US: HIV criminalisation laws are outdated, stigmatising and applied unfairly and it’s time to end the cycle says Erika D. Smith

The AIDS crisis is over. Why are people still going to jail over HIV?

BY ERIKA D. SMITH

I’m not in the habit of quoting Ronald Reagan. But on Monday, as legislation that would greatly reduce the criminal penalties for transmitting HIV moved one step closer to a vote in the California Senate, I couldn’t help but think of words penned by the former president.

The year was 1990 and my teacher handed out a Washington Post article for the class to read.

“We owe it to Ryan to make sure that the fear and ignorance that chased him from his home and his school will be eliminated,” Reagan wrote. “We owe it to Ryan to open our hearts and our minds to those with AIDS. We owe it to Ryan to be compassionate, caring and tolerant toward those with AIDS, their families and friends.”

He was reacting to the death of Ryan White, a blond-haired boy from the Midwest who had contracted HIV during a blood transfusion for hemophilia and was diagnosed with AIDS. White wasn’t like the then-mysterious gay men in California and New York, or even the IV drug users in inner cities, who had been falling ill and dying by the thousands. He was an “innocent” victim.

At 13 years old, he got thrust into the national spotlight because he wanted to go to school with his friends. But because it was the height of the AIDS epidemic, an era when fear and willful ignorance regularly trumped facts, the school district fought his family at every turn.

As a 13-year-old girl in a Midwestern suburb, I identified with him.

Over time, that vague fear of AIDS that I once had has been replaced with an understanding that HIV is a chronic illness that can be easily managed with medication. It’s no longer a death sentence. What’s more, it’s highly unlikely that someone with an undetectable level of HIV in his or her blood, which is pretty common these days for undergoing treatment, will transmit the virus to anyone else.

Heck, hepatitis C kills three times as many people as HIV does.

But in California and more than 30 other states, dozens of laws remain on the books to punish people who willfully expose others to the virus. To this day, people still get charged with felonies over HIV and go to prison for five, 10 or even 20 years. In some states, those convicted must register as a sex offender for life.

These laws aren’t “compassionate,” “caring” or “tolerant” toward people with HIV or AIDS. They’re fear-based holdovers from the days of the “gay plague,” which in many ways, the Reagan administration callously let happen by ignoring the disease and its victims for far too long. Back in the 1980s, Reagan wasn’t “compassionate,” “caring” or “tolerant.”

San Francisco was ground zero, with three times as many AIDS cases per capita as New York and 10 times as many as Los Angeles. At one point, about half of San Francisco’s gay men were infected and most expected to die within 10 years. I’ve heard horror stories from gay men with gray hair, many of them tearing up just thinking about all the friends and partners they lost.

So it’s telling that it’s a gay man from San Francisco, Sen. Scott Wiener, who is pushing the bill that would greatly reduce the penalties for transmitting HIV.

Where California now has four felony offenses on the books for people who deliberately pass along the virus, Senate Bill 239 would repeal two of them and reduce two others to a misdemeanor, just like the intentional transmission of every other infectious or communicable disease.

The bill advanced out of the Senate Appropriations Committee on Monday and Wiener hopes to get it to the Senate floor by May or June.

So far, only the California Right to Life Committee has come out in opposition. Meanwhile, the list of groups in support is long, from the California Medical Association to Equality California to the ACLU.

Their reasoning is pretty plain. One is that threatening to punish people for transmitting HIV does absolutely nothing for public health. It only encourages people to hide their status or not get tested at all. You can’t be charged with infecting someone with something you didn’t know you had.

Another reason is that research shows that the laws are applied unfairly. White men, for example, make up 40 percent of the people diagnosed with HIV in California, but only 16 percent of the individuals who’ve had contact with law enforcement over it, according to the Williams Institute at UCLA.

Meanwhile, black women make up only 4 percent of the Californians diagnosed with HIV, but account for 21 percent of people who have gotten in trouble for it. A good number of them are sex workers, turning a potential misdemeanor prostitution charge into a felony.

Only about 1,260 people were accused of an HIV-related crime in California between 1988 and 2014. Of those who were convicted, 85 percent were sent to prison.

So far, only Iowa and Colorado have acted to repeal their laws. If California is next, it could potentially accelerate a fledgling national trend toward decriminalization.

There’s little hope of accomplishing change at the federal level, even though public health officials have been pushing for it for years. In Congress, Reps. Barbara Lee, D-Oakland, and Ileana Ros-Lehtinen, R-Fla., introduced the Repeal HIV Discrimination Act, but it’s likely to go nowhere. There has been resistance, particularly among Republicans.

Like the Reagan administration, red state lawmakers started paying attention to AIDS because of Ryan White, a boy unfairly marginalized by people who didn’t understand HIV or how it is contracted. Following an early provision in the Ryan White Comprehensive AIDS Resources Emergency Act, which provided funding for education and treatment, they passed misguided laws to prosecute people over HIV or AIDS.

California just beat middle America to the punch.

Now the remnants of those laws are being used to marginalize a whole new group of people with HIV, many of them opioid addicts in red states spreading the virus through dirty needles. It’s time to be “compassionate,” “caring” or “tolerant.” It’s time to end the cycle.

Published in the Sacramento Bee on April 24, 2017

US: Fact sheet from the Williams Institute summarises all we know about HIV criminalisation in California

This fact sheet from The Williams Institute highlights significant findings from its research on HIV criminal laws in California. Conduct criminalized includes condomless anal or vaginal sex with intent to transmit HIV and without HIV status disclosure, as well as donation of blood, tissue, semen, or breast milk for people living with HIV (PLHIV) who know their HIV status. It also enhances the criminal penalty for PLHIV convicted of solicitation and for sexual assault crimes.

Particularly notable findings include that:

• 98% of convictions required no proof of intent to transmit HIV;

• 93% of convictions required no proof of conduct that is likely to transmit HIV;

• HIV criminal statutes disproportionately affect women, people of color, and immigrants living with HIV, and they are disparately enforced based on race/ethnicity and gender; and

• felony solicitation enforcement has disproportionate impact on LGBTQ youth and transgender women of color.

HIV Criminalization in CA- What We Know.pdf

US: Michigan candidates for the governor's office call for State's HIV felony law to be repealed

Dem Gubernatorial Candidates Call for Reform of State’s HIV-Specific Law

Advocates Applaud Move, Encourage Legislative Action Before New Governor Takes Office in 2019

LANSING – Calling Michigan’s HIV-specific felony law “discriminatory” and “wrong to criminalize sickness,” the two declared candidates for the governor’s office say it’s time to reform the law.

