PROPOSED SEXUAL HEALTH LAW REFORMS IN NSW SLAMMED BY EXPERTS
The reforms would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The New South Wales government has introduced a bill that would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The Public Health Amendment (Review) Bill 2017seeks to make changes to Section 79 of the Public Health Act 2010, removing the existing law around disclosure of HIV, but replacing it with a new offence meaning anyone who knows they have an STI could be charged for not taking undefined “reasonable precautions”.
Sexual health organisation ACON has criticised the bill, saying it is at odds with good public health practice.
“Given that most of the STIs that would be covered by this proposal are treatable, it is our position that the new offence created in s79 introduces unprecedented, unjustified, and disproportionate penalties and runs counter to good public health processes,” ACON said in a statement on its website.
“This new offence could deter people from sexual health testing and contact tracing. The evidence indicates that HIV and other STIs are more likely to be transmitted via someone who has undiagnosed infection.”
ACON said that STIs are a health issue, not a criminal issue, and called on concerned members of the public to contact NSW Minister for Health Brad Hazzard.
Nic Holas of HIV organisation The Institute of Many agreed that the proposed new law is worrying.
“Those of us in the HIV-positive community are very concerned about the proposed changes to the Public Health Act,” he said.
“It used to be that you had to disclose your HIV status or face some kind of penalty, potentially. Last year the New South Wales government recognised that that kind of forced disclosure put all the responsibility on HIV-positive people, which was unfair and ultimately unhelpful in ending HIV.
“But now it seems what they’re trying to do is remove that—which is really great—and introduce punitive charges on anyone who’s HIV-positive or anyone with an STI if they don’t take reasonable precautions.”
Holas called the proposed law “really extreme” and said it could deter testing and result in worse public health outcomes.
“That’s extremely concerning for us, because the World Health Organisation says that those sorts of extreme punitive measures do the opposite of driving down rates of HIV and STIs, and send them upwards,” he said.
Holas said there is already provision under the law for a person intentionally spreading an STI to be charged with grievous bodily harm. He called for the proposed new offence to be scrapped.
“What’s far more important to ending HIV and the current high rates of STIs is to encourage testing and treatment, not heavy prison sentences,” he said.
Canada: Ontario leads the world in the over-criminalisation of HIV non-disclosure
Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say
HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.
It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.
The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.
The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he’s been on medication, with an undetectable viral load, since 2008.
“HIV is not a crime,” Clarke, 45, told the Star in a recent interview. “It’s a public health issue. Isn’t health supposed to be key?”
People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don’t disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.
Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.
It’s an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an “over-criminalization of HIV non-disclosure” and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government’s efforts in what remains a complex and sensitive area of the law.
“There are some serious injustices taking place right now,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. “People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault.”
It wasn’t long ago when the media proclaimed AIDS as the “gay plague” that carried a death sentence, but the stigma around HIV/AIDS has hardly disappeared, as advocates point to the continued criminal prosecution of those who don’t disclose their status to their sexual partners as one example.
At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.
“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.
Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.
“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.
“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”
Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.
It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.
The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.
The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.
“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.
“Still, the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.
HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.
While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.
In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.
“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.
Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.
Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.
“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.
“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”
Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”
The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.
Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.
“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.
“We had repeatedly put forward our ideas about what we thought they should be about.”
Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.
What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.
Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.
McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.
Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.
The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.
“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.
Shea declined to comment to the Star.
Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.
The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.
But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”
The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.
The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.
The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.
Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.
The judge acquitted C.B. of all charges.
“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.
“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”
Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”
It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.
Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.
He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.
“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.
“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”
How a group of dedicated advocates in Colorado ‘modernised’ their HIV-related laws to improve the legal environment for people living with HIV. Featuring Barb Cardell and Kari Hartel of the Colorado Mod Squad and Colorado State Senator, Pat Steadman.
Interviews by Mark S King
Written and introduced by Edwin J Bernard • Directed and produced by Nicholas Feustel for the HIV Justice Network
US: A review of HIV criminalisation laws in the US
HIV Crime Laws: Historical Relics Or Public Safety Measures?
Thirty-three states have laws that can be used to prosecute people living with HIV. Some states are looking to either repeal those laws or reduce their severity.
Robert Suttle clearly remembers telling his boyfriend that he was HIV positive the night they met. But after they split, three quarrel-filled months later, that became a point of contention: His “ex” pressed charges against him.
Suttle’s home state, Louisiana, is one of 33 states with laws that can be used to prosecute people living with HIV. And in Louisiana, intentionally exposing someone to HIV/AIDS is a felony punishable by up to 11 years in prison.
Because he wanted to put the whole ordeal behind him, Suttle accepted a plea bargain in 2009 and ended up doing 6 months in prison. He said he found out too late that pleading guilty meant registering as a sex offender wherever he goes.
Now some states are looking to either repeal such laws or reduce their severity. At issue is the balance between protecting public health and protecting the civil rights of individuals living with HIV.
The laws, which date to the 1980s and ’90s, vary greatly from state to state. Most impose criminal penalties on people who know their HIV status and potentially expose others to the virus. In some states, a conviction can mean up to 35 years in prison.
Twenty-four states require HIV-positive people to disclose their status to sexual partners, while six states require people to register as sex offenders as part of their punishment if they are convicted of an HIV-specific crime. In 22 states, felony laws, which cover assault and attempted murder for example, are used to prosecute people living with HIV who knowingly expose someone to the virus. And 25 states criminalize activities such as spitting, even though they are unlikely to transmit the virus.
Other states have statutes that tack on extra punishment based on the defendant’s HIV status. In Utah, for example, HIV-positive people convicted of prostitution, patronizing a prostitute, or solicitation are guilty of a felony, punishable by up to five years in prison, if they knew their status at the time of the crime. For an HIV-negative person, those same crimes would be a misdemeanor punishable by no more than six months in prison for a first-time offense.
Critics say the laws are relics of the past and demonize people infected with the virus. Some studies have shown that the laws don’t reduce HIV transmission and may actually drive up HIV rates, because people who feel stigmatized are less likely to get tested. A study published in June by researchers with the U.S. Centers for Disease Control and Prevention found no evidence that the laws reduce transmission of the virus.
“It’s very embarrassing and dehumanizing,” said Suttle, 38, who now lives in Harlem, New York, and works as an assistant director for the Sero Project, which advocates to end laws that criminalize people living with the virus.
In 1994, Texas became the first state to repeal its HIV criminal laws, according to the Center for HIV Law and Policy. But since then, people have been prosecuted for HIV exposure under general criminal laws such as attempted murder, which Catherine Hanssens, the center’s executive director, said illustrates why straight repeal of the laws is not enough. Texas courts have upheld that seminal fluid of a man living with HIV may constitute a deadly weapon.
