Mexico: Organisations call for the withdrawal of initiative aiming to criminalise HIV-transmission in Quintana Roo

Call ATTENTION TO A MEMBER of the legislative body Congresswoman BERISTAIN: STOP CRIMINALIZATION OF HIV INITIATIVE

NOTICARIBE

POSTED ON JUNE 08, 2017, 11:44 PM 6 MINS POST Views: 1,135

By Leslie Gordillo

CANCUN, MX,- Members of associations called for the commissions of Justice, Human Rights, Development and Family groups in situations of vulnerability and of the Great Commission, in particular Mrs Laura Esther Beristain Navarrete, to reconsider the criminalization of HIV and to lower this initiative, which aims to put people with HIV under a status of potential criminals.

“We cannot allow actions that criminalise and punish and much less from a party that supposedly embraces the causes and unveiled an agenda where you will work with at-risk groups, then it is not being consistent, much less the party and its members in this case, the member of the Commission on Health,” said Roberto Guzman, Network Posithiva of Quintana Roo AC, which joined ICW Mexico and UNAYAC.

This call was made through a letter delivered in the city of Chetumal to groups already mentioned, where the points for consideration, knowing that these commissions are responsible for determining the initiative of “Decree amending Article 113 and is added in the third section, crimes against society, the seventh title, crimes against public health”, which seeks to amend article 113 of the criminal code and the punishment of 5 to 25 years with imprisonment from spreading or becoming infected with dangerous viruses to other people.

Before this, expressed in the letter some clarifications requested were taken into account to avoid an initiative “that violates the dignity and promotes stigma toward people living with HIV”, among which are: the importance of promoting actions in favour of the recognition of the human rights of women in the international order of the various instruments in this field has signed and ratified the Mexican State; not to seek punishment for behaviour that is perceived as wilful misconduct in relation to HIV and other sexually transmitted infections, because the scientific evidence indicates that HIV prevention is not achieved with punitive measures, but with public health policies that facilitate actions that promote changes at the structural level.

Also mentioned that the criminalization stigma and discrimination toward people living with HIV, including girls, children, adolescents and women, so that it is contradictory to promote actions that are contrary to the dignity of these vulnerable groups; the difficulty of determining causality, fraud, the intentionality as a number of factors in HIV transmission, such as: the possibility of the transmission, the type of exposure, the use or not of the condom, the stage of the infection, if you take your antiretroviral treatment or not, if you have a detectable load or not, if there are concomitant diseases, the status of the receiving partner and agreements established between couples.

They emphasized that the punitive measures, such as which is intended to legislate, could hinder and affect the various multisectoral action in the field of prevention, detection and care in our state. Could influence that people perceive HIV risk factors, to bypass an early detection in order not to know their status, in virtue of preventing a possible criminal proceedings.

In addition to the specific content of this initiative of “danger of contagion” could cause the legal responsibility of the HIV prevention falls only on those living with HIV, and this could be invisibilizarse the public health message that sexual partners have shared responsibility about their sexual health. And that this type of adjustments to the Criminal Code will promote higher levels of stigma and discrimination toward the various populations with HIV and their families.

Contrary to this, recounted in the Charter, should label resources to prevent, detect and respond in a timely manner HIV; to improve the quality and comprehensiveness of care services provided from the capasits and hospitals in the health sector; and reduce stigma and discrimination toward the populations affected by HIV and other STIS.

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Le Llaman la atención a Diputada Beristain: Piden asociaciones detener iniciativa de penalización del VIH

Leslie Gordillo

CANCÚN, MX,- Integrantes de asociaciones exhortaron a las comisiones de Justicia, Derechos Humanos, Desarrollo Familiar y Grupos en Situación de Vulnerabilidad y de la Gran Comisión, en particular a la diputada Laura Esther Beristaín Navarrete, a reconsiderar la penalización del VIH y a bajar esta iniciativa, que pretende colocar a las personas con VIH bajo un estatus de posibles criminales.

“No podemos permitir acciones que criminalidad y penalicen y mucho menos a partir de un partido que supuestamente abraza las causas y dieron a conocer una agenda donde va trabajar con los grupos de riesgo, entonces no está siendo congruente el partido y mucho menos sus integrantes en este caso la diputada de la comisión de salud”, expresó Roberto Guzmán, de Red + Posithiva de Quintana Roo AC, organismo que se unió a ICW México y UNAYAC.

Este llamado se hizo a través de una carta entregada en la ciudad de Chetumal a los grupos ya mencionados, en donde expresan los puntos a consideración, a sabiendas que estas comisiones son responsables de dictaminar la iniciativa de “Decreto por el que se reforma el Artículo 113 y se adiciona dentro de la sección tercera delitos contra la sociedad, el titulo séptimo, delitos contra la salud pública”, la cual pretende reformar el artículo 113 del código penal y castigar de 5 a 25 años con prisión a quien contagie o infecte con virus peligrosos a otras personas.

Ante esto, manifestaron en la carta algunas precisiones que pidieron fueran tomadas en cuenta para evitar así una iniciativa “que atenta contra la dignidad y promueve el estigma hacia las personas con VIH”, entre las que destacan:

La importancia de impulsar acciones a favor del reconocimiento de los derechos humanos de las mujeres en el orden internacional de los diversos instrumentos que en esta materia ha suscrito y ratificado el Estado mexicano; no buscar castigo para las conductas que se perciben como dolosas en relación al VIH y otras infecciones sexuales, ya que la evidencia científica  señala que la prevención del VIH no se logra con medidas punitivas, sino con políticas en salud pública que faciliten acciones que promuevan cambios a nivel estructural.

Mencionaron también que la penalización favorece el estigma y la discriminación hacia personas con VIH, incluyendo a las niñas, niños, adolescentes y mujeres, por lo que resulta contradictorio impulsar acciones que contravienen a la dignidad de estos grupos vulnerables; la dificultad de determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH, como: la posibilidad de la trasmisión, el tipo de exposición, el uso o no del condón, la etapa de la infección, sí lleva tratamiento antirretroviral o no, si tiene carga detectable o no, si existen enfermedades concomitantes, el estado de la pareja receptora y los acuerdos establecidos entre parejas.

Enfatizaron que las medidas punitivas como las que se pretende legislar, podrían obstaculizar y afectar las diversas acciones multisectoriales en materia de prevención, detección y atención del VIH en nuestro Estado. Podría influir a que las personas que se perciban con factores de riesgo ante el VIH, omitan realizarse una detección temprana a fin de no conocer su estado serológico en virtud de prevenir un posible proceso penal. 

Además de que el contenido en específico de esta iniciativa de “Peligro de contagio” podría provocar que la responsabilidad jurídica de la prevención del VIH recaiga solamente en quienes viven con VIH, y con ello podría invisibilizarse el mensaje de salud pública de que las parejas sexuales tienen responsabilidad compartida sobre su salud sexual. Y que este tipo de adecuaciones al Código Penal promoverán mayores niveles de estigma y discriminación hacia las diversas poblaciones con VIH y sus familias.

Contrario a esto, relataron en la carta, deberían etiquetar recursos para prevenir, detectar y atender oportunamente el VIH; mejorar la calidad e integralidad de los servicios de atención otorgados desde los CAPASITS y hospitales del sector salud; y disminuir el estigma y la discriminación hacia las poblaciones afectadas por el VIH y otras ITS. 

Canada: People of African, Caribbean and black descent over-represented in the mainstream media coverage of HIV non-disclosure.

Skewed Stories: Race and HIV Criminalization in the Media

By Sané Dube

From Canadian AIDS Treatment Information Exchange

June 12, 2017

In Canada, not disclosing your HIV status to a sex partner can, in some circumstances, be deemed a crime. Media stories of people prosecuted for not disclosing their status show black men on trial in disproportionate numbers. What impact does this have on African, Caribbean and black communities?

“In a word, it’s dehumanizing.” Robert Bardston is talking about media coverage of HIV non-disclosure cases. I’ve spent the past couple of months engaged in a series of poignant, inspiring and sometimes-heartbreaking conversations about the criminalization of HIV non-disclosure. I am trying to understand how mainstream media stories on the issue impact African, Caribbean and black (ACB) people across the country. Robert and I are speaking on the phone — miles stretch between his Medicine Hat and my Toronto. It’s early and the sleep is still working its way out of his voice.

He lets out a weighty sigh and continues: “It’s dehumanizing to see yourself branded as deviant in the public eye, especially through the media.” Robert, an HIV activist and co-chair of the Canadian HIV/AIDS Black, African and Caribbean Network (CHABAC), has lived with the virus since 1988.

In an illuminating conversation, we explore what it feels like to see and hear stories of people criminalized for not disclosing their HIV status before sex. We cycle through the emotional toll the coverage can take and the complicated feelings it evokes. Robert says that people living with HIV are treated as pariahs and that black people living with HIV face both HIV stigma and debilitating racism in how their stories are told.

Throughout our conversation he juxtaposes two key elements of his identity — his status as a person living with HIV and his identity as a black person in Canada. As Robert points out, African, Caribbean and black people living with HIV have pressing and unique concerns regarding the criminalization of HIV non-disclosure. To fully understand how deeply this issue impacts individuals and communities, we must first understand what it means to inhabit both of these spaces. To understand this moment in time, we must look at it in context.

The first cases of people being charged for not disclosing their HIV status to sex partners date back to the late 1980s. Since 1989, more than 180 HIV-positive people have been prosecuted in Canada for not disclosing their status. A sharp rise in the number of cases, which began in 2004, has been accompanied by increasing severity in the type of criminal charges laid at the feet of people living with HIV.

Today, someone facing prosecution typically faces an aggravated sexual assault charge — a serious criminal charge with potentially grave consequences. If convicted, a person can be added to the sex-offenders registry and face a sentence of up to life in prison. In cases where the accused has immigrated to Canada, they may also face deportation.

