to pay for the woman to be tested for HIV for the next 10 years.

While HIV was originally the singular target of such laws, legislators seeking to “modernize” these laws have begun broadening their scope to include additional diseases such as meningitis and hepatitis – suggesting that the criminalization of sickness is contagious.

Punishment is the wrong approach to infectious disease control. The war on drug’s failure to contain drug addiction should warn us to the pitfalls of punitive approaches to controlling medical problems. Blame and shame are not the tools to protect us from disease; they are instead the fuel that drives epidemics.

Trevor Hoppe, Ph.D. is the author of ‘Punishing Disease: HIV and the Criminalization of Sickness’ and co-editor of ‘The War on Sex.’ He is currently assistant professor of sociology at University at Albany (SUNY).

Published in the Washington Blade on Nov 20, 2017

UK: Police accused of fear mongering by playing up the risks of HIV and hepatitis C transmission through spitting

Police accused of exaggerating risks of HIV to introduce spit guards

Force plans to issue guards to officers from January, saying people infected with blood-borne viruses use spitting as a weapon

A police force has been accused of fear mongering and stigmatising sufferers of hepatitis C and HIV by playing up the risks of transmission of blood-borne viruses as a reason to introduce spit guards.

Avon and Somerset police announced their plan to issue spit guards to all operational officers from January next year. “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis and the degrading assault can have a lasting psychological impact,” said Assistant Chief Constable Stephen Cullen.

Spit guards are tight mesh hoods that officers can pull over the heads of suspects resisting detention to stop them from spitting or biting. They are used by 25 forces but have been criticised by human rights groups.

Avon and Somerset’s announcement came with an account by an officer, named John, who said people infected with blood-borne viruses use spitting as a “weapon”. He described an incident in which he arrested a drunk woman who had hepatitis C after she attacked a paramedic.

“She was continually spitting, spit that was bloody. It was disgusting; she was trying to infect us,” he said, recounting how officers donned riot gear to protect themselves as they stripped the detainee for her safety. “After the shift we all went home to our kids wondering what we were taking home.”

Rachel Halford, the deputy chief executive of the Hepatitis C Trust, said she agreed that police should be protected from health risks, but rejected the force’s implication that the virus could be transmitted through spitting.

“Hepatitis C is a blood-borne virus and is therefore only transmitted through blood-to-blood contact. The virus cannot be transmitted via spit,” she said.

“Stigma and misinformation about hepatitis C and other blood-borne viruses is a key challenge faced by patients, who are already disproportionately from the most marginalised and disadvantaged groups in society. Many patients report feeling ‘dirty’ and experiencing social exclusion due to misinformation about transmission risks.”

Kat Smithson, the director of policy and campaigns at NAT (National Aids Trust), said Avon and Somerset’s claims about HIV and hepatitis C were wrong and stigmatised people with the conditions.

“HIV is irrelevant to the debate about spit hoods because spitting simply is not an HIV transmission route,” she said. “In the history of the epidemic, there has never been a case of HIV being passed on through spitting, even when the spit contains blood.”

According to Avon and Somerset police, the restraints will be used only when a person threatens to spit, has attempted to spit or has already spat, and only when officers’ body-worn cameras are switched on.

Despite those safeguards, Deborah Coles, the director of Inquest, raised concerns over their introduction to another police force. “There should be no doubt spit hoods are a use of force and have the potential to cause acute trauma and injury,” she said.

“We know from our work that mental health concerns or other difficulties often sit behind agitated behaviour. Our fear is spit hoods will become the default response and used against vulnerable detainees.

“We had hoped that after the restraint death of James Herbert, Avon and Somerset police would have prioritised safer, more humane policing methods with a focus on de-escalation and detainee welfare.”

Avon and Somerset’s police federation backed the decision, which the force said was in support of the national federation’s proposed assault on emergency workers (offences) bill.

Vince Howard, the chairman of Avon and Somerset police federation, said: “This option affords those officers, who are increasingly subject to this abhorrent act, the opportunity to protect themselves from the risks of serious communicable diseases.”

Data for spitting incidents reported on the Welfare Information Form shows there have been 79 spitting incidents out of 487 recorded assaults since April, which a force spokesman said was a sharp increase on previous reports.

