US: Five laws categorised as “bad” laws by the Human Rights Campaign in Missouri , including HIV/AIDS criminalisation laws

Missouri ranked in lowest category for LGBTQ protections, nondiscrimination

The Human Rights Campaign recently released their fifth annual State Equality Index — a state-by-state report detailing statewide laws and policies that affect LGBTQ people, assessing how well states are doing to protect LGBTQ individuals from discrimination.

This year, Missouri received the lowest rating, “High Priority to Achieve Basic Equality.” This rating is given to states that focus on raising suport for basic LGBTQ equality laws, such as non-discrimination laws, and for states focusing on municipal protections for LGBTQ people including opposing negative legislation.

Twenty-eight states earned this rating. Seventeen states earned the highest rating, “Working Toward Innovative Equality,” while the remaining five earned “Solidifying Equality” or “Building Equality.”

Karis Agnew, field director for PROMO, Missouri’s statewide LGBTQ advocacy organization, explained that they expected this rating for Missouri.

“It does not surprise me because there are basic protections that LGBTQ people lack in Missouri and those include protection of employment, housing and public accommodations,” Agnew said.

Missouri has a total of six laws that benefit LGBTQ people — hate crime laws, a college and universities non-discrimination law, a sexual orientation non-discrimination policy for state employees, an anti-bullying law specifically for cyberbullying, transgender inclusion in sports, and name and gender updates on identification documents for drivers licenses.

Missouri has five laws that the HRC categorizes as “bad” laws including HIV/AIDS criminalization laws, a state Religious Freedom Restoration Act, and transgender exclusions in state Medicaid coverage.

Missouri lacks all parenting laws such as parental presumption for same-sex couples, second parent adoption, and foster care non-discrimination. Missouri also lacks basic non-discrimination laws for employment, housing, public accommodation, education, adoption, foster care, insurance, credit, and jury selection.

The absence of youth laws in Missouri include anti-bullying laws, protection from conversion therapy, and laws to address LGBTQ youth homelessness. In the health and safety category, Missouri lacks laws including LGBTQ nondiscrimantion protections in Affordable Care Act exchanges, transgender healthcare coverage, and name and gender updates on identification documents for birth certificates.

Alex Padilla, co-president of Spectrum, an LGBTQ group at Missouri State Univerity, explained his fear regarding how few laws Missouri has protecting LGBTQ individuals like himself.

“Whenever I first came out, I was working at a fast food job and I was worried that I could be fired for who I was,” Padilla said.

He explained that he did a quick search online and found that there were no laws protecting him from being harassed or fired because of who he was.

Agnew, who prefers using gender-neutral pronouns, explained that although this rating is low, organizations like PROMO are working hard behind the scenes to make sure Missouri’s laws are progressing.

“When it comes to passing laws that are pro-equality, the thing that we really need the most to be able to do that is make sure that we don’t have bills that are anti-LGBTQ,” Agnew said.

Agnew explained that in 2018 five anti-LGBTQ laws were filed but PROMO worked to ensure zero made it to the governor’s desk to be signed.

“When those are filed, that is our priority, so it is really hard for us to file proactive legislation and pass proactive legislation when we have legislation that is harmful to LGBTQ people that we work so hard to prevent from passing,” Agnew said.

Agnew said a big reason why Missouri is far behind other states in passing pro-LGBTQ legislation is that Missouri legislators are not aware of what it is like to live as an LGBTQ individual.

“I think a lot of our legislators in Missouri honestly don’t know what it’s like to be LGBTQ — the majority of our legislators are not LGBTQ themselves,” Agnew said. “And because of that, I think a lot of them have a lot to learn from their constituents that are.”

Agnew said this year is the 21st year that PROMO has worked to file the Missouri Nondiscrimination Act, which would add protections for sexual orientation and gender identity in places of employment, housing and public accommodations.

“When their constituents aren’t bringing it up they assume it’s not important and not needed,” Agnew said. “The number one thing people can do is engage their elected officials and talk to them about why something like the Missouri Nondiscrimination Act is so important to them.”

Padilla explained how important it is for students to get involved.

“Help us lobby for equality, Padilla said. “Advocating for these things and showing that you are an ally is really helpful to all of Missouri and all of Missouri’s LGBTQ people.”

PROMO is hosting an “Equality Day,” a day of lobbying where people in the community come up to Jefferson City and talk to legislators about the Missouri Nondiscrimination Act on April 10.

Uganda: Mapping of the legal environment shows how the current criminal justice system discriminates against people living with HIV

Published in the Daily Monitor on Febraury 22, 2019

Report shows how laws discriminate against HIV positive people

KAMPALA- Various existing laws criminalise people living with HIV/ Aids, according to a new report released in Kampala on Thursday.