In all of my conversations, the year 2012 pops up as a recurring focal point. That year the Supreme Court of Canada released decisions on two highly anticipated cases. The Court had been asked to clarify the conditions under which people living with HIV could face criminal prosecution for not disclosing their HIV status to sex partners. Legal obligations to disclose one’s status had already been in effect since the late ’80s, but in 2012 the court was asked to determine how using a condom or having a low viral load could impact criminal liability in cases of HIV non-disclosure.

By 2012 the global HIV epidemic was entering its third decade. Tremendous gains had been made in better understanding the biology of HIV transmission and advocates hoped that the highest court in Canada would seize this opportunity to integrate the latest scientific evidence on HIV transmission risks — showing that condoms and maintaining a low viral load significantly cut the risk — into legal processes. In a 1998 decision the Court had ruled that people living with HIV had a legal duty to disclose their status before having sex that might pose a “significant risk” of transmission. The court’s definition of “significant risk,” however, was vague and unclear, and advocates hoped that the 2012 ruling would bring greater clarity to the law.

Instead, the law became stricter. People living with HIV were now required to disclose their status before sex that posed a “realistic possibility” of HIV transmission. The problem was that sex posing a realistic possibility included situations where there is effectively zero risk. Critics called the decision a step back that diminished the rights of people living with HIV.

While the cases were being deliberated in the highest court in the land, they were also being dissected in the court of public opinion. One case involved a black man accused of failing to disclose his HIV-positive status to several sex partners. Although HIV was never transmitted to any of his partners, he was charged with six counts of aggravated sexual assault.

By the time the Supreme Court issued its landmark ruling, dangerous and harmful ways of talking about HIV and, in particular, African, Caribbean and black men living with HIV had become the norm. Some of the most discussed cases of that period involved black men; the result was a disturbing fusion of blackness and criminal deviance.

Looking back, people living with HIV and advocates describe popular coverage of criminalization cases during that era as uniformly poor, increasing stigma and undermining education and knowledge about the science of HIV. The coverage not only normalized language that framed people living with HIV as inherently deceptive and dangerous to the public, the disproportionate focus on people of African, Caribbean and black descent, particularly straight black men, told a singular, dangerous story.

The fusion of black identity and negative stereotypes is not new. Indeed, it is something black people and communities contend with daily. In another illuminating conversation, Shannon Ryan, the executive director of Black CAP (Black Coalition for AIDS Prevention), who has worked in HIV organizations for two decades, tells me, “Being black in Canada means something. Systemically and institutionally, it means something — whether you stepped off a plane this morning or your family has been here since the 1700s. I try to remind the people I work with that our blackness is something to celebrate and includes strength and solidarity. But in the world outside these doors, being black can also include facing anti-black racism, it means marginalization, it means oppression and vulnerability.” Contemporary narratives about the criminalization of black people who don’t disclose their HIV status draw from and feed into these problematic and stifling conceptions.

Equally stifling is the criminalization that black communities must contend with in the first place. Black people are vastly over-represented in Canada’s prisons. A 2015 report from the Office of the Correctional Investigator found that the federal incarceration rate for African, Caribbean and black people in Canada is three times their representation rate in the general population.

“The criminalization of HIV non-disclosure is another way our communities are being criminalized and torn apart,” says Ciann Wilson, an assistant professor at Wilfred Laurier University who has worked with African, Caribbean, black and Indigenous communities responding to HIV. “HIV follows lines of existing inequity and the criminalization of people living with HIV further disenfranchises communities that are already dealing with structural racism.”

There’s an old adage that we understand the world around us by the stories we tell about it. A team of Ontario researchers analyzed 1,680 Canadian newspaper articles about HIV non-disclosure criminalization cases that were published between 1989 and 2015. They found that 62 percent of the stories focused on cases involving black immigrant defendants, yet only 20 percent of the 181 people charged during the same period were African, Caribbean or black men. The research team concluded that the media disproportionately focuses on cases involving black people facing prosecution for non-disclosure.

“There’s no question about it: Straight black men in particular are over-represented in the media coverage of these cases,” says sociologist Eric Mykhalovskiy, one member of the research team. “If you take a closer look at the coverage, half of the 1,680 articles focused on four black men facing prosecution. The fact that the coverage is so skewed toward those defendants really produces in the public imagination the idea that HIV non-disclosure is a crime of black heterosexual men — when it’s not,” he says. “It’s a profound example of what is clearly a long history of over-representing black people in crime stories in the media.” [To read the full report, Callous, Cold and Deliberately Duplicitous: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers, click here.]

The storytelling pattern Mykhalovskiy references traces back to some of the first HIV non-disclosure cases involving African, Caribbean and black men in Canada. Early media reports drew from racialized stereotypes about black men, masculinity and gender. They conjured images of hyper-sexualized black men maliciously transmitting HIV to unsuspecting partners — usually white and female. News headlines frequently described defendants as “predators” while making reference to “potent” African strains of HIV.

The same patterns emerge in contemporary mainstream coverage of HIV non-disclosure cases involving ACB individuals. “Many people may not personally know someone who is HIV positive. They know about HIV through the media,” Mykhalovskiy says. “When you look at the stories that are told, you see that the kind of knowledge that’s available paints black people living with HIV as a significant threat and danger. It’s really concerning.”

The effects are far reaching. HIV is a pressing concern for many African, Caribbean and black communities across the country and these problematic narratives impact the ways in which communities and individuals experience and respond to HIV.

Take, for example, Linda, who has had HIV since 2003. She currently lives in B.C., where she’s been working with groups supporting black people living with HIV in that province. Linda is a force to reckon with. She is a quiet revolution who resists the oversimplification of the lives of people living with HIV. Yet it’s impossible to miss the fatigue that clouds her voice when she talks about the impact of HIV non-disclosure media stories on the lives of people with HIV.

“The ways they talk about us in the media — it makes you feel worthless. It’s a huge problem for us African people living with HIV. We talk amongst ourselves and we are scared.” She continues after a measured pause: “I think it’s cruel. It’s only expanding the stigma. It’s pushing people away instead of encouraging people with HIV to come forward and talk about stigma.”

Increasing stigma and isolation are top concerns for service providers at HIV organizations, too. These organizations work to disrupt the problematic stories told in the popular press about HIV and the criminalization of non-disclosure. They have been working diligently to shift the conversation and advocate for laws that don’t further marginalize people living with HIV. They argue that stigma is a major barrier in effective responses to HIV.

Two such organizations — Black CAP and the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO) — are located in an inconspicuous office building in downtown Toronto. I’m delivered to the fourth floor of the building by a shaky elevator reminiscent of an earlier time. Stepping into the waiting area I am aware of the unique place in the Canadian conscience and HIV service organization landscape held by agencies like Black CAP and ACCHO.

African, Caribbean and black people make up less than 3 percent of Canada’s population, yet they account for 14 percent of HIV infections. Here again, African, Caribbean and black communities are over-represented and disproportionately impacted. Despite these telling demographics, organizations like Black CAP and ACCHO, which both work specifically with and for ACB communities, are few, far between and often crippled by limited funding.

The situation creates a paradox — one where ACB communities are over-represented among people living with HIV and where the public imagination creates strong links between blackness and HIV — yet interventions that cater specifically to ACB communities are limited. HIV in ACB communities is simultaneously hyper-visible and erased in the same breath.

ACCHO director Valérie Pierre-Pierre begins our conversation by reflecting on the coverage of HIV criminalization cases. “Even though high-profile cases don’t necessarily represent the majority of cases, the media covers those cases in ways that further demonize the accused. They elicit negative reactions toward people living with HIV, especially black men.” She is referring to narratives that frame people living with HIV as maliciously transmitting the virus to unsuspecting partners. She and others in HIV service organizations argue that these portrayals have driven misinformation and stigma — which fuel fear and, in turn, create barriers to addressing HIV in ACB communities.

Black CAP executive director Shannon Ryan, reflecting on the aftermath of the Supreme Court rulings and the media coverage, says, “It does not help us do our work. It does not promote testing. It does not promote diagnosis. It does not promote disclosure. It does not reduce stigma. It diminishes our work.”

While proponents of the current law argue that it helps prevent HIV (that the fear of prosecution will make people living with HIV take precautions with their sex partners), many people living with HIV and many working in the field argue that the criminalization of non-disclosure and the discourses around it become marginalizing forces. In African, Caribbean and black communities, this can have a particularly damaging and splintering effect.

Months after my first call with Robert Bardston and many conversations later, I have talked to people living with HIV, service providers, legal experts and researchers about the impact of HIV non-disclosure criminalization on African, Caribbean and black communities and the stories we tell about it. To be sure, this is a difficult and divisive issue. Yet in the midst of it all, there are extraordinary individuals and groups resisting and challenging harmful narratives about these communities and criminalization.

They are claiming space and demanding this story be told a different way. They want the story to begin with an acknowledgment that structural violence and marginalizing narratives about African, Caribbean and black communities drive increasing rates of HIV and, indeed, criminalization. Many also want to make it clear that the current system does not serve already-vulnerable communities.

Listening to their stories of resistance, I allow myself to start imagining and dreaming about a system that better serves our communities.

For more on the criminalization of HIV non-disclosure, visit the Canadian HIV/AIDS Legal Network‘s website.

Sané Dube is a Zimbabwean transplant to Canada. She lives in Toronto.

US: Plus magazine journalist writes about the latest case of HIV criminalisation in Florida highlighting how the law discriminates against those living with HIV

Alcid Jean was charged with five felonies in the latest HIV criminalization overreach

By Desiree Guerrero
JUNE 07 2017 7:00 AM EDT

An Orlando, Fla. resident, Alcid Jean, was arrested last Thursday on five felony counts of an “unlawful act referencing sexual transmitted disease,” for allegedly not disclosing his HIV-positive status to sexual partners. Jean, 44, was arrested May 25th while working his shift at Walt Disney World’s Old Key West Resort, reports Orlando’s WKMG News 6.

