US: Hillary Clinton: "We should call on states to reform outdated and stigmatizing HIV criminalization laws."

Yesterday, at Nancy Reagan’s funeral, I said something inaccurate when speaking about the Reagans’ record on HIV and AIDS. Since then, I’ve heard from countless people who were devastated by the loss of friends and loved ones, and hurt and disappointed by what I said. As someone who has also lost friends and loved ones to AIDS, I understand why. I made a mistake, plain and simple.

I want to use this opportunity to talk not only about where we’ve come from, but where we must go in the fight against HIV and AIDS.

To be clear, the Reagans did not start a national conversation about HIV and AIDS. That distinction belongs to generations of brave lesbian, gay, bisexual, and transgender people, along with straight allies, who started not just a conversation but a movement that continues to this day.

The AIDS crisis in America began as a quiet, deadly epidemic. Because of discrimination and disregard, it remained that way for far too long. When many in positions of power turned a blind eye, it was groups like ACT UP, Gay Men’s Health Crisis and others that came forward to shatter the silence — because as they reminded us again and again, Silence = Death. They organized and marched, held die-ins on the steps of city halls and vigils in the streets. They fought alongside a few courageous voices in Washington, like U.S. Representative Henry Waxman, who spoke out from the floor of Congress.

Then there were all the people whose names we don’t often hear today — the unsung heroes who fought on the front lines of the crisis, from hospital wards and bedsides, some with their last breath. Slowly, too slowly, ignorance was crowded out by information. People who had once closed their eyes opened their hearts.

If not for those advocates, activists, and ordinary, heroic people, we would not be where we are in preventing and treating HIV and AIDS. Their courage — and their refusal to accept silence as the status quo — saved lives.

We’ve come a long way. But we still have work to do to eradicate this disease for good and to erase the stigma that is an echo of a shameful and painful period in our country’s history.

This issue matters to me deeply. And I’ve always tried to do my part in the fight against this disease, and the stigma and pain that accompanies it. At the 1992 Democratic National Convention, when my husband accepted the nomination for president, we marked a break with the past by having two HIV-positive speakers — the first time that ever happened at a national convention. As First Lady, I brought together world leaders to strategize and coordinate efforts to take on HIV and AIDS around the world. In the Senate, I put forward legislation to expand global AIDS research and assistance and to increase prevention and education, and I proudly voted for the creation of PEPFAR and to defend and protect the Ryan White Act. And as secretary of state, I launched a campaign to usher in an AIDS-free generation through prevention and treatment, targeting the populations at greatest risk of contracting HIV.

The AIDS crisis looks very different today. There are more options for treatment and prevention than ever before. More people with HIV are leading full and happy lives. But HIV and AIDS are still with us. They continue to disproportionately impact communities of color, transgender people, young people and gay and bisexual men. There are still 1.2 million people living with HIV in the United States today, with about 50,000 people newly diagnosed each year. In Sub-Saharan Africa, almost 60 percent of people with HIV are women and girls. Even though the tools exist to end this epidemic once and for all, there are still far too many people dying today.

That is absolutely inexcusable.

I believe there’s even more we can — and must — do together. For starters, let’s continue to increase HIV and AIDS research and invest in the promising innovations that research is producing. Medications like PrEP are proving effective in preventing HIV infection; we should expand access to that drug for everyone, including at-risk populations. We should call on Republican governors to put people’s health and well-being ahead of politics and extend Medicaid, which would provide health care to those with HIV and AIDS.

We should call on states to reform outdated and stigmatizing HIV criminalization laws. We should increase global funding for HIV and AIDS prevention and treatment. And we should cap out-of-pocket expenses and drug costs—and hold companies like Turing and Valeant accountable when they attempt to gouge patients by jacking up the price of lifesaving medications.

We’re still surrounded by memories of loved ones lost and lives cut short. But we’re also surrounded by survivors who are fighting harder than ever. We owe it to them and to future generations to continue that fight together. For the first time, an AIDS-free generation is in sight. As president, I promise you that I will not let up until we reach that goal. We will not leave anyone behind.