The report is titled: “Draft report on the assessment and mapping of the legal environment on provisions of HIV and TB services to let populations, persons living with HIV and tuberculosis”

“The existing legal framework is not favourable for some categories of the key, vulnerable and priority populations to freely access health services in Uganda. Specifically, the lifestyles sex workers, men who have sex with men, transgender persons and makes them most affected by the existing legal framework in Uganda,” read part of the report

It adds: “The laws criminalise sex work, same sex relationships and drug use. This results into violence, harassment, disappointment of sex workers and their legal recourse to address injustice against them.” “The other law, the HIV and Aids prevention and Control Act although not specifically targeting key vulnerable and priority populations, has implications for both the general affected by HIV in Uganda.”

The report indicates that the HIV and Aids Prevention and Control Act 2014 provides for voluntary HIV testing in Sub Section 9. However, the voluntarism is not considered if a person commits a sexual offense as part of the criminal proceedings and yet Section 8 provides for identity of a person tested with HIV not to be disclosed or released to any person except in accordance with the law and medical standards.

The report was carried out by civil society organisation Center for Health, Human Rights and Development (CEHURD) in conjunction with Aids and Rights Alliance for South Africa (ARASA).

The current criminal justice system is also discriminative as it hands down more deterrent jail terms to those suspects found to be living with HIV than their counterparts that are not.

Reacting to the aforementioned finding, a law professor at Makerere University, Prof. Ben Twinomugisha, explained that sometimes it’s prudent for the prosecution to take an HIV test of a suspect accused of committing a sexual offense for purposes of securing a conviction.

However, he was also quick to say that this compulsory HIV testing will lead to violation of their human rights and that this will drive those infected away instead of going to hospital to get medication.

“But a civil society organisation and I, have since petitioned court challenging Section 43 of the HIV Prevention and Control Act about criminalization of HIV,”  Prof. Twinomugisha said

“Why is it that a person suffering from Hepatitis B, which is more deadly than HIV are not subjected to a test when they commit a crime,” he wondered.

The study was carried out in three districts of Gulu, Mbarara and Tororo.

The study was mainly about the extent to which laws and policies protect and promote the rights of persons living with HIV/ Aids, let populations like sex workers, truck drivers and fishermen can access health care and services.

The HIV prevalence in Uganda stands at 6.2%. In 2016, approximately 1.4 million people were living with HIV and 28,000 Ugandans were estimated to have died of Aids-related illness.

US: Indiana considers bill modernising laws related to HIV to reflect current science

HIV Modernization Legislation Considered By Lawmakers

A bill to modernize Indiana laws related to HIV, or human immunodeficiency virus, was heard by lawmakers Wednesday. The proposal would update laws to reflect current science and medicine.

Indiana laws related to the transmission of HIV were written in the ’90s. Rep. Ed Clere (R-New Albany), who authored the bill, says a lot has changed since then.

“When I was in high school HIV was a death sentence and it’s not today, thankfully,” says Clere. “Today it’s a chronic condition.”

IU School of Liberal Arts at IUPUI Associate Professor Dr. Carrie Foote leads Indiana’s HIV Modernization movement. She has lived with the virus for 30 years.

“Thanks to the advances in modern medicine, I am here with a very successful career and my husband and teenage son do not have HIV,” says Foote.

The bill removes stigmatized legal language, changes penalties and updates duty to warn laws. Dr. Bree Weaver, HIV expert at Indiana University’s School of Medicine, says people don’t get tested for fear of prosecution.

“Outdated and stigmatizing laws are negatively affecting our ability to bring people with HIV into care and thereby bring the HIV epidemic to an end,” says Weaver.

HIV modernization legislation can encourage testing, reduce stigma and eliminate barriers to effective treatment.

Amendments will be made to the bill before a committee vote.

The PJP Update – February 2019

The February 2019 edition of the Positive Justice Project newsletter is available here.

Travel and long-stay restrictions for foreign nationals with HIV have no logical basis and have been deemed a human rights violation by the United Nations

Published in South China Morning Post on February 5, 2019

Visa restrictions for HIV-positive immigrants still in place in dozens of countries

  • Recent leak in Singapore of data of HIV-positive people renewed attention on its curbs on long-term stays by those who have the virus
  • Countries with restrictions include Russia and the United Arab Emirates; there’s no logical basis for them any more, UNAids says

A data leak of Singaporean medical records exposing the HIV-positive status of 14,200 people last month triggered concerns about a backlash for those whose health status was made public in a country that continues to stigmatise the disease.

But the case, involving the records of 8,800 foreign nationals who tested positive for HIV in Singapore, also shines a spotlight on the city state’s restrictive policies towards foreigners with HIV, who face barriers to staying in the country for more than 90 days unless married to a Singaporean national.

The records were leaked by a foreigner in just such a situation, American Mikhy Farrera Brochez, who was deported after serving jail time for drug-related crimes and fraud, including hiding his HIV status. He was able to access the records with help from his boyfriend, a Singaporean doctor.