Jean’s arrest highlights the ongoing controversy around laws that criminalize HIV or discriminate those living with HIV. The Florida law (penal code 384.24) that Jean was arrested under states that those with various other sexual transmitted infections—including syphilis—who do not disclose to their sexual partners can only be charged with a misdemeanor. The law singles out people with HIV by allowing them to be charged with a felony for not disclosing their status to partners.

Most of these types of laws were enacted decades ago when HIV was seen as a death sentence. They don’t reflect current medical and scientific realities and thus are discriminatory against people living with HIV. Especially since untreated syphilis can be equally harmful and potentially deadly (once curable, a strain of syphilis has emerged that is resistant to all current antibiotics).

Being able to charge HIV-positive people with a felony versus a misdemeanor under this law, means that much harsher sentencing applies. While first degree misdemeanors are punishable by up to one year in jail under Florida law; just one count of an unlawful act referencing sexual transmitted disease as a felony in the first degree in can result in a 30-year prison sentence. If convicted on all five counts, he would likely remain in jail for the rest of his life.

Racial and sex discrimination are significant factors in HIV criminalization. Research shows that African Americans, sex workers, and women significantly higher rates of conviction and jail sentences. In fact, those who aren’t white men are more likely to see these types of charges proceed to court—and in California, for example, prosecutors have won nearly every case that has gone to trial.

According to a study from University of California Los Angeles School of Law’s Williams Institute, 95 percent of the state’s HIV criminalization arrests involved sex workers. Black and Latinx people make up two-thirds (67 percent) of those who came into contact with the criminal justice system around these statutes. Across all HIV-related arrests, white men were significantly more likely to be released and not charged (60 percent were released).

Florida and California are not the only states that carry these types of HIV criminalization laws. In an analysis by the Centers for Disease Control and Prevention and the Department of Justice, researchers found that, as of 2011, a total of 67 laws explicitly focused on persons living with HIV existed in 33 states.

Another disturbing factor of these laws is that many don’t specify a difference in charge or punishment even if the individual is unaware of their status, or if they have an undetectable viral load (which means one cannot transmit the virus). Partly, that’s because most of these laws were enacted during the 1980s and ‘90s, at the height of the epidemic in this country, when transmission was considered a death sentence.

The ideas that support these laws are grossly outdated in light of the advances in treatment and prevention options, such as antiretroviral therapy and the HIV prevention protocol, PrEP. Today, people living with HIV who are on ART can expect near-normal life expectancy rates, which supports the argument that these laws need serious reform. In February of this year, California has taken the first step in doing so, by introducing a bill to reform the state statutes that criminalize HIV.

Florida, however, has not taken similar steps. Although reports indicate Jean had “unprotected sex” it’s not yet known if he is on ART, or if his viral load is currently undetectable. Though Inside Edition reported that one of Jean’s past partners claims he transmitted HIV to her, but whether she is indeed positive hasn’t been officially confirmed. (It’s also very difficult to prove transmission has occurred between two people, even if both have the same strain of HIV.)

After several media outlets sensationalized the story by using headlines like, “Disney Worker Failed to Tell Women He Was HIV-Positive Before Sex: Cops” (thus connecting children, HIV, sex, and crime in readers’ minds), it should come as no surprise that a representative for Disney announced Jean has been placed on unpaid leave pending the outcome of the case.

Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

Published on CATIE’s blog on 06/06/2017

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

US: Lambda Legal describes California Senate Bill purpose to update HIV criminalisation laws

SB 239: A Long-Overdue Update of CA’s Discriminatory HIV Criminalization Laws

Lambda Legal | Scott Schoettes – California Senate Bill 239 is a long-overdue update of California’s outdated and discriminatory criminal laws targeting people living with HIV. As a co-sponsor of this important legislation, Lambda Legal wants to correct some misperceptions and clarify the purpose of this bill.

SB 239 was introduced to improve public health by creating an environment in which more people are willing to get tested for HIV, to obtain the medical treatment they need to protect their own health and the health of others and to discuss their HIV status with sexual partners.

By singling out people who know they are HIV-positive for severe criminal punishment as a result of sexual activity, regardless whether there was any real risk of transmission or any harm actually occurred, current law inhibits rather than encourages the exact practices that will help combat HIV/AIDS.

Let’s get the biggest misperception about SB 239 out of the way first.

SB 239 does not change California law with respect to disclosure of a person’s HIV status.

Current law does not require disclosure of one’s HIV-positive status prior to sexual activity. While it is true that the current HIV exposure statute applies only if the person did not disclose their HIV-positive status; mere nondisclosure isn’t a violation of the law. Rather, the person must also act with the specific intent to transmit HIV.

SB 239 would not change that.

Instead, SB 239 updates the law to incorporate the current scientific understanding of HIV.

For example, we now know that people living with HIV who are taking HIV medications—and therefore have a suppressed viral load—cannot transmit HIV to their sexual partners. With that in mind, SB 239 clarifies that activities undertaken to reduce the risk of transmission—such as using a condom or being on treatment—demonstrate a lack of intent to transmit HIV (or, for that matter, any other disease).

These refinements of the law help define the limited circumstances under which it is appropriate to penalize disease transmission.

SB 239 also eliminates the injustice in California criminal law for people living with HIV.

Under current law, HIV is the only medical condition that can result in a felony conviction. And individuals with HIV can be subject to a longer potential sentence than for certain types of manslaughter.

Exposure to all other infectious or communicable diseases—several of them also incurable or potentially fatal if untreated—would result in at most a misdemeanor conviction.

Given that HIV is now a manageable condition for people with access to care, it is time to stop putting it in a class all by itself. SB 239 would pull HIV out of its own separate statute and include it in the law that applies to every other serious communicable disease.

Eliminating this type of discrimination against people living with HIV is an important step in achieving the public health goals of SB 239.

Thanks to modern medical science, we now have the tools needed to make AIDS a thing of the past.

People who are diagnosed with HIV in a timely fashion and receive the necessary medical care can expect to lead long, healthy lives. But currently, approximately one in seven people living with HIV in the United States is unaware of their HIV-positive status, and only 40% of people living with HIV are engaged in medical care and have a suppressed viral load.

We must increase the number of people who know their HIV status and are on treatment, and SB 239 will help achieve that.

There is a tremendous amount of work to be done to eliminate public misconceptions about HIV, the routes and relative risks of transmission and the stigma that stems from these misconceptions.

But one thing California can do immediately is remove the discrimination in the law against people with HIV.

That is what SB 239 is designed to do and that’s why over 100 organizations support the bill, including APLA Health, the Black AIDS Institute, Equality California, Positive Women’s Network-USA, ACLU of California, National Alliance of State and Territorial AIDS Directors (NASTAD), HIV Medicine Association, SF AIDS Foundation, Bienestar, Planned Parenthood of California, Transgender Law Center and Human Rights Watch.

Together, we can make California law on this subject a model for the whole country.

US: Rolling Stone magazine covers HIV criminalisation and life as a person living with HIV in the US armed forces

What It’s Like to Be HIV Positive in the Military

Soldiers can be prosecuted for having sex, latest medications aren’t widely available – are the armed forces living in the 1980s when it comes to AIDS?

There’s not much to see in Otisville, New York. The town, with a population of just over 1,000 people, looks like an old mining village with white-painted ranch homes tucked behind the terrain’s rolling hills. The town is on the tip of Orange County, about 60 miles northwest of New York City; turn left down I-209 and you’ll pull into New Jersey, turn right and you’re in Pennsylvania.

For Kenneth Pinkela, Otisville dates back four generations with his family. The old Railroad Hotel and Bar off Main Street – one of the town’s three major roads – is the one his grandfather owned.

“Not a lot to look at, but it’s where I was raised. It’s home,” says Pinkela, driving his Ford pickup through the winding streets.

For Pinkela, Otisville is bittersweet. At 50 years old, the former Army lieutenant colonel, who still holds the shape of a weightlifter, is stuck there. He was forced to move back into his parent’s home three years ago after a military court martial had found him guilty of aggravated assault and battery back in 2012.

But Pinkela never bruised up anyone. Instead, he was tried and charged for exposing a younger lieutenant to HIV, though there was no proof of transmission. Pinkela has been HIV positive since 2007 when he was diagnosed right before deployment to Iraq during the surge.

President Jimmy Carter denounced Pinkela’s trial, and advocates argue it was one of the last Don’t Ask Don’t Tell cases the military tried and won. (Pinkela is also openly gay.) He served eight months in prison, lost his home and was dishonorably discharged from the Army.

Otisville was the only place for Pinkela to retreat to – specifically, back to his mother’s house.

Since being home, things have only gotten worse for Pinkela. His relationship with his mother is strained, he hasn’t had sex for years and doesn’t feel safe in public places.

“The post-traumatic stress I suffer now is worse than what I actually experienced in battle,” he says, pointing out a gunshot wound to his face.

Now, with a felony assault charge, Pinkela is having a hard time finding work even at a hardware store. “I was good at what I did. I loved my job. Now I can’t even get a job.”

Pinkela’s case is not unique. Other HIV positive service members interviewed say that serving their country while fighting for access to HIV care or preventative treatments is an uphill battle rife with bureaucracy, old science and misnomers within the Department of Defense on how HIV is transmitted. Much of the problem has to do with education, but both LGBTQ and HIV advocates say the issue is framed within the military’s staunch conservatism around sexual activity – particularly when it comes to gay sex.

The military isn’t alone in their policies; state laws also give prosecutors authority to charge those who have HIV with felony assault, battery and in some cases rape for having unprotected sex. As a result, gay men are facing what they say is an ethos of discrimination by the military against those who have HIV, including barring people from entering the services and hampering deployment to combat zones.

“It’s not a death disease anymore.”

Nationally, HIV transmission rates have gone down as access to medication and education have increased. But since tracking HIV within the armed forces, positive tests have “trended upwards since 2011,” according to the Defense Health Agency’s Medical Surveillance Monthly Report published in 2015. The highest prevalence of HIV is among Army and Navy men, according to the report.