“I’m a strong believer in science, and in the years this law has been on the books, significant strides have been made in HIV treatment and prevention,” said Gretchen Whitmer, the former State Senate Minority Leader and Ingham County Prosecutor. She’s declared her candidacy for the Democratic nomination for governor in 2018 earlier this year. “Yet prosecutions are often driven by fear and stigma, not science, just as the legislation itself was when it was passed. It’s wrong to criminalize sickness, which is what this law has effectively done. It absolutely should be revisited.”

Last month, Abdul El-Sayed, the former director of the City of Detroit’s Department of Health and Wellness Promotion, told Between The Lines that Michigan’s law “absolutely” should be repealed.

“You should not be criminalized for a disease,” he said. The 32-year-old doctor was a Rhoades Scholar and in his role as the director of Michigan’s most populous city’s health and wellness promotion, he dealt first hand with the ongoing HIV crisis in Detroit. “That is absolutely wrong. It’s hateful. It’s discriminatory, and we can, as a state, do better. You can count on me for that.”

Michigan passed the AIDS-Penetration with Uninformed Partner Law in 1988. Former lawmaker Susan Grimes Gilbert (formerly Grimes Munsell) lead the charge to pass Michigan’s law as well as participated in the American Legislative Exchange Council (ALEC) working group on the subject. That group recommended the development of HIV Assault laws in all 50 states

In an interview presented in a report in The Advocate and The American Independent News Network in 2013, she acknowledged that the law was driven by fear.

“At that time people were scared to death of [AIDS],” Grimes Munsell told the news outlets. She acknowledged much had changed since that time.

“I think it is time to repeal the [felony] law,” she said in 2013. “In fact, I don’t do this very often, but I am willing to lobby for that change.”

Her voice added to an already growing chorus calling for reform. Among them, the former staffer from ALEC who wrote the group’s draft legislation and policy recommendations and a member of President Ronald Reagan’s Commission on HIV, commonly called “The Watkins Commission.”

Social scientists and activists have criticized the laws for years as unfairly stigmatizing those living with HIV as people hell bent on transmitting their infection to others. They’ve noted the laws have little impact on behavior and at least one study has found that high profile prosecutions for HIV nondisclosure lead those most at risk of HIV infection to decline HIV testing and sexual health counseling from healthcare providers.

State Rep. Jon Hoadley (D-Kalamazoo) has been floating draft legislation for the last six months to modernize Michigan’s HIV law. Specifically, his proposal would eliminate the current felony law, and create in its stead two misdemeanor laws.

Both misdemeanor laws would require prosecutors prove beyond a reasonable doubt the accused not only had HIV, but intended to transmit the infection and took actions that had a likelihood of transmitting the virus. The lower of the two misdemeanors -which would carry up to 93 days in jail – would be used if there was no transmission. The one-year misdemeanor would be used if there was transmission of the virus.

The legislation garnered a number of co-sponsors last session, but Hoadley did not introduce it.

Activists supporting modernizing Michigan law say they are pleased the two Democratic gubernatorial candidates are raising the issue.

“We are very pleased to see the issues related to the unjust, unscientific law criminalizing HIV being taken up by candidates for the top office in the state,” says Kelly Doyle, the coalition manager for the Michigan Coalition for HIV Health and Safety. “This is about fairness and reducing stigma, and having top candidates talking about this issue helps reduce the stigma and highlight the problems.”

She was joined in that praise by Curtis Lipscomb, executive director of LGBT Detroit. He released a statement to BTL saying his group was “pleased” that the candidates “reject Michigan’s outdated HIV criminalization laws and the notion of criminalizing disease.”

“We must get rid of stigma around HIV/AIDS, testing, prevention and treatment – and listening to science is the only way to do that,” Lipscomb said.

He said his group is eager to continue discussions with the legislature “to move to repeal this dangerous law.”

Doyle echoed that sentiment, “Of course, this legislature could check one item off the beginning of the 2019 gubernatorial term by passing legislation now which brings Michigan in line with common sense public health approaches which ensure of the safety of all Michiganders.”

Published in PrideSource on April 13, 2017

Canada: Alison Carter explores the negative consequences of HIV Criminalisation on women living with HIV

The Politics Of Sex For Women Living With HIV

“If I have sex, I could go to jail.”

This is the reality of life for women living with HIV in Canada.

It’s a story I heard a few weeks ago from an African woman who had recently immigrated to Vancouver and is now faced with the profoundly isolating experience of being a Black HIV-positive woman in Canadian society.

This may come as a surprise to anyone unfamiliar with HIV in Canada: Women (and men) who are living with HIV are at risk of facing a criminal charge of aggravated sexual assault for not disclosing their HIV status before engaging in consensual sex, unless they have a low HIV viral load and use a condom. Beyond serving jail time, those convicted must register as a sex offender, a title usually reserved for child molesters and rapists. “That follows you around forever,” says a woman who was herself imprisoned for HIV non-disclosure.

This woman, and many others, bravely spoke out about their experiences of being treated like a criminal for living with HIV at the annual Canadian Conference on HIV/AIDS Research, held in Montréal from April 6 to 9.

The conference included a special session on the criminalization of HIV non-disclosure, which covered a broad array of issues ranging from data on the total number of charges laid, to women’s personal testimonies of feeling ‘under surveillance’, to the latest research findings on how the law is understood and experienced by thousands of women living with HIV across Canada.

Saara Greene of McMaster University, Angela Kaida of Simon Fraser University, and Marvelous Muchenje of the Canadian Coalition to Reform HIV Criminalization co-hosted the event in partnership with HIV-positive women, which brought together dozens of community leaders, scientists, lawyers, and activists from around the country.

“Some women are suffering in silence and they don’t know what the law says,” said Muchenje.

“The law assumes that sex takes place between partners of equal power,” added Greene. “And it wholly ignores what causes women not to disclose their status, including widespread stigma and violence that are both systematically targeted at women living with this disease.”

The women who have participated in their research, which involved telling stories through participatory arts-based Body Mapping, say “disclosure is not always safe or positive for women’s health and safety.” And for many, the fear of being abused, rejected, or worse jailed, is a significant barrier to even thinking about the idea of getting involved with someone.

Eighteen women have been charged for HIV non-disclosure in Canada, many of whom come from marginalized backgrounds and are survivors of sexual violence.

“Beyond the number of prosecutions, however, is the threat of prosecution,” said Kaida. “And this threat compromises both women’s interactions with healthcare providers and their sexual health.”

Kaida analyzed survey data collected from over 1000 women living with HIV in Canada, and found that for most women (65 per cent), the law affects the amount and type of information they are willing to share with providers, particularly as it relates to their sexual lives.

Kaida also found that 51 per cent of women were not having sex and of these, 78 per cent were intentionally abstinent. Women’s reasons for intentional abstinence were diverse though many (33 per cent) worried about HIV criminalization and disclosing their status to sexual partners.

