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.

From The SERO Project’s Spring 2013 Newsletter

Spring News from The SERO Project

Sero Screenings and Community Events In recent months, Sero has hosted or participated in community events in Alabama, Idaho, Iowa, Louisiana, Maryland, New York, Pennsylvania, Tennessee, Virginia, Washington, and Washington, DC. The image above was from a joint screening of Sero’s short film HIV is Not a Crime with the Canadian HIV/AIDS Legal Networks feature documentary Positive Women: Exposing Injustice.

Botswana’s draconian Public Health Bill approved by Parliament, BONELA will challenge it as unconstitutional once President signs into law (Update 3)

Update: April 5th 2013

Very disappointing news from Botswana. The Public Health Bill – including all of its draconian provisions on HIV – has been approved by Parliament.

BONELA issued this press release last week just prior to the vote.

MEMBERS OF PARLIAMENT (MPs) ARE THE ONLY ONES WHO CAN SAVE US FROM THE PROPOSED PUBLIC HEALTH BILL…..IT IS IN THEIR HANDS

We knew that the Public Health Bill will be back in Parliament for further debate. However, we had anticipated that the Ministry of Health would heed calls made by stakeholders such as BONELA, UNAIDS, WHO, SALC, AIDS Alliance, ARASA, Ditshwanelo and other concerned Batswana and make amendments to the bill, particularly on the controversial, offensive and invasive provisions.

To our utter shock, the Ministry of Health intends to make no changes to the bill at all; even with the benefit of information on best practices availed to them. This to us; is a clear case of indifference and a deliberate plan to violate people’s rights.

BONELA and its stakeholders have done all that is possible to raise awareness, especially to the general public who would be affected by this law. It is now up to MPs to propose and vote on the amendments.

If MPs fail or decide not to discharge that constitutional mandate, as concerned stakeholders, we would know that our MPs are happy to see people’s rights being violated-that they are happy to see Batswana being tested for HIV without their consent, happy to give doctors sole mandates on deciding when and what to do with patients without consultations.

We would also know that MPs by failing to do their duty are happy to see litigants in court pleading not to be tested for HIV because their government want them to. Moreover, we would know that our MPs are happy to place responsibilities of sexual matters ONLY on those who are HIV positive by agreeing with forceful disclosure to all potential sexual partners by people living with HIV even if they are using protection.

Lastly, our MPs will be happy to see that whoever seeks dental services is required to do an HIV test before such services are meted.

It is therefore, in the hands of MPs to exercise their power to propose and vote for a sound Public Health bill. It is in your hands……

According to this APA piece, published on Wednesday, the Bill was approved by parliament. BONELA is now waiting for Botswana President, Ian Khama, to sign the Bill into law before it can approach the High Court to challenge the offending clauses as unconstitutional.

Botswana’s Health Minister, Dr John Seakgosing on Tuesday said the Public Health Bill, which seeks among other things, to isolate people who infect others with sexually-transmitted diseases such as HIV/AIDS, while knowing their status, will apply to Members of Parliament, cabinet ministers and even the president.

He explained to APA in an interview that the Bill that was passed last week, will not apply only to ordinary citizens.

According to Seakgosing, if the president, ministers and legislators are found to be infecting others carelessly, they will be brought before the courts where the magistrate will take a decision to isolate them from the public.

While he explained that the Bill does not seek to empower medical practitioners to force clients to undergo tests, but Clause 104 (3) (b) provides that “the director or a person authorised by him may where necessary and reasonable, require a person or a category of persons to undergo an HIV test”. Clause 104 (4) then provides that “where a person required to undergo a test under Clause 104 (3) refuses to do so, the director may apply to a magistrate for an order requiring that person to undergo the test.”

But some HIV/AIDS activists are up in arms saying the Bill will reverse the gains achieved in fighting the HIV scourge as it encourages discrimination.

AIDS advocacy group Botswana Network on Ethics Law and HIV/AIDS (BONELA) says it intends to take the government to court over the Public Health Bill that has been approved by parliament.