In 1986, roughly five years after the HIV and AIDS epidemic began, the military began testing for HIV during enlistment, and barred anyone who tested positive. By the time the AIDS crisis began to lessen in the mid-1990s, the Army and Navy started testing more regularly. Now, service members are tested every two years, or before deployment.

Medical advocates say that the current two-year testing policy is partially to blame for the increase by creating a false sense of security against sexually transmitted diseases. The Centers for Disease Control suggest testing for HIV every three months for people who are most at risk of getting the virus, such as gay men or black men who have sex with men.

“The military, depending on how you look at it, could be seen as high risk for contracting HIV,” says Matt Rose, policy and advocacy manager with the National Minority AIDS Council in Washington D.C. “The military likes to treat every service member the same, but it makes testing for HIV inefficient.”

Former Cpt. Josh Seefried, the founder of the LGBTQ military group OutServe, said the group identified HIV as a problem within the armed forces nearly a decade ago after anonymously polling members.

“People have this mindset that since you’re tested and you’re in the military, it must be OK to have unprotected sex,” he says. “That obviously leads to more infection rates.”

Such was the case for Brian Ledford, a former Marine who tested positive right before his deployment out of San Diego. He told Rolling Stone he never got tested consistently because of the routine tests offered by the Navy. “I was dumb and should’ve known better, but I just thought, you know, I’m already getting tested so it’ll be fine.”

But a larger problem for the military is the number of civilians who try to enlist and test positive. The Defense Health Agency last year said there was a 26 percent increase of HIV positive civilians trying to sign up for the service.

All of those people, per military policy, were denied enlistment.

A Department of Defense spokesperson told Rolling Stone that the military denies HIV positive enlistees because the need to complete training and serve in the forces “without aggravation of existing medical conditions.”

But gay military groups say the policy is simply thinly-veiled discrimination.

“This policy, just like every other policy that was put in place preventing LGBTQ people from serving, is discriminatory and segments out a finite group of people,” says Matt Thorn, the current executive director of OutServe-SLDN. “Gen. Mattis during his confirmation said he wanted the best of the best to serve. If someone wants to serve their country they should be allowed to serve their country.”

The U.S. is one of the few Western nations left that have a ban on HIV positive enlistees. In Israel, where service is compulsory, their ban was lifted in 2015. In a press conference, Col. Moshe Pinkert of the Israeli Defense Forces said that “medical advancement in the past few years has made it possible for [those tested positive] to serve in the army without risking themselves or their surroundings.”

And as more countries begin to change their attitudes toward HIV and embrace a more inclusive military policy, there is hope that the U.S. might follow suit.

“Lifting the ban on transgender service members and Don’t Ask Don’t Tell was because a lot of other countries had lifted those bans, as well,” says Thorn. “In general, we don’t have a lot of good education awareness within the military on being HIV positive. People are looking back and they’re reflecting back on those initial horrors. But the truth of the matter is that it’s not a death disease anymore.”

Stuck in the 1980s

In July 2007, Pinkela was just about to be deployed out of Fort Hood when he was brought into an office; he was then told the news about his HIV status.

After the shock set in, he returned back to the D.C. area where he was required to sign what is known in the military as a “Safe Sex Order.” The order requires service members to follow strict guidelines on how they approach contact with others due to their diagnosis. If violated, soldiers can face prosecution or discharge.

“That piece of paper was a threat,” says Pinkela. “I couldn’t believe it was something that we did. Even to this day I look back on it and can’t believe that someone thought the order was okay.”

The Safe Sex Orders differ slightly between the military branches, but some of the details are troubling to medical professionals who say it appears as though the military is stuck in the 1980s.

For example, guidelines in the Air Force and Army tell soldiers to keep from sharing toothbrushes or razors. But the science and medical communities have known for decades that HIV can’t survive outside of the human body and needs a direct route to the bloodstream – something razors and toothbrushes can’t provide.

The Navy and Marine guidelines also tell service members to prevent pregnancy, as transmission of HIV between the mother and child may occur. But transmission between mother and child has become exceedingly rare.

“It’s your right to procreate,” says Catherine Hanssens, executive director of the HIV Law and Policy Center. “To effectively say to someone that because you’re HIV positive, even if you inform your partner, you shouldn’t conceive a child raises constitutional issues.”

Since 2012, HIV transmission has had a dramatic turnaround – partially due to preventative treatments that make the virus so hard to contract.

When someone is on HIV medication, they can reach an “undetectable” level of virus in their blood. At that point, transmission of HIV without a condom is nearly impossible, according to studies conducted in 2014 and released last year.

Rolling Stone reached out to the Department of Defense to specify why, given the medical advancement and low transmission rate, Safe Sex Orders were still being issued in their current format. The department defended the orders, saying “It is true that the risk is negligible if… the HIV-infected partner has an undetectable HIV viral load. However, it cannot be said that the risk is truly zero percent.”

If a service member breaks any of these rules, the military can charge them under the Uniform Code of Military Justice with assault, battery, rape or conduct unbecoming of an officer or gentleman.

Though department officials told Rolling Stone that “the Army does not use the [policy] to support adverse action punishable under UCMJ,” Hanssens’ organization currently represents service members who are facing charges as a result of not following their Safe Sex Order.

But military advocates – and even their staunch opponents – have said the U.S. military is just falling in line with other states throughout the country that criminalize HIV transmission and exposure. There are currently 32 states that have laws on the books related to HIV.

“Safe Sex Orders are unfortunately consistent with some laws enacted within certain states,” says Jonathon Rendina, an Assistant Professor at Hunter College at The City University of New York’s Center for HIV and Education Studies and Training. “What the military is doing is no different that what many civilian lawmakers are doing.”

In 2011, California Rep. Barbara Lee introduced a bill that would end HIV criminalization nationwide, though it failed to pass. In 2013, she helped push a line in the National Defense Authorization Act that forced the Department of Defense to review its HIV policies; though, only the Navy made changes to their Safe Sex Order.

“Too often, our brave service members are dismissed – or even prosecuted – because of their status,” Lee tells Rolling Stone in an email. “These shameful policies are based in fear and discrimination, not science or public health.”

Such was the case for Pinkela, who feels that the military has been using HIV as a reason to prosecute and kick out gay men since the legislative repeal of Don’t Ask Don’t Tell in 2010.

“I could not have sex. And even if I had sex and I told somebody, someone in the military could still prosecute me. They have this little piece of paper that lets some bigot and someone who doesn’t understand us, slam us and put us in jail,” he says.

And he’s not alone. Seefried, the retired Air Force captain, says he advises his gay friends – he calls them “brothers” – not to join the military.

“Right after Don’t Ask Don’t Tell was repealed, I came out and I said that gays should join to help change the culture,” Seefried says. “Now, I tell them not to not sign up… I just think that policies are very, very bad and unsafe for gays in the military right now.”

Quality care, for some

Travis Hernandez, a former sergeant in the Army, has been on the drug Truvada for just under two years now. He started using the the once-a-day blue pill while stationed at Ft. Bragg after he learned from a hook up that the drug could prevent HIV transmission by nearly 100 percent.

“A guy I was in the Army with and having sex with told me about it, and I was sexually active so it made sense for me to try it,” Hernandez says, adding how his experience getting the drug through the Army was very positive. “The doctors were really open talking about safe sex and everyone was very nice. I didn’t have any issues getting the drug.”

Hernandez finished his Army service last year and continues to receive Truvada through his veteran health benefits. But his story is not similar to everyone else’s.

The military provides access to Truvada through it’s healthcare provider TriCare, but only for certain individuals. Each military branch makes their own rules for who can get access.

Emails obtained by Rolling Stone between the National Minority AIDS Council and military health officials confirm that there are different protocols for prescribing Truvada between the service branches and its members without any specific reason.

“The military likes to set their own rules, even if it doesn’t always make sense,” says Rose, with the council. “The Army thinks they know what’s best for the Army, and Marines think they know what’s best for the Marines. But they all have different medical requirements that shouldn’t have any dissimilarities.”

In a statement, Military Health officials within the Department of Defense say they are conducting studies on the effectiveness of Truvada in certain situations, such as while on flight status or sea duty, and are also looking into barriers service members faced with access to care across the military branches. Among those barriers, Military Health noted that not every military hospital has infectious disease specialists who would prescribe the drug.

Truvada does not require a prescription from an infectious disease doctor, though. And the different policies, Seefried says, shows the lack of scientific competence within the Department of Defense and the policies they create.

“Navy Pilots, for example, can take Truvada while on the flight line, but Air Force pilots cannot while they are on the flight line,” says Seefried. “These military branches have different chains of command, so they have different policies that all agree on nothing. It’s just disjointed, and not grounded in science.”

Once a prison, now a home

The charges brought against Pinkela are confusing – even to lawyers who have reviewed his case. Hanssens, with the HIV Law and Policy Center, was one of them.

“What happened to him makes no sense,” she said.

Typically, when a prosecutor files charges, certain requirements have to be met. For assault and battery, according to the UCMJ, one of the primary actions has to be an unwanted physical and violent encounter or an action that is likely to cause death. There are no statutes that label the virus as a determinant for the charge.

Despite there not being an authorization on the books, scores of HIV positive service members like Pinkela have been brought before a court martial with felony assault and battery charges.

Pinkela’s case had gone through six prosecutors who thought the case was too weak before one finally picked it up, according to Pinkela.

And Pinkela’s court martial testimonies are even more bizarre: the soldier never said Pinkela and he had sex, nor did he ever say that Pinkela was the one who transmitted the virus to him. Instead, the evidence came down to an anal douche that may have been used and could’ve exposed the young soldier to HIV.

Not possible, says Rendina, the investigator from the City University of New York.