In 2012, Illinois became the second state to revise its HIV crime laws, by requiring prosecutors to prove a defendant intended to transmit HIV and limiting prosecution to a more narrow definition of sexual activity. Iowa followed suit in 2014. Last year, Colorado enacted a law that repealed two HIV criminalization statutes and revised another by requiring that all sexually transmitted infections be treated equally under the law, rather than singling out HIV for prosecution.
California lawmakers are also considering a bill that would make it a misdemeanor to transmit HIV, rather than a felony. A similar HIV bill failed in Florida in May, but is expected to be re-introduced in the next session.
Also in May, the Ohio Supreme Court heard arguments in a case challenging the state’s criminal HIV law. The crux of the case: whether or not the law discriminates against people living with HIV, as well as whether requiring disclosure of one’s HIV status violates the First Amendment.
The push to reform HIV crime statutes “has become a national movement, and it’s part of the larger conversation about overcriminalizing people,” said Allison Nichol, law and policy counsel for the Sero Project.
“We need to take this out of the realm of someone committing a sex crime,” said Nichol, who used to prosecute sex crimes in Indianapolis. “These laws continue to feed a false narrative that people with HIV present a danger to public health, when in fact that is no longer true.”
But supporters of the laws argue they protect public health, and some states have moved in the opposite direction.
In May, Maryland Gov. Larry Hogan, a Republican, signed a law that, among other things, authorizes a judge to issue an emergency order to get someone tested for HIV if it’s believed that person has “caused exposure to a victim.” The law updates a previous one and is intended to treat rape victims who may have contracted HIV or hepatitis C. The same month, Tennessee enacted a law strengthening a statute requiring anyone who’s been arrested to be tested for HIV/AIDS if a law enforcement officer requests it.
“We’re talking about a criminal,” said Maggi Duncan, executive director of the Tennessee Association of Police Chiefs, who helped draft the legislation. “In the course of being arrested, they could have possibly exposed a first responder.”
The law was expanded to include all forms of hepatitis, which is on the rise in the state, Duncan said, “but HIV could easily become on the rise again with needle use, and that’s a real concern with heroin being on the upswing.”
Years of Activism
Activists have pushed for years to change the laws, with a focus on educating lawmakers and prosecutors about how HIV is transmitted. One key fact: An HIV-positive person whose viral load is undetectable has almost no chance of spreading the virus.
“More and more, there’s a realization that HIV criminalization laws have not kept up with science,” said Dan Kirk, a former prosecutor with the office of the Cook County State’s Attorney, which has jurisdiction over Chicago. Last year, then-Cook County State’s Attorney Anita Alvarez called for the law to be revised further.
Today, prosecutors in Illinois have to prove that an offender intended to transmit HIV. Defendants can assert a legal defense if a condom was used, but they cannot use being in treatment as a defense. This despite condoms being less effective — 80 percent — than anti-retroviral drug treatment — 95 percent — at reducing the risk of transmission, according to the CDC.
Under the measure pending in California, it would no longer be a felony to fail to disclose a positive HIV status. Instead it would be a misdemeanor on a par with failing to disclose any other transmitted disease. To be charged with a misdemeanor, the defendant must have known that he or she has a communicable disease and acted with the specific intent to infect another person, engaged in conduct that poses a substantial risk for transmission, and actually transmitted the disease to another person.
“We want people to get tested. We want people to get on medication. We want people to be honest about their HIV status,” said California state Sen. Scott Wiener, a Democrat who sponsored the legislation. “But you don’t accomplish those things by sending people to prison.”
Gray Area
Scattershot state reporting makes it difficult to say how many cases are prosecuted under the HIV transmission laws, according to Hanssens.
But it isn’t difficult to find individual examples. In June, for example, an HIV-positive Georgia man with mental health problems was charged with reckless conduct for allegedly spitting in the eye of a police officer.
In July, a 58-year-old South Carolina man was sentenced to 35 years in prison after he was found guilty of sexually assaulting a 5-year-old girl and potentially exposing her to HIV. Medical tests showed the child did not contract the virus. He was sentenced to 25 years for the rape and 10 years for the potential exposure.
Prosecuting — or defending — these cases can be difficult: How do you prove that someone has disclosed their HIV status? Often, as in the case of Suttle, it becomes a case of “he said, he said.”
A 2015 report by the Williams Institute at the UCLA School of Law found the overwhelming majority of people — 95 percent — charged with HIV crimes in California were sex workers. The report also found that nearly every charge resulted in a conviction; the average prison sentence was longer than two years. Two-thirds of people charged were black or Latino. White men accused of an HIV-related crime were significantly more likely to be released and not charged, the report found.
“This is really a public health issue,” said Scott Schoettes, an HIV project director at Lambda Legal who has worked on HIV legal policy for years.
“It shouldn’t be addressed by criminal law unless there’s malicious intent.”
As a physician who has spent his career in correctional settings and providing health care to persons who are homeless, I have seen how racism, poverty and heterosexism form a Bermuda Triangle, creating a deadly trap for thousands of men and women. Sometimes the barriers are in our attitudes, but sometimes they are in our structures – especially public policy.
HIV criminalization laws in the United States were written at a time when we knew little of the virus, the epidemiology, or the disease. Missouri’s laws – and those in more than 30 other states – have not been updated with our much-improved knowledge of transmission and treatment.
HIV is not easily transmitted. With diagnosis and treatment, that risk is reduced to effectively zero. With diagnosis and treatment, HIV is a manageable disease, no longer a death sentence. The severe penalties of HIV-specific criminal codes spring from bias, misinformation and fear. They increase stigma, which drives testing and treatment underground and serves to spread HIV by discouraging people to know their status or to seek appropriate treatment if HIV-positive.
Michael Johnson is a man trapped in the Bermuda Triangle of our racism, sexism and heterosexism. An African-American gay man from Indianapolis who grew up in poverty, Johnson struggled against the barriers that our society erects. By perseverance and hard work, despite a learning disability, he managed to access an opportunity for college education through a wrestling scholarship.
Then Missouri’s outdated and flawed policies intervened in Johnson’s life. He was convicted and sentenced to more than 30 years in prison for “reckless exposure and transmission of HIV” in July 2016.
The conviction was overturned, however, on December 20, 2016, based on the state’s failure to comply with Johnson’s discovery request and his inability to prepare a meaningful defense. He has now been returned to St. Charles County and has pled not guilty as the process of a re-trial gets underway.
Michael Johnson has already spent over three years incarcerated for his alleged actions. I teach our medical students at Saint Louis University not only about HIV, but also about health equity, health literacy, the effect of repetitive and cumulative trauma, and other social determinants of health. These are the influences that shape, for good or ill, an individual’s ability to thrive and flourish. Continued incarceration is unlikely to create conditions for Johnson’s future success, nor does it improve society in any way.
Johnson’s incarceration is an indictment of our society for our failures, and we would do well to heed the lessons we can learn and change our direction. Race, class, and sexual orientation continue to divide our nation, and we see dramatic results of our responses to these topics in our physical and virtual communities with some frequency.