Singapore is one of only a handful of developed nations that still have laws restricting the long-term stay of foreign nationals with HIV – laws that have been deemed a human rights violation by the United Nations.

“When this [1998] law was brought in there was a lot more fear of unknown issues around disease … but [today] the logic is just not borne out by any scientific or medical basis,” says Eamonn Murphy, UNAids regional director for Asia and the Pacific.

Instead, countries that still have such restrictions in place often do so because of “historical convention, ideology, or even passivity”, Murphy says. He notes that UNAids is renewing its focus on the issue this year, compiling a new report on national restrictions.

UNAids most recent comprehensive report on HIV-related travel and immigration laws in 2015 listed 35 countries with such restrictions.

However, incomplete data published in 2018 by UNAids named at least 18 countries that have policies restricting entry, stay or residence for people living with HIV. Information from many countries were left off the list, and will be updated this year to reflect the true extent. The same report found that 60 countries require testing for residence or other permits, including marriage, not limited to foreigners.

The exact numbers, however, are difficult to pin down, experts say. An independently researched global database counts 49 countries with HIV-related restrictions on long-term stay in 2018, based on information sourced from local embassies and reports from travellers and immigrants. Countries with restrictions include Russia, Singapore, and the United Arab Emirates.

“The data the countries present about themselves in diplomatic settings can be different from the policies that are actually executed,” says American epidemiologist Jessica Keralis, who has researched the public health impacts of such HIV-related restrictions.

For example, countries may not have regulations “on the books”, but employers can revoke visas for HIV-positive employees, or state insurance policy can make it difficult for immigrants to afford treatment, she says.

In other cases, official policy may not be known by regional or local officials and institutions.

These distinctions matter for HIV-positive immigrants, whether white-collar workers, migrant labourers or students, according to David Haerry, who publishes the Global Database on HIV-Specific Travel and Residence Restrictions, which names the 49 countries.

“Oftentimes people [sent abroad for work] don’t know and they fall in the trap: if you don’t know and you have to be tested on the ground, and then you are sent back on health grounds, your company knows,” he says. “It’s a big issue.”

Haerry receives daily emails through the database from people around the world wondering how to travel or relocate safely while living with HIV. In recent years, he’s seen restrictive policies become more of an issue for students looking to study abroad, but who fear the consequences of mandatory HIV testing even in countries where there is no explicit restriction on those who are HIV-positive.

For such situations, “we have no solution”, Haerry says.

Many national restrictions are holdovers from the 1980s, before the disease’s transmission was understood and the antiretroviral therapies and daily medications that can prevent its spread became widely available, according to UNAids’ Murphy. But he has seen progress globally.

A number of countries changed their policies after UNAids launched a 2008 campaign against the 59 governments that had bans at that time. The United States, South Korea and China were among the nations to remove restrictions in 2010, although South Korea retained some related to immigration, while China reportedly has mandatory HIV testing for some visas.

Singapore revised its own regulations in 2015 to allow people living with HIV to enter the country for short-term stays of less than three months, while South Korea in 2017 removed its final restriction, which mandated the testing of foreign teachers.

But conservative cultures, social stigma and inertia have kept some restrictions in play in other nations, experts say. The majority of such restrictions are found in conservative countries; more countries in the Middle East than anywhere else have them.

“The basis of discrimination is misconception and fear, and with HIV these boil down to drug use, men who have sex with men, and all these realities that countries don’t want to face,” says Peter Wiessner, who co-authors the global database. “There’s also xenophobia mixed in.”

That element can have a negative public health impact, according to Keralis.

“It communicates that HIV is a foreign contagion and a foreigners’ problem, and if [citizens] don’t mix with foreigners then they are not at risk,” she says. She notes that, paired with a lack of proper sex education, this can create a dangerous situation.

“There’s no incentive for people to seek more information or modify their behaviours,” she says.

Sweden: Qualitative study shows inconsistencies in information given to people living with HIV pertaining to undetectability, condom use and disclosure obligations

Published in aidsmap on February 6, 2019

Navigating rules and reality: HIV disclosure, infectiousness and legal obligations in Sweden

Krishen Samuel
Published: 06 February 2019
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Despite generally positive relationships with HIV clinic staff, men living with HIV in Sweden report that when it comes to rules regarding disclosure and legal obligations, clinicians were not always clear with patients regarding the meaning of undetectability and whether or not they still needed to disclose or use condoms. Men often needed to seek out other sources in order to find this crucial information, according to a recent qualitative study published in AIDS Care by Tobias Herder and Professor Anette Agardh at Lund University.

According to the Swedish Communicable Diseases Act of 2004, HIV infection is classified as a public health hazard. It stipulates that an HIV positive individual needs to be given written rules of conduct by the treating physician after diagnosis. These standardised rules outline the patient’s obligations, including disclosure of HIV status to sexual partners and using methods to minimise transmission, such as condoms.