“Laws criminalizing HIV non-disclosure have been defended as a means of protecting the sexual well-being of women,” Kaida said. “However, our findings show women are protecting themselves from the law by intentionally abstaining from sex.”

It goes without saying that women living with HIV shouldn’t have to live in fear of having sex. Sex is a normal part of life. It feels good. It has health benefits. And it’s a human right, one that this law violates.

The law also ignores groundbreaking new science that shows a person with HIV who is on treatment with undetectable levels of the virus in their blood has zero chance of passing HIV to their sexual partners. Put simply, Undetectable=Untransmittable.

Wedged in between science, on the one hand, and society on the other, are decades of cultural discourses of risk, danger, and stigma.

Stigma is a dangerous construct. It deters people from accessing testing and treatment. It leads to anxiety, depression, isolation, and loneliness. And it creates a social and legal environment that fosters abuse, harassment, and discrimination against women living with the condition.

In the face of a mountain of evidence of medical advances and human rights violations, many people are calling (shouting, really) for policy markers in Canada to update the laws and de-criminalize HIV. Doing so would also help to de-stigmatize sex for women living with HIV.

“The discrimination I face because of I live with HIV is ridiculous,” says Peggy Frank, an openly positive woman and researcher. “It’s a small virus that has little to do with who we are. I am a human being and I have the rights that every other human being has, and that includes sex.”

Allison Carter is a feminist epidemiologist conducting sex-positive research with women living with HIV. She is working with women on building a new online resource, called Life and Love with HIV, dedicated to building conversation and community around sexuality and relationships for women and couples with HIV around the world. Sign up to be notified when the website launches.

Published on April 10, 2017 in the Huffington Post

US: Updates on 4 states that may reform HIV Criminalisation laws

What’s New in HIV Criminalization in the United States: Congress, California, Florida, Georgia, Ohio and Utah

By Victoria Law

From TheBody.com

April 6, 2017

Table of Contents

Will Congress modernize HIV laws and policies? Advocates certainly hope so. Here’s an update, plus a look at four states that may reform laws that criminalize HIV non-disclosure and transmission — and one state that’s increasing penalties for people living with HIV.

REPEALing Policies That Encourage and Allow HIV Discrimination

On the federal level, Congress is considering HR 1739 or the REPEAL HIV Discrimination Act of 2017. If passed, the Act directs the attorney general, the secretary of Health and Human Services and the secretary of defense to initiate a national review of federal (including military) and state laws, policies, regulations and judicial decisions regarding criminal and related civil commitment cases involving people living with HIV or AIDS. This last part means that, if it were passed, federal agencies (including all branches of the military) would review past HIV cases and decisions based on current knowledge about HIV transmission.

“We’ve got incredible science data. Now we’ve got to get policymakers to understand,” Ken Pinkela, the military and federal policy director for the Sero Project, told TheBody.com. Though the Act would not force states to follow suit, having a mandate on the federal level would influence policies on the state level. Furthermore, not only would Pinkela personally benefit if the REPEAL Act were passed, but so would every other member of the military who has been criminalized and discharged because of their HIV status.

California Looks to Reduce HIV Criminalization

In February, California state lawmakers introduced SB 239. The bill reduces HIV transmission from a felony with three, five or eight years in prison to a misdemeanor with jail time of no more than six months.

The bill also lessens penalties for people engaged in sex work. Currently, if a person is convicted of prostitution or another sexual offense, he or she is subject to an HIV test. If this person tests positive and is later arrested again for prostitution or another sexual offense, existing law makes them guilty of a felony. The bill deletes both of these provisions, meaning that people arrested for sex work are no longer required to submit to an HIV test and, if they are arrested again, they are not subject to a felony based on HIV status.

SB 239 also requires any court or agency that has records related to the deleted provisions to destroy them by June 30, 2018. Finally, the bill requires a court to vacate related convictions.

“These [existing] laws are disproportionately used against women and people of color, and fuel stigma, violence and discrimination,” stated Naina Khanna, executive director of the Positive Women’s Network – USA, when the bill was introduced.

The numbers prove this. Nearly half (43%) of those criminalized under California’s HIV-specific criminal laws are women, though women make up only 13% of Californians living with HIV. Though blacks and Latinx people make up only half of Californians living with HIV, they are more than two-thirds of those who came into contact with the criminal justice system based on their HIV status. The intersections have hit black women particularly hard. They comprise 4% of the state’s HIV population, yet make up 21% of those with criminal justice encounters because of their status. In contrast, white men, who make up 40% of people in the state diagnosed with HIV, compose 16% of those who encounter the criminal justice system because of their HIV status.

The bill passed the Senate’s Public Safety Committee by a vote of 5 to 2. It is now before the Appropriations Committee.

“Florida Doesn’t Want to Be First in New HIV Cases”

Under Florida law, it’s a crime to not disclose HIV status prior to sex. This was how [65-year-old Gary Debaun was arrested and charged with unlawful sexual transmission of a disease. Prosecutors charge that Debaun forged medical records declaring that he was HIV-negative to show to his then-partner. Under current law, creating a false report to hide the presence of HIV or other communicable diseases is a third-degree felony]].

Debaun’s attorney attempted to use another outdated law to prevent his conviction — that since Florida law defines sex as between a man and a woman, “sexual intercourse” only applies to heterosexual sex. Though a lower court agreed and dismissed the case, the state’s appellate court overturned that ruling. In March, the state’s Supreme Court also rejected that argument. The district attorney’s office has stated that it plans to re-introduce the charges.

However, the law may be changing. In March, the Senate Criminal Justice Committee voted unanimously in favor of SB 628, which updates existing HIV criminalization laws. If passed, a person with HIV would no longer be considered acting with intent to transmit if he or she were undergoing treatment, used a condom or other method to prevent transmission or had offered to do so (even if the offer was rejected by the other person). The bill would also reduce non-disclosure in other instances and the creation of a false report to hide HIV status from a felony to a first-degree misdemeanor.

“Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic,” said Senator Rene Garcia, the bill’s chief sponsor. Thanking service providers and advocacy groups such as the AIDS Healthcare Foundation and the Sero Project, he stated, “Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.” The bill is now in the Health Policy Committee.

Georgia Convenes a Committee

Under current Georgia law, a person living with HIV or hepatitis can be arrested and sentenced to up to ten years in prison if they do not disclose their status before having sex, sharing needles or donating blood. If a person with HIV or hepatitis throws bodily fluids (such as urine, blood, feces or saliva) on a peace officer or correctional officer, they face up to 20 years in prison. It does not matter that spit does not transmit. Over 50,000 Georgians live with HIV and approximately 3,000 are newly diagnosed each year.