The massacre at Pulse, the night club in Orlando, is perhaps the most shocking recent example. Ignorance can breed fear, which, in turn, can breed hatred. But this process is not inevitable. We can slow down and alter this process through our words and our actions.
We all have the power to influence others. As Michael Johnson faces the next step of his legal journey, we have the power to frame public and private discussion around him and the issues surrounding his case. We should honor Michael Johnson, ourselves and our community by pursuing knowledge, reflecting on our biases, and carefully selecting our vocabulary. We can choose to always use language about Johnson that respects his full humanity.
We ought to do even more. We should seek medically accurate information about HIV and use our power as citizens to change public policy so that it is based on medical science. We should end the stigma of being HIV-positive and encourage Missourians to be tested and treated. The impact of that change would create a healthier and safer world for all of us.
Fred Rottnek, MD, MAHCM, is the director of Community Medicine and Professor in the Family and Community Medicine at Saint Louis University. As the previous medical director of Corrections Medicine for the Saint Louis County Department of Public Health, his clinical practice for the past 15 years was at the Buzz Westfall Justice Center and Family Courts.
Cases of non-disclosure of HIV rising in the courts
In the last two months alone, three new cases of non-disclosure of HIV-positive status have been prosecuted in Quebec. This increase contrasts with past practices and has alreted the advocacy groups of people living with HIV who fear a paradigm shift.
“Between 1998 and 2012, there were 21 cases, followed by 10 cases from 2012 to 2016, which was already a significant increase,” said Liz Lacharpagne, a lawyer with the Coalition of Quebec Community Organizations to Fight AIDS (COCQ-SIDA) . Three cases in two months are unheard of for the Canadian Coalition for HIV Criminalization Reform (CCRCV), of which Ms. Lacharpagne is a member, and that is why this coalition intends to urge the federal Department of Justice to act Before the trend worsens.
Individuals who do not disclose their HIV status when there is a possibility of transmitting HIV to their partner may be subject to criminal charges in Canada. The problem is that this judicial response is not limited to the transmission of HIV, according to the CCRCV, which therefore finds it inappropriate.
Canada is the only country in the world to treat non-disclosure of HIV status as a serious sexual assault. To date, there have been nearly 200 charges laid for non-disclosure in Canada. In the majority of cases where the complaint led to a conviction, HIV was not transmitted.
The fact itself of not informing one’s partner is considered as sexual assault. “The average prison sentence for a person convicted of offenses related to” The non-disclosure of HIV is 54 months – more than double the average sentence for sexual assault (24 months), ” notes the Canadian HIV / AIDS Legal Network. “A discriminatory situation that ignores scientific data on HIV and international recommendations such as those of UNAIDS,” says Liz Lacharpagne.
Chad Clarke felt the ground slipping under his feet when he learned that a warrant was being issued against him. He went to the authorities and then pleaded guilty. “To have a lesser sentence,” he says. Liable to 15 years in prison, he was sentenced to four years. “If I had understood that I would be a life-long sex offender, I would not have pleaded guilty,” he said six years after his release. Chad says he did not know he was HIV positive. In prison he had difficulty accessing appropriate medical care. No antiretroviral treatment for several weeks, no blood test for more than two years. Today, he is on the National Sex Offender Registry and cannot find a job.
Alexander McClelland, a PhD student in sociology at Concordia University, is conducting research on the impacts of a non-disclosure conviction. Of the 14 people he looked at, “none was aware of putting his/her partner in danger. Sometimes the doctor explained that because their viral load was undetectable, there was no risk of transmission. “Others were not always able to impose condom use on their partner. He reports in particular the case of a sex worker who is HIV-positive as a result of rape.
“She recounts that she insisted that her client wear a condom, he refused. She was intoxicated at the time of the act, which diminished her ability to impose it on him. In court, her words did not weigh much. Of all the consequences documented by the researcher, the trauma associated with being labelled a sex offender is the heaviest. Like Liz Lacharpagne, Alexander McClelland believes that criminalization could deter people from being screened, according to the logic that, if one is unaware of one’s HIV status, one can not be accused of non-disclosure.
Consultation in progress
These judicial subtleties were first echoed in Ottawa. In December 2016, Jody Wilson-Raybould, the Canadian Minister of Justice, stated that “… disproportionate criminalization of non-disclosure of HIV status discourages many people from testing and being treated […]. The criminal justice system in Canada must adapt to better reflect the available scientific evidence …. A working group of stakeholders is currently working on a reform. Nothing, however, has yet emerged from their work.
For its part, the CCRCV is conducting a pan-Canadian consultation with about 40 organizations to reach consensus on recommendations to the government. “We do not know, at this point, what the best way to reform is, but we know what needs to be done,” said Nicholas Caivano, a policy analyst with the Canadian HIV / AIDS Legal Network. Criminalization should be applied only in cases where there is a proven intention of transmission, never when precautions preventing transmission have been made, and the charge of sexual assault should never be used in a case of non-disclosure . ”
While awaiting the criminal justice reform (under the federal Department of Justice), the CCRCV does not rule out a moratorium on prosecutions (which falls to the provinces). “There is a lack of awareness of the problem among prosecutors,” says Liz Lacharpagne. Guidelines are needed to ensure that prosecutions are conducted in an informed manner, taking into account scientific advances. ”
In Quebec, at the office of the Minister of Justice, Stéphanie Vallée, they would not comment on the progress of the work, preferring to rely on the federal government. The federal Department of Justice declined our request for an interview, deeming any discussion premature in the circumstances. “This work, which includes an extensive review of the criminal law, the role of public health, applicable medical sciences, and current charges and prosecution practices, is underway.”
Behind the jurisprudence
The Supreme Court of Canada (SCC) established in 1998 that an HIV-positive person must disclose his or her status before having sex with a significant risk of transmission. Non-disclosure is considered as fraud in relation to the partner’s consent. Non-consensual sex is considered as a sexual assault. In 2012, Mabior established the concept of “realistic possibility” of transmission. The CSC considers that this possibility is not established if the viral load is low and if a condom is used. Implicitly, if only one of these two criteria is met, there is a “realistic possibility”. This is contradicted by science.
Behind Science
The Partner study was conducted between 2010 and 2013 among 767 serodiscordant couples. On average, at the beginning of the study, HIV-positive partners had been receiving antiretroviral therapy for five years. Couples had had sex without a condom for two years. With a total of 44,000 condomless relationships, no transmission occurred.
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La non-divulgation du VIH en hausse devant les tribunaux
Au cours des deux derniers mois seulement, trois nouveaux cas de non-divulgation de séropositivité ont fait l’objet de poursuites au Québec. Cette augmentation tranche avec les pratiques passées et alarme les groupes de défense des personnes vivant avec le VIH, qui redoutent un changement de paradigme.