“Like most viruses, HIV is destroyed almost immediately upon contact with the open air,” he said. “The routes of transmission [listed in Pinkela’s case] have an extremely low probability of spreading infection due to the multiple defenses along the route from one body to the next – this is made even more true if the HIV-positive individual is also undetectable.”

When asked about the case, the Army only confirmed Pinkela’s charges but wouldn’t comment on the nature of the case or how HIV is prosecuted, generally, within the armed forces.

Pinkela has run out of appeals and is forced to now move forward with what little means he has. But in true spirit of service, he has found a new way to give back to the small town that he’s been forced to live in. In May, Pinkela plans to announce his plans to run for office in Otisville.

“I still believe in this country. And I still believe in the service, no matter that it’s the same system that allowed for this to happen to me,” he said.

In an effort to move past the experience, Pinkela and a friend went to last year’s Burning Man – the art and music festival held in Death Valley, California. There, when the fires began burning on the last day, he wrapped up his Army uniform, tied it off and threw it in a fire. He said it was one of the most cathartic moments he’s felt since being back in the Army.

Published in Rolling Stones on May 20, 2017

US: Rural Health Quarterly investigates the impact of HIV criminalisation and stigma in rural America

The little brown church in Nashua, Iowa, has a certain notoriety. In the mid-1800s, a music teacher passing through the town wrote a song about a church that he envisioned there. It was a perfectly prophetic gesture.

A few years later, a church was erected on that very spot—even though its parishioners had never heard the teacher’s song. Ever since, the church has been a special place—and a popular destination for weddings. As of August 2014, over 74,000 had taken place there.

One of those was Tami Haught’s. On November 27th, 1993, just two days after Thanksgiving, she married Roger in a joyful ceremony. But unbeknownst to the guests, the newlyweds harbored a dark secret: Roger had AIDS, and Tami had HIV.

“The doctor said to cancel [the wedding] because [Roger] wouldn’t live,” Haught said.

Roger had been diagnosed with AIDS a few months before, on August 4th. Tami was diagnosed with HIV on August 23rd, the day before her 25th birthday.

Roger lived for almost three years after his diagnosis. He died about two months before the birth of their son Adrian.

In those three years, Roger and Tami chose to love each other. But in the outside world, they suffered a lot—especially from the stigma.

“Back in the 90s, if you had cancer, people cared. If you had AIDS, people judged,” Haught said.

Roger was diagnosed with HIV in 1984, but shortly thereafter, following a car accident, his bloodwork came back with a false negative for HIV. Wanting to believe that he didn’t really have HIV, Roger didn’t question those results, and never mentioned his previous HIV diagnosis to anyone—not even his fiancé.

“I didn’t have time to blame him,” Tami said. “I had slept with him without having the conversation. I had put myself at risk.”

“It was a heterosexual foolery that we didn’t have to worry about it, because we were straight, or didn’t do drugs,” Tami continued. “It was a rude awakening, and proof that HIV doesn’t discriminate.”

Like much of the American public during the late 80s and 90s, Roger’s own family struggled to understand HIV/AIDS and accept that he had it. What made Roger’s situation worse is that he himself never really accepted it, Haught added.

“He was a redneck, homophobic cowboy, and he absolutely hated living with AIDS,” Haught said.

Tami and Roger moved back to Roger’s native rural Texas briefly after their wedding because that’s where he wanted to live, but they didn’t find adequate support there, and Roger didn’t want to go to the doctor and risk being seen.

So they moved back to Iowa where he could be somewhat anonymous. He was treated two hours away from Haught’s hometown, at the University of Iowa Hospitals and Clinics in Iowa City, a university town. They told everyone except their families that he had cancer.

Three or four months before Roger died, he told Haught that he couldn’t keep fighting.

“Finally, it was emotionally as well as physically that he was tired. And passed away.”

The death certificate says he died of kidney failure.

“But what the death certificate doesn’t show are all the mental issues,” Haught said.

THE SEEDS OF STIGMA

Haught will always remember the day she disclosed her HIV status to her family: February 10th, 1993. A couple of months after her wedding.

“It’s a day that my sister will never forget,” Tami said. “I disclosed it in probably one of the absolute worst ways. I came home. I had gotten some flyers and brochures [on HIV/AIDS]. I threw them on the coffee table. [I said] ‘Roger has AIDS. I am living with HIV. I don’t know how long I will live. I’m tired, and I’m going to bed.’

“They sat there in shock,” Tami continued. “My brother stood up and gave me a hug and said: ‘No matter what you need, we love you. We’re here for you.’ Some people are disowned. I was very lucky that I’ve always had their support.”

That was especially true because they were living in a punitive social environment. Several states, including Iowa, had criminalization laws against people for not disclosing their HIV status to partners.

“In order to get Ryan White funding, states had to prove that if somebody was intentionally propagating HIV, they could be prosecuted,” Tami said. The Ryan White Care Act, also known as the AIDS Prevention Act of 1990, was designed to improve the care of people with HIV/AIDS, especially those without insurance.

To receive funding, states had to enact disclosure laws, which thirty-three states did.

“Iowa’s was the most punitive,” Tami said. “In Iowa, if you could not prove you had disclosed your status, you were sentenced to 25 years in jail and put on a sex offenders’ registry.”

But proof of disclosure was difficult, not least because the burden of proof was always on the person with HIV, Haught said. As a result, the law sometimes became a weapon against people with HIV.

“People stayed in abusive relationships,” Haught said. “[Partners would say things like], ‘If you break up with me, I will tell police that you did not disclose your status.’”

The laws were also enacted at a time when there was limited medical knowledge about the disease and how it is transmitted.

“In Texas, someone got thirty years for spitting at a corrections officer,” Haught recalled. “You cannot get HIV from spitting.”

Haught dealt with discrimination head-on in Iowa while she was raising her son. She first ran into it when she went to introduce herself at his preschool.

“The first time I went to meet [the teachers], they didn’t want to shake my hand,” she said.

Haught had a case manager who guided her through those early years of disclosing her HIV status in school environments. For example, she agreed not to make homemade treats at preschool—and to be fair, all the other parents agreed they also wouldn’t make treats.

“Luckily, Adrian didn’t have any issues until eighth grade,” Haught said. “A friend of his came over and made fun of Adrian. He said his mom had AIDS and was going to die.”

Haught called the boy’s father, who made him stop. But still, the seeds of that stigma—along with Haught’s fear of her own death—stayed with her.

“I never imagined that I would live long enough to see [Adrian] graduate in 2015,” Haught said. “I was a blubbering mess. On December 27th of this year, he made me a grandma.”

Haught said that she began living to live—instead of die—about twelve years ago. She was at the dentist, and the hygienist cleaning Haught’s teeth scolded her lightly for not flossing her teeth every day.

“She said, ‘In ten years, when you start losing your teeth, you will regret it,’” Haught said. “I knew the diagnosis was that we were living longer, healthier lives, but I just never believed it having lived through the loss of my husband.”

“But it was the trigger for me to think about what I was going to do if I didn’t die,” Haught said.

What she did was throw herself into activism.

THE EVOLUTION OF A CAUSE

Haught started an advocacy group in 2006 called PITCH, which stands for Positive Iowans Taking Charge. They now have about 125 members, with various support groups throughout the state and an annual wellness summit.

“Some people say they look forward to it every year,” Haught said. “It’s the only time they can be themselves and ultimately admit they have HIV. The rest of the year, they live in silence.”

Haught also became involved with a national group called SERO, which is focused on ending inappropriate criminal persecutions of people with HIV. They are helping to repeal, state by state, criminalization laws that are rooted in a poor understanding of HIV transmission. Most laws do not consider that correct and consistent condom use as well as the use of antiretroviral therapy reduces the risk of transmission to a negligible level.

The National HIV/AIDS Strategy, released by the White House in 2010, also called attention to the problem of HIV criminalization, and the CDC has encouraged states to revisit these laws. The American Psychological Association has spoken out against HIV criminalization, recommending the repeal or reform of these laws so that they only punish HIV positive people who intentionally engage in behavior that is risky for transmission.

On its website, SERO lists several recommended actions for HIV positive people to protect themselves, including having sexual partners sign disclosure forms and saving all written communication should it be questioned.

So far, two states have reformed their laws: Iowa and Colorado. In 2014, Iowa replaced the 25-year flat prison sentence with a tiered sentencing system, depending on the circumstances of HIV transmission.

“I was actually speechless,” said Haught, who between 2012 and 2014 served as community organizer for CHAIN (Community HIV/Hepatitis Advocates of Iowa Network). Five days later, 200 activists came to Iowa to celebrate—and to ceremoniously cut off the ankle monitors on two HIV positive Iowans who had been forced to wear them under the old law.

Last May, Colorado became the second state to reform its laws.

“We’re working in other states to make progress,” Haught said, who as SERO’s organizing and training coordinator travels around to different states lobbying legislators.

“It’s really tough in the South,” she added.

THE LAW THAT ALMOST TOOK DOWN AN OLYMPIAN

In March, Haught was lobbying in Florida, the state with the highest number of HIV diagnoses. It is fourth in the nation for people living with HIV/AIDS.

Darren Chiacchia, an equestrian who won the Bronze medal in the 2004 Olympics, is one of those people. Chiacchia, who lives for part of the year on a horse farm in North Central Florida (and the other part in upstate New York) also knows first-hand the challenges of Florida’s HIV criminalization law and the stigma surrounding it.

In 2009, Chiacchia’s former lover Chandler decided to take revenge on Chiacchia for ending their four-month relationship: Chandler filed a report to the Marion County Sheriff’s Department claiming that he had found out about Chiacchia’s HIV status only one month before. Had that been true, Chiacchia would have violated Florida law by having had sex more than once without revealing his HIV status to his partner.

Chiacchia says he told Chandler about his status on their first date. “His [Chandler’s] reaction was, ‘True love will prevail,’” Chiacchia said.

But the relationship was rocky from the start, and every time Chiacchia tried to end it, Chandler threatened him with: ‘Don’t do this. Your life will be over as you know it.’