Similar to other parts of the country, HIV criminalization laws have not only resulted in prison sentences, but have also had a chilling effect on people’s day-to-day safety. Testifying before the House Special Rules Committee, Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, recounted being sexually assaulted by a fellow student at Emory University nine years earlier. “Because of this law I immediately knew that I wasn’t going to report it to law enforcement,” she told them. “It was never going to be about consent, it was going to be about my HIV status. And so I was afraid of the very real possibility of going to prison for my own sexual assault because of this law.”

In February, Georgia Representative Sharon Cooper introduced House Resolution 240, which proposed creating a Joint Study Committee on Reforming HIV Related Criminal Laws. The following month, Senator Vincent Fort introduced the Senate counterpart, Resolution 465. “Most of these laws do not account for actual scientifically supported levels of risk by types of activities engaged in or risk reduction measures taken,” stated the resolution. “As a result, many of these state laws criminalize behaviors that the [Centers for Disease Control and Prevention] regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures[.]” The committee includes not only state senators, but also a representative from the Department of Health, a criminal defense attorney and a community-based HIV service provider.

Ohio Rethinks HIV Criminalization

In 2016, the Ohio Supreme Court announced that it would hear State of Ohio v. Orlando Batista, in which Batista was convicted of non-disclosure and sentenced to eight years in prison. At issue are the state’s HIV laws, which classify non-disclosure as a felonious assault. Like current California laws, if a person tested positive for HIV after being arrested for solicitation, that would increase the charge from a misdemeanor to a felony if they were arrested again.

As in other states, lawmakers, pressed by advocates and medical professionals, are beginning to rethink HIV criminalization. On March 2, the state’s Recodification Committee examined proposed amendments to its HIV criminal law. The Committee will vote on the amendments at a later date.

Utah Enacts Heavier Penalties for People With HIV

While some states are considering decriminalizing HIV, Utah is moving in the opposite direction. In March, Governor Gary Richard Herbert signed HB 369, or the Sexual Offenses and Statutory Nonconsent Amendments, into law.

As of 2013, 2,565 people living in Utah had been diagnosed with HIV, a rate of 115 per every 100,000 people. The following year, 120 people were newly diagnosed, a rate of five per every 100,000 people.

Initially, the bill criminalized HIV non-disclosure with the first draft making it a felony. In later drafts, non-disclosure became a misdemeanor.

Testifying against the bill in February, Troy Williams, the executive director of Equality Utah, expressed concern that the measure would discourage people from being tested and encouraged the state to instead promote testing and treatment. “We would want to do everything in our power to open the doors to encourage people to be tested,” he said. His concerns have been echoed by other advocates, including people living with HIV.

Those concerns seem to have been heard; the final law does not include criminalization for non-disclosure. It does, however, enhance penalties for people convicted of non-consensual sex offenses if they have HIV, hepatitis B or hepatitis C. The wording of the law does not acknowledge that people who are virally suppressed are not at risk of transmitting HIV through sex.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.

Published in the Body on April 7, 2017

NZ: The prosecution of people living with HIV for HIV non-disclosure is at odds with medical advances

Living with HIV is no death sentence

Jane Bruning was 33 when she was told she would die.

The Auckland woman was living in Tanzania when her former partner died suddenly, almost immediately after being told he was HIV positive.

Subsequent tests revealed Bruning, mother to a young son, also had HIV.

It was the 1980s, and the news wasn’t good.

“In those days it just wasn’t considered something heterosexual people got,” says Bruning.

“It was a shock…In Tanzania there was no information about HIV. They only had one national radio station, and one newspaper newspaper and they were both in Swahili. There was very little information — HIV was perceived as a gay man’s thing that happened in San Francisco.

“It was very, very scary because there was absolutely no infrastructure or support. I was told I had three years to live and to sleep well, eat well, and don’t have sex.”

Bruning said the ensuing period was “surreal”.

Jane Bruning, national coordinator for Positive Women, says New Zealand is at a crossroads when it comes to how we approach HIV.

She relocated to New Zealand so her family could take care of her son when she was gone.

For years she waited to die.

Then, antiretroviral treatment drastically changed the lives of people living with HIV for the better.

With daily medication Bruning realised she would live to meet her grandchildren after all.

Nonetheless, everything was different.

“I don’t know that it’s been a normal life and I’m not sure I would say it’s been 100 per cent healthy because of the side effects from the medication. I knew I wasn’t going to die, but I wasn’t quite sure how to live.”

Bruning, now 59, is one of a small percentage of heterosexual women in New Zealand living with HIV.

It hasn’t been an easy road.

From a medical perspective she is healthy albeit some side effects from her daily medication including peripheral neuropathy, lipoatrophy and lipodystrophy, however, life hasn’t been the same since.

She hasn’t had a partner in 20 years, which is a personal choice. “I thought I was coming home to die so I didn’t see any point in getting into a relationship”.

As the national coordinator of Positive Women, a support agency for women living with HIV and their families, she has come across cases of people being treated like lepers despite medication reducing their risk of transmission.

Earlier this month prosecutors at the Auckland District Court accused Mikio Filitonga of burying his head in the sand when it came to his own HIV diagnosis.

He was found guilty of causing grievous bodily harm to his former partner by infecting him with HIV, and of committing a criminal nuisance by having unprotected sex with him knowing he had HIV and not disclosing it.

Evidence heard at trial established Filitonga was evasive with medical authorities, shunned treatment, and didn’t tell his partner of his diagnosis.

He is one of around a dozen people who have been charged with offences relating to the infliction of HIV since Kenyan musician Peter Mwai became the first person to be prosecuted in 1994.

Unlike some countries or US states where law has been specially crafted for the offence, prosecutors in New Zealand utilise existing legislation to prosecute those whose recklessness leads to injury.

But given people living with HIV can have long, healthy lives—can injury be proven?

Filitonga’s defence lawyer Ross Burns applied to have the charges formally dismissed by the Judge, arguing that the definition of grievous bodily harm hadn’t been met because the complainant was taking medication that made him asymptomatic—technically injury free.

Judge Mary-Beth Sharp rejected the application, saying HIV was an “indisputably serious” illness.

“It is incurable, chronic, and can cause death. With respect, that says it all,” she says.

After the trial the New Zealand Aids Foundation criticised the prosecution, saying court action should only be taken where malicious intent to infect others is established.

The Sunday Star-Times asked: Should people still be prosecuted for inflicting a manageable illness when many others, such as measles, can cause the same damage but aren’t pursued through the courts.

“I do think HIV is a big deal. I wouldn’t want anyone to contract it. I wouldn’t wish it on anybody,” says Bruning.

“In saying that, with the medication making viral loads undetectable, I think we’re coming to a real crossroads. Do you need to wear condoms? Do you need to disclose your status? Clinically, there is no reason why someone should have to wear a condom or disclose. Morally, you have a whole different story.”

Long time infectious diseases physician Dr Graham Mills says it’s an “interesting paradox”, and its silly to compare HIV to measles or other highly infectious diseases that don’t become the subject of criminal prosecutions.