In 2013, in accordance with results of the HPTN 052 study, the National Board of Health and Welfare issued a clarification that allowed physicians to exempt those with an undetectable viral load from disclosing their status to sexual partners.

In June 2018 the Supreme Court acquitted an HIV-positive man who did not disclose his status to his sexual partner. He was charged with exposing his partner to the risk of serious illness. However, the Court ruled that stable HIV treatment, with a maintained undetectable viral load, leads to no risk of infection and therefore the man did not need to disclose.

The study

The main aim of this qualitative research was to explore experiences and perceptions regarding disclosure, infectiousness, undetectability, obligations and how this information was communicated to them. Researchers carried out ten in-depth interviews with men who have sex with men between November 2017 and February 2018. Median age was 43.5 (range: 25-71) with 7.5 median years since diagnosis (range: 2-27). Four men had received a disclosure exemption from their doctors, four had not and the other two were unsure. Most participants (70%) were born in Sweden.

An over-arching theme emerged from the interviews: navigating between rules and reality. This theme was identified through qualitative content analysis based on categories that emerged from the interviews. This theme — and the primary finding from the study — indicated that men living with HIV in Sweden needed to navigate the reality of living with HIV while trying to incorporate rules given to them by clinicians into their everyday lives. In certain instances, these rules were not clear or the men were given contradictory information.

Supportive clinics and clinicians

Many participants expressed that clinics were safe, supportive spaces and that they had a positive relationship with clinicians, especially nurses. The men reported that they were able to request a change in treating physician if they did not have a good relationship.

‘In that sense I think it’s great to have such a close relationship with both the physicians and nurses. Because when we meet, we have fun. And they know me, they know the way I am.’

Taking responsibility for one’s knowledge and peer support

Participants revealed that information about HIV and rules about sexual conduct were not always provided at clinics routinely. However, the men took it upon themselves to find out necessary information and felt comfortable asking clinicians when they were unsure. Some participants sensed reluctance on the part of clinic staff to fully explain that undetectability equated to uninfectiousness. The implied message was that men should continue using condoms as a precaution.

‘After multiple ifs and buts [the nurse] finally explained the thing with low infectiousness. I recently thought about this and it was very moralising. “Well, don’t forget that there is still a risk of transmission”. All I really wanted was a clear answer. (…) But she hardly wanted to give me that information.’

Men described accurate information relating to undetectability as a welcome relief; it meant that they no longer viewed themselves as infectious and could be more confident regarding sex. In many instances, this information was acquired from peers, HIV organisations or the academic literature, and not directly from clinics. The importance of peer networks for information-sharing and support was emphasised by some participants.

‘Because they are also HIV positive, they know everything, they know what you are going through, they know what you think and how you function.’

‘There was a security within myself that the virus cannot be transmitted, and reasonably I should be able to have sex on equal terms, as if I didn’t have the virus.’

Finding ways to relate to different rules

While mandatory disclosure to sexual partners and condom use were topics that all participants had discussed with their doctors at the time of diagnosis, the manner in which the rules of conduct were received, and their impact, differed among participants.

Some described it as an inherently stigmatising and negative experience, with a sense of being treated like a criminal. Others only vaguely recalled the discussion and cited their distress regarding the diagnosis as a reason for not fully processing all the information at the time.

“I believe it was more, like, how can you survive? Will I work? I mean questions about life that are bigger than the rules of conduct, more existential questions, I would say, were important at that time.’

‘I think it is really bad that they don’t tell you this. Really bad.’

Those who had received exemptions from the obligation to disclose their HIV status had generally asked their doctors directly. Some participants were not aware that they could be granted an exemption.

Due to fear of criminal charges, some men kept updated on court cases pertaining to HIV non-disclosure and based their rules of conduct on rulings from these cases.

‘As I have understood it, a prosecutor would not move on with the investigation if the person is well treated.’

Inconsistent information leads to frustration

Participants expressed frustration at receiving inconsistent information at clinics. Rules relating to condom use were particularly vague, with some physicians stating that condoms did not need to be used in long-term relationships when undetectable, while others stated that condom use was always necessary. Terms such as ‘minimal risk’ or ‘very little risk’ caused confusion and were not easily translated into real-life instances. Participants felt that younger doctors were more likely able to state unequivocally that undetectable equated to uninfectious, whereas older doctors were much more hesitant to do so.

‘There are quite different responses. Even from the same unit, institution, the response depends on who you talk to. As a person living with HIV I find this quite unpleasant.’

‘The newer ones that come (…) Well, they are more like “But, my goodness, you are not infectious anymore!”, or something like that, yes.’

