International meeting of legal experts starts work on principles to address the misuse and abuse of criminal laws

Addressing the detrimental health and human rights impacts of criminal laws

People have a fundamental human right to make decisions about their lives and bodies. These rights relate to personal choices on, among other things, health care and treatment. For sexual and reproductive rights, key issues include the right of people to decide when, whether and with whom to have sex, to have children and to get married and their ability to express their gender and sexuality.

Leading legal experts from around the world recently met to lay the foundations for a set of principles to address the misuse and abuse of criminal laws that affect basic human rights and impact on health and equality. The principles will be developed in the coming months and will guide civil society and policy-makers in the development and use of laws that guarantee human rights and protect public health.

Tim Martineau, UNAIDS Deputy Executive Director, Programme, a.i., noted at the outset of the meeting that, “While there is significant progress in HIV prevention, treatment and care, there is a big discrepancy in HIV prevention in relation to key populations, who are more vulnerable to HIV infection in many respects because of a lack of legal protection and the unjust criminalization of their behaviour.”

The legal experts focused on criminalization related to sexuality, reproduction, personal drug use and the overly broad criminalization of HIV non-disclosure, exposure and transmission. Around the world, same-sex sexual practices are criminalized in 73 countries, with 13 states imposing the death penalty. Sex work is criminalized in approximatively 116 countries globally and some 72 countries criminalize HIV non-disclosure, exposure or transmission. Criminal laws often increase stigma against already marginalized and excluded groups and have been linked to discrimination and the denial of critical health services. Criminalization also creates an environment in which people are less likely to seek police assistance when their rights have been violated.

Kate Gilmore, the United Nations Deputy High Commissioner for Human Rights, emphasized that the criminal law plays an essential role in the recognition, protection and enforcement of rights, including by tackling impunity for violations of those rights. “Our purpose here is to raise the shield of criminal law by lowering its sword, ensuring better protection through criminal law by reducing the abuse of it.”

Sam Zarifi, the Secretary General of the International Commission of Jurists, said, “The misuse of the criminal law affects the most marginalized people and, in particular, the dispossessed and disenfranchised.”

The meeting was held on 3 and 4 May and was led by the International Commission of Jurists, in partnership with UNAIDS and the Office of the United Nations High Commissioner for Human Rights.

Published on UNAIDS site on May 8, 2018

Canada: Recent case in British Columbia demonstrates the "cycle of fear, stigma and misinformation surrounding HIV"

Misinformation is the real culprit in British Columbia HIV case

Police and media left out key details of HIV non-disclosure charges – By Niko Bell

The case of Brian Carlisle shows that when it comes to HIV, what you don’t know can hurt you.

Last summer, Mission RCMP reported that Carlisle, a 47-year-old marijuana activist, had been charged with three counts of aggravated sexual assault for not disclosing to his sexual partners that he has HIV. The RCMP posted Carlisle’s name and photo, asking for any other partners who might have been exposed to come forward.

At the time, the RCMP said that while they would not normally publish private medical information, “the public interest clearly outweighs the invasion of Mr Carlisle’s privacy.”

Xtra does not usually publish the names of people charged with HIV non-disclosure, but Carlisle has given permission to Xtra to publish his name and HIV status.

In the following months, three charges of aggravated sexual assault against Carlisle swelled into 12.

But the RCMP failed to mention a crucial fact: Carlisle couldn’t transmit the virus to anyone.

After studying thousands of couples over decades of research, HIV scientists around the world have reached the consensus that people with HIV who regularly take medication and achieve a suppressed viral load cannot transmit the virus through sexual contact. Like most HIV patients in British Columbia, Carlisle’s viral load was suppressed, so none of the women he had sex with were in any danger of contracting the virus.

Months after publicly disclosing his HIV status, Crown prosecutors stayed all charges against Carlisle. But it became stunningly clear that not only had the police not fully informed the public that Carlisle was uninfectious, they also hadn’t properly informed Carlisle’s alleged victims.

One woman who had sex with Carlisle told the CBC anonymously about going through PTSD, anxiety and depression, losing her job and going bankrupt because she thought she might have HIV.