Society’s continued efforts to reduce transmission rates, including the prosecution of reckless persons who pass it on to others, are at odds with the fact medical advances can render HIV virtually undetectable, he says.

Mills works with a 190 HIV patients under the Waikato District Health Board umbrella and gave expert evidence in the Filitonga trial.

He wouldn’t comment on the case but admitted that he became fascinated with specialising in infectious diseases during his time as a medical student at Otago University when a mysterious illness known only as GRID (gay related immuno deficiency which later became known as HIV) became known in the United States.

Since then he has seen patients die, but many also live normal lives.

“Ask yourself, why do I want to reduce HIV? One, because it forces people to be on medication and treatment for the rest of their life.

“Two, it’s expensive. It costs about $10,000 a year for pharmaceutical and out patient costs. Most people don’t pay that much in tax per year.

“Three, it’s an ongoing epidemic, and there are people that lose in any epidemic. The people that lose out are the people that have barriers to health care.

“We’re not criminalising HIV. We never have. We have existing laws to hold people to account because someone has complained, because they believe they have come to serious harm, and therefore we’re giving them the framework with which to lay a complaint.”

Auckland University law professor Julia Tolmie says case law evolved at a time when HIV was “an inevitable death sentence”.

“That has certainly shifted now. Nonetheless the illness would still fall within the definition of grievous bodily harm, which just means ‘really seriously hurt’ or ‘really serious bodily injury’. Something can be ‘bodily injury’ even if treatment is available to cure or manage it,” she says.

The “real issue” for the courts is whether a person’s HIV positive status has been disclosed to consenting partners.

“I think there is an argument that you could apply the same legal principles to, for example, herpes, which is arguably grievous bodily harm, but may not be considered to be dangerous to life.

“I do not know about the infection process for measles but I imagine one of the difficult issues there would be establishing that a person purposefully risked infecting others—people may well be contagious before they know that they have the illness.

“Of course, there is also the need to have a complainant before criminal charges will be laid. People may well not think of informing the police where someone has deliberately risked infecting them with measles or other illnesses.”

Susan – not her real name – disagrees. Her former partner Darryl Kilpatrick was jailed briefly after he had unprotected sex with her without disclosing his HIV status.

She underwent years of testing before receiving confirmation she hadn’t been infected, but she developed post traumatic stress disorder (PTSD), and attempted suicide.

Susan firmly believes people who inflict HIV on others should be charged with a sexual offence, describing her own experience as akin to being raped.

“The effects are identical to rape and sexual violation. The breach of trust, the health issues—it’s an absolute threat to life and future sexual relationships”.

“It’s been a long, lonely journey and I have to say it’s never ending. It’s been very hard,” says Susan.

She said people “minimised and rationalised” her situation because she hadn’t been infected, and she became frustrated with the lack of support.

“I rang the Wellington sex abuse helpline and the woman on the phone said to me, ‘I don’t know how to help you’. I just screamed at her saying, ‘can’t you see I’ve been sexually violated?'”

Susan later successfully pursued ACC through the High Court in order to get payments for her PTSD, after the agency initially said it didn’t recognise her injury.

The NZAF said prosecutions had the “significant potential” to undermine previous successes in breaking down stigma and discrimination, and reducing HIV incidence rates.

Director Jason Myers said it weakened public health messages of shared responsibility for sexual health and promoted the perception that they are “potential criminals or a threat to innocent’ people”.

“For these reasons, the application of criminal law to the transmission of HIV should be kept for those very few cases in which a person who knows their HIV status has not disclosed this to a sexual partner and acted with the express intent to transmit the virus. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health,” said Myers.

According to Bruning there is a strong difference between keeping personal information secret knowing it won’t affect anyone else, and being reckless or deliberate.

“To me, burying your head in the sand is not is not useful, although I understand how stigma can affect people to an extent they are in denial, but that’s very different to someone who injects their blood (in 2009 an HIV positive man deliberately injected his sleeping partner with his blood to deliberately infect her so they could have sex) into someone else,” said Bruning.

Published in Stuff on April 2, 2017

US: Positive Project Update – March 2017

CHLP Authors Articles on HIV Criminalization for Special Issue of APA’s Psychology and Exchange Newsletter

CHLP staff recently authored two articles for the March edition of the Psychology and AIDS Exchange newsletter from the American Psychological Association. This issue is dedicated to exploring the issue of criminalization of HIV exposure and transmission, and highlights the APA’s commitment to decriminalizing HIV. Executive Director Catherine Hanssens and Staff Attorney Kate Boulton wrote, “When Sex is a Crime and Spit is a Dangerous Weapon: The origins, impact and advocacy response to HIV criminal laws,” which can be read here. Deputy Director Mayo Schreiber penned “An Update on the Prosecution, Conviction and Appeal of Michael Johnson,” which can be read here.

State Advocacy Working Group Updates

CALIFORNIA

On February 6, Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego) introduced SB 239, a bill to modernize California laws that criminalize and stigmatize people living with HIV. The bill is co-sponsored by the ACLU of California, APLA Health, Black AIDS Institute, Equality California, Lambda Legal, and Positive Women’s Network–USA. The organizations are members of Californians for HIV Criminalization Reform, a broad coalition of people living with HIV, health service providers, civil rights organizations, and public health professionals dedicated to ending the criminalization of HIV in California. The full text of the bill can be found here. On March 1, The Center for HIV Law and Policy submitted a letter in support of the bill. A hearing on the bill was held on March 28.

On March 8, Californians for HIV Criminalization Reform and the LGBT Caucus held a legislative briefing about HIV Criminalization at the State Capitol in Sacramento.

If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.

GEORGIA

On February 14, Representative Sharon Cooper (R-Marietta) introduced House Resolution 240, which proposed the creation of a Joint Study Committee on Reforming HIV Related Criminal Laws. However, Cooper presented a substitute on March 24 to the Special Rules committee that significantly weakened the resolution’s initial intent, shifting its focus to health care barriers for a range of chronic conditions, inclusive of HIV, rather than the stark barrier of HIV criminalization. The full text of the current resolution can be found here. On March 20, Senator Fort (D-Atlanta) introduced a parallel resolution in the Senate that proposes the creation of a Senate Study Committee to examine reform of Georgia’s HIV-specific criminal law. In addition to five state senators, that committee would include a representative from the Department of Public Health, as well as a criminal defense attorney, and a community-based HIV service provider. The full text of that resolution can be found here.

Members of the Georgia Coalition to End HIV Criminalization also engaged in advocacy at the state capitol on February 16, educating legislators about HIV criminalization and building support for HR 240.

Next Meeting: Thursday, March 23 from 4:00-6:00pm (ET)

If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Nina Martinez (nina.i.martinez@gmail.com) or Emily Brown (emily@georgiaequality.org) for additional information.