Conclusion

This study highlights the importance of clear communication between healthcare providers and patients in a country where prosecution for HIV non-disclosure is still a possibility. While many participants expressed that HIV clinics were safe spaces and that they had developed good relationships with staff, they also reported that there were inconsistencies in the information they received pertaining to undetectability, condom use and their disclosure obligations. Some were not even aware that they could be exempt from disclosing.

Men needed to find ways of navigating the Swedish rules and their lived realities, often relying on knowledge gained from other, non-clinical, sources such as peers. Knowledge about being uninfectious was welcomed as a relief for the men, but needs to be communicated more directly, consistently and openly.

Reference

Herder T & Agardh A. Navigating between rules and reality: a qualitative study of HIV positive MSM’s experiences of communication at HIV clinics in 

Canada: Advocacy groups call on provinces to follow the Justice Department's directive to limit prosecutions for HIV non-disclosure

Published in The Canadian Press on February 4, 2019

Groups want provinces to have consistent policies on limiting HIV prosecutions

VANCOUVER — Advocacy groups are calling on provinces to follow the Justice Department’s directive to stop unjustly prosecuting HIV-positive people for not disclosing their status if there is no chance they could transmit the virus to their sexual partners.

The directive to limit prosecutions involving people who are on HIV treatment was issued in December but applies only to federal Crown attorneys in the three territories.
 
Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said international scientific consensus on HIV transmission was reviewed by the Public Health Agency of Canada and informed the federal decision.
 
Ontario had already amended its policies but in a limited way to no longer prosecute people with a suppressed viral load and Elliott said Alberta has said in a letter to the network it has done the same but without stating that in a policy.

The federal directive goes further in saying people who also use a condom or engage in oral sex should generally not face serious charges such as aggravated sexual assault.

“We’ve written to all provincial attorneys general following the federal directive to say ‘Here’s the federal directive. We reiterate to you what the science is telling us and public-interest reasons for you to appropriately limit the use of criminal law.’ ”

Inconsistent policies mean that HIV-positive people in most provinces may fear being threatened with prosecution by partners who have no basis for a complaint and could even shun treatment based on stigma and discrimination, Elliott said.

In July 2018, scientists from around the world, including Canada, published a consensus statement on HIV transmission in relation to criminal law in the Journal of International AIDS Society. It said correct use of a condom prevents transmission and that possibility is further decreased or eliminated when someone has a viral load that is low or undetectable.

The Canadian HIV/AIDS Legal Network and other organizations are currently pushing Attorney General David Eby to limit HIV prosecution in British Columbia.

“There is not a single circumstance identified in the current BC Prosecution Service policy where they say we will not prosecute even though both Ontario and the feds and Alberta, in a letter, have somehow been able to clearly state that no, we will not prosecute in our jurisdiction someone who has a suppressed viral load.”

Eby was not available for comment.

Dan McLaughlin, spokesman for the prosecution service, said the province is reviewing its policy and has been considering amendments to incorporate the directive of the federal attorney general.

The review will endeavour to ensure B.C.’s policy “addresses both public safety concerns and the issues of fairness and equity in a manner consistent with the law,” he said in a statement.

Elliott, who will be one of the speakers on the issue Tuesday at Simon Fraser University, said about 210 people across the country have been prosecuted for alleged HIV non-disclosure, the second-highest number in the world, after the United States.

Valerie Nicholson of Vancouver has been HIV-positive since 2004 and said her viral load has been negligible since 2008 because of the antiretroviral medication she takes.

Nicholson, who is a member of the Canadian Coalition to Reform HIV Criminalization, said B.C. is “behind the times” with its disclosure policy.

She said she always reveals her status to sexual partners but that information was used against her by a man who informed her a year and a half after their relationship ended that she transmitted the virus to him and he would call police.

“I lived in fear for six months waiting for that knock on the door for the cops to be there,” she said. “I work in this field and if that can do that to me what does it do for someone (else)? Do they stay in an abusive relationship?”

Her big worry was that she had no way to prove she’d had a conversation with the man about her HIV status at the beginning of their relationship, Nicholson said.

Angela Kaida, a Simon Fraser University global health epidemiologist with an interest in the links between HIV and sexual and reproductive health, said the evolving conversation around the virus that is treatable needs to include the latest scientific evidence.

“People can live a normal life expectancy, they can have babies, those babies can be HIV-negative and healthy. People can have sex without a condom and not transmit HIV,” said Kaida, who will also be a featured speaker at the university on Tuesday.

“We have that science but what we haven’t resolved is the stigma, the discrimination and misinformation about HIV. What the evidence tells us that even if we criminalize people it’s not serving a public health goal.”

 

Canada: Workshops find that HIV non-disclosure laws are little known amongst women living with HIV and contribute to social injustices

Published in aidsmap on February 4th, 2019

HIV non-disclosure laws perpetuate social injustices against women in Canada

Krishen Samuel
Published: 05 February 2019
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People living with HIV in Canada can be charged with aggravated sexual assault and be registered as sexual offenders if they do not disclose their HIV status, but many HIV-positive women have little knowledge of this law, according to a recent qualitative study. The law contributes to increased HIV-related stigma, social injustices and vulnerability to violence for women living with HIV, argue Dr Saara Greene and colleagues.