The twist in the story is that there were times that Chiacchia questioned his own truth. “He [Chandler] almost had me convinced that I hadn’t told him,” Chiacchia said.

A near-fatal horse accident in 2008 had left Chiacchia with Traumatic Brain Injury, which often comes with deep memory lapses. Incidentally, it was while hospitalized for the accident that Chiacchia found out he had HIV.

“It didn’t really freak me out,” he said. “It was just something that had to be taken care of.”

While recovering from the accident, Chiacchia fell into his relationship with Chandler. He was vulnerable, and his brain, he said, was “very malleable.”

It was only when Chiacchia, who’d made millions as a professional athlete, was sliding into bankruptcy to defend his case, that he began to recover his memory. To make sure his tax returns were up to date, he did his own forensic accounting, collecting the restaurant and country club receipts. That unlocked his memory about the night he told Chandler that he had HIV.

He reconstructed that night, and went back to the restaurant where he’d taken Chandler.

“I sat at the same stool at the end of the bar. I ordered my same favorite cocktail. I ordered my same favorite meal, and then afterwards I pulled into the same vacant parking lot where it all happened,” he said.

At that point, the case might have just ended up being a case of conflicting reports, but Chiacchia had a few other factors in his favor:

“Florida statute reads that the person must be informed,” Chiacchia said. “So what about the three other people who told him [my HIV status] instead?”

They all testified in favor of Chiacchia.

Also, to sue someone for HIV-related crimes, Chiacchia explained, HIV transmission must take place. “He [Chandler] gleefully reported himself negative,” Chiacchia said.

In February, after eight years of legal battles and debt, the Florida assistant state attorney dropped all charges against Chiacchia. It was the start of the biggest horse show of the year in Marion County, known as the horse capital of the world. It is Florida’s fifth largest county, as well as one of its most rural.

Chandler had suffered stigma living there during the eight years of his legal battles. He was in earshot of comments like, ‘They’re a couple of queers. They belong in jail anyway,’ Chiacchia said. His livelihood training equestrians and buying and selling prize horses suffered.

“People were quick to judge. My life as I knew it was over,” Chiacchia said. “That’s the stigma we’re talking about.”

That all changed when his case was cleared.

“The week the news hit was the first day of the horse show, and I think I got twenty-five hugs from people,” he said. “That was amazing.”

Chiacchia still has his horse farm in the thicket of Florida’s horse country. He’s grooming ten future champion horses and training young equestrians from all over the world, who in exchange help him out on the farm where he keeps an array of sheep, donkeys, chickens and dogs.

He’s always been a hustler, he said. Starting from the moment, when as a twelve-year-old delivering newspapers, he was first mesmerized by horses at the race track in Buffalo, New York, where he grew up. Since then, he’s tenaciously pursued his dreams—even in the face of the accusations.

His main concern with the HIV criminalization laws is that they empower accusations, he said.

“They also give people a false sense of security that someone wouldn’t do that,” meaning not reveal their HIV status. “Imagine a father telling his daughter not to worry whether she’s pregnant because it’s a guy’s responsibility.”

“The law suggests one’s sexuality is someone else’s responsibility,” he said. “People who don’t know their own status are the worst risk group.”

According to the CDC, 13 percent of HIV positive people in the U.S. over age 13 don’t know their status. Chiacchia said he wants to get more involved with education efforts now that the burden of his trial is over.

He’s acutely aware that most people with HIV similarly accused might not have had the resources to fight such a battle. HIV, especially in rural areas, disproportionately affects the poor.

“I’m an upper-middle class, white male, an Olympic athlete, living the American Dream, and this law almost took me down,” he said. “Think about all the other people out there.”

THE DEEP SOUTH: THE PERFECT STORM FOR HIV

AIDS activist Kathie Hiers remembers when the scope of the HIV/AIDS crisis in her home state of Alabama hit her. She was doing a home visit in Choctaw County, a deeply rural county with just under 14,000 inhabitants. Hiers was visiting a mother and her two daughters—all of whom were HIV positive. The older daughter was pregnant, and the younger one had pneumonia. The younger one sat facing the open oven door. She had a towel over her head to capture the heat, since they couldn’t afford to heat their home. A few weeks later, she died.

“Unfortunately, we just didn’t get her into care in time,” Hiers said, adding that all three women, who developed full-blown AIDS, had not been in regular care.

“They were sharing their medications with their boyfriends, thinking that would keep them from getting it. They weren’t getting the proper dosages,” Hiers added.

Poverty, lack of access to health care, pervasive stigma, racial inequalities and a high rate of STIs (sexually-transmitted infections)—which make it easier to transmit HIV—have made the rural South “the perfect storm for HIV,” Hiers said.

“Alabama is 50 percent plus rural, and it is exceedingly difficult to serve these people adequately,” Hiers added.

According to a recent report by the Center for Health Policy and Inequalities Research at Duke University, the South has had the highest number of HIV diagnoses for over a decade.

Of the 17 states comprising the South, the nine that make up the Deep South are particularly afflicted. In 2013, 40 percent of the country’s HIV diagnoses occurred in the Deep South, which accounts for only 28 percent of the U.S. population. The states in this region include Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Texas.

African-Americans in the South are also disproportionately affected by HIV. In 2013, 53 percent of the diagnoses in the Deep South were in African-Americans, compared to 44 percent in the U.S.

The Deep South has also traditionally had the highest death rates for people with HIV. Between 2008 and 2013, 43 percent of deaths in the U.S. attributed to HIV were in the Deep South, according to the report.

“You should not be dying from HIV in this day and age,” said Carolyn McAllaster, the Director of the Duke HIV/AIDS Policy Clinic. “If you’re on treatment, it’s a chronic illness with normal life expectancies. The folks who are dying are dying from inadequate care—late diagnosis, or not accessing care once they’ve been diagnosed.”

“The higher death rates are telling the story better than any number that we have,” she added.

Also, people with HIV in the rural Southeast were more likely to have an AIDS diagnosis within a year of being diagnosed with HIV, according to the report.

One of the problems is that rural areas in the South lack physicians. According to the report, 40 percent of HIV-specific providers are in the South, where 44 percent of the country’s HIV positive people are. Transportation issues also disproportionately affect people in rural areas. Some patients don’t have cars and can’t get to clinics—and they don’t want to ask for help lest people find out about their status.

“If they don’t have a car, stigma can kick in,” McAllaster said.

Stigma persists amongst providers as well, McAllaster added.

“Primary care providers do not want to prescribe PrEP because they think it will encourage risky sex,” she said. PrEP, or pre-exposure prophylaxis, is a preventive medication for people who are at substantial risk of HIV.

McAllaster likens likens the resistance to PrEP to the resistance to birth control pills because “they think she’ll sleep around.”

For similar reasons, sex education is not taught in schools in much of the South, which ultimately leads to unsafe practices, Hiers said. In Alabama, the number of young people with HIV has increased from one in four to one in three.

To overcome some of these hurdles, Hiers, the CEO of the nonprofit AIDS Alabama, has been working to get help and resources for HIV positive people in all of the state’s 67 counties. She started a telemedicine initiative so that people can be seen remotely—and privately.

“We’re learning that people would rather [our offices] not be located at health departments. A lot of peoples’ relatives work at the health department, and people are afraid of losing confidentiality,” Hiers said.

Local initiatives like this also help offset a disparity in funding at the national level for the rural South.

“A lot of the resources go to the big, urban areas,” McAllaster said. “A lot of our advocacy is around getting resources to the rural areas and smaller cities.”

Hiers added that certain urban areas like New York and San Francisco have almost ended the epidemic. “I tell my colleagues in bi-coastal areas that they will never end the epidemic in the U.S. without dealing with the South,” she said.

The updated National HIV/AIDS Strategy (NHAS) targets the South, with the goal of reducing HIV diagnoses by 25 percent within five years.

THE FUTURE OF HEALTH COVERAGE

Hiers breathed a sigh of relief when Trumpcare failed to pass in late March.

“Nothing about it was good for people with HIV,” she said, adding that the Affordable Care Act gave many HIV positive people a window of opportunity to access affordable healthcare and medications.

“Definitely the ACA helped people with HIV, even if they weren’t in states that expanded Medicaid,” she added. As an example, in Alabama—a non-expansion state—five percent of people with HIV signed up for the exchanges, she said.

In expansion states, Medicaid coverage for people with HIV increased six percent between 2012 and 2014 nationwide. In those same states, the uninsured rate of people with HIV dropped six percent, according to the Kaiser Family Foundation.

Haught said that the ACA also gave her access to more physicians.

“For the first time in twenty years, I was able to go to doctor five minutes from home, and I get all my medications from one source,” Haught said, adding that before the ACA, she would drive five hours round-trip just to see one doctor.

She is worried that any changes to the ACA will negatively affect people living with HIV.

“[Losing coverage] impacts adherence. If affects our lives. If we don’t get our medications, we will die.”

“I’ve seen that death,” she continued. “I wouldn’t wish it on anyone.”

While no one can predict the changes coming around the corner, one thing is certain for HIV activists:

“It’s not the right time to pull back in resources,” McAllaster said. “We’ve made some real advances in fighting this epidemic.”

Just a few days after the AHCA was sent back to the drawing board, activists were celebrating some of those advances—and advocating for more—at AIDS Watch. On March 28th over 650 people from 34 states gathered in Washington D.C. to educate members of Congress about their needs.

“I went to something that really choked me up,” Hiers said. “It’s a new wave of what’s coming.”

The presentation was called “Undetectable Equals: untransmittable,” and featured discussion of three major studies that have shown that HIV-positive people who are virally suppressed cannot transmit HIV. That knowledge should help revamp states’ criminalization laws, she said.

But the more profound impact might be an internal one to people living with HIV, she added.

“It was so moving to see HIV positive people change their perception of themselves. They don’t have to think of having sex as a loaded gun anymore. It’s really an encouragement for people to stay on theirs meds.”