BONELA director, Uyapo Ndadi, said in an interview that his organisation is only waiting for President Ian Khama to sign the Bill into law before it can approach the high court to challenge certain clauses in it as they are unconstitutional.

Update: December 14th 2012

The Public Health Hill has been shelved until next February thanks to the advocacy against the “outrageous” HIV-related provisions (see below) spearheaded by the Botswana Network on Ethics, Law and HIV/AIDS (BONELA). That’s the good news this morning, according to Uyapo Ndadi, BONELA’s Executive Director:

I am happy to inform you that the outrageous Public Health Bill has been shelved, at least until next year February when parliament resumes business. Our collective advocacy has helped to thwart cabinet’s plans to have the bill passed into law during this sitting.

I am happy to further inform you that UNAIDS has also written to our government to remove the draconian provisions from the bill.

It is now hoped that in the intervening months, BONELA and other human rights advocates will add to the pressure created by UNAIDS to make the Government see that in order to save face internationally, they must either substantially rewrite the Bill or drop it completely.

Update: December 11th

Disappointing and worrying news today from BONELA:

Parliament yesterday voted in favour of passing the Bill from the 2nd reading stage to the Committee stage. Amendments to the Bill may be made at the Committee stage. It means that our efforts to get the Minister to withdraw the bill for lack of consultation have failed. Our hope now is that Parliament will remove from the bill the draconian parts of it.

A report in BOPA daily news highlights the debate yesterday

The Member of Parliament for Lobatse, Mr Nehemiah Modubule says he does not support the Public Health Bill in its current state. Debating the bill in parliament on Thursday, Mr Modubule said it should first be put into perspective, as some of the clauses are contradictory. He argued that they would have a hard time trying to amend such clauses if the bill passes to the committee stage. He noted that consultations with some stakeholders such as Botswana Network on Law and AIDS (BONELA) were not done. Furthermore, he said, the minister of health should have done justice to the bill by deferring it for further consultations, as some clauses touch on customs and practices of Batswana.

In his contribution, the MP for Moshupa, Mr Mokgweetsi Masisi supported the bill, arguing that prevention and control of diseases is not peculiar to Botswana, more so that new communicable diseases continue to emerge. Mr Masisi said the bill conforms to international practices in terms of public health, adding that consultations had been done and they should not delay the bill.

Original post: December 10th

On Friday, Botswana’s Parliament debated the proposed Public Health Bill which contains some shocking and regressive HIV-related provisions that, according to a strongly-worded press release from the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) “have no place in a democratic and modern day Botswana..that are counter-productive, discriminatory, unconstitutional and barbaric.”

The relevant passages of the Bill are available to download here (Botswana Public Health Bill 2012.pdf, 1.4MB)

Some of the most problematic provisions as highlighted by BONELA, are below.

Clause 104 (3) b – empowering medical practitioners to force their patients to undergo HIV tests without their consent.

The Director, or any person authorised by him or her, may, where necessary and reasonable require a person or a category of persons to undergo an HIV test.

Clause 105 (2) b – empowering doctors to test patients without their knowledge.

A medical practitioner responsible for the treatment of a person may conduct an HIV test without the consent of that person where — (b) the medical practitioner believes that such a test is clinically necessary or desirable in the interests of that person.

Clause 109 (3) – allowing surgeons or dentists to test a patient for HIV before deciding on whether to carry out a non-urgent procedure.

Where, in the opinion of a medical practitioner, nurse or dental practitioner, the surgical or dental procedure is not urgently required in respect of a person, the medical practitioner, nurse or dental practitioner may require the person to undergo an HIV test before carrying out that procedure.

Clause 116 (1) – mandating HIV disclosure to all potential sexual partners or care giver and allowing prosecution for placing another at risk.

A person who is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall — (a) take all reasonable measures and precautions to prevent the transmission of HIV to others; (b) inform, in advance, any sexual contact or care giver or person with whom sharp instruments are shared, of that fact; and (c) not place another person at risk of becoming infected with HIV.

Clause 116 (7) empowering doctors to disclose their patient’s HIV status to their sexual partner without their consent.