Canada: Latest unjust HIV non-disclosure conviction highlights everything that’s wrong with Canada’s approach

Analysis: Canada’s newest sex offenders

On March 1, a 29-year-old indigenous woman in Manitoba was sentenced to prison for the crime of aggravated sexual assault. More than four years ago, Marjorie Schenkels had sex without a condom with a friend on three occasions. Schenkels did not disclose the fact that she is HIV-positive. Schenkels, a survivor of sexual violence in both her family and relationships, is now registered as a sex offender and will spend the next two years in jail.

This is where the Supreme Court of Canada, and prosecutors, have brought us with their overly broad use of criminal law when it comes to HIV. Because of a series of much-criticized decisions that equate HIV non-disclosure before sex with sexual assault, indigenous women living with HIV are now a new face of sexual offender in this country.

Schenkels’ case is a window into this miscarriage of justice. As in many other cases of HIV non-disclosure, the sentencing judge found that there was no lie, manipulation or exploitation by Schenkels. Rather, her silence was the result of fear and denial. Nor was there any evidence that she actually transmitted the virus to the complainant who has since tested positive for HIV. But because the Supreme Court ruled that HIV non-disclosure before sex can amount to fraud invalidating consent to sex, people living with HIV can be convicted of aggravated sexual assault — an offence usually reserved for the most violent cases of sexual assault — even if the sex was neither forced nor coerced, there was no intention to harm and HIV was not transmitted.

Criminalizing HIV non-disclosure is often perceived as a means of protecting women. This perception is reinforced by the fact that the charge used to prosecute people for not disclosing the fact they have HIV is sexual assault. But criminalizing HIV non-disclosure does not protect women from HIV, nor from gender-based violence nor the inequality in which it is rooted. What it does do is put women living with HIV — especially those in abusive relationships — at increased risk of violence, abuse and prosecution. For many indigenous women, particularly those surviving a legacy of colonization and the intergenerational effects of residential schools, the overly broad criminalization of HIV non-disclosure has only institutionalized another form of violence against them.

As of today, at least 17 women living with HIV have been prosecuted for HIV non-disclosure in Canada. Most of them were already living on the margins, already facing a greater risk of acquiring HIV and making it even more challenging to disclose their status. Some of those women, like Schenkels, are indigenous; also like her, some are survivors of sexual or other violence. Many were and are living in poverty or with little income security. Some had precarious immigration status. Add to this marginalization the dilemma of revealing a heavily stigmatized status such as being HIV-positive or facing criminal charges for one of the most serious offences in the Criminal Code. This bind does not help or protect women.

When a person does not disclose they have HIV, it is usually not about asserting force over another person in order to gain sexual gratification, but rather the result of fear of violence or other harm, rejection or denial. By associating HIV non-disclosure with sexual assault, we are both harming people living with HIV and seriously undermining the law of sexual assault. These concerns are not limited to the HIV community. Feminist scholars and advocates are also questioning the value of such use of the law, as captured in a new documentary film, Consent: HIV non-disclosure and the law of sexual assault. (see below; the image above is a still from the film).

As one of the film’s experts asks, “What does it do to our understanding of sexual assault law as a vehicle to promote women’s equality if the new faces of sex offenders are young, racialized, aboriginal or street-involved women?” It is a bitter irony that Consent was publicly screened in Winnipeg the day of Schenkels’ sentencing hearing.

Schenkels’ case brings Canadians, once again, face to face with the cruelty of a justice system that not only fails to protect women from sexual violence, but also ensnares the most vulnerable, despite their efforts to overcome their struggles. Schenkels is taking responsibility for her life and her former actions. She is married and a caregiver to her partner’s child, and she is accessing HIV care. Even the sentencing judge acknowledged she was considered “a viable candidate for community supervision” rather than imprisonment. Nevertheless, she will spend the next two years in an institution notorious for its limited resources for addressing the health needs of its population, especially those living with HIV. It’s a tragic illustration of how equating HIV non-disclosure with sexual assault makes women less safe and simply multiplies the forms of systemic violence that women living with HIV suffer.