Forty eight women took part in seven arts-based workshops which each took place over a four-day period. Each workshop included an education session regarding the legal implications of non-disclosure, followed by a focus group discussion that allowed women to share thoughts, feelings and concerns regarding the law.

Canada is one of many countries that continues to criminalise non-disclosure of HIV positive status in sexual acts between consenting individuals. Transmission of the virus does not need to occur: a person can be prosecuted for exposure to the virus in the absence of transmission.

In 2012, the Supreme Court of Canada clarified its position on HIV transmission, ruling that people living with HIV are legally required to disclose their status to sexual partners before engaging in sexual activities that pose a ‘realistic possibility of transmission’. According to the Court, two combined factors could be used as a defense against this realistic possibility of transmission: a low plasma viral load (under 1500 copies/ml) and the use of a condom.

Thus, the law does not acknowledge biomedical advances that conclusively show transmission is impossible if the infected individual is virally suppressed (see our factsheet on undetectable viral load and transmission). The ruling leaves room for those engaging in condomless sex with an undetectable viral load to be prosecuted. In Canada, a charge of aggravated sexual assault could carry a maximum sentence of life imprisonment and registration on the sex offender registry.

A more recent 2018 federal directive issued by the attorney general states that a person living with HIV who has maintained a suppressed viral load (under 200 copies/ml of blood) should not be prosecuted, because there is no realistic possibility of transmission. However, this directive only applies in Canada’s three territories and not in the provinces where the vast majority of the population live. Advocates are calling on the provinces to issue similar directives.

The workshops were carried out in 2016 and 2017, in three Canadaian provinces (Ontario, Saskatchewan and British Columbia). The median age of participants was 47 (range: 30-59); the majority of women were Indigenous (60%), with only a small percentage of white women (8%). It was important for minority women to be oversampled as HIV prevalence is nearly three times higher in Indigenous peoples across Canada, with high rates of HIV diagnoses occurring in young Indigenous women. Additionally, 42% of women charged with HIV non-disclosure are Indigenous.

Most women were heterosexual (73%), cisgender (94%) and born in Canada (79%). One-third of women were single, with 29% reporting a common-law relationship.

Analysis of the focus group discussions revealed the following themes:

Confusion and concerns regarding the law

Overall, the education sessions revealed that women were largely unfamiliar with and poorly-informed about laws pertaining to non-disclosure. Questions and concerns were related to legal implications (such as a whether charges could be brought against them for exposure in the absence of transmission or for sexual interactions several years ago). Several women asked what it meant to have a low viral load.

Social and legal injustice

Women felt that the law perpetuates existing injustices in the lives of diagnosed HIV positive women. Thus, factors such as stigma, sexism, racism, colonialism and a lack of education might put those already disadvantaged at a higher risk of being criminalised.

“Like even this isn’t accessible or something understandable for some of my people because we have literacy issues. Some of our people, they left residential school at grade 6 and grade 8…” (Jaqueline, Saskatchewan, speaking about a legal factsheet given to participants)

A contradiction inherent in HIV non-disclosure criminalisation law is that while individuals who are unaware of their HIV status and have a high viral load are more likely to unknowingly infect others, these individuals cannot be prosecuted under Canadian law as intent cannot be proven. The women expressed that the law unjustly targets those who are diagnosed:

“…When I was first diagnosed, I had a higher viral load because I wasn’t being treated. And so actually the silent people who don’t know are more at risk of passing it on. So, who is this [law] even protecting? We are the least likely to pass it on.” (Lori, British Columbia)

As a result of assault laws being used in non-disclosure cases, a common sentiment expressed by women living with HIV was that they were carrying a biological weapon. Thus, HIV stigma was internalised, as a result of the legal system depicting women as capable of inflicting serious harm on their partners:

“…If I was going to go over there and stab [participant] with a knife, that’s aggravated assault. So, they’re taking that knife away and using HIV. I may not have given it to her. So, it’s like the knife never even touched her or the knife wasn’t used. I’m still charged.” (Rachelle, British Columbia)

Sexual surveillance

Participants expressed a sense that they were under surveillance by the criminal justice system when it came to their sex lives. In order to prove innocence, women would need to provide evidence of both a low viral load and condom use, or of disclosure.