INDIANA

HMM-Indiana is participating in Indiana HIV Advocacy Day on April 12 and will present on HIV criminalization. You can register to attend here. The Steering Committee continues to meet monthly and expand its network. HIV Advocacy Day will be on April 12 at the Indiana Statehouse from 10:00am-3:00pm. You can register here.

Next Steering Committee Meeting: Monday, April 17

If you are interested in information about HIV criminalization in Indiana or in participating, supporting or endorsing HMM-Indiana, visit our get involved page or contact us at hmm.indiana@gmail.com

MISSOURI

The Missouri HIV Justice Coalition (MO HIV JC) drafted a letter to the prosecuting attorney in Michael Johnson’s case requesting that charges not be re-filed. The plan is to submit the letter again in April —organizations that would like to sign on can still do so by contacting Ashley Quinn at ashley@empowermissouri.org .

MO HIV JC will be hosting a Train-the-Trainer event this summer, contact Ashley if you’re interested in receiving training to be equipped to educate your community about HIV criminalization in order to grow grassroots support. We need representatives from across the state and all demographics, prioritizing people living with HIV.

The St. Louis chapter of Empower Missouri is hosting an April 21 forum on the Criminalization of Poverty that will include a panelist speaking about HIV criminalization. The forum runs from 12:00pm-1:30pm at The Highlands Golf Course Inside Forest Park, and 1.5 hours of CEU credits are available. For more info or to RSVP, contact: christine@empowermissouri.org

Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.

If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org.

OHIO

On February 8, CHLP hosted a webinar on Ohio’s HIV felonious assault statute and advocacy strategies to modernize the law. Advocates will use the presentation as a helpful starting point to develop targeted educational materials for different audiences in the state. Planning is also in progress for an in-person convening of Ohio advocates develop an advocacy strategy and focus on expansion of the coalition.

On February 21, advocate Steve Arrington organized a presentation on HIV criminalization for the Ohio Black Women’s Leadership Caucus. The AIDS Taskforce of Greater Cleveland organized a March 10 legislative luncheon to introduce policymakers to the issue of HIV criminalization in the state of Ohio. Ohio advocates and PJP are also in the process of planning a May forum on HIV criminalization that will take place in Columbus, Ohio. More details will be available soon.

The Ohio Recodification Committee reconvened and examined proposed amendments to Ohio’s HIV criminal law on March 2. The Committee will vote on the amendments at a later date.

Next meeting: Wednesday, April 12 at 5:00pm (ET)

If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, contact Kate Boulton at kboulton@hivlawandpolicy.org.

SOUTH CAROLINA

The South Carolina HIV Task Force (SCHTF) held its first 2017 quarterly meeting on February 7 at the Lions Street Student Center in Columbia. The event focused on priority areas of advocacy over the next year and also included a presentation on HIV criminalization in the state. SCHTF also reached out to some legislators to start identifying allies who can support modernization efforts.

The working group is currently in the early stages of planning an in-person meeting so that key stakeholders can come together and develop an advocacy strategy and focus on expansion of the coalition.

Meetings are held on the second Thursday of the month at 2:00pm (ET).

If you would like information on HIV Criminalization or are interested in becoming an advocate with the PJP SC Law Modernization Group, please contact Kate Boulton at kboulton@hivlawandpolicy.org.

TENNESSEE

The Working Group learned in early January that the prospective legislative sponsor for their modernization bill did not want to move forward with the bill this year, but has assured advocates he will support the bill next year. The Working Group will be focusing its energy on outreach and education over the next year to further strengthen its coalition and build support for modernization. Members of the Working Group attended Day on the Hill at the state capitol in February and reported that several legislators are receptive to the idea of supporting a modernization bill next year.

Next Meeting: Thursday, April 27 at 12:00pm (ET)

If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Kate Boulton at kboulton@hivlawandpolicy.org.

TEXAS

Advocates convened monthly through March and participated in HIV Advocacy Day at the state capitol on February 28. In mid-December, a bill was proposed to create a new offense of Indecent Assault. Although bill sponsors emphasized that the bill is merely an anti-groping law, advocates had concerns about how language in the proposed bill could have unintended consequences for PLHIV. Advocates were able to meet with legislators, who agreed to include language clarifying the bill’s legislative intent.

Lacresha Craig remains in the Dallas County jail and there is has been no response from the Dallas District Attorney (DA) to a letter sent by advocates at the end of last year. Advocates agreed during their last call to draft an op-ed highlighting the injustice of Craig’s case, and will continue reaching out to the DA.

Meetings are held on the third Friday of the month at 1:00pm (CT).

If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Kate Boulton at kboulton@hivlawandpolicy.org

CHLP’s assistance in criminal cases includes counseling defendants and their families, referring defendants to attorneys, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.

MISSOURI

On December 20, 2016, the Missouri Court of Appeals for the Eastern District overturned Michael Johnson’s conviction and remanded the case for retrial. On February 14, 2017, the State of Missouri filed an application for transfer of Johnson’s case to the Missouri Supreme Court. If the court rejects the case, then it will be remanded for retrial, as decided by the Court of Appeals last year, meaning the prosecution can pursue a new trial or drop the case. If the court accepts the case, there will be an opportunity for briefing, oral argument, and then a decision after that, which could take several months. Stay informed on developments in this case with our newly updated fact sheet and case timeline, which can be found here.

OHIO

Orlando Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. In October 2016, the Supreme Court of Ohio accepted his appeal for review. In December 2016, CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national HIV, LGBT, health professional and criminal justice organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio, challenging the Ohio felonious assault statute on the grounds that it violated the Constitutional Guarantee of Equal Protection and federal prohibitions against discrimination on the basis of disabilities. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. Both Batista and the State of Ohio have submitted merit briefs for the court’s consideration. The Ohio Attorney General submitted a friend-of-the-court brief in support of the State of Ohio. A decision from the court is expected in 2017.

If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org, and/or have them or their lawyer contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.

US: Promising development for Georgia advocates as State lawmakers create committee to assess HIV laws

Georgia lawmakers poised to study HIV decriminalization

Advocates for decriminalizing HIV in Georgia saw small wins last week as two measures from state lawmakers that would create committees to study the issue moved closer to passage.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, testified about one of the measures before the House Special Rules Committee on Wednesday.

“Our HIV non-disclosure statute makes it a felony crime for me not to disclose my HIV-positive status before engaging in private consensual conduct, without regard to whether or not measures are taken to prevent HIV exposure and transmission. Without harming anyone or intending to harm anyone, I could face up to 10 years of imprisonment,” Martinez told the committee.

In Georgia, HIV criminalization laws make it a felony for an HIV-positive person to engage in sex without first disclosing their status. The laws also criminalize acts like spitting when the behavior is directed at law enforcement officers with penalties that include up to 20 years in prison.