Cécile Kazatchkine is a senior policy analyst and Vajdon Sohaili is director of communications for the Canadian HIV/AIDS Legal Network. Laverne Gervais is the project co-ordinator of Sisters of Fire at Ka Ni Kanichihk.

This piece was originally published in the Winnipeg Free Press.

Consent: HIV non-disclosure and sexual assault law from AIDSLAW on Vimeo.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network

US: Powerful new report on impact of criminal justice system on LGBT people highlights unjust HIV-related prosecutions; lawmaker calls for repeal of Michigan's 'outdated' HIV-specific criminal law

A new report from the independent Movement Advancement Project in Washington DC is shining a light on the plight of LGBT people caught up in the nation’s criminal justice system — and it is not pretty.

“It used to be a crime to be LGBT in the United States, and while police are no longer raiding gay bars, LGBT people, especially LGBT people of color, are still disproportionately pushed into the criminal justice system. They are treated unfairly within the system and in correctional settings, and face extraordinary challenges in rebuilding their lives,” said Ineke Mushovic, Executive Director of MAP.

The report finds that twice as many people incarcerated identify as LGBT or gender non-conforming than Americans who identify as such. The numbers are even more skewed in relation to juveniles, the report found.

“I’m glad that MAP is bringing to light the critical issue of LGBT people in the criminal justice system,” State Rep. Jon Hoadley, D-Kalamazoo, said in an interview with BTL. Hoadley is one of two openly gay state lawmakers working in Lansing. “This report shows that our work is not done.”

He noted that Michigan continues to have laws which are used to discriminate against members of the LGBT and HIV affected communities. He noted the child welfare system in the state continues to foster discrimination and noted Michigan’s HIV-specific criminal laws. Michigan adopted a new law last year which allows private, religious adoption agencies to refuse to help otherwise qualified adoptive parents based on “sincerely held religious beliefs.”

State Sen. Steve Bieda, D-Warren, said the report was important. He’s been working with the GOP majority to address criminal justice reform in the state as the only Democrat on the Senate Judiciary Committee.

“We need to make sure that justice is blind,” Bieda said in a phone interview. “We need to make sure that justice is actually just.”

He called for a repeal of Michigan’s HIV-specific criminal law, which he called “outdated,” and also said the state needs to remove obsolete laws that are no longer enforceable because they have been declared unconstitutional.

“When we’re talking about reforming a complexing system, like this, you need a yes and strategy,” said Hoadley. He called on lawmakers to repeal obsolete laws as well as laws — such as the gross indecency laws — which criminalize otherwise consensual sexual activity between adults.

Bieda said he would like to have representatives of MAP come to a Senate Judiciary Committee to brief state lawmakers on the findings of the report and possible solutions. Hoadley applauded that idea.

“This would be a great opportunity to have a joint committee meeting,” between House and Senate Judiciary Committees, he said. “We could also have policy meetings on this.”

The chair of the Senate Judiciary Committee, State Sen. Rick Jones, R-Grand Ledge, said the Senate cannot solve all the issues with the criminal justice system but did call for more training by law enforcement related to LGBT related issues. He’s a former county sheriff.

“I also support clean slate legislation,” Jones said. Those laws would allow those convicted of non-violent crimes to wipe their records clean after a set amount of time.

Hoadley said Jones’ idea was certainly on track to addressing reintegration of those convicted of crimes and sentenced to prison into society.

“We have to really think about how we integrate people into society after their rehabilitation,” he said. He discussed working with a person living with HIV who was convicted under Michigan’s HIV-specific law. That person was being forced to disclose their HIV status as a result of having to disclose the felony conviction to potential employers. It significantly limited that person’s job prospects.

MAP officials were pleased to hear Michigan lawmakers were taking the report seriously.

“A goal of this report is to lift up the ways in which LGBT people interact with the criminal justice system to ensure comprehensive reforms,” said Naomi Goldberg, Policy Analyst for the Movement Advancement Project. “Legislative efforts to reduce recidivism rates, such as clean slate legislation combined with vital protections against discrimination, would greatly improve the lives of formerly incarcerated LGBT people. And training, ongoing education and improved procedures for law enforcement, court staff, prison and staff, and probation and parole officers would greatly improve the safety of LGBT people.”