A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after a reasonable opportunity [disclosed their HIV status] may, after consultation with an approved specialist medical practitioner, inform any sexual contact or care giver of that person of the HIV or HIV antibody status of that person.

Clause 116 (9-12) – limiting the right to freedom of movement for people with HIV without sufficient legal checks and balances.

(9) The Director or any officer representing the Director may, in writing, apply to a magistrate for an order where the Director reasonably believes that a person infected with HIV — (a) is not complying with this Part; b) knowingly or recklessly places another person at risk of becoming infected with HIV without the knowledge of that person of the infected person’s HIV status; or (c) is likely to continue the behaviour referred to in paragraph (b). (10) For the purpose of subsection (9), a magistrate may make any or all of the following orders — (a) an order that the person infected with HIV undergo such medical and psychological assessment as the Minister determines; (b) an order imposing restrictions on the person for a period not exceeding 28 days; or (c) an order requiring that the person be isolated and detained by a person, at a place and in the manner specified in the order for a period not exceeding 28 days. (11) In making an order in respect of a person under subsection (10), a magistrate shall take into account the following matters — (a) whether, arid by what method, the person transmitted HIV; (b) the seriousness of the risk of the person infecting other persons; (c) the past behaviour and likely future behaviour of the person; and (d) any other matter the magistrate considers relevant. (12) The Director may, in writing, apply to a magistrate to renew an order made under subsection (10) for a further period or periods not exceeding 28 days.

According to BONELA, the Bill appeared from out of the blue without any public consultation.

We are concerned by government attitude and tendency of introducing Bills in Parliament and debating them before engaging all stakeholders, including the civil society and Batswana as a whole. We know that the Botswana Health Professions Council is not aware of this Bill for they have not been consulted on it. As custodians of health we expect them to be intimately involved as this Bill is going to affect the way they work. This bill is significant in the lives of all of us and we therefore call upon [Minister of Health] Reverend Dr. John G.N. Seakgosing [contactable via phone on +267313632521] to withdraw it and if he refuses to, we urge MPs to reject it.

Although the Bill was discussed last Friday – and a copy of the Bill obtained only then – Parliament adjourned before voting, but will continue this week. Action, therefore, is urgently required.

Advocates Urge Repeal of U.S. Laws Criminalizing HIV

Advocates Urge Repeal of U.S. Laws Criminalizing HIV The producer of a new documentary about criminalizing those with HIV summed up such laws’ effects at a public showing of the film. “These horrendous punishments are vastly disproportionate to the crime,” said the film’s producer, Sero Project founder Sean Strub.

Iowa legislators introduce HIV de-criminalization bill – The Daily Iowan

State lawmakers introduced a bill this week that, if passed, would change the human immunodeficiency virus criminalization laws in Iowa. Sen. Steve Sodders, D-State Center, worked extensively on the bill with Sen. Matt McCoy, D-Des Moines. “[Iowa’s criminal HIV law] was put on the books when HIV and AIDS were first coming out and little was known about it,” Sodders said. “We have more information, better drugs, and we know more about the transmission of HIV so we also need to update our law to avoid being overly punitive in cases where they don’t need to be.”

News from Ontario Working Group on Criminal Law and HIV Exposure

Thanks to your actions, the office of the Ministry of the Attorney General met with the Ontario Working Group on January 15, 2013, to discuss desperately needed prosecutorial guidelines. Crown counsel does not have to prosecute people who use condoms or have a low viral load, just because they can.

US: President’s AIDS council calls on feds to help states repeal HIV criminalisation laws

Advisory group says these statutes are ‘unjust’ and fuel the epidemic

BY TODD HEYWOOD, AMERICAN INDEPENDENT

The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution last week that calls for an end to federal and state HIV-specific criminal laws and prosecutions.

While the resolution is only advisory, it recommends that the departments of Justice and Health and Human Services issue guidance and offer incentives to state attorneys general and state health departments to eliminate HIV-specific laws. The advisory group also asks these federal agencies to develop guidelines for how to approach HIV within criminal and civil justice systems that are “consistent with the treatment of similar health and safety risks.”