Not only did the woman mistakenly think she could have contracted HIV, she also said she thought she still might become infected. Nine months after charges were laid against Carlisle, she told the CBC she still had to “wait one more year to know if I have HIV or not,” and that she was still taking HIV tests every three months to ensure the virus did not appear. She said she still avoids sexual relationships out of fear of having to disclose that she might have HIV.

This understanding of how HIV testing works is catastrophically wrong. Modern HIV testing technology, like that used by the BC Centre for Disease Control, catches 99 percent of new HIV infections only six weeks after a new infection. If even that window is too large, new technologies like RNA amplification, also used in BC, can cut the time down to only two weeks.

Even if Carlisle’s viral load had been high enough to transmit the virus, which it was not, the women he had sex with could have been given a clear bill of health only days after the RCMP knocked on their doors.

The CBC, however, did not correct the woman’s misinformation, and reported as fact that the women involved would have to undergo annual testing to make sure they do not have HIV.

Mission RCMP would not confirm at what point they discovered that Carlisle’s viral load was suppressed, or when they informed the women involved, because they say the investigation into Carlisle is still open. It’s also not clear who told the women they might be infected, or that they required yearly HIV testing.

Regardless what you think of Carlisle’s choice not to inform his sexual partners that he had HIV, and regardless whether you care about the publication of his name and HIV positive status, much of the psychological harm suffered by the women in Carlisle’s case was for nothing. Accurate medical information might have saved them months or years of anxiety, fear and isolation.

Carlisle’s case is an example of what many HIV experts say is a cycle of fear, stigma and misinformation surrounding HIV, propelled by police and prosecutors’ use of the criminal law against people who are HIV positive. Criminal prosecutions, experts say, make people less likely to seek medical help or get tested, and can increase the likelihood of new infections. One study found thathalf of the targets of HIV non-disclosure prosecutions are Black men, and nearly 40 per cent are men with male partners.

Media reports in other high profile Canadian HIV cases have also skimmed over the medical science, adding to public confusion around HIV safety.  

In December, a federal government report recommended that prosecutors should move away from the “blunt instrument” of the criminal law to handle HIV non-disclosure cases, and the government of Ontario announced it would stop prosecuting cases involving people with low viral loads. BC’s attorney general said in December he would also reconsider the province’s policy, but recent updates to the Crown counsel policy manual do not rule out prosecuting people whose viral load makes the virus intransmissible.

Regardless of the law, the least that the police and journalists can do is be honest and accurate about the actual risks involved in HIV cases. Carlisle’s case shows just how devastating ignorance can be.

Published in Xtra on May 5, 2018

 

 

Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional

Following a Constitutional challenge initiated in February 2016 by the Multisectoral Group on HIV / AIDS and STIs of Veracruz and the National Commission on Human Rights, and supported by HIV JUSTICE WORLDWIDE, Mexico’s Supreme Court of Justice yesterday found by eight votes (out of 11) that the amendment to Article 158 of the Penal Code of the State of Veracruz to be invalid as it violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.

The full ruling is not yet available, but according to a news story published yesterday in 24 Horas.

…it was pointed out that the criminal offense is “highly inaccurate” because it does not establish what or what is a serious illness, besides it is not possible to verify the fraud in the transmission [and] that although the measure pursued the legitimate aim of protecting the right to health, especially for women and girls, the measure did not exceed the analysis of need because it was not ideal and optimal for the protection of that purpose, especially as [Veracruz] already criminalised the ‘willful putting at risk of contagion of serious illnesses’…

Additionally, Letra S reports,

The Minister President of the Court, Luis María Aguilar Morales, took up the recommendations of the Joint United Nations Program on HIV / AIDS and the Oslo Declaration on HIV Criminalisation, regarding the criminalization of HIV, and argued that this article left to the will of the investigating authority to decide which diseases will be considered as serious and which will not, going against the principle of legality, which implies that the crimes cannot be indeterminate or ambiguous.