Published in Rural Health Quarterly on May 12, 2017

US: Louisiana "AIDS exposure" law is outdated and perpetuates stigma

Is Louisiana’s ‘AIDS exposure’ statute outdated? Advocates say it adds to stigma

Richard Covington was accused earlier this year of breaking into the house of someone who apparently owed him money and then fighting the resident. During the scuffle, Covington allegedly bit the man’s arm.

In addition to a charge of home invasion, the Baton Rouge Police Department booked 48-year-old Covington on the charge of “intentional exposure to AIDS,” a statute added to the books in Louisiana in 1987.

East Baton Rouge Attorney Hillar Moore recently said his office isn’t pursuing the AIDS exposure charge against Covington, mostly because it’s difficult — if not impossible — to prove if a bite would threaten the transmission of HIV.

Mark Alain Dery, an assistant professor of clinical medicine at Tulane University who runs the school’s AIDS clinic in New Orleans, said the chance of a bite exposing someone to the virus that can lead to AIDS is “very, very highly unlikely.” The biter would have to have bloody gums and break the skin to affect blood-to-blood exposure.

Moreover, Dery said, the language in the statute Covington was charged with is “scientifically inaccurate,” and the law perpetuates harmful stigmas against people living with AIDS.

“You can’t transmit AIDS, period,” he said. “What’s transmitted is a virus.”

HIV is the transmittable virus that can spread from person-to-person. Acquired Immune Deficiency Syndrome, or AIDS, is a condition resulting from a low count of T-cells, which is caused by untreated HIV. T-cells are white blood cells that fight disease as part of the body’s immune response.

The law was written at a time, Dery said, when the science behind HIV and AIDS was “poorly understood, if understood at all.”

ACLU of Louisiana Executive Director Marjorie Esman said laws involving the “criminalization of HIV and AIDS” are problematic, and movements are afoot across the country to address them. In Louisiana, she said, advocates are in the early stages of looking into the best legislative solution.

Esman noted that with advances in medicine, people with AIDS and people who are HIV-positive can “live very long lives” if the virus is properly treated. Dery said patients who treat their HIV with medication sometimes effectively lower their viral loads so they become undetectable, though there is still some risk of transmission.

“At one time, full-blown AIDs was a death sentence,” Esman said. “It’s not anymore.”

AIDS and HIV laws were adopted in the 1980s and early 1990s amidst a fear of the growing, seemingly lethal condition that had limited remedies at the time, Dery said. Now that AIDS is less deadly than once feared, the existing laws are “far more punitive” than they should be.

Moore, who serves as president of the Louisiana District Attorney’s Association, said there are potential scenarios in which it might be appropriate to apply the statute, including those when prosecutors can prove someone intentionally and successfully transmitted the virus.

He said, however, that the “vast majority” of cases they’ve received from police involving the charge “have been non-prosecutable.”

“Officers and deputies are just not familiar with the science and what is actually considered (when applying) the statute,” Moore said.

Baton Rouge Police Department spokesman Cpl. Don Coppola said in an interview last month that officers will continue to enforce the AIDS exposure law as it’s written. He added, though, that the department’s legal division is diligent about updating officers regarding changes to or constitutional problems with existing laws.

Another case involving Louisiana’s AIDS statute surfaced in August in St. James Parish, where authorities allege 31-year-old Barlon Cammon intentionally exposed a teenage victim to HIV. He was also booked on a charge of carnal knowledge of a juvenile.

In February, A Baton Rouge man was arrested after his girlfriend allegedly told Baton Rouge police her live-in-boyfriend exclaimed during an altercation, “That’s why I gave you AIDS.” Norris Wyatt, then 38, was charged with intentional exposure to AIDS. He was already on probation at the time for the same charge stemming from a previous incident.

The statute has also been used at least seven times over the 10 or so years in East Baton Rouge Parish when the arrestee was accused of spreading HIV by spitting, according to a 2014 report from The Advocate. Even though the statute specifically defines spitting as a “means of contact,” under which the law can apply, Dery — along with the U.S Centers for Disease Control and Prevention — note that HIV is not transmitted through saliva.

Dery noted that police sometimes tack the “AIDS exposure” charge onto a list of other charges, which can drive up jail bonds or grabs news media headlines, even if the charge is never prosecuted.

“The gross lack of confidentiality violates all medical ethics and public health practice standards,” he said.

He further noted that criminalizing AIDS and HIV adds to the stigma of shame for those living with the virus or condition. “It drives people from knowing what their status is, from getting HIV tested.”

Perpetuating the AIDS stigma, then, could have dangerous consequences: One in five people who have HIV don’t know they have it, Dery said. And those 20 percent are believed to be responsible for between 60-to-80 percent of HIV transmissions.

Noting that New Orleans and Baton Rouge populations are among those with the highest rates of AIDS in the country, Esman said the state should shift its focus regarding its treatment of people living with HIV or AIDS.

“Arresting people makes no sense,” she said. “What we need to be doing is treating people who are sick.”

Moore said the law could possibly “use some tweaking.” He indicated the district attorney’s association would be open to a proposal amending parts of the statute.

 

Emily Lane is a news reporter based in Baton Rouge. Reach her at elane@nola.com or 504-717-7699. Follow her on Twitter (@emilymlane) or Facebook.
Published on May 17, 2017 in Nola News.

 

US: Indiana Law on HIV non-disclosure criminalises people who have no intention of harming another person

Travis Spoor sits in the Kosciusko County Jail, accused, again, of failing to tell his sexual partner that he is HIV-positive.

The 37-year-old is facing malicious mischief charges in three counties for leaving his partners exposed to the disease without their knowledge. He faces up to two and a half years in prison on each charge.

According to court documents, at least two of his sexual partners found out about Spoor’s HIV status through a news article.

Spoor’s mother, Lisa Holderman, broke down in tears as she said her son isn’t a criminal.

“He’s lost his children. He’s lost his job. He’s lost insurance. He’s lost his home. He’s lost his car,” Holderman told the crowd attending HIV Advocacy Day last month at the Statehouse. “We’re losing everything just to try to get my son out of jail.”

Indiana has several laws that impact the lives of people infected with HIV. In addition to being required to inform sexual partners, they can face penalties for exposing people to any bodily fluid, even those that do not transmit HIV.

Carrie Foote, IUPUI professor and co-chair of HIV Modernization Movement, argues these state laws are outdated and research shows they don’t prevent the spread of the disease. Instead, they can discourage people from getting tested.

In Spoor’s case, Foote doesn’t believe he intended to harm his partners. She compared Spoor’s actions to contraceptive fraud.

“There are things that can cause life changing events in adult sexual decision making that we don’t criminalize in that way,” Foote said.

Foote, along with the HIV Modernization Movement, is working to modernize or repeal a few of the current HIV laws that she argues turns the disease into a crime.

But to describe it as criminalizing is completely inaccurate in the eyes of Terre Haute based Vigo County Prosecutor Rob Roberts.

“It doesn’t do the criminal justice system any service and it certainly doesn’t do HIV people any service to try and scare them to think that they might be prosecuted just for having HIV,” Roberts said.

During his career, Roberts has prosecuted only one HIV case to completion. He said bringing charges against an HIV-positive person for their actions is rare.

Roberts argued the state punishes other behaviors that put people at risk.

“Criminal Recklessness — where you may be reckless in your actions in driving a vehicle or in discharging a firearm and you have put other people at risk in those situations,” Roberts said. “We criminalize those actions because it’s the action that we’re talking about, not the status of someone being behind the wheel of the vehicle or possessing a firearm.”

However, Roberts thinks it’s a possibility that disclosure laws are one of the reasons why people don’t get tested in the first place.

Conquering Stigma

At the Damien Center in Indianapolis, more than 4,000 infected individuals receive care and services from Indiana’s oldest and largest AIDS service organization. For years, Jeremy Turner, director of development and communication at the center, has helped get people tested for HIV.

“Disclosure is the right thing to do, but unfortunately HIV is so heavily stigmatized because of things like duty to warn and because of legislation that might not be fair to them, but also because of the social implications of being HIV positive,” Turner said. “Disclosure is a hard thing to do.”

Stigma is one of the biggest hurdles in ending the HIV epidemic, Turner said, and that’s exactly what the current HIV laws do, according to Foote.

The HIV Modernization Movement’s main goal is to modernize the duty to warn and battery by bodily waste HIV laws. Duty to warn is the law that requires HIV-positive people to reveal their condition to sexual partners and needle-sharing partners. The battery by bodily waste law applies to a range of acts and bodily fluids, including spitting or throwing feces.

For Foote, the main problem with the duty to warn law is that it charges people who have no intention of harming another person. She wants the law revised to require proof that the person had intent to harm.

“The way these laws are worded, if I was sexually assaulted, I would have to disclose to my rapist that I was HIV positive,” Foote said. “There’s nothing in the law that tells that I don’t have to do that.”

The movement is also pushing to repeal the laws that prevent HIV positive people from donating blood or semen altogether. Foote said there’s no risk of transmission if a man with HIV was to seek fertility services. Additionally, the Food and Drug Administration screens blood donations for the disease.

 Understanding the laws

Results of a recent survey of health care providers about HIV disclosure showed that the majority of respondents had little understanding of the law or the consequences. Only 58 percent of the more than 170 respondents said they read the full Indiana duty to warn code and only 43 percent knew the punishment for law breakers.

Those health care providers are the ones to make sure patients sign a form acknowledging that they have a duty to disclose their condition to partners past and present.

John Coberg II, an IUPUI research assistant who worked on the survey along with Foote, said he saw a common theme in the results — that the laws are harmful.

In the survey one anonymous provider wrote, “It often makes the client feel like a criminal, or they’re dirty or wrong when they’re in my office for help. As a care coordination person, you should never want your client to feel any of these things when they walk in your office.”

Changing the laws

When changing a law, Roberts said two questions need to be considered: How is the statute being used, and is it being used in an unfair fashion? In Roberts’ opinion, these laws haven’t been around long enough to answer these questions just yet.

