Windhoek, 22 August 2013 – The AIDS and Rights Alliance for Southern Africa (ARASA), a partnership of 73 non-governmental organizations working in southern and east Africa, has noted with concern reports that several SADC leaders lauded mandatory HIV testing as a viable strategy to curb the spread of HIV during a meeting of Heads of State and Government on AIDS Watch Africa, held on 17 August on the sidelines of the 33rd SADC summit in Lilongwe, Malawi.
US: Sero Project and Transgender Law Center highlight the threat to transgender health created by HIV criminalisation
People living with HIV (PLHIV) who identify as transgender or third sex are more likely than any other group to feel that it is reasonable to avoid HIV testing (58%), disclosure of one’s HIV positive status to sex partners (61%) or accessing HIV treatment (48%) because of fear of HIV criminalization and distrust of the U.S. criminal justice system. The new findings from the National HIV Criminalization Survey were presented at the National Transgender Health Summit on May 15, 2013.
“These findings don’t surprise us,” said Cecilia Chung, Senior Strategist at the Oakland, California-based Transgender Law Center. “The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.” Chung was the first trans woman elected to chair the San Francisco Human Rights Commission, and she is currently a board member of the Global Network of People Living with HIV (GNP+).
More than 3,000 people living with and affected by HIV participated in the National HIV Criminalization Survey from June to August 2012, conducted online by the Sero Project in conjunction with Eastern Michigan University. The principal investigator, Laurel Sprague, is the Sero Project’s Research Director, Regional Coordinator of GNP+ North America, and a PhD candidate at Wayne State University in Detroit, Michigan.
Sprague noted, “Laws that criminalize non-disclosure of HIV status raise key issues about community norms, expectations of fair treatment by authorities, privacy and the increased vulnerability of certain communities.”
While the results revealed that HIV criminalization can discourage HIV testing—nearly 25% of HIV-positive respondents said that they knew one or more people who did not get tested for fear of criminal prosecution—when researchers returned to the survey results to closely examine transgender and third sex responses, they found that these particular respondents faced increased levels of vulnerability in relation to the U.S. justice system.
The majority of transgender and third sex respondents living with HIV (57%) reported that they feared false accusations of non-disclosure either a few times or frequently—a figure higher than that of any other group surveyed. Only 14% of transgender and third sex respondents living with HIV felt that a U.S. person living with HIV could get a fair court hearing if accused of non-disclosure.
When transgender and third sex respondents were asked their opinions about HIV criminalization, two out of three respondents (67%) said that non-disclosure of HIV status should not be criminalized. When asked if a sex worker living with HIV should disclose to clients, most transgender and third sex respondents (41%) said it depends on the circumstances. In fact, transgender and third sex respondents were the most likely to focus on the context (“it depends on the circumstances”) when determining whether there should be criminal charges for non-disclosure related to sex, drug use or sex work.
The transgender community’s historically fraught relationship with public health authorities, law enforcement and the criminal justice system also likely affects transgender and third sex attitudes about HIV criminalization.
Sprague shared a range of quotes from the survey to illustrate various nuanced transgender and third sex experiences and opinions regarding HIV criminalization:
• One trans woman explained why she didn’t press charges for non-disclosure: “In order to file charges, I [would have] had to disclose my rape, my [HIV] status and I would have to give up my privacy and be subjected to public scrutiny.”
• A third sex respondent said, “I think in cases of rape, incest and other power- or force-related situations, prosecutions should go forward. Otherwise, NO!”
• Another trans woman said that she didn’t press charges for non-disclosure because of the “difficulty in proving in court that he had infected me—and also accepting that we took equal risk in being intimate without protection.”
For policy makers and public health workers, the transgender and third sex responses to Sero’s National HIV Criminalization Survey should raise concern, especially the survey results that show increased barriers to HIV testing and treatment, as well as deep feelings of legal vulnerability due to HIV criminalization.
The responses highlight a critical need for access to legal education and legal services, safe and confidential locations for accessing health care, and support for spaces where transgender people living with HIV can share their experiences, provide mutual support, and work together to identify resilience strategies and advocacy priorities.
UNAIDS launches first-ever Judicial Handbook on HIV, Human Rights and the Law: Interview with UNDP's Mandeep Dhaliwal
The meeting also looked at specific actions that can be taken by Judges, to create a more supportive environment for people with HIV and key populations that are at-risk. UNAIDS also launched the first-ever Judicial Handbook on HIV, Human Rights and the Law at the meeting.
Canada: HIV groups upset because attorney general has no plans to consult them on prosecutorial guidelines
The Ontario government is writing guidelines for criminal prosecutions of HIV-positive people who don’t disclose their status before having sex, according to the Ministry of the Attorney General.
REPEAL Legislation Seeks to End HIV Criminalization
REPEAL Legislation Seeks to End HIV Criminalization Spurred by the harsh criminal sentences implemented under an outdated law, on May 7, Representatives Barbara Lee (D-California) and Ileana Ros-Lehtinen (R-Florida) introduced the bipartisan legislation the REPEAL (Repeal Existing Policies That Encourage and Allow Legal) HIV Discrimination Act.