« Entre 1998 et 2012, on a recensé 21 cas, puis 10 de 2012 à 2016, ce qui était déjà une augmentation significative », relève Liz Lacharpagne, avocate à la Coalition des organismes communautaires québécois de lutte contre le sida (COCQ-SIDA). Trois cas en deux mois, c’est du jamais vu pour la Coalition canadienne pour réformer la criminalisation du VIH (CCRCV), dont Mme Lacharpagne est membre, et c’est pourquoi cette coalition entend presser le ministère fédéral de la Justice d’agir avant que la tendance ne s’emporte.
Les personnes qui ne divulguent pas leur séropositivité alors qu’il y a possibilité qu’elles transmettent le VIH à leur partenaire peuvent faire l’objet d’accusations criminelles au Canada. Le problème, c’est que cette réponse judiciaire ne limite pas la transmission du VIH, selon la CCRCV, qui la juge donc inappropriée.
Discrimination
Le Canada est le seul pays au monde à considérer comme une agression sexuelle grave la non-divulgation de séropositivité. Jusqu’à présent, on a recensé au Canada près de 200 accusations portées pour non-divulgation. Dans une majorité de cas où la plainte a mené à une condamnation, le VIH n’a pas été transmis.
C’est le fait de ne pas informer son partenaire qui est reconnu comme une agression sexuelle. « La peine moyenne d’emprisonnement pour une personne declaree coupable d’infractions relatives à la non-divulgation du VIH est de 54 mois — plus du double de la peine moyenne pour agression sexuelle (24 mois) », relève le Réseau juridique canadien VIH/sida. « Une situation discriminatoire qui ignore les données scientifiques sur le VIHet les recommandations internationales telles que celle de l’ONUSIDA », estime Liz Lacharpagne.
Chad Clarke a senti le sol se dérober sous ses pieds quand il a appris qu’un mandat d’arrêt pesait contre lui. Il s’est présenté aux autorités, puis a plaidé coupable. « Pour avoir une peine moins lourde », raconte-t-il. Passible de 15 ans de prison, il écope de quatre ans. « Si j’avais compris que je serais fiché à vie comme délinquant sexuel, je n’aurais pas plaidé coupable », dit-il six ans après sa libération. Chad affirme qu’il ne se savait pas porteur du VIH. En prison, il a eu difficilement accès aux soins médicaux appropriés. Pas de traitement antirétroviral pendant plusieurs semaines, pas de test sanguin pendant plus de deux ans. Aujourd’hui, fiché au registre national des délinquants sexuels, il ne trouve pas d’emploi.
Doctorant en sociologie à l’Université Concordia, Alexander McClelland mène une recherche sur les impacts d’une condamnation pour non-divulgation. Des 14 personnes dont il a examiné la trajectoire, « aucune n’avait conscience de mettre son partenaire en danger. Parfois, le médecin leur avait expliqué que leur charge virale étant indétectable, il n’y avait pas de risque de transmission. » D’autres n’étaient pas toujours en mesure d’imposer le port du condom à leur partenaire. Il rapporte notamment le cas d’une travailleuse du sexe, séropositive à la suite d’un viol.
« Elle relate avoir insisté auprès de son client pour qu’il porte un condom, il a refusé. Elle était intoxiquée au moment de l’acte, ce qui diminuait ses capacités à le lui imposer. En cour, sa parole n’a pas pesé lourd. » De toutes les séquelles documentées par le chercheur, le traumatisme associé au fait de se voir étiqueter délinquant sexuel est la plus lourde. Tout comme Liz Lacharpagne, Alexander McClelland estime que la criminalisation pourrait dissuader des personnes de se faire dépister, suivant la logique que, si on ignore son statut sérologique, on ne peut être taxé de non-divulgation.
Consultation en cours
Ces délicatesses judiciaires ont trouvé un premier écho à Ottawa. En décembre 2016, la ministre de la Justice du Canada, Jody Wilson-Raybould, déclarait que « […] la criminalisation disproportionnée de la non-divulgation de la séropositivité décourage bon nombre de personnes de passer des tests de dépistage et de se faire traiter […]. Le système de justice pénale au Canada doit s’adapter pour mieux refléter les données scientifiques disponibles[…]. » Un groupe de travail réunissant les acteurs concernés travaille actuellement à une réforme. Rien toutefois de concret n’en est encore ressorti de leurs travaux.
De son côté, la CCRCV mène une consultation pancanadienne auprès d’une quarantaine d’organisations pour établir un consensus sur les recommandations à adresser au gouvernement. « Nous ne savons pas, à ce stade-ci, quelle serait la meilleure façon de réformer, mais nous savons ce qui doit l’être, commente Nicholas Caivano, analyste des politiques au Réseau juridique canadien VIH/sida. La criminalisation ne doit s’appliquer que dans des cas d’intention avérée de transmission, jamais lorsque des précautions empêchant la transmission ont été prises, et on ne doit jamais recourir à l’accusation d’agression sexuelle dans un cas de non-divulgation. »
En attendant une réforme du droit criminel (relevant du ministère de la Justice fédéral), la CCRCV n’exclut pas de demander un moratoire sur les poursuites (incombant aux provinces). « On observe une méconnaissance de la problématique chez les procureurs, dit Liz Lacharpagne. On souhaiterait des directives pour que les poursuites soient menées de manière éclairée, en tenant compte des avancées scientifiques. »
À Québec, au bureau de la ministre de la Justice, Stéphanie Vallée, on se garde de tout commentaire sur l’avancée des travaux, préférant s’en remettre au fédéral. Le ministère fédéral de la Justice a décliné notre demande d’entrevue, jugeant toute prise de parole prématurée dans les circonstances. « Ce travail, qui comporte un vaste examen du droit pénal, du rôle de la santé publique, des sciences médicales applicables et des pratiques d’inculpation et de poursuite actuelles, est en cours », ont-ils fait valoir par courriel.
Derrière la jurisprudence
La Cour suprême du Canada (CSC) a établi en 1998 qu’une personne séropositive doit divulguer son statut avant une relation sexuelle exposant à un risque important de transmission. La non-divulgation est considérée comme une fraude au consentement du partenaire. Une relation sexuelle non consentie est considérée comme une agression sexuelle. En 2012, l’arrêt Mabior instaure la notion de « possibilité réaliste » de transmission. La CSC considère que cette possibilité n’est pas établie si la charge virale est faible et si un condom est utilisé. Implicitement, si seul l’un de ces deux critères est rempli, il y a « possibilité réaliste ». Ce que la science contredit.
À la traîne de la science
L’étude Partner a été menée entre 2010 et 2013 auprès de 767 couples sérodiscordants. En moyenne, au début de l’étude, les partenaires séropositifs suivaient une thérapie antirétrovirale depuis cinq ans. Les couples avaient des relations sexuelles sans condom depuis deux ans. Avec un total de 44 000 relations sans condom, aucune transmission n’a eu lieu.