Roberts said it’s the job of the legislature to look at the current laws to see if they need tweaking.

“We can take a look,” Sen. Greg Taylor, D-Indianapolis, said.

Taylor’s focus is the current battery by bodily waste law, since research shows HIV is not transferrable by saliva. He wants to change the law so that HIV positive people aren’t charged differently for having the disease.

“If the chairman of the health committee is willing to go along with it, we can hopefully put some modern legislation in place to protect the public but also not make a criminal out of people because they contracted HIV,” Taylor said

Published in NUVO on May 12, 2017

Norway: Activists concerned about latest proposals to change Norway's HIV law

Critical to changes in section 237 of the Criminal Code

Reidar Engesbak, April 26, 2017

(Google translation from http://blikk.no, original post below)

The government last week presented a proposal – Prop. 120 L (2016–2017) – for penalties on transmission of infection and endangered spread of infection.

The Ministry of Justice’s submitted to the Storting a proposal for amendments to section 237 of the Criminal Code, which mainly follows the recommendations of the statutory committee that were appointed on the basis of criticism of the current criminal law regulation.

The law committee resulted in the NOU “About Love and Cooling Tower – Criminal Justice in Major Infectious Diseases.”

“I am pleased that we now propose a regulatory framework that addresses the medical development,” said Per-Willy Amundsen, Deputy Minister of Justice, in a press release.

The proposal entails, among other things, clarification that criminal liability is not imposed when appropriate contingency measures have been observed. This includes, among other things, successful medical treatment of HIV infection. Emphasis has been placed on the fact that the knowledge base on the treatment of HIV infection has changed in recent years and that the infection risk from well-treated HIV-positive individuals must be considered minimal.

The government also proposes a change in the Criminal Procedure Act, which allows the police to routinely investigate the infectious status of persons suspected of rape or other serious sexual assault.

“The proposal means that we can be clarified faster than today if the victims have been exposed to a risk of infection. It is important for the government to strengthen the offender’s position in criminal matters, and this change will contribute to that, “Amundsen said in the press release.

Contrary to UNAIDS ‘recommendations

The user organization New Plus – Hivpositives National Association is not so excited. The proposals, according to New Plus’s view, involve a number of things that will worsen the legal situation of those living with HIV.

“What is positive with the bill is that it is suggested that you can not prosecute people who have been negligent and that it is now necessary to commit gross negligence in order to be prosecuted,” said Kim Fangen, Managing Director of New Plus.

New Plus nevertheless believes that the boundary is still unclear. “It is still not the case that actual transmission of infection will be required in order to be punished. Consequently, the provision will still violate UNAIDS ‘recommendations, which state that punishment can only be used where there is a person who is aware that he or she has HIV or with the knowledge and willingness to infect another and infection is actually transmitted.

A little impractical

The proposition is for people to be treated for successful treatment to be exempted from punishment. It’s a suggestion New Plus applaudes. “However, the proposal implies that one can only be exempted from punishment after successful treatment and has been with his partner for prior infection prevention guidance from healthcare professionals, as well as the consent of the partner after this. This scheme applies today only to persons living in marriage or marriage-like relationships. The Ministry therefore wishes to extend the personal circle that will be covered in principle, it will apply to all,” said Fangen to Blikk Nett.

New Plus believes the scheme is impractical. “We can hardly see for ourselves that you want to bring a man for two weeks to the GP to get such consent. It will soon become most relevant for those who have been together for so long that one will nevertheless be covered by today’s wording about marital-like relationships. In any event, this means that an obligation to inform sexual partners is forced for persons who are nevertheless not infectious. People who are on successful treatment will not be able to transfer infection to others, says Fangen, and refers to statements by Professor Jens Lundgren at Rigshospitalet in Denmark.

“When you know at the same time how little knowledge exists in the society about HIV, this means that you can quickly find yourself in a very vulnerable situation to those you want to have sex with, without even jeopardizing the other.

Increased penalty frame

The Ministry of Justice’s proposal also wishes to raise the penalty frame for gross negligence from 3 to 6 years through a new provision in the Act. “This is very serious because it sends a signal about the severity of these actions and could make it even more stigmatizing to live with HIV,” Kim Fangen points out.

“We know that most infections occur when the person who has the virus does not even know that they are infected. These penalties will continue to hit people who have, in their ignorance, exposed others to infectious persons and people who can not actually infect anyone, but because they have not been open about status and conducted infectious guidance can be punished nevertheless. This is believed to mean that fewer will be open about HIV status and that people living with HIV will feel further stigmatized, “said Kim Fangen to Blikk Nett.

“We therefore see no reason to cheer over this and will continue the fight to completely decriminalize HIV.

Kritisk til endringer i Straffeloven § 237

Regjeringen la forrige uke fram et forslag til straffebestemmelser om smitteoverføring og allmennfarlig smittespredning.

Justisdepartementets proposisjon (Prop.120L) til Stortinget et forslag til endringer i Straffelovens paragraf 237, som i hovedsak følger opp anbefalingene til lovutvalget som ble oppnevnt på bakgrunn av kritikk mot den gjeldende strafferettslige reguleringen.

Lovutvalget resulterte i NOU-en «Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer.»

– Jeg er fornøyd med at vi nå foreslår et regelverk som tar opp i seg den medisinske utviklingen, sa justis- og beredskapsminister Per-Willy Amundsen (FrP) i en pressemelding.

Forslaget innebærer blant annet en klargjøring av at straffeansvar ikke pådras når forsvarlige smitteverntiltak er iakttatt. Dette omfatter blant annet vellykket medisinsk behandling av hivsmitte. Det er lagt vekt på at kunnskapsgrunnlaget om behandling av hivsmitte har endret seg de siste årene, og at smitterisikoen fra velbehandlede hivpositive personer må anses som minimal.

Regjeringen foreslår også en endring i straffeprosessloven som åpner for at politiet rutinemessig kan undersøke smittestatusen til personer som er mistenkt for voldtekt eller andre alvorlige seksuelle overgrep.

– Forslaget innebærer at vi raskere enn i dag kan få avklart om fornærmede har blitt utsatt for smittefare. Det er viktig for regjeringen å styrke fornærmedes stilling i straffesaker, og denne endringen vil bidra til det, sa Amundsen i pressemeldingen.

Strider mot UNAIDS’ anbefalinger

Brukerorganisasjonen Nye Pluss – Hivpositives landsforening er ikke så begeistret. Forslagene innebærer etter Nye Pluss sitt syn en rekke ting som vil forverre den juridiske situasjonen for de som lever med hiv.

– Det som er positivt med proposisjonen, er at det foreslås at man ikke kan straffeforfølge personer som bare har vært uaktsomme, og at det skal nå kreves grov uaktsomhet for å kunne straffeforfølges, sier Kim Fangen, daglig leder i Nye Pluss.

Nye Pluss mener likevel at grensegangen fortsatt er uklar.

– Det er fortsatt ikke slik at faktisk smitteoverføring vil kreves for at man skal kunne straffes. Følgelig vil bestemmelsen fortsatt stride mot UNAIDS’ anbefalinger, som statuerer at straff bare kan brukes der det er snakk om at en person enten er klar over at hen har hiv, eller med viten og vilje går inn for å smitte en annen og smitte faktisk overføres.

Lite praktisk

Proposisjonen går inn for at personer på vellykket behandling skal fritas fra straff. Det er et forslag Nye Pluss applauderer.

– Forslaget innebærer dog at man bare kan fritas fra straff om man er på vellykket behandling og har vært med sin partner til forutgående smittevernveiledning hos helsepersonell, samt fått samtykke fra partneren etter dette. Denne ordningen gjelder i dag bare for personer som lever i ekteskap eller ekteskapslignende forhold. Departementet ønsker dermed å utvide personkretsen som vil omfattes til at den i prinsippet vil gjelde alle, sier Fangen til Blikk Nett.

Nye Pluss mener ordningen er lite praktisk.

– Vi kan vanskelig se for oss at man vil ta med seg en man har datet i to uker til fastlegen for å få et slikt samtykke. Det blir fort mest aktuelt for de som har vært sammen såpass lenge at man uansett vil dekkes av dagens ordlyd om ekteskapslignende forhold. Uansett betyr dette at man tvinger frem en informasjonsplikt overfor seksualpartnere for personer som uansett ikke er smittefarlige. Personer som er på vellykket behandling vil ikke være i stand til å overføre smitte til andre, sier Fangen og viser til uttalelser fra professor Jens Lundgren ved Rigshospitalet i Danmark.

– Når man samtidig vet hvor lite kunnskap som finnes i samfunnet om hiv, gjør dette at man fort setter seg i en veldig sårbar situasjon overfor de man vil ha sex med, uten at man selv utgjør noen fare for den andre.

Økt strafferamme

Justisdepartementets proposisjon ønsker i tillegg å heve strafferammen for grov uaktsomhet fra 3 til 6 år gjennom en ny bestemmelse i loven.

– Dette er svært alvorlig fordi det sender et signal om alvorlighetsgraden av disse handlingene og vil kunne gjøre det ytterligere stigmatiserende å leve med hiv, påpeker Kim Fangen.

– Vi vet at de fleste smitteoverføringer skjer der personen som har viruset ikke selv vet at hen er smittet. Disse straffebestemmelsene vil forsette å ramme personer som i sin uvitenhet har utsatt andre for smittefare og personer som i realiteten ikke kan smitte noen, men som fordi de ikke har vært åpne om status og gjennomført smitteveiledning vil kunne straffeforfølges likevel. Dette tror vi vil medføre at færre vil være åpne om hivstatus og at personer som lever med hiv vil føle seg ytterligere stigmatisert, sier Kim Fangen til Blikk Nett.

– Vi ser dermed ingen grunn til å juble over dette og vil fortsette kampen for å avkriminalisere hiv fullstendig.