The researchers labelled this an ‘intimate injustice’, with HIV-positive women needing to prove their innocence within an inherently unjust and oppressive system. The lengths that women would have to go through to prove this innocence is reflected here:

“So how many people do you have in that room? You have the lawyer that’s witnessing the paper that you’re signing that you’ve disclosed. You have the doctor to say, ‘Yeah, you’re under a viral load’. You’ve got the forensic scientist there getting any evidence. You know, everybody is watching.” (Lilian, British Columbia)

A common question related to undetectability was:

‘So when I look at it, I’m undetectable. So, I cannot transmit HIV to who I’m going to have sex with. So why is it any of their business that I have it when I’m undetectable?’

Another common question was how to prove that a condom was used or that disclosure had occurred after a sexual encounter had taken place. It could come down to a ‘he said, she said’ situation, with the HIV-positive woman needing some form of conclusive proof that she had used a condom or disclosed her status prior to engaging in sexual contact.

“Okay, so say I had a sexual partner. I just met this guy. And my CD4 count is 880. I’m undetectable. But I’ve got to tell him before we get into bed. Do I need to make him sign a document and lock it up and have it witnessed by the neighbor?” (Zainab, Ontario)

Vulnerability to violence

Non-disclosure laws may place women at greater risk for violence. As many as 80% of Canadian women living with HIV have experienced violence in adulthood and the requirement to disclose HIV status to sexual partners could increase the likelihood of intimate partner violence by placing women in a vulnerable position.

Women expressed that they do not always have control over when or how sex occurs with their partners; this negates their agency when it comes to negotiating condom use or disclosing their HIV status.

There was also the question of how disclosure applied in cases of domestic abuse and rape. The law would require women to disclose to abusive partners, placing them at risk of even more violence. The troubling nature of this was expressed in this quote:

“I was raped by three [people] in [Canadian city]. They broke into my home and they held me prisoner for 24 hours and beat me and raped me. And if I had told him I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” (Julie, British Columbia)

Additionally, the law could be used against HIV-positive women by vindictive partners wishing to ‘punish’ them. Many women had been threatened with charges for non-disclosure by disgruntled partners:

“Could they turn around and even if you’re honest and told them, then … they lied and said, ‘Well, I caught it from her’, or him. And they go to the police and get them charged, just out to be spiteful and mean.” (Catherine, Saskatchewan)

Concerns over violence were particularly salient for Indigenous women:

“When you include the Indigenous community and the numbers and statistics there, like we’re already like 10 times the rate of being gone missing, murdered and, you know, facing violence every day. So, when you throw in … you know, HIV, you know, like it just becomes sometimes not even safe. A lot of people stay in very vulnerable situations because of this law…” (Jaqueline, Saskatchewan)

Conclusion

The researchers conclude that for women living with HIV in Canada, non-disclosure laws can lead to unjust victimisation, perpetuating legal and social injustices. Many of the women did not have the necessary legal knowledge to fully understand the implications of their sexual behaviour to begin with. HIV-related stigma has become legally entrenched and results in women who are anxious about sexual encounters and fearful that they will need to find ways of proving their innocence. Non-disclosure laws may also lead to increased violence against women.

When combined with factors such as sexism, racism, colonialism and violence against women, HIV criminalisation results in continued oppression and thus, advocacy for legal reform is necessary and urgent. The recent federal directive is a step in the right direction but it will still take some time for this to filter down to provincial police and prosecutors.

Reference

Greene S et al. How women living with HIV react and respond to learning about Canadian law that criminalises HIV non-disclosure: ‘how do you prove that you told?’ Culture, Health & Sexuality online ahead of print, 2019. (Abstract).

[Update] US: Missourians living with HIV testify in House committee hearing in support of proposals to modernise HIV criminalisation laws

Published in Houston Herald on Feb. 4, 2019

By Alexis Allison

Proposals to reduce criminal HIV exposure penalties encourage prevention

JEFFERSON CITY — LaTrischa Miles doesn’t spit when she runs.

A mother of three, the treatment adherence supervisor at Kansas City Health Center was diagnosed with HIV in 1995. She remembers the day like her birthday, and she remembers it when she’s running.

“Running is not a pretty sport. You see a lot of things when you’re running. You smell a lot of things when you’re running,” Miles said. “A lot of runners get dry mouth, and they spit, a lot. But I dare not. Because if I spit … I may get arrested at the finish line.”

Current Missouri law makes it a felony for a person knowingly infected with the human immunodeficiency virus to “recklessly” expose someone else without their knowledge or consent — whether or not the person meant to do so, and whether or not the victim contracted HIV. The law lists sex, needle-sharing and biting as methods of transfer.

It’s not clear whether spitting during a half-marathon violates the law, but that uncertainty is part of the problem. “As a person living with HIV,” Miles said, “I’ve lived in the shadow of these criminal laws.”

But for the second year in a row, Reps. Tracy McCreery, D-St. Louis, and Holly Rehder, R-Sikeston, have filed separate but similar bills to modernize what some call the “criminal HIV exposure” law.

Each proposal would apply penalties currently reserved for exposing someone to HIV to other “communicable diseases,” such as hepatitis C or HPV, and minimize the punishment for those convicted. The proposals also update the law’s language to reflect current understanding about how HIV is transmitted.