In this case, the President said, the article did not establish whether STIs are only those considered serious or any, regardless of their severity. In turn, the justices determined that the resolution has a retroactive effect, that is, that those persons tried under the offense established by this article, the resolutions are invalidated.

 

Background

On August 4, 2015, the Congress of the State of Veracruz approved an amendment to Article 158 of the Criminal Code in order to add the term Sexually Transmitted Infections, which included HIV and HPV. 

It provided for a penalty ranging from 6 months to 5 years in prison and a fine of up to 50 days of salary for anyone who “willfully” infects another person with a disease via sexual transmission.

The amendment, proposed by the deputy Mónica Robles Barajas of the Green Ecologist Party of Mexico, said the legislation was aimed at protecting women who can be infected by their husbands. “It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

On February 16, 2016, the National Human Rights Commission responded to the request of the Multisectoral Group on HIV / AIDS and STIs of the state of Veracruz and other civil society organizations, and filed an action of unconstitutionality against the reform in the Supreme Court of Justice of the Nation, which it said does not fulfill its objective of preventing the transmission of sexual infections to women and girls, but rather creates discrimination of people living with HIV and other STIs.

In October 2016, following a press conference at the National Commission on Human Rights (pictured above) that generated a great deal of media coverage, including a TV report, HIV JUSTICE WORLDWIDE delivered a letter to the Mexican Supreme Court highlighting that a law such as that of Veracruz does not protect women against HIV but rather increases their risk and places women living with HIV, especially those in positions vulnerable and abusive relationships, at disproportionate risk of both proseuction and violence.

In October 2017, the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition where a new Mexican Network against HIV Criminalisation was established.

The Network issued a Statement yesterday which concluded:

We applaud the declaration of the Supreme Court of Justice of the Nation, which gives us the reason for the unconstitutionality request, shared with the National Commission of Human Rights; For this reason, we suggest to the deputies of the Congresses of the State that before legislating, they should be trained in the subject and that they do not forget that their obligation is to defend Human Rights, not to violate them.

Finally, the Mexican Network against the Criminalization of HIV recognizes that there are still many ways to go and many battles to fight, but we can not stop celebrating this important achievement.

 

Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.
Edwin Bernard (HIV JUSTICE WORLDWIDE) and Patricia Ponce (Grupo Multisectorial Veracruz) presenting the letter to Supreme Court of the Nation, Mexico City.

Read the English text of the HIV JUSTICE WORLWIDE amicus letter below.

HIV JUSTICE WORLDWIDE

This is a letter of support from HIV JUSTICE WORLDWIDE[1] to Grupo Multi VIH de Veracruz / National Commission of Human Rightswho are challenging Article 158 of Penal Code of the Free and Independent State of Veracruz that criminalises ‘intentional’ exposure to sexually transmitted infections or other serious diseases, on the grounds that this law violates a number of fundamental rights: equality before the law; personal freedom; and non-discrimination.

As a coalition of organisations working to end the overly broad use of criminal laws against people living with HIV, we respectfully share Grupo Multi VIH de Veracruz’s concerns around Article 158 which potentially stigmatises people with sexually transmitted diseases and criminalises ‘intentional’ exposure to sexually transmitted infections (potentially including HIV) or other serious diseases.

All legal and policy responses to HIV (and other STIs) should be based on the best available evidence, the objectives of HIV prevention, care, treatment and support, and respect for human rights. There is no evidence that criminalising HIV ‘exposure’ has HIV prevention benefits. However, there are serious concerns that the trend towards criminalisation is causing considerable harm.