UK: Professor Matthew Weait reflects on the first convictions for intentional HIV transmission in England & Wales

Daryll Rowe guilty – but is criminal law the right way to stop the spread of HIV?

Daryll Rowe infected five male sexual partners with HIV, and tried unsuccessfully to infect a further five. Yesterday, he was convicted in the Crown Court at Lewes on ten counts of causing, and attempting to cause, grievous bodily harm. He will be sentenced in January.

This is the first case in the UK in which a person has been convicted of intentionally harming, or attempting to harm, others with HIV – prior to this, all UK convictions have been for reckless transmission. It is a uniquely harrowing and distressing case, and the impact of Rowe’s actions on the complainants cannot be underestimated.

Unsurprisingly, the trial has provoked much media comment, and his behaviour widespread condemnation – the details of Rowe’s actions, after all, are particularly shocking.

But whatever judgement we might pass on Rowe’s behaviour from a moral or ethical perspective, the criminalisation of HIV transmission and exposure more generally raises a number of important questions, not least regarding its impact on HIV-related stigma and efforts to reduce, and ultimately eradicate, the virus.

Ever since its discovery as the causative agent of AIDS in 1983, countries across the world have used the criminal law, both to censure those who have exposed others to the risk of infection or have in fact infected others, to control the spread of the virus.

The first of these rationales, a retributive one, reflected the fact that, until the mid-1990s, HIV was untreatable and almost inevitably led to death. It is therefore not surprising that states should have treated HIV as a weapon, and its effects as serious bodily harm.

The second rationale, a deterrent one, assumes that punishment will deter the accused – and others – from engaging in risky activity. It therefore has a supposed legitimacy from a public health perspective.

Both of these justifications are problematic.

The false path

Regarding retribution, criminal law requires that the defendant manifest a high degree of fault at the time – typically, that he acted intentionally, as Rowe did, or recklessly. As to intention, this can be established in English law and many other jurisdictions if (a) it is proven that it was the defendant’s purpose to infect, or (b) it may (but need not) be inferred if infection was virtually certain to occur, and the defendant foresaw that consequence as virtually certain.

Proving purposive intention is extremely difficult – a deliberate intention to engage in sexual activity which carries with it the risk of onward transmission is not the same as intending to transmit. It is also very difficult, in the case of HIV, to establish intention in the alternative way because, as has been confirmed in a number of clinical consensus statements, from Canada, Australia, and Sweden, the probability of transmission in any one incident of sexual intercourse is extremely low.

What’s more, where a deliberate (but unsuccessful) attempt to transmit HIV during sex is prosecuted, is it legitimate to punish someone for failing to achieve a consequence which is, statistically speaking, extremely unlikely to materialise? Critically, in the case of HIV, the accused is unable, as a matter of fact, to exercise agency over the outcome. (There is arguably a difference between swinging a bat at someone’s knee and missing, and having sex during which a virus may, but on any one occasion probably won’t, infect a partner.)

Recklessness (the conscious taking of an unjustifiable risk), however, is a lesser form of culpability. It is easier to prove, and a far more common basis for criminalisation. Until now, reckless transmission has been the basis for all UK convictions.

Rowe was found guilty of intentionally harming, or attempting to harm, others with HIV. But criminalising reckless transmission is particularly problematic. From a retributive perspective, this amounts to punishing people living with HIV who have sex during which HIV is transmitted, not because they had any desire that this should happen but because they were aware that it might. This places the entire burden of minimising the risk on them (even in cases where a partner is in fact aware of the risks), and is even more problematic where reckless exposure (as opposed to transmission) is criminalised.

This is not just because no physical harm has been caused, but because there is an absence of clarity as to what degree of risk is acceptable. In Canada, for example, there needs to be a “significant risk”, though what this means is contentious. It is now widely accepted that when a person diagnosed with HIV is on effective treatment and has an undetectable viral load, transmission is all but impossible. In the words of a current, high-profile, campaign to encourage testing and treatment, Undetectable = Untransmittable, or U=U.

A deterrent?

Criminalisation can also create obstacles to delivering beneficial public health outcomes.