Rep. Dominic LaRiccia, a Republican from Douglas, challenged Martinez on her statement.

“Would you share briefly a specific instance, personally, of where you have been discriminated against and how it impacted your ability to move freely and do all the things that you do?” LaRiccia asked.

Martinez responded by discussing being the victim of an attack that she decided against reporting to law enforcement over concerns about her HIV status.

“About nine years ago I was sexually assaulted by an Emory undergraduate student. I was at Emory for graduate school, and because of this law I immediately knew that I wasn’t going to report it to law enforcement,” Martinez said.

“It was never going to be about consent, it was going to be about my HIV status. And so I was afraid of the very real possibility of going to prison for my own sexual assault because of this law,” she added.

Martinez also spoke on a panel about HIV decriminalization in November.

Rep. Buddy Harden, the Republican chair of the committee, quickly thanked Martinez for her testimony and the committee voted to approve the resolution. The measure, House Resolution 240, is from Rep. Sharon Cooper, a Marietta Republican.

But the resolution that passed last week was a watered down version of what Cooper initially proposed in February. It called for the creation of a Joint Study Committee on Reforming HIV Related Criminal Laws but was pared back to propose a House-only committee that will investigate reforms needed to address a variety of chronic illnesses, including HIV, as well as asthma, obesity, shingles and influenza.

The new language now calls on the study committee to “assess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose,” in addition to addressing the other chronic health issues.

Cooper’s revised resolution also states:

“WHEREAS, identifying the barriers to HIV awareness, testing, and early linkage to care would be in the state’s best interest; Georgia ranks fifth in the nation for new HIV diagnoses; the Atlanta-Sandy Springs-Marietta area is listed as eighth in cities with the highest rate of new HIV infection; it is estimated that one in 51 Georgians are at risk of contracting HIV in their future.”

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. It is too late in the session to gain approval for a joint study committee – one that includes House and Senate members – so the measure approved last week was limited to a House study committee. That means it only needs House approval to create the nine-member study committee that would include five lawmakers and four health experts.

With just two days – Tuesday and Thursday – left in the session, it’s not clear if Cooper’s resolution will see a full House vote.

The other promising study committee is from Sen. Vincent Fort (photo), an Atlanta Democrat who introduced Senate Resolution 465. That resolution would create a nine-person panel and includes language from Cooper’s original resolution:

“[M]any of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

Fort’s resolution received a favorable recommendation from a Senate committee but it’s not clear if the Senate Rules Committee will push the resolution to the full Senate for a vote.

LGBT and HIV activists have blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

In February, state lawmakers joined with LGBT and HIV activists during a public hearing to explore the impact of the HIV epidemic among black Georgians as well as HIV criminalization laws.

Published in Project Q Atlanta on March 29, 2017

US: Two congresswomen, co-chairs of the HIV caucus in Congress, teamed up to introduce a bill aiming to modernise HIV laws

Ileana Ros-Lehtinen Wants to Change HIV/AIDS Laws

By KEVIN DERBY

March 29, 2017 – 9:45am

A South Florida Republican congresswoman is urging the federal government, the states and local governments to “modernize laws and policies to eliminate discrimination against those living with HIV/AIDS.”

U.S. Rep. Ileana Ros-Lehtinen, R-Fla., and U.S. Rep. Barbara Lee, D-Calif., are the co-chairs of the HIV Caucus in Congress. This week, Ros-Lehtinen and Lee teamed up to bring out the “Repeal HIV Discrimination Act.”

“This bill expresses the sense of Congress that federal and state laws, policies, and regulations should not place a unique or additional burden on individuals solely as a result of their HIV status, and offers a step-by-step plan to work with states to modernize their laws,” Ros-Lehtinen’s office announced.

Ros-Lehtinen made the case for why the bill was needed.

“The fear and stigma surrounding HIV have led to a number of criminal statutes and penalties that do not improve public health,” Ros-Lehtinen said. “Since the establishment of laws which unfairly penalize individuals living with HIV, we have made great medical advances that prove that antiretroviral therapy can reduce HIV transmission risk. My colleague, Barbara, and I are introducing the REPEAL HIV Discrimination Act in order to help eliminate needless and harmful statues and regulations which only shame individuals without providing meaningful benefits for HIV prevention and care.”

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred. Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By passing this legislation, Congress would send a signal that discrimination and stigma have no place in our laws,” said Lee. “I am grateful for the continued partnership of my friend and colleague, Congresswoman Ros-Lehtinen, in the fight to ensure that all are able to live with dignity and respect, and to one day achieve an AIDS-free generation.”

The two congresswomen pointed to more than 33 states and two territories which, they insist, “have criminal statutes based on outdated information regarding HIV/AIDS.”

The caucus has more than 70 members in both the House and the Senate including Florida Democrats U.S. Rep. Kathy Castor, Ted Deutch, Alcee Hastings, Debbie Wasserman Schult and Frederica Wilson.

"HIV can be prevented or it can be prosecuted, but not both" writes Sean Strub in a new book on the war and stigmatisation of sex

HIV: Prosecution or Prevention? HIV Is Not a Crime

A chapter from the book The War on Sex edited by David M. Halperin and Trevor Hoppe.

Iowan Nick Rhoades is HIV-positive and has had an undetectable viral load for many years, making it virtually impossible for him to sexually transmit the virus. When he had sex with a man he met online in 2008, he also used a condom. Despite these protective measures, Rhoades was prosecuted and convicted for not disclosing his HIV status to his partner before they had sex. He was sentenced to 25 years in prison and lifetime sex offender registration.

Willy Campbell is serving 35 years in Texas for spitting at a police officer; David Plunkett served over six years in a New York state prison before an appeals court ruled that saliva could not be considered a “deadly weapon” in New York State. Monique Howell Moree was charged by the U.S. Army for failing to disclosure her HIV-positive status to a partner in South Carolina before having sex with him, even though the partner said he didn’t want her charged and that she told him to use a condom. Kerry Thomas is serving 30 years in Idaho, even though his accuser agrees that he always used a condom.

All over the United States — and in much of the world — people living with HIV/AIDS (PLHIV) are facing criminal penalties for nondisclosure of their HIV status prior to having sex or for perceived or possible exposure to, or transmission of, HIV. About two-thirds of U.S. states have HIV-specific criminal statutes, laws that only apply to PLHIV.

Most people believe the law should apply equally to all and that creating different statutes for different parts of society based on immutable characteristics — whether it is gender, sexual orientation, race, physical ability, or genetic makeup — is a bad idea. Yet here we are doing exactly that, creating a viral underclass in the law with one group singled out for different treatment.