Numerous human rights and public health concerns associated with the criminalisation of HIV non-disclosure and/or potential or perceived exposure and/or transmission have led the Joint United Nations Programme on HIV/ AIDS (UNAIDS) and the United Nations Development Programme (UNDP), [2] the UN Special Rapporteur on the right to health,[3]  the Global Commission on HIV and the Law[4]  and the the World Health Organization[5],  to urge governments to limit the use of the criminal law to extremely rare cases of intentional transmission of HIV (i.e., where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it). They have also recommended that prosecutions [for intentional transmission] “be pursued with care and require a high standard of evidence and proof.” [6]

In 2013, UNAIDS produced a comprehensive Guidance Note to assist lawmakers understand critical legal, scientific and medical issues relating to the use of the law in this way.[7] In particular, UNAIDS guidance stipulates that:

  • “[I]ntent to transmit HIV cannot be presumed or solely derived from knowledge of positive HIV status and/or non-disclosure of that status.
  • Intent to transmit HIV cannot be presumed or solely derived from engaging in unprotected sex, having a baby without taking steps to prevent mother-to-child transmission of HIV, or by sharing drug injection equipment.
  • Proof of intent to transmit HIV in the context of HIV non-disclosure, exposure or transmission should at least involve (i) knowledge of positive HIV status, (ii) deliberate action that poses a significant risk of transmission, and (iii) proof that the action is done for the purpose of infecting someone else.
  • Active deception regarding positive HIV-status can be considered an element in establishing intent to transmit HIV, but it should not be dispositive on the issue. The context and circumstances in which the alleged deception occurred—including the mental state of the person living with HIV and the reasons for the alleged deception— should be taken into consideration when determining whether intent to transmit HIV has been proven to the required criminal law standard.”

Moreover, where criminal liability is extended to cases that do not involve actual transmission of HIV (contrary to the position urged by UNAIDS and other experts), such liability should, at the very bare minimum, be limited to acts involving a “significant risk” of HIV transmission. In particular, UNAIDS guidance contains explicit recommendations against prosecutions in cases where a condom was used, where other forms of safer sex were practiced (including oral sex and non-penetrative sex), or where the person living with HIV was on effective HIV treatment or had a low viral load. Being under treatment or using other forms of protections not only show an absence of malicious intent but also dramatically reduces the risks of transmission to a level close to zero. Indeed, a person under effective antiretroviral therapy poses –  at most – a negligible risk of transmission[8] and is therefore no different from someone who is HIV-negative.

Moreover, there is growing body of evidence[9] that such laws that actually or effective criminalise HIV non-disclosure, potential or perceived exposure, or transmission, negatively impact the human rights of people living with HIV due to:

  • selective and/or arbitrary investigations/prosecutions that has a disproportionate impact on racial and sexual minorities, and on women.
  • confusion and fear over obligations under the law;
  • the use of threats of allegations triggering prosecution as a means of abuse or retaliation against a current or former partner;
  • improper and insensitive police investigations that can result in inappropriate disclosure, leading to high levels of distress and in some instances, to loss of employment and housing, social ostracism, deportation (and hence also possibly loss of access to adequate medical care in some instances) for migrants living with HIV in some cases;
  • limited access to justice, including as a result of inadequately informed and competent legal representation;
  • sentencing and penalties that are often vastly disproportionate to any potential or realised harm, including lengthy terms of imprisonment, lifetime or years-long designation as a sex offender (with all the negative consequences for employment, housing, social stigma, etc.);
  • stigmatising media reporting, including names, addresses and photographs of people with HIV, including those not yet found guilty of any crime but merely subject to allegations.

In addition, there is no evidence that criminalising HIV (or other sexually transmitted infections) help protect women and girls from infections.  

Women are often the first in a relationship to know their HIV status due to routine HIV testing during pregnancy, and are less likely to be able to safely disclose their HIV-positive status to their partner as a result of inequality in power relations, economic dependency, and high levels of gender-based violence within relationships.[10]

Such a law does nothing to protect women from the coercion or violence that effectively increases the risk of HIV transmission. On the contrary, such laws place women living with HIV, especially those in vulnerable positions and abusive relationships, at increased risks of both prosecution and violence.

Some evidence suggests that fear of prosecution may deter people, especially those from communities highly vulnerable to acquiring HIV, from getting tested and knowing their status, because many laws only apply for those who are aware of their positive HIV status. [11] HIV criminalisation can also deter access to care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals because medical records can be used as evidence in court. [12]

Finally, there is evidence[13] of an additional negative public health impact of such laws in terms of:

  • increasing HIV-related stigma, which has an adverse effect on a person’s willingness to learn about, or discuss, HIV; and
  • undermining the importance of personal knowledge and responsibility (correlative to degree of sexual autonomy) as a key component of an HIV prevention package, when instead prevention of HIV within a consensual sexual relationship is – and should be perceived as – a shared responsibility.