First, because a person living with HIV can only be convicted for transmission, attempt, or exposure if he knew his HIV positive status at the relevant time, those who are in fact positive but don’t know can’t, by definition, be deterred by the prospect of punishment.

Second, and critically, criminalisation contributes to the stigma associated with HIV infection. Sensationalist press coverage, focusing on exceptional “newsworthy” cases, does little if anything to normalise HIV infection or to inform the general public about the fact that the vast majority of people living with HIV take every precaution against putting partners at risk. Instead, it fuels ignorance and misunderstanding.

Indeed, the print media in the UK and elsewhere has a long tradition of sensationalising HIV transmission and exposure cases, often at the expense of accurate reporting – whether about the trials themselves, or about the characteristics of those convicted.

This may make people wary of disclosing their status to partners, adhering to treatment, or getting tested in the first place.

Indeed, there is now near universal consensus among expert bodies, including UNAIDS and the Global Commission on HIV and the Law, that the use of the criminal law, where it is used at all, should be limited to the most egregious of cases and that exposure and reckless transmission should be decriminalised. Where states do use criminal law against those who deliberately and maliciously harm others, the highest standards of forensic evidence should be deployed.

Any moral judgement we pass on defendants in particular cases (who, it is worth remembering, were themselves infected by someone else) should not deflect attention from what must be our main priority: the total eradication of HIV.

We know definitively that regular testing and early treatment can significantly reduce the number of new infections, and we know that stigma, fuelled by criminalisation and press coverage, impedes this.

Rowe’s behaviour was found to be criminal. But we should reflect on whether criminal law – in general – does more harm than good, and ensure wherever, and whenever, possible that HIV is understood and treated as a public health priority rather than as an opportunity for blame and punishment.

US: Scientific advances and determined advocates are forcing US states to re-evaluate HIV criminal laws

Science battles politics in growing state-by-state debate over HIV felony charges

California Gov. Jerry Brown signed a bill last month making California the fourth state to revise criminal laws regarding HIV exposure.
Medical studies say there is effectively no risk of transmitting HIV while taking current drug regimens.
Advocates are pushing states across the country to reevaluate HIV criminal laws.

In six U.S. states, individuals living with HIV who are found guilty of knowingly exposing a partner are required to be registered as a sex offender. They can face felony charges, or felony-level punishments, in 32 states.

But as breakthrough HIV drug treatments and medical studies show there is essentially no risk of sexually exposing someone to HIV while taking antiretroviral drug therapy (ART), states are being forced to play catch-up to the science, and stigma, of the AIDS virus.

There are 1.1 million people living with HIV in America, according to the Centers for Disease Control and Prevention. Between 2003 and 2013, ProPublica reported (in the most recent data available) 2,352 records of HIV-related charges, with at least 541 convictions or guilty pleas.

“It’s not easy to get people to agree with science,” said Bruce Richman, executive director at the Prevention Access Campaign, an organization that seeks to provide the public with accurate information about HIV exposure. “It conflicts with their long, deeply held beliefs about transmission risks.”

Last month Gov. Jerry Brown signed bill SB 239, making California the fourth state to rewrite HIV exposure laws that were enacted in the 1990s during the AIDS epidemic. Before the legislative reform, a person living with HIV who violated the California law could spend eight years in prison, with additional time if the person was a sex worker. The punishment resembled a typical sentence for voluntary manslaughter — three, six or 11 years in prison.

The bill reduced charges from a felony to a misdemeanor, with maximum sentencing in a county jail now set at six months, and is no longer HIV-specific but includes other communicable diseases, such as hepatitis. Anyone who intentionally attempts to transmit a disease without success will be charged with a misdemeanor with a maximum sentence of 90 days.

While the bill passed in the California Assembly 44-13, not all legislators agreed with the decision.

“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony. It’s absolutely crazy to me that we should go light on this,” Sen. Joel Anderson said as he debated the bill, according to a report in the Los Angeles Times.

“This isn’t about making people sick; it’s about people living with HIV being able to live their lives and not be subject to felonies that people with other communicable diseases are not subject to,” said Jo Michael, legislative manager at LGBT advocacy group Equality California. In fact, Michael said this legislation will lead to more individuals seeking treatment. “HIV was singled out, and that increases the stigma,” Michael said. “If you want to lower new infection rates and have fewer people living with it over time, addressing the disparity in discrimination is a way to do it.”