Sero Project, a network of PLHIV combating HIV criminalization, has documented more than 1,300 instances of charges led under HIV-specific statutes. But HIV criminalization isn’t constrained by geography; in every state, regardless of whether there is an HIV-specific statute, PLHIV can and often do face more serious charges or harsher sentencing under regular criminal statutes than do HIV-negative individuals accused of the same crimes. Texas and New York do not have HIV-specific statutes, but as mentioned, have incarcerated PLHIV because they considered their saliva dangerous.

These statutes and prosecutions create an illusion of safety for those who do not have HIV or do not know their HIV status, putting the entire burden of HIV prevention on those who have been tested and know they have HIV. The statutes undercut the fundamental public health message that HIV prevention is a shared responsibility and that everyone should act in such a way as to maintain their own health and protect themselves from contracting HIV or other sexually transmitted infections.

Decades-long sentencing and required sex offender registration are not unusual punishments for HIV-related crimes in the United States, even though actual HIV transmission is seldom (less than 5 percent of cases) a factor in these prosecutions. Many cases boil down to whether the PLHIV can prove they disclosed their status to their partners in advance of intimate physical contact; it doesn’t matter whether there was even a risk of HIV transmission. People living with HIV charged under prostitution or assault statutes frequently face significantly more severe penalties solely because they have HIV. They sometimes face charges for spitting, scratching, or biting that are “pile-on” charges, driven by accusations made by law enforcement, first responders, or prison guards.

The first HIV criminalization laws in the United States were passed in the late 1980s and early ’90s, largely in response to a provision of the Ryan White Care Act that required states, in order to qualify for funding, to demonstrate an ability to prosecute what was then labeled “intentional transmission.” At the time many considered any intimate contact with an HIV-positive person a life-threatening risk; contracting HIV was believed by many to be tantamount to a death sentence.

A second wave of statutes was enacted after the introduction of combination therapy in the mid-1990s, which fundamentally changed what an HIV-positive diagnosis meant. What was once thought a death sentence had become a chronic but manageable long-term health condition.

As it became understood that PLHIV were surviving much longer, the public’s perception of PLHIV also changed. Rather than objects of pity facing a “death sentence,” PLHIV became seen as viral vectors, potential infectors — an inherent threat to society. Living longer meant PLHIV would be around longer to infect others.

The criminal justice and public health systems began to define and treat PLHIV as a dangerous population, one that needed to be sought out, tracked down, tested, reported, listed, tagged, monitored, regulated, and, increasingly, criminalized.

While the statutes were used in the early years disproportionately often against heterosexual African American men (often in conjunction with other criminal charges), today they are used more broadly, typically in circumstances where there was no intent to harm, often when there was no other crime involved, and frequently for behaviors that pose no or little risk of HIV transmission.

Beyond the blatant injustice, HIV criminalization is also horrible public health policy, because it discourages people at risk from getting tested for HIV and makes those who do test positive less trustful of public health authorities.

To be liable for prosecution, one must get tested for HIV and know one’s HIV status. Current HIV criminalization punishes this responsible behavior — getting tested — and privileges the ignorance of not knowing one’s HIV status. Yet new cases of HIV are transmitted in disproportionate numbers by those who have not been tested and do not know they have it; those who do get tested and know they have HIV are far less likely to transmit HIV than those with HIV who do not know it.

Although the HIV-specific statutes were passed by state legislatures with the intent to reduce HIV transmission, the evidence increasingly shows that the statutes may be having the reverse effect.

The Sero Project’s 2012 survey of more than 2,000 PLHIV in the United States revealed that at least 25 percent of the respondents knew one or more individuals who were afraid to get tested for fear of facing criminalization. Research has shown that HIV criminalization makes those who do test positive for HIV less likely to cooperate with traditional disease prevention measures, like partner notification programs, or with treatment adherence programs. Most recently, a study found that HIV-negative gay men who knew they lived in a state with an HIV criminalization statute were more likely to engage in unprotected intercourse.

Repeal of HIV criminalization statutes is necessary both to protect the rights of people with HIV and to reduce the transmission of HIV.

An individual who demonstrates a premeditated malicious intent to harm another person can be prosecuted under existing assault statutes, whether they use a gun, a baseball bat, their fists, or a virus. The HIV-specific statutes are unnecessary and, worse yet, they stigmatize people with HIV/AIDS, discourage people at risk from accessing testing and treatment services, and feed a public bloodlust for punishment. In short, they are worsening the epidemic.

The prevention of HIV — or preventing any sexually transmitted infection — is a shared responsibility, but that does not mean there is not harm inflicted when someone misleads another person and transmits an infectious disease. In those circumstances, the injured party may seek recourse in the civil courts or possibly through a restorative justice process.

In any case, incarceration of PLHIV does not necessarily prevent further HIV transmission, as there is significant HIV transmission within penal environments, where condoms are seldom available.

Advocacy to repeal HIV-specific statutes, modernize public health statutes concerning perceived or possible exposure to, or transmission of, HIV and other infectious diseases, and educate law enforcement, prosecutors, and other actors in the criminal justice system has been under way for several years.

A network of survivors of HIV criminalization prosecutions, launched in 2010, has helped to educate and mobilize affected communities. This HIV criminalization reform advocacy has received support from public health professionals and policy leaders, including the Presidential Advisory Council on HIV/AIDS, the National Alliance of State and Territorial AIDS Directors, UNAIDS, and the American Medical Association.

The first national conference on HIV criminalization in the United States was held in June 2014 at Grinnell College in Grinnell, Iowa. Organized primarily by PLHIV — including participation by a dozen PLHIV who had been prosecuted for “HIV crimes” — the conference included participants from 28 states. It focused on how HIV criminalization affects communities of color, transgender women, sex workers, and gay men. It also showed the impact of HIV criminalization on how members of those communities (and others) access HIV prevention, testing, and treatment and whether they decide to disclose their HIV status. Finally, the conference highlighted effective strategies for reform.

The only state, so far, to modernize their statute substantively in recent years has been Iowa, where the conference was held. After a four-year education and lobbying effort led by Nick Rhoades and other PLHIV in the state, the Iowa legislature repealed its HIV-specific statute in 2014. The legislature replaced it with a new statute that addressed several infectious diseases, required a higher standard of intent to harm, and established tiered punishments. Similar efforts are under way in about a dozen states. A few weeks later, the Iowa Supreme Court overturned Rhoades’s conviction and removed the sex offender registration requirement for all others previously convicted under the Iowa statute.

HIV criminalization is an extreme manifestation of stigma. That is particularly true of HIV-specific statutes that create a viral underclass in the law, establishing a different criminal law for one segment of society based on an immutable characteristic. Despite the biomedical advances in the treatment of HIV, HIV-related stigma remains stubborn, driven in significant part by HIV criminalization.

It is time we learned a basic lesson: HIV can be prevented or it can be prosecuted, but not both.