As the resolution notes, 32 states and two territories have laws criminalizing people living with HIV.

In explaining the reason to repeal these laws, the resolution reads:

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons. Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.

PACHA is also requesting that state and federal authorities review the cases of persons convicted under such laws and overturn convictions if deemed appropriate. The group is calling on the Centers for Disease Control and Prevention to “issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.”

“Today’s announcement is an important advancement in our collective effort to modernize unjust and discriminatory HIV criminalization laws,” said Rep. Barbara Lee (D-Calif.), co-chair of the Congressional HIV/AIDS Caucus in a statement last week. Lee introduced the REPEAL HIV Discrimination Act in 2011, which never passed, and served on the United Nations’ Global Commission on HIV and the Law.

“I join the President’s Advisory Council on AIDS in calling on the Department of Justice and the Centers of Disease Control and Prevention to issue clear guidance to states and public health departments on the counterproductive effects of HIV criminalization policies; we must end this clear discrimination against people living with HIV,” Lee continued. “Criminalization laws breed fear, discrimination, distrust and hatred, and we must end them.”

The White House declined to comment on the resolution, but the National HIV/AIDS Strategy adopted by the Obama administration in July 2010 does call for state legislatures to “consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.”

Policymakers at the state level also welcomed the resolution. Randy Mayer, chief of the Bureau of HIV, STD, and Hepatitis for the Iowa Department of Public Health, said the resolution was a new tool in advocates’ fight to repeal Iowa’s HIV-specific law.

“This resolution came at an excellent time for Iowa,” Mayer said in an email to The American Independent.

State activists and public health officials, including Mayer, have laid out a strategy to repeal the state’s law.

“The advocates in Iowa have also aligned their efforts with a public health perspective, so the resolution was a reinforcement of their justification,” Mayer said. “I think the more public health entities that weigh in on this discussion the better.”

But while policymakers praise the resolution, activists urge cautious optimism.

Sean Strub, executive director of the anti-HIV-criminalization organization Sero Project, said the resolution was appreciated, but the “real test will be in whether federal agencies and the administration responds with the necessary urgency.”

Catherine Hanssens, executive director of the Center for HIV Law and Policy, which runs the Positive Justice Project, echoed Strub’s sentiment, noting that while the resolution is important, PACHA “has no power to order anyone to do anything.”

“[HHS] Secretary [Kathleen] Sebelius and President Obama both have the discretion to ignore the resolution’s recommendations.”

Regardless, Hanssens said the resolution is an important milestone in the battle to repeal HIV criminal laws in the U.S.

“The work of advocates who pushed for passage of the resolution is not over,” she said. “But we have passed a major marker on the road to reform, and justice, for many people and communities affected by HIV.”

Nigeria: Advocates successfully argue for removal of HIV criminalisation clause from draft HIV and AIDS Anti-Discrimination Act

Advocates in Nigeria have successfullly argued to remove a clause criminalising the ‘willful or deliberate spead of HIV’ from the latest draft of the long-awaited HIV and AIDS Anti-Discrimination Act.

Last week, the National Agency for the Control of AIDS (NACA) held a two-day stakeholders forum on the much delayed national anti-discrimination law. The meeting aimed to re-energize the passing of the bill into law, and to ensure that it incorporated international human rights conventions and standards as they relate to people living with HIV.

The national law also aims to harmonise state anti-discrimination laws. Currently, three states – Lagos, Enugu and Cross River State – include HIV criminalisation statutes in their their laws.

The vaguely-worded proposed HIV criminalisation statute of the draft national anti-discrimination bill read as follows:

Section 31 Willfull or Deliberate Spread of HIV Virus

Any person, having known his/her seropositive status, deliberately transmits the HIV directly or indirectly shall be guilty of an offence and, upon conviction be sentenced up to twelve months imprisonment or fine of up to N500,000 or both.

At the meeting, many stakeholders proposed to keep the HIV criminalisation statute in the bill, but civil society organisations, led by the Network of People Living with HIV and AIDS in Nigeria (NEPWHAN), successfully advocated against the statute.