Two recent medical studies — the PARTNER study, which followed 900 heterosexual and gay couples for 16 months; and Opposites Attract study, which followed 358 gay couples — have determined that the risk of transmission while taking ART is effectively zero.

“We can achieve full suppression of viral replication, and we know from the data: If the medication is taken continuously and over the time of the infection, there is no breakthrough infection anymore,” said Hendrik Streeck, director of the Institute of HIV Research at the University Duisburg-Essen in Germany, which conducts research on therapy methods and vaccine development.

Without taking ART, condoms and PrEP (a medicine that lowers the risk of infection), reduce the risk of getting HIV by more than 90 percent.

Scientists from the National Institutes of Health and Paris-based pharmaceutical company Sanofi are also moving closer to developing a vaccine for AIDS.

According to research at the William Institute of Law at UCLA, the California law before its reform disproportionately affected women and people of color, and 95 percent of HIV-specific criminal incidents impacted sex workers or suspected sex workers.

Recent CDC statistics show that individuals living below the poverty line are two times more likely to be HIV-positive than those living above it.

States are still resistant to reforming HIV laws

Despite the latest science, many states remain hesitant to change laws adopted in the 1990s. In total, 29 states impose felonies on an individual who fails to disclose their HIV status before sex, and three states (Louisiana, Minnesota and New Jersey) impose punishments equivalent to that of a felony offense, with sentences of at least two years in prison.

In Tennessee a person living with HIV who knowingly exposes others can be quarantined by the state’s Department of Health “after exercising other appropriate measures” if he or she is determined to be a threat to the public. This health code does not require a conviction under the Tennessee HIV-exposure law.

State HIV criminal laws stem from a federal initiative in 1990 under the Ryan White Comprehensive AIDS Resources Emergency Act, which made funding for AIDS treatment and care contingent on states passing laws to prosecute individuals who knowingly exposed someone to HIV.

In 1995, AIDS was the leading cause of deaths for adults 25 to 44 years old. There were 51,414 deaths that year, the peak of the epidemic. Since new drugs to treat HIV became available between 1995 and 1996, the number of HIV-related deaths per year in the United States have sharply declined. In 2014 there were 6,721 deaths, according to the Centers for Disease Control and Prevention.

Iowa was among the first states to take small steps in reforming HIV laws, along with Colorado. In 2014, Iowa eliminated a requirement for convicted individuals to register as sex offenders, and it created a tiered penalty system, which now looks at whether transmission of HIV occurred and whether or not exposure was intentional. Additionally, other diseases were elevated to be included under the law, such as hepatitis or tuberculosis. However, someone who exposes a partner to HIV can still face up to five years in prison — up to 25 years in prison if the virus is transmitted.

In 2016, Colorado eliminated felony penalty enhancements involving sex workers living with HIV and modernized language having to do with HIV and other sexually transmitted infections in its public health code. It also reduced the sentence enhancement for sexual assault if a person is HIV-positive to twice the original sentence and requires proof of transmission.

Catherine Hanssens, executive director of The Center for HIV Law & Policy, says these state measures still don’t reflect the latest science regarding HIV.

“The rest of the country does not understand that it is not easily transmittable and easily manageable,” Hanssens said. “[HIV] is serious, but it can be managed.”

Advocates are pushing against many state legislatures that show little inclination to reform their laws.

“There are efforts to change the laws under way across the country from Florida to Ohio to Washington state,” said Kate Boulton, staff attorney at the HIV Center for Law & Policy. She says it is a highly complex process, depending on the political climate of the states.

“It has a lot to do with how the individual legislation works and how connected to policymakers the advocates are,” Hanssens said.

An Ohio Supreme Court challenge fails

Ohio could have been the next state to reform their HIV criminalization laws, but the Ohio Supreme Court decided to uphold its current HIV codes in a ruling on Oct. 27. Orlando Batista appealed after being charged with a second-degree felony assault in 2016 for transmitting HIV to his girlfriend without disclosure and receiving a charge of eight years in prison.