We hope that the Mexico Supreme Court of Justice takes our concerns and all of this evidence into account when considering the Constitutional Challenge.

Yours faithfully,

Edwin J Bernard, Global Co-ordinator, HIV Justice Network

on behalf of all HIV JUSTICE WORLDWIDE partners: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).

[1] HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations working together to end overly broad HIV criminalisation. The founding partners are: AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA (PWN-USA); and Sero Project (SERO).  The initiative is also supported by Amnesty International, the International HIV/AIDS Alliance, UNAIDS and UNDP.

[2] UNAIDS. Policy Brief: Criminalisation of HIV Transmission, August 2008; UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.

[3] Anand Grover. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, June 2010.

[4] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.

[5] WHO. Sexual health, human rights and the law. June 2015.

[6] Global Commission on HIV and the Law. HIV and the Law: Risks, Rights & Health, July 2012.

[7] UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations, May 2013.

[8] A.J. Rodger et al., “Sexual activity without condoms and risk of HIV transmission in serodifferent couples when the HIV-positive partner is using suppressive antiretroviral therapy,” JAMA 316, 2 (12 July 2016): pp. 171–181.

[9]op cit. Global Commission on HIV and the Law.

[10] Athena Network. 10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women. 2009.

[11] O’Byrne P et al. HIV criminal prosecutions and public health: an examination of the empirical research. Med Humanities 2013;39:85-90 doi:10.1136/medhum-2013-010366

[12]Ibid.

[13]Op cit. Global Commission on HIV and the Law.

US: Survivor's story shows how Michigan's criminalisation laws impact HIV positive individuals

A Hookup Gone Wrong: Michigan’s HIV Criminalization Negatively Affects Michiganders

Jeremy Merithew’s life took a turn for the worse when what was intended to be a casual hookup earned him a brush with discrimination and substantial jail time. That’s because He was HIV-positive and his hookup, Dwayne Cook claimed Merithew failed to disclose his status before the two engaged in oral and anal sex. That’s a four-year felony in Michigan and has been since 1989.

His mother, Teresa Perrin, has been by his side for the whole fight.

“It’s been a heartbreaking experience in what he’s gone through,” she said, “and not being able to get him out of it, and the way he was treated and the unfairness of it all.”

Both Perrin and Merithew were in Lansing last week to lobby lawmakers to change Michigan’s law. Iowa, California and Illinois have all modernized their laws in recent years.

Matthew Craig, coalition director for the Michigan Coalition for HIV Health and Safety, said having Merithew accompany the group in lobbying efforts to reform and modernize Michigan’s laws is important.

“As far as when it comes to a personal story and talking about Michigan’s HIV criminalization laws affect Michiganders, I think it’s important that we have people who have been affected badly by this law be able to speak to their own experiences,” he said. “Basically, our ability to translate to lawmakers and let them know that this is something we need them to change.”

Craig’s coalition is working with lawmakers to provide them basic HIV education while lobbying for the introduction of legislation to modernize the law to require prosecutors to prove the accused had an intent to transmit the virus, as well as engaged in behavior demonstrated to transmit it. Because right now, intent doesn’t have to proven for the accused to be sentenced.

Miscommunication

In August of 2012, Merithew was finishing his studies to become a nurse. He lived in a Grand Rapids suburb, and used an app get into contact with Cook.

“Then, two days after, the police came to my door,” Merithew said. “Knocking on the door, asking all sorts of personal questions. I answered them truthfully. I willingly went down to the police station with this guy so that they could interrogate me. They basically chained me to the floor and,they sat there and interviewed me for over an hour or whatever after they let me sit there for a while and stew … I think it was the next day they came back and arrested me.”

Evidence used at trial, however, raised questions as to whether or not there was a disclosure of Merithew’s positive status. Merithew said that he was asked questions before the hookup via email and answered “yes” to each.