Miles and a slew of public health advocates, students and Missourians living with HIV testified in a House committee hearing Monday in support of the proposals. The witnesses emphasized the need for a revised bill that would reduce stigma, encourage people to know their status and reflect modern science.

“So much has changed. HIV is no longer a death sentence. It’s a chronic disease. It’s a human disease,” Miles said. “Persons living with HIV that once took 16 pills a day … now have the option to take one pill a day.”

Lawmakers passed the original bill in the late ‘80s, an era when the rampant spread of AIDS through sex made lovers into killers, and the law ensured they would be punished accordingly. Mere exposure can lead to a class B felony conviction. If the victim contracts HIV, the charge bumps up to a class A felony, punishable by up to 30 years or life in prison. It’s the same consequence in Missouri for murder.

Both proposals would consider whether the person with a communicable disease intended to transmit it to someone else, and the consequences would be less severe. Rehder’s bill makes knowingly exposing another person to a communicable disease a class C felony; if transmission occurs, the charge becomes a class B felony.

“For comparison’s sake, if you’re driving while intoxicated and hurt someone but don’t kill them in Missouri, it’s a class C felony,” Rehder said. “If you’re driving while intoxicated and in an act of criminal negligence you cause the death of someone, then it’s a class B felony, so that makes it more consistent.”

McCreery’s bill offers a less severe punishment, diminishing the consequences for exposing another person to a communicable disease to a class B misdemeanor — or a class A misdemeanor if the victim contracts the disease.

The severity of the current law also serves as a disincentive for people to know their HIV status, Rehder said. If a person doesn’t know they have HIV, they can’t be convicted of exposing the virus to another person.

And, Rehder said, people who are unaware of their positive status are responsible for 90 percent of HIV transfer — and that ignorance is a public health issue.

“The bottom line is, we want people to get tested and know their status and get treatment,” she said.

Another strategy the proposals encourage is prevention. Under the current law, condom use — which the Centers for Disease Control and Prevention recommends as a preventative strategy — is not a defense. The new proposals note that using science-based, preventive measures (including condoms) could serve as evidence that the person with the disease did not intend to expose or transmit it.

The proposals offer a few more updates based on the scientific advancements that have happened in the last 30 years. For one, they’ve removed “biting” from the list as a way to transfer HIV. In fact, transmitting HIV via biting is extremely rare — so rare that the CDC notes it’s only happened when the bite led to “severe trauma with extensive tissue damage and the presence of blood.”

McCreery’s bill removes the current law’s enhanced punishments for HIV-positive sex workers; Rehder’s does not address it. McCreery’s bill also eliminates punishments for a person with HIV or hepatitis who endangers a correctional or mental health employee.

The current law lists exposure to feces, urine or saliva as a means for transmission. Rehder’s version no longer specifically penalizes HIV or hepatitis and applies only in the case of exposure to “bodily fluids … scientifically shown to be a known means of transmission of a serious infectious or communicable disease.”

Rehder acknowledged that neither proposal is perfect, and the final product may lie somewhere between the two.

“We’re working closely together to present Missouri-specific options to update Missouri’s antiquated HIV laws,” McCreery said in an interview after the hearing. “We wanted to send a strong message to Missourians that this is a nonpartisan issue.”

 

Published in Fox2Now on December 1, 2018

Lawmakers, health officials push Missouri HIV law rewrite

JEFFERSON CITY, Mo. – Some Missouri legislators and public health professionals are calling for a rewrite of the state’s HIV laws, which they say are outdated and medically inaccurate.

The St. Louis Post-Dispatch reports that Republican Rep. Holly Rehder and Democratic Rep. Tracy McCreery proposed bills in the last legislative session to reduce the state’s penalties for exposing someone to HIV. They plan to present the same bills in the 2019 session.

Missouri’s roughly 30-year-old law states that an HIV-positive individual could be convicted of a felony if he or she exposes a partner to the disease without the partner’s knowledge or consent. The law gives a minimum 10-year sentence for transmitting HIV and minimum five-year sentence for knowingly exposing someone to HIV.

Advocates say such laws result in questionable prosecutions and negative public health outcomes.

 

Webinar: Media Strategy in HIV Criminalization Reform Efforts: After HIV Is Not a Crime III Series (PWN-USA, 2019)

For advocates working on campaigns to repeal or reform HIV criminalization laws in their states, the question about when it is and isn’t a good idea to seek press coverage, how to talk about the campaign to the press, and what options are available for controlling the message are all fundamental strategic questions. Positive Women’s Network-USA Communications Director Jennie Smith-Camejo talks strategy and best practices in this webinar based off the in-person breakout session at HIV Is Not a Crime III Training Academy in 2018 as part of the After HINAC III webinar series.