The American Civil Liberties Union advised the court that his conviction violated the equal-protection clause by singling out people living with HIV, and it forced disclosure of personal medical diseases that violated his right to freedom of speech.

Elizabeth Bonham, staff attorney at ACLU, had been hopeful the law would be struck down in its entirety. “This was a disappointing decision and a setback for the rights of people living with HIV, but we will continue fighting against the stigma and against criminalization,” she said in an email the day the Supreme Court decision was released.

In Georgia, reform of HIV laws might take even longer, as advocates are still in the process of trying to update their legislators on the medical science of HIV transmission.

“I live in a state where legislators aren’t educated on HIV. The laws don’t protect me. … There is no room for defense for people like myself,” said Nina Martinez, who was diagnosed with transfusion-acquired HIV (passed along through blood) when she was 8 years old.

Martinez was present last week when Georgia State Legislator Betty Price — former Trump Department of Health and Human Services Secretary Tom Price’s wife — used the word “quarantine” in a suggestion for how to stop the spread of HIV in a meeting on improving health-care access.

“I feel like we’re back in the ’90s, but we’re in 2017,” Martinez said.

In Indiana the health codes are tied to HIV laws. Individuals given an HIV-positive diagnosis are asked to sign an acknowledgement that their health providers have a “duty to warn” — meaning doctors and health-care providers are permitted to break client/patient confidentiality agreements in cases having to do with HIV exposure. This could make people less likely to seek out a diagnosis or disclose information to their therapists or doctors.

“Health providers become an extension of the laws,” said Carrie Foote, chair of the HIV Modernization Movement in Indiana, which was formed last summer.

People living with HIV caught in the crosshairs

Aside from health providers, residents who seek diagnosis open themselves to potential criminal action merely by knowing their status. “If you don’t know your HIV status, it’s not a crime,” Foote said.

Travis Spoor was diagnosed with HIV in 2012, but he had never been linked to care when he was sentenced to three years in prison in Indiana for failing to disclose his HIV status to a sexual partner, even though he did not transmit HIV. Foote said it will be incredibly difficult for him to start getting treatment in the Indiana jails, since he had not been receiving care before his arrest.

“He should have been linked to care. Our system failed him, and it’s still failing him,” Foote said.

HIV is the only disease criminalized under Indiana laws. “It is not based on whether someone intended to harm or did harm. It’s based solely on their HIV status,” Foote said.

EQCA legislative manager Michael said, “Wherever laws like this exist, they are harming people.”

Nationally, California Congresswoman Barbara Lee reintroduced the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act in the House for the third time in March 2017, requesting that the Department of Justice, Department of Health and Human Services and the Department of Defense review and modernize federal and state law regarding HIV-positive individuals. The same bill was introduced twice by Delaware Sen. Christopher Coons in the Senate and rejected both times.

“I don’t think this has particularly strong prospects in the current congressional climate,” said Boulton in an email.

Indiana HIV activist Foote remains determined.

“It shouldn’t matter how liberal or conservative your state is. It has to do with the fact that we have a health epidemic,” she said. “We have a public health issue. In this case, states are using the state law in an unwarranted way to treat a health issue, where there’s no evidence that works. … [HIV] criminalization has a unit effect, a family effect, and it has a ripple. It negatively affects all of us.”

— By Jessica Mathews, special to CNBC.com

Published on CNBC on Nov 7, 2017

Mexico: The Network against the Criminalisation of HIV report that 30 out of 32 states criminalise "exposure to infection" in Mexico

In Mexico 30 states criminalize HIV as “a crime of exposure to infection” (Google translation. For article in Spanish, please scroll down)

The Network against the Criminalisation of HIV, a coalition formed by 29 associations in favour of human rights in Mexico, reported that 30 of the 32 states that make up the Mexican Republic include in their Penal Codes the category “Crime of exposure to infection”, which punishes people who transmit or can transmit a “non-curable disease” to another person.

“The aim of the network is not to start a witch hunt, because it was surprising that in the last two years this law has been discussed in three different state congresses,” he explained to Leonardo Bastida, member of the association, Letra S.

According to the organisations, this legal statute endangers people with HIV, as it criminalizes and undermines strategies aimed at combating the epidemic. Specifically, laws sanction the possibility of transmitting an illness, even if it happens involuntarily.