His accuser, Cook, had his own issues. At the time of the hookup he was a married man with a pregnant wife who worked to raise money for a local housing agency. Ironically, that agency also administered federal money for the Housing Opportunities for People with AIDS (HOPWA) program.

Despite having been on medications for years and maintaining an undetectable viral load, Merithew’s attorney, Christine Yared, was prevented by Kent County Circuit Court Judge James Redford from presenting any scientific evidence that he was incapable of transmitting the virus.

It still grinds now 37-year-old Merithew to this day.

“I mean, it’s just we live in the 21st century,” he said. “Science should be taken into account when it comes to medical-type laws.”

Publicly Outed

Before Merithew had a chance to confront his accuser in court, the local Fox News affiliate, Fox 17, revealed he had created an online profile on the same hookup app in violation of his bond terms. Judge Redford revoked Merithew’s bond and he was sent to jail.

“Yeah, there was some guy online actually (who) turned me into Fox 17 news,” he said. “And it was kind of creepy when my lawyer read after the fact, you know, who this guy was and basically said, ‘Yeah, I’ve known him for years, I’ve been following him for years.’”

And the media scrutiny didn’t stop there.

“That would be because Fox 17 news actually published my online profile picture, which was a full nude picture, on the 6 o’clock news,” he said. “So yes. The inmates were aware of what was going on. But in their minds, they saw it as I was intentionally trying to infect people, and so it’s just called perception. The general public’s idea of what HIV is, or what the criminal statute actually is.”

Stigma Surfaces

While in jail, Merithew would soon face more allegations promoted by the television station. He would stand accused of trying to infect other inmates with food.

“I was getting sandwiches with my meds and I don’t like bologna, so I was giving them away instead of throwing them in the garbage. This one guy who everybody was calling ‘Crackhead Joe,’ he would always go around saying, ‘I’m not a crack head,’ and, bang, he would hit his arm like that,” Merithew slapped his arm to indicate shooting up drugs. “He asked me, ‘Why are you giving these sandwiches to so-and-so?’ And I’m like, ‘Well do you want extra mayonnaise on it too?’ Just kind of getting him to go away, because he’s just being annoying. So he went around telling all the guys that I was trying to infect everybody by ejaculating on the sandwiches.”

According to Merithew, that attempt at getting his fellow inmate to leave him alone escalated unexpectedly and severely when others learned of his comment.

“The Bible-thumper fanatic came up to me that day and he tried to talk to me, but I was watching the news so I kind of just brushed him off,” Merithew said. “So he went and told the CO about the incident, and then he came and talked to me and they locked me in segregation.”

His attorney called the incident a “jailhouse joke,” but Judge Redford, according an MLive report, said the incident was like yelling fire in a crowded theater.

Prosecutors, under the direction of then Kent County Prosecutor William Forsyth, tried to get Merithew to plead guilty to one count of violating the state’s HIV disclosure law. When he refused, he received another count, this one for the oral sex he had had, as well as a felony charge of using a computer to commit a crime. He was found guilty on all three counts in May 2013, and in June of that year he was sentenced to a minimum of five years in prison.

A Tarnished Record

The stigma around his virus followed Merithew past that incident. He was sent to prison in Jackson for processing after his sentence and was kept in solitary confinement for 45 days. Then, despite having a low security risk, he was sent to a maximum security facility – Ionia, Michigan.

“Basically, Kent County contacted the prison and said that I was gonna come to the prison and intentionally try to infect everybody with HIV,” he said. “So that was the reason that they locked me up,” Merithew said. “And, during that time, I was speaking to a psychologist that was there in the seg. unit. Basically, he told me that they were saying I was vindictive, and all of this other horrible stuff. He said (that) he didn’t see that, but they kept me there in segregation until they shipped me out.”

After time in Ionia, he was transferred to the prison in Adrian — a lower-security facility. Still, his HIV status traveled with him, and it reared its head while he was taking classes to learn how to work in food service. Someone asked Merithew to do the dishes although he wasn’t yet officially qualified to do so.