Canada: Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, explores the history of HIV criminalisation in Canada and asks fellow Canadians to support their call for HIV Justice
I couldn’t believe it, and yet I shouldn’t have been surprised, given what I knew.
A friend of mine had just been informed that his HIV test was confirmed positive. And in that moment, as my friend’s life changed forever, the well-meaning doctor tried awkwardly to fill the silence — with some remarks about how my friend could be criminally charged if he didn’t disclose his status to every sexual partner.
As a lawyer well-versed in this area of law, I knew why the doctor was saying that. In a decision the year before (in September 1998), the Supreme Court of Canada had confirmed that someone with HIV could be prosecuted for aggravated assault for not disclosing to a sexual partner, at least in some circumstances.
I also knew that what the doctor was saying wasn’t entirely correct because precisely which circumstances trigger a legal duty to disclose HIV were still unclear then — and the issue remains contentious to this day, nearly 20 years later.
Legal issues aside, it’s wrong to greet newly diagnosed people with a threat that they could go to jail if they don’t disclose. But my friend’s experience is not unique. Many physicians and public health nurses are quick to inform people that they must disclose and use condoms (each and every time
regardless of what the actual risks of transmission might be in a given instance) — and that if they don’t, there’s the risk of possible criminal charges.
And, of course, each time police issue a press release with the name and photo of someone accused of not disclosing, every person living with HIV is reminded that they live under the shadow of possible prosecution — and accompanying trial in the court of public opinion — that could be just one allegation away.
How did we reach the point where every person living with HIV is considered a potential criminal?
The early years of the epidemic
To answer that question, we need to go back to the early years of the HIV epidemic, and consider the combination of factors that contributed to the criminalization of HIV in the first place and how these factors have shaped its evolution since.
We start in North America in the early– to mid–1980s with the basic ingredients: A frightening new, and apparently communicable, disease that progresses rapidly, most often to death, with no known effective treatment and a lack of information — even active misinformation in some quarters — about how it spreads. The resulting fear of contagion sparks an understandable human impulse to contain, to distance, and to avoid harm, whether real or simply perceived.
Add several layers of inequality and misguided morality, because the epidemic is particularly identified in marginalized populations already subject to social disapproval and state surveillance. Gay sex, blamed early on for the spread of AIDS, had only been decriminalized a few years earlier in Canada (and remained a crime in many US states), and of course gay people were still widely stigmatized across the continent. Sex workers remain heavily stigmatized, and criminalized, to this day.
Infections were also appearing among people who inject drugs, who already carried the deep stigma of addiction and were also facing a deliberately intensified “war on drugs,” a program of criminal prohibition and incarceration rooted in and reinforcing what was already a centuries-long history of racismagainst Black and Indigenous people in North America.
HIV therefore entered the public consciousness as a disease of perceived deviance, whether in relation to sex, drugs or both.
Now, add a handful of ostensible cases of “wilful HIV transmission” sensationalized in media reports that often reinforced the same prejudices and assumptions about sexuality, gender, race, sex work and drug use. (Consider, for example, the front page of the Halifax Chronicle Herald in late September 1988— “AIDS Fiend Strikes Again” — which kicked off its coverage of a “bisexual AIDS carrier” charged in the first Canadian criminal prosecution for HIV nondisclosure to a sexual partner.)
Finally, throw in some prosecutors and legislators acting from a variety of motives. Some are no doubt well-intentioned, acting out of a legitimate concern about trying to prevent the harm of further infection. But there are also plenty of moral entrepreneurs perfectly willing or eager to seize upon a new disease as “proof” of degeneracy, or cite a sensational media case as evidence of the need for a “tough” response to protect society.
It’s therefore no surprise that, within a few years of what was later called the human immunodeficiency virus (HIV) being identified in 1983, a new front opened up in the emerging epidemic: the resort to criminal law as a tool to respond to the perceived threat to public health.
It’s also no surprise that the same pre-existing prejudices that pushed a criminal response onto a health epidemic saw the criminal justice system quickly go overboard in applying those laws.
And that’s exactly what has played out in many countries, including Canada.
The rulings begin
Canada witnessed its first prosecution for HIV nondisclosure to a sexual partner in 1988 in the R v Wentzell case. Responding to a small but growing number of cases and with no clear legal precedent to apply, prosecutors pursued convictions using various crimes in the Criminal Code, seeing what would stick. Charges laid included “criminal negligence causing bodily harm,” being a “common nuisance” by endangering the health and safety of the public, and “administering a noxious thing” (ie. semen containing HIV). And in a handful of cases, prosecutors pursued charges for assault or sexual assault.
Many of these early prosecutions in Canada resulted in guilty pleas. The handful of cases that actually went to trial saw mixed results from different courts. But in the early 1990s, one case set the stage for the past two decades of growing HIV criminalization.
The case, R v Cuerrier, began in a BC court in 1992 and eventually reached the Supreme Court of Canada in 1998. This was the first chance for the country’s highest court to decide if not disclosing your HIV-positive status to a sexual partner might be a crime —and specifically, an assault.
The Supreme Court decided that there is no blanket duty to disclose your HIV-positive status to a sexual partner, unless you’re having sex that carries a “significant risk of serious bodily harm.” The court ruled that not revealing your HIV status in that case counts as “fraud,” which means your partner’s consent to sex isn’t legally valid, and therefore you have assaulted them. But the court failed to clearly define what counts as a “significant risk” of transmission. (It did suggest that using condoms might lower the risk enough that it wasn’t “significant,” which led to many lawyers arguing about “protected” versus “unprotected” sex in courts over the next few years.)
Guilty pleas and convictions began to accumulate more rapidly in the years following the Supreme Court decision. The charge most frequently laid has been “aggravated sexual assault,” one of the most serious offences included in the Criminal Code. (The maximum penalty upon conviction for this offence is life imprisonment, plus mandatory registration as a sex offender.)
And because the Supreme Court’s ruling required only that there be a “significant risk” of transmission — not actual transmission — a substantial majority of prosecutions and convictions in Canada to date involve allegations of exposure to HIV. In the majority of known prosecutions, HIV has not actually been transmitted.
In fact, over nearly 20 years of documented prosecutions in Canada, many prosecutions have involved zero to minimal risk of actual HIV transmission.
In 2012, a pair of appeals — one from Manitoba, the other from Quebec — brought the issue back before the Supreme Court of Canada, but the rulings were a profound disappointment. The court said there is a “significant risk of serious bodily harm” when there is a “realistic possibility” of transmitting HIV. But despite stating that it didn’t want to criminalize people in cases where there was only a small possibility of transmission, it nonetheless did so — and a number of other courts have followed suit.