Interview with Iowa’s Tami Haught on building a broad law reform coalition
Meet Tami Haught: Iowa’s Anti-Criminalization Advocate
Tami Haught explains how, with the support of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) and hundreds of Iowans living with HIV, she helped build a broad coalition to reform Iowa’s HIV criminalization statute, Iowa Code 709C. Haught discusses the small victories that the coalition has won over the past year.
What is the current HIV-specific law in Iowa and how does it affect Iowans living with HIV?
The old joke in Iowa is that if you’re HIV-positive and you go to a bar, make sure to bring a notary public with you, that way you can have your disclosure letter notarized to prove that you did disclose your status before you had sex. But this law is no joke, because it has negative public health consequences.
Under Iowa’s Code 709C you may be subjected to prosecution if you cannot prove that you disclosed your positive status to a partner, regardless of intent, regardless of condom use, regardless of an undetectable viral load, regardless of transmission, and the sentences can be very severe.
What are the negative public health consequences of Iowa’s HIV criminalization law?
The latest research shows that HIV criminalization legislation, like Code 709C, discourages HIV testing, treatment and care, which works against the public health recommendations being proposed by experts.
Can you tell me about your work to repeal and reform this legislation?
The bill that was proposed eliminated the HIV-specific part of the current law by including hepatitis, tuberculosis and meningitis. The proposed law would also create a tiered system of sentencing, which maintains severe sentencing in cases of intentional transmission of HIV but allows lesser sentencing in cases of nondisclosure when a condom was used, when there was no intent, or when HIV was not transmitted.
We also included direct language in the bill about what “exposure” meant, based on the latest scientific research. For example, in over 30 years of research there has been no documented case in which saliva transmitted HIV–yet, inexplicably, people are still being prosecuted in many states for spitting.
But the bill didn’t quite get passed. What happened?
The reformed bill passed through Iowa’s bipartisan Senate Judiciary Subcommittee (3 to 0) and the Senate Judiciary Committee (8 to 3), and we were very close to getting the bill passed in the legislature, but at the last minute one of our allies changed sides and introduced an amendment that scuttled the bill. Still, we’ve had great support from Senator Matt McCoy, Senator Steve Sodders, Senator Charles Schneider, and many more members of Iowa’s legislature, and we’re very grateful for the assistance we received from Deputy Attorney General Eric Tabor, and Randy Mayer from Iowa’s Department of Public Health.
One lesson we’ve learned is to never assume who is on your side, because we have some great advocates, both Democrats and Republicans, who are fighting for us. So don’t look at the “D” or the “R” behind a name, because you never know the personal story or how someone may have been personally touched by HIV/AIDS.
Why do you feel personally mobilized by this bill?
Toward the end of my husband’s life, in the mid-1990s after both of us had been diagnosed, he became very scared of laws that prosecuted people for HIV exposure. He was afraid that I would charge him with criminal transmission–which I would have never done. But my husband eventually had a nervous breakdown and the thought of these HIV criminalization laws really started his downward spiral even faster, because they increased the stigma and shame and guilt that he felt after first being diagnosed.
What are some of the lessons that you’ve learned in Iowa that can be applied elsewhere?
For HIV-negative people not familiar with these laws, it takes them a while to understand the issues. When I conduct HIV criminalization forums, I usually show Sean Strub’s documentary HIV is Not a Crime. Just seeing Nick Rhoades, Robert Suttle, and Monique Moree tell their stories does a lot to reverse people’s prejudices and preconceptions. They begin to understand that people living with HIV are just like their neighbors and families.
In Iowa we’ve found that personal stories matter in changing people’s minds about HIV criminalization laws. One focus this year is to collect people’s stories to show that disclosure is not always easy, and that sometimes disclosure comes with consequences. Many HIV-positive people still fear that they’ll lose employment or housing if they tell the wrong person about their status. Even for me, it took six years after my husband’s death to talk openly about my status.
For advocates trying to reform HIV criminalization laws in other states, I’m sure people can learn from our successes and mistakes here in Iowa. Hopefully, sharing our experiences will help advocates in other states save time and money so that we can get these laws changed faster.
UK: Young woman with HIV blogs about her personal experiences of HIV criminalisation
It was soon after my diagnosis with HIV that the nurse asked whether I would be reporting my then partner to the Police for transmitting HIV to me. I was stunned, simply stunned by the question. I suppose the nurse had to ask…or did the nurse need to pose the question?
What the REPEAL HIV Discrimination Act Means to Public Health | NASTAD Blog
By Oscar Mairena, Manager, Policy & Legislative Affairs and Viral Hepatitis This month, Congresswomen Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL) introduced bipartisan legislation, , the Repeal Existing Policies that Encourage or Allow Legal (REPEAL) HIV Discrimination Act.
US: HIV criminalisation survivor, Robert Suttle – why I support the REPEAL HIV Discrimination Act
When I was released from prison, in January 2011, I knew that I needed a new life plan. I was now not only a gay black man with HIV, but also a convicted felon and registered sex offender. My career had been in the state appellate court system, but they could not hire a convicted felon.
Should It Be a Crime to Have Sex While Living With HIV?
Today’s article is a response by guest columnist Mark Hubbard to “Should It Be a Crime to Expose One to HIV?” an article appearing on TheRoot.com by The Root contributer Keli Goff. “Should It Be a Crime to Have Sex While Living With HIV?”