Czech Officials Launch Criminal Investigation Into 30 Gay Men Over HIV Exposure

Canada: Academic article explores problematic police and media practices relating to allegations of HIV non-disclosure, proposes solutions

Kyle Kirkup explores Canadian police and media practices that stigmatize people living with HIV (PLWH) and facilitate the public’s belief that HIV and PLWH are dangerous. In support, Kirkup analyzes the 2010 case of an Ottawa man living with HIV arrested for sexual assault, which involved the public release of the man’s identity, photo, sexual health, and sexual encounters in an article headlined “Have you had sex with this man?”

The ensuing discourse of gay male sexuality using tropes from the HIV epidemic in the 80s illustrates, Kirkup argues, how a lack of police and media regulation and education continue to produce a punitive and isolating environment for PLWH.

Kirkup proposes several strategies for reform, including expanding publication bans and non-disclosure legislation, changing police ethics to keep private information out of the hands of journalists, educating journalists and public officials about the medial realities of HIV transmission risk and medical prognosis, and abandoning the “aggravated sexual assault” charge based on HIV status.

Australia: Academic article explores the prevention impact of treatment on criminal 'exposure' laws and prosecutions

Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response. It also raises normative questions about what constitutes ‘safe(r) sex’ if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is ‘protected’ by undetectable viral load.

Is Louisiana's 'AIDS exposure' statute outdated? Advocates say it needs an update

Richard Covington of Baton Rouge 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.

Coalition Pushes To Soften HIV Laws In California

A coalition including the American Civil Liberties Union and Equality California have joined together in an effort to change certain state laws they say criminalize people living with HIV. At a forum held in Fresno last week, a dozen activist and medical professionals talked about a number of goals including reducing the penalty for intentionally spreading HIV from a felony to a misdemeanor.

“We believe the punishment is not proportionate to the crime,” says Craig Pulsipher, with the AIDS Project Los Angeles.

“I would just point to similar offenses that are felony in California statutes. This puts intentional transmission of HIV on par with voluntary manslaughter and so we really believe a misdemeanor is sufficient consequence,” he says.

The group also wants to repeal a handful of laws including being charged with a felony for soliciting sex while knowingly having HIV. In this case, the law doesn’t require any sexual contact or transmission of HIV just the act of soliciting while being positive. Other laws make it a felony for HIV positive people to donate blood or breast milk. In many cases, people convicted under these laws could face jail time.

Dr. Simon Paul with Community Regional Medical Center specializes treating those with HIV and AIDS in the Central Valley. He says these laws aren’t up to date with modern science.

“A lot of these things are crime even if no harm was done,” Paul says. “The fact that if you have HIV, and if you sleep with someone you’re practically at zero risk if you’re on treatment. The way the laws are written now it’s just as bad as if the person had HIV in the 80’s and had no treatment. That’s the part to me seems the craziest.”

Today people living with HIV can take a pill on a daily basis to reduce the amount of the virus in their body to minimal levels. Paul says this makes the patient highly unlikely to pass the virus to someone else.

With the current state laws dealing with HIV, a person can only be convicted of charges if they are aware of their status. Paul says this creates unintended consequences.

“These laws make people less likely to get tested and into care which is the way you’ll actually get HIV to decrease. I think the laws are passed out of fear and not helpful at this point,” he says.

In Fresno County alone, only around half of those living with HIV are linked intro treatment. And there many that don’t know their status.

Many advocates like Pulsipher say these laws actually discourage people from getting tested.

“Some of these sites that specifically talk about HIV criminalization laws, one of the pieces of advice they give is: the best way to not be prosecuted under these statutes is to not know their HIV status. So that’s the exact opposite of what we would like to do. We want to encourage people to know their status.”

The coalition is hosting forums throughout the state and they’re working on a bill they plan to introduce next year in Sacramento.