The rulings have also raised more questions about what counts as a “realistic possibility” of transmission, and when a person with HIV has done enough to reduce that possibility so that they are no longer criminals if they don’t disclose their status. The Court seemed to backtrack dangerously on its earlier suggestion that using a condom might be adequate to lower the risk so that no disclosure would be required; this remains an ongoing fight in some court cases.
And to this day it remains a live issue whether someone who has a low or undetectable viral load is a criminal if they don’t disclose their status This aspect of the law continues to evolve, given the additional scientific evidence emerging about the effectiveness of anti-HIV drugs and the reality that the risk of transmission from someone living with HIV with an undetectable viral load is nearly zero. The result is that the law is still unclear, courts are still reaching contradictory conclusions — and people living with HIV are still being prosecuted for a very serious criminal offence, for not disclosing their HIV status even where there is zero risk or an exceedingly small risk of transmission.
Demanding change
But people are resisting the ongoing miscarriages of justice. Human rights groups, people living with HIV, and community organizations are going to court and speaking out in the court of public opinion. We are picketing outside courthouses, and protesting in front of the attorney general’s office in Ontario. We are taking action online to send a message to politicians, and meeting with them to lobby face-to-face.
Health care providers are outlining the many ways in which the climate of fear, misinformation and stigma created by these prosecutions makes their work of preventing HIV, and encouraging HIV testing, more difficult.
Scientists are also getting involved. Dozens of leading Canadian scientific experts on HIV have issued a consensus statement on what the science tells us about the possibility of transmission through various sexual acts. They are concerned that the criminal justice system’s approach to this issue is increasingly out of step with the available science.
Women’s rights advocates and feminist legal scholars are increasingly expressing concern about how using sexual assault to prosecute allegations of HIV nondisclosure is both being driven by HIV stigma (including against women living with HIV), and also risks damaging some important, hard-won protections in sexual assault law.
And thanks to the work of advocates such as the Canadian HIV/AIDS Legal Network, on World AIDS Day 2016, Canada’s federal justice minister made a historic statement publicly recognizing the problem of over-criminalization of HIV, and committing to look at options to address it, including in discussions with provincial governments, scientific experts and communities affected.
For years, advocates have urged provincial attorneys general to use their clear legal authority to adopt sound guidelines for prosecutors, reflecting solid science and a concern for protecting human rights, that would limit, in practice, the cases in which charges are pursued.
Guidelines could help forestall prosecutions in cases where a condom is used, for example, or where a person living with HIV has a low or undetectable viral load, or only had oral sex — because the possibility of transmission in such cases isn’t substantial enough to warrant using the harsh, blunt tool of the criminal law. (These aren’t the only circumstances where there should be no prosecutions, just some obvious examples of what guidelines could address.)
Guidelines could also require prosecutors to ensure that scientific experts are consulted about the actual possibility of transmission, and to have to justify why a prosecution should proceed if the science doesn’t establish a substantial risk.
Guidelines could address important practical issues such as releasing people on bail pending a trial, how prosecutors should avoid contributing to media sensationalism about cases, and sentencing requests by prosecutors in the event of a conviction. This sort of measure has been taken in the United Kingdom, leading to a measurable reduction in prosecutions where they were inappropriate. It should be part of the solution to the problem of overcriminalization in Canada too.
The campaign for prosecutorial guidelines has been particularly focused on Ontario, the worst offender in Canada when it comes to overly broad prosecutions. A loose coalition of HIV organizations and people living with HIV, the Ontario Working Group on Criminal Law and HIV Exposure (of which our organization is a member), has been leading that effort, including putting forward numerous recommendations for prosecutorial guidelines in 2011.
Yet those proposals have been flatly disregarded. Successive attorneys general in Ontario have so far refused to adopt any sound guidelines for prosecutors.
But community activists continue to build pressure. And while discussions continue between the federal, provincial and territorial governments about ways to limit unjust use of the criminal law, we are calling for an immediate moratorium on prosecutions for HIV nondisclosure, except in cases where it is alleged that someone intentionally infected someone with HIV.
Prosecutorial guidelines won’t be a panacea, but they could have a substantial impact in limiting unjust prosecutions. No doubt other measures will be needed as well. We may even need to get the federal government to change the Criminal Code to stop prosecutions for HIV nondisclosure as “sexual assault” and more narrowly define the circumstances in which there may be some criminal offence — a step that needs to be considered and done very carefully, with commitment from the federal justice minister and in consultation with community advocates and legal experts, in order to achieve this desired outcome.
But unless and until we get attorneys general and their prosecutors, as well as the police, to stop laying and prosecuting charges for alleged HIV nondisclosure as widely as they have been doing for the last two decades, the shadow of unjust criminalization will continue to hang over all people living with HIV in Canada.
It will also continue to undermine truly effective HIV prevention efforts, as federal Justice Minister Jody Wilson-Raybould publicly recognized last December. “The over-criminalization of HIV nondisclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” she said.
So join the call from the Ontario coalition for a moratorium on prosecutions and for sound prosecutorial guidelines. Add your voice to the growing demands for HIV justice by sending a message to Ontario’s Attorney General Yasir Naqvi.
Help us stop the witch-hunt.
Richard Elliott is the executive director of the Canadian HIV/AIDS Legal Network (aidslaw.ca), which works to protect and promote the human rights of people living with HIV and of communities particularly affected by the epidemic.
US: Relying on modern medicine as the basis for reforming HIV criminalization laws overlooks these laws' underlying problems
“There is increasing agreement that risk of HIV transmission from a person living with HIV (PLHIV) who is on antiretroviral therapy (ART) and has a continuously undetectable viral load is effectively zero.”
This statement has been widely acknowledged by people living with HIV and advocates fighting HIV criminalization laws. However, in many states, the legal system has yet to catch up and continues to criminalize and imprison people for years, if not decades, under outdated laws. According to the Centers for Disease Control and Prevention (CDC), 24 states have laws requiring people living with HIV to disclose their status to sexual partners, 14 states have laws requiring them to disclose to needle-sharing partners, and 25 states have laws criminalizing “one or more behaviors that pose a low or negligible risk for HIV transmission.”
In pushing for the repeal — or at least the drastic reform — of these HIV criminalization laws, advocates have pointed to the strides made in modern medicine. The CDC has agreed with this approach, noting, “The majority of laws identified … were passed before studies showed that ART reduces HIV transmission risk[,] and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP).” Therefore, the CDC has “encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.”
But does reliance on modern medicine merely continue the exclusion and condemnation of those with the least access to health care? And, given the Congress’s efforts to repeal the Affordable Care Act (ACA), what might such reliance mean for those most at risk for losing access to health care?
In July, 10 organizations came out with the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The statement recognizes the strides made by modern medicine but notes that relying solely on prevention through medical treatment overlooks the two underlying problems with HIV criminalization laws: First, current laws focus on a person’s failure to disclose their HIV status rather than their intention to do harm. Second, current laws treat any risk of HIV infection as the equivalent of murder or manslaughter and impose severe sentences.