Instead, the provisions of the anti-discrimination bill were expanded from covering workplace discrimination to be broadly applicable at the workplace, school, correctional institutions, religious institutions, and in society at large.

The draft harmonized bill as proposed with input from NEPWHAN and other civil society organisations is below. Note the absence of Section 31. Although this is unlikely to be the final wording of the law, it certaily shows how successful advocacy can remove problematic provisions in otherwise supportive and enabling HIV-related laws.

Draft Harmonized Nigerian HIV and AIDS Anti-Discriminational Act 2013

President's Advisory Council on AIDS (PACHA) approves resolution calling for federal action against HIV criminalization

by Catherine Hanssens Executive Director, CHLP The President’s Advisory Council on AIDS today voted to approve a resolution calling for federal action against HIV criminalization. The resolution includes the following recommendations: 1.

Des Moines Democratic Senator Matt McCoy wants to change Iowa's HIV disclosure law

DES MOINES, Iowa (AP) – A Des Moines lawmaker plans to introduce legislation that would reduce penalties for HIV-positive people who have sex without disclosing their health condition. Des Moines Democratic Sen. Matt McCoy says he wants to change the law to reduce penalties and focus on people who purposefully infect others with the virus.Under the current law, HIV-positive people who have sex without disclosing their condition can face up to 25 years in prison if convicted, regardless of whether someone is infected. “That is truly a Draconian punishment,” McCoy said. “Being diagnosed with HIV is no longer the death sentence it once was.”

McCoy wants to change the law so someone convicted of intentional or attempted transmission of the virus could be sentenced to a maximum of five years in prison and face a $750 to $7,500 fine. That would put HIV in the same criminal category as transmitting any other communicable disease, such as Hepatitis C. McCoy also wants to end a requirement that people convicted must be placed on a sex offender registry for life.

The Legislature unanimously approved the current law in 1998. The law was approved, in part, as a reaction to a 1996 case in New York where a man intentionally infected 13 women and girls with HIV. Among those voting for the Iowa law was McCoy, who is openly gay. McCoy said the current law made sense based on what was known about HIV and AIDS, but times have changed. “The fact that I’m gay has a real impact on my sensitivity to this issue,” McCoy said. “Clearly, I’m extremely impacted by the gay community and sensitive to people living with HIV. “I just feel it’s the right thing to do for this group of people that have been so stigmatized.”

The proposed changes to the law would take into account whether an HIV-positive person took steps to prevent transmission of the disease, such as using a condom and taking medication that makes it less likely that a sexual partner would be infected. Medications have dramatically improved over the decades, and with proper treatment HIV-positive people can greatly reduce the amount of virus in their blood and make transmission of the disease unlikely.

Randy Mayer, who heads an Iowa Department of Public Health bureau that oversees HIV, said the best way officials can reduce the spread of HIV is to encourage partners to disclose their HIV status to each other. That’s why he agrees with McCoy that the law should be changed. “The law was originally set up to encourage disclosure, but it’s doing the opposite,” he said. “The law is frequently cited by people we work with as something that creates stigma and distrust of the system. … It’s what’s creating stigma.”

McCoy has previously tried to change the law but his bills have become stuck in committees. This time, he said he has support from health care professionals, HIV/AIDS advocacy groups, law enforcement and the Iowa attorney general’s office. Since the Legislature approved the Iowa law, 25 people have been convicted, though only two of those infected partners with HIV. Of those 25, 12 people remain in prison, four are on parole, one is on probation and a trial for one person is pending.

Tami Haught, who became HIV-positive 19 years ago after being infected by her husband, said she supports McCoy’s proposal. Haught works with Community HIV/Hepatitis Advocates of Iowa, which helped draft McCoy’s bill. Haught’s husband became infected through a blood transfusion in the 1980s and died of AIDS in 1996. They married after he was infected. “It takes two people to talk about protection and disclosure. I never had the discussion with my fiance,” she said. “That’s why I hate this law because it puts the entire burden on the HIV person.”