According to Bastida, since the year 200 have registered 39 criminal proceedings for this cause, of which 15 are located in Veracruz, nine in Sonora, five in Tamaulipas, five more in the State of Mexico, three in Chihuahua, one in Mexico City and one more in Nuevo León.

According to the activists, these criminalizing laws emerged in the first half of the 20th century and focused mainly on penalizing the “contagion” of syphilis, but over the years they were modified and included various diseases.

Only Aguascalientes and San Luis Potosí do not have this legalstatute in their penal codes, while in Sonora the law could be toughened, since there is currently a proposal that is being analyzed to establish sentences of up to 15 years in prison. Activists and the State Human Rights Commission seek to repeal Article 113 of the Criminal Code, which includes this criminal category.

The network detailed that in the case of Veracruz, legislators approved in 2015 an amendment to the local penal code to add to the “crime of contagion” the term “sexually transmitted infections. In addition, with the amendment of article 158, sentences of 6 months to 5 years in prison were established.

Faced with this situation, a group of social organizations presented an appeal of unconstitutionality to the Supreme Court of Justice of the Nation. The activists trust that the SCJN will rule in favor of the lawsuit.

Members of the Network against Criminalization warned that these types of laws do not help to combat the increase in HIV cases and only contribute to stigmatization and make it difficult for strategies focused on combating HIV transmission to meet their goals.

With information from EFE.

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En México 30 estados criminalizan el VIH como “delito de peligro de contagio”

La Red contra la Criminalización del VIH, una coalición conformada por 29 asociaciones a favor de los derechos humanos en México, informaron que 30 de los 32 estados que conforman la república mexicana contemplan en sus Códigos Penales la categoría “Delito de peligro de contagio”, la cual castiga a las personas que transmitan o puedan transmitir una “enfermedad no curable” a otra persona.

“El objetivo de la red es que no empiece una cacería de brujas, porque fue sorprendente que en los últimos dos años se haya discutido en tres congresos estatales diferentes esta ley”, explicó a Leonardo Bastida, integrante de la asociación, Letra S.

De acuerdo con las organizaciones, dicha figura penal pone en peligro a las personas con VIH, ya que las criminaliza y resta fuerza a las estrategias enfocadas a combatir la epidemia. Específicamente, las leyes sancionan la posibilidad de transmitir alguna enfermedad, aunque suceda de forma involuntaria.

De acuerdo con Bastida, desde el año 200 se han registrado 39 procesos penales por esta causa, de los cuales 15 se ubican en Veracruz, nueve en Sonora, cinco en Tamaulipas, cinco más en el Estado de México, tres en Chihuahua, uno en la Ciudad de México y uno más en Nuevo León.

Según explicaron los activistas, estas leyes criminalizadoras surgieron en la primera mitad del siglo XX y se enfocaban principalmente a penalizar el “contagio” de la sífilis, pero con el pasar de los años se fueron modificando e incluyeron diversas enfermedades.

Sólo Aguascalientes y San Luis Potosí no cuentan con esta figura en sus códigos penales, mientras que en Sonora se podría endurecer la ley, ya que actualmente existe una propuesta que está siendo analizada para establecer penas con hasta 15 años de prisión. Los activistas y la Comisión de Derechos Humanos del Estado buscan derogar el artículo 113 del Código Penal, el cual incluye esta categoría penal.

La red detalló que en el caso de Veracruz, los legisladores aprobaron en 2015 modificar el código penal local para agregar al “delito del contagio” el término “infecciones de transmisión sexual. Además con la modificación del artículo 158 se establecieron penas de 6 meses a 5 años de cárcel.

Ante este panorama, un grupo de organizaciones sociales presentaron un recurso de inconstitucionalidad a la Suprema Corte de Justicia de la Nación. Los activistas confían en que la SCJN falle a favor de la demanda.

Los integrantes de la Red contra la Criminalización alertaron que este tipo de leyes no ayudan a combatir el aumento de casos de VIH y sólo contribuyen a la estigmatización y dificultan que las estrategias enfocadas a combatir la transmisión del VIH cumplan sus metas.

Con información de EFE.