Relying medical tools as the basis for reforming HIV criminalization laws overlooks these laws’ underlying problems. If prevention through receiving medical treatment and having an undetectable viral load becomes the basis for reform, prosecutors and the legal system will then have another tool in their arsenal: a person’s inability or failure to access health care. It could also lead policymakers and prosecutors to argue that people living with HIV who are not virally suppressed pose a significant risk to their sexual partners. This ignores the CDC’s findings that, even without treatment and condom use during receptive anal sex (the sex act most likely to result in HIV transmission), the transmission rate is less than 2%, or two in 100.
Furthermore, the focus on viral load and medical treatment detracts from the fact that HIV is now a chronic, manageable disease, similar to type 2 diabetes. “To treat it otherwise by making its transmission a felony with a long sentence reinforces what likely is the most serious source of HIV stigma, discrimination, and violence against PLHIV,” declares the Consensus Statement.
Finally, focusing solely on medical advances continues to ignore the ways in which criminalization targets people who are most marginalized, specifically people of color who lack the resources to access continued treatment. “You cannot talk about one form of criminalization without talking about the others,” Deon Haywood, director of Women With a Vision, told TheBody.com in January 2016. “You can’t talk about HIV criminalization without talking about race, without talking about access and without talking about privilege.”
In Louisiana, where Women With a Vision organizes with low-income African-American women, many of whom are living with HIV, a focus on medical advances doesn’t address the ways in which HIV criminalization has been used a prosecutorial tool. Nia Weeks, Women With a Vision’s policy director, pointed out to TheBody.com that the New Orleans district attorney threatens to upcharge (or increase the criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty. Weeks, who previously worked as a public defender, described one client who was charged with domestic abuse and battery, including the accusation of a bite. The prosecutor’s office threatened to add the charge of intentional exposure to HIV if Weeks’ client did not plead guilty to the domestic abuse and battery charge. It did not matter that the man that she allegedly bit, her soon-to-be ex-husband, was also HIV positive. What mattered was that, under Louisiana law, if she were convicted of intentional exposure, she would face not only a 10-year prison sentence but also placement for life on the state’s sex offender registry. HIV criminalization is “part of a whole system of forcing pleas to not harm yourself more,” stated Weeks.
Furthermore, a focus on treatment and undetectable viral loads fails to address people’s precarious access to health care, access that may be further undercut as the GOP pushes to repeal or undermine the ACA.
Even with the ACA, Weeks noted, “people can very easily find themselves off the health care system in the blink of an eye.” All it takes is a missed bus or a family emergency that results in a missed Medicaid appointment, she explained. That missed appointment leads to the loss of Medicaid, leading to the loss of access to medications. In other words, health care access is already precarious. Cutting the ACA means that even fewer people will have access to the health care and medications that could make their viral loads undetectable.
“The ultimate goal is decriminalization, period,” declared Weeks. “There’s all the pieces that are helpful and steps forward, but it won’t be done until HIV is decriminalized.”
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.
Release of Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform
The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law was developed by ten organizations in response to concerns about the best way to use HIV treatment advances, “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U), in HIV criminal law reform advocacy.
Intended to serve as a resource supporting state advocates working on modernizing local HIV laws, The Consensus Statement on TasP flags ways to avoid inadvertently putting people of color and those without regular treatment access at increased risk of prosecution. The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign/U=U Campaign, the Treatment Action Group and Women with a Vision are the original endorsers of the statement.
“The groundbreaking science that proves a person living with HIV on effective treatment cannot transmit HIV is changing lives, dismantling stigma, and getting us closer to ending the epidemic. Its usefulness in the context of criminal law reform has raised questions, and this statement provides much needed guidance for using the science in advocacy,” says Bruce Richman, founder of Prevention Access Campaign “Undetectable = Untransmittable”, an originating statement endorser.
The power and reach of this advocacy tool is reflected by the quickly growing list of nearly 50 organizations and individuals that have endorsed the statement since its release two weeks ago, including Equality Alabama, Georgia Equality, HIV Modernization Movement – Indiana, the San Francisco AIDS Foundation and more.
On May 31, SB 239—proposed legislation to modernize California HIV criminal laws—passed out of the California Senate and was referred to the California Assembly. The bill successfully made it through the Public Safety and Health Committees in the California Assembly, and will likely be heard in Assembly Appropriations in August. The most current version of the bill can be found here. Members of Californians for HIV Criminalization Reform are currently organizing in-district meets with members of the Assembly to advocate for the bill’s passage. The bill is a vast improvement over current law, in particular eliminating the felony punishment of sex workers arrested for solicitation while living with HIV and retroactively vacating felony convictions of sex workers previously convicted under this section of California law.
The bill has undergone changes as it has progressed through different committees, including the addition of a “reckless exposure” provision, which makes engagement in “particularized conduct that poses a substantial risk of transmission of an infectious or communicable disease” in violation of health officer instructions a misdemeanor. The conduct must occur within 96 hours of the instruction in order to be a violation and the provision is only applicable in “circumstances that make securing a quarantine or health officer order infeasible.” Given the lack of an intent requirement and terminology that remains vague or undefined, it is hoped this “reckless exposure” provision can be further narrowed to ensure it is not applied to already-marginalized populations, such as undocumented immigrants and sex workers.
If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.
GEORGIA
In conjunction with National HIV Testing Day on June 27, the Georgia Coalition to End HIV Criminalization sent an open letter introducing itself to AIDS Service Organizations (ASOs) throughout the state and encouraged them to contact coalition members for HIV criminalization trainings.
Members of the coalition convened in June and July, and have been in discussion with the Williams Institute on HIV criminalization research in Georgia.
Coalition members continue to monitor developments around House Resolution 240, which formed a committee tasked with examining barriers to health care for Georgians with chronic health conditions, including HIV. The resolution requires the committee to “[a]ssess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.”
Meetings are held the first Thursday of the month from 4:00-6:00pm (ET)
If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Emily Brown (emily@georgiaequality.org) and visit the coalition’s coalition’s website for additional information.
LOUISIANA
In June, the coalition finalized its official name: Louisiana Coalition on Criminalization and Health (LCCH). The group is forming working groups focused on Education, Partnerships, Administrative, Legal/Policy, etc., to engage in more structured efforts to advance the LCCH’s goals of modernization in the state. The group is also working on mounting a rapid response to a recent prosecution in New Orleans. The case involves a man who allegedly spit at police officers, which is currently punishable by up to 11 years of incarceration under Louisiana state law.
Meetings are held on the second Wednesday of the month at 11:00am (CT).
If you are interested in information about HIV criminalization or actively participating in LCCH, please contact Chip Eakins at ceakins@philadelphiacenter.org.
MISSOURI
Missouri HIV Justice Coalition held community roundtables on July 18 and 20 in St. Louis and Kansas City to identify the perspectives and priorities of those who are most severely affected by Missouri’s HIV criminal law.
On August 5 and 6, the coalition is hosting a train-the-trainer event in cooperation with the Sero Project in Springfield.
Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.
If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org, and visit the coalition’s website for additional information.
OHIO
On July 8, Ohio advocates held a community forum in Columbus, with support from the Positive Justice Project. The event included more than 50 attendees from across the state, many of whom were new to the issue of the HIV criminalization. The first half of the day provided an overview of Ohio’s HIV criminal law, as well as recent efforts relating to Batista and Ohio’s Criminal Justice Recodification Committee. The second half of the day was a participatory workshop where attendees worked together in breakout groups to map a strategy moving forward.
In June, the Ohio Criminal Justice Recodification Committee released its final recommendations to the state legislature. The recommendations can be found here. In brief, the proposal would remove HIV non-disclosure from Ohio’s felonious assault law, and create a new offense entitled “Dangerous Sexual Activity,” which would contain the following provisions: 1) intentional transmission of HIV by any means would be punished as a 2nd degree felony 2) non-disclosure of HIV status and sexual activity resulting in transmission would be punished as a 2nd degree felony and; 3) non-disclosure of HIV status and not taking “reasonable precautions” (ART or condom use) prior to sexual activity would be punished as a 1st degree misdemeanor. Refer to page 57 in the link for details. Coalition members wrote a letter to the Recodification Committee opposing a similar proposal in December 2016. That letter can be found here.
Meetings are the second Wednesday of the month at 5:00pm (ET).
If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
TENNESSEE
The PJP Tennessee Working Group convened in June and July and reviewed updates from recent legislative advocacy efforts. This summer advocates are fine-tuning their legislative strategy, working on a rapid response plan and opportunities for prosecutorial and public defender education.
Meetings are held on the fourth Thursday of the month at 1:00pm (CT).
If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
TEXAS
Advocates are planning an HIV Criminalization 101 webinar in August to introduce new members to the basics of this advocacy work. The group convened in June and added many new members to their coalition.
Meetings are held on the third Thursday of the month at 6:00pm (CT).
If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
Criminal Case Update
CHLP’s assistance in criminal cases includes counseling defendants and their families, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.
MISSOURI
In April, the Missouri Supreme Court upheld the Court of Appeals’ decision overturning Michael Johnson’s conviction and remanding his case for a new trial. The case is back in the 11th Judicial Circuit Criminal Court, St. Charles County, Missouri. The trial has not started, as the case is in a preliminary stage. The next court date is August 28, 2017.
NEW YORK
On June 19, the U.S. Supreme Court denied Nushawn Williams’ request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity while living with HIV. CHLP, along with other organizations and individuals, had filed a brief in support of Williams, arguing that his case was the only one in New York in which an individual was essentially isolated or quarantined based on his HIV status, in violation of his Constitutional rights and federal disability protections. His attorneys are analyzing next steps in his case.
OHIO
On May 17, the Supreme Court of Ohio heard oral arguments in Orlando Batista’s case. Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. No ruling has been issued to date.
If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.
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Jamaica: Ricky Pascoe, president of the Jamaican Network of Seropositives, shares his views on the Criminalisation of HIV Transmission in light of recent conversations in Jamaica
Every now and then, the conversation around the criminalisation of HIV and STI transmission is brought up. It was recently raised in a sitting of the joint select committee reviewing the Sexual Offences Act and other related acts. It was raised by representatives of the Office of the Director of Public Prosecutions (ODPP) who, while not recommending the specific criminalisation of transmission of HIV and STIs, highlighted the case of George Flowers and the complexities that arose from it.
George Flowers, a man living with HIV, knowing himself to be living with HIV, had unprotected sexual intercourse with several women who subsequently contracted the virus from him. This occurred in Canada and he subsequently came to Jamaica. An extradition request by Canadian authorities was challenged on the basis that Jamaica did not have similar laws criminalising endangering the lives of a person through transmission of sexually transmitted infections.
The Supreme Court ruled that Jamaica did have similar laws based on persuasive case law (R v Dica; R v Konzani) from Britain, which identified the reckless or intentional transmission of HIV and other STIs as amounting to assault occasioning bodily harm, which is captured in the Offences Against the Person Act. The ODPP representatives questioned whether the state of the law needed to be codified into legislation which specifically criminalised HIV transmission.
While we understand the need to prevent the transmission of HIV and the importance of holding those who, by their wilful or reckless actions, put others at risk for harm accountable, the question is whether the specific criminalisation of HIV transmission is the route to do this. Specific transmission raises several issues that I will discuss below.
Positive Status
First, as with all criminal offences, the crime of wilful or reckless transmission has a mental element. In this case, a person ought to know they have HIV and knowingly have sexual intercourse with another person whom they have not told about their positive status.
The only way to know that one has HIV is by doing an HIV test. A valid defence is that a person did not know his/her HIV status. Laws that specifically criminalise HIV transmission, therefore, can have the unintended effect of dissuading persons from getting tested and, by extension, knowing and managing their HIV status.
Second, these laws shift the burden of protecting oneself from contracting HIV to the person who is living with HIV. Consistent with the Ministry of Health, we would like to emphasise that it is the responsibility of each consenting adult to protect himself/herself from contracting HIV by engaging in safe sex consistently. Rather than emphasising that point, these laws require persons living with HIV (PLHIV) to disclose their status in the face of societal stigma and discrimination.
Jamaica’s current state of the law is consistent with international human-rights standards that balance the right to life, liberty and security of the person on one hand and the right to privacy and freedom from discrimination on the other.
Wilful and reckless transmission of HIV is covered under general criminal laws related to assault and wounding, i.e., where a person actually infects another with HIV or any other STI, knowing one was so affected and intentionally or recklessly putting the other person at risk, one is criminally liable. This focuses on the fact of transmission, and not the fact of a PLHIV having sex with another person.
Current Realities
My organisation, the Jamaican Network of Seropositives (JN+), strongly feels that any attempt to codify the principles arising out of Dica and Konzani should be cognisant of current realities around HIV transmission and prevention.
Such legal provisions should not criminalise a PLHIV who is virally suppressed for having sex with someone who is HIV negative without sharing his/her status. The legal provisions should specifically relate to wilfully or recklessly having unprotected sex with another person, which leads to transmission. Persons should not be criminalised for condoms ripping and similar occurrences. The legal provisions should not criminalise the transmission of HIV and other sexually transmitted infections.
We reiterate that conversations regarding HIV transmission should be cognisant of the experiences of people living with HIV. They should be mindful of furthering the stigma and discrimination that PLHIV face by inadvertently painting them as vectors of the disease. Rather, they should be mindful of the relevant nuances as they seek to protect and promote the rights of all.
– Ricky Pascoe is president of the Jamaican Network of Seropositives. Email feedback to columns@gleanerjm.com and jnpluscommunications
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