“And all the guys back there in the kitchen started throwing a fit, so I went back and the next day I didn’t have a call out for the culinary arts class,” he said. “So, I basically sent — they call them kites — a note to the instructor of the class asking him why I was taken out of this.”

Merithew said that the head of the vocational programs in the Michigan Department of Corrections, or MDOC, refused him based on his history in correctional institutions.

Misinformation and Revised Rules

The MDOC has a history of rejecting HIV-positive inmates from accessing jobs in food service.

“A prison holds about 1,000 (to) 1,200 people and as those 1,000 prisoners go through for breakfast, lunch and dinner, prisoners are scooping that food onto their trays,” said MDOC’s spokesman Russ Marlan in a 2009 statement to Between The Lines. “So if a prisoner was HIV-positive and sneezed onto a food item and then a prisoner ate that food item and that prisoner had a lesion in their mouth, they could contract the disease.”

Marlan also used the concept of a prisoner bleeding on food as a potential for the spread of the virus.

“Say a prisoner cuts himself and his blood falls on a radish and somebody eats that radish and that he’s got an open lesion in his mouth. There’s a potential for him to contract that disease,” Marlan said. “As responsible corrections professionals dedicated to running a safe and secure prison system, we made the decision not to allow them (prisoners with HIV) to work in that area of prison operations.”

The department lifted that ban a year later, in 2010.

Merithew was paroled earlier this year, but he remains restricted. Because he was ordered to register as a sex offender, which the Michigan Sex Offender Registration Act does not require for his specific conviction, he’s prohibited from using computers and must wear an ankle monitor. Those restrictions even prevent him from enrolling in online classes.

Merithew’s accuser, Cook, declined to comment on this story.

Published on Pride Source on April 25, 2018

Canada: Richard Eliott, executive director of the Canadian HIV/AIDS Legal Network , urges federal and provincial Attorneys-General to follow recommendations of Justice Ministry report

You didn’t transmit HIV. You had no intent to transmit. And indeed you didn’t do anything with your sexual partner that posed a statistically significant risk of transmission. In fact, you might even have used a condom, in keeping with standard safer-sex advice.

And yet, if you’re living with HIV and someone with whom you’ve had consensual sex — even just once — accuses you of not disclosing your status, you could face prosecution for “aggravated sexual assault.” A conviction means years in prison and mandatory registration as a sex offender.

Such a misuse of the law further stigmatizes people living with HIV. And, as a recent study confirms, it also discourages people from seeking HIV testing and getting care and treatment, making it bad public health policy.

This is why community organizations, scientific experts, human-rights lawyers and people living with HIV have been resisting overly broad HIV criminalization for years.

And it’s why this past World AIDS Day (Dec. 1, 2017) was a milestone.

More than 150 groups across Canada released a “Community Consensus Statement” demanding federal, provincial and territorial governments take steps to end unjust HIV criminalization.

In a welcome response, the Hon. Jody Wilson-Raybould, federal Attorney-General and Justice Minister, released her department’s in-depth study into the matter. Reflecting an extensive review of scientific evidence, legal decisions and broader public-interest considerations, the federal justice department now recognizes the harms of the “over-criminalization of HIV” and recommends significant limitations on the use of criminal charges.

More specifically, Justice Canada concludes that criminal-law charges for alleged HIV non-disclosure to a sexual partner shouldn’t be applied in any case where a person has a “suppressed viral load,” because there is effectively zero chance of transmitting the virus.  

Furthermore, the report concludes that criminal charges should generally not apply to persons living with HIV who use condoms or who engage only in oral sex, because the legal test of a “realistic possibility” of transmission is likely not met in such circumstances.

These conclusions are broadly consistent with what community advocates and scientific experts have been urging for years. Now federal and provincial Attorneys-General need to act.

Wilson-Raybould’s office has been signalling her intention to send new directives to federal Crown prosecutors. It’s essential that she consult, as promised, with scientific experts, community organizations and people living with HIV. And, at a minimum, her directives should clearly rule out prosecutions in the situations described in her own department’s report.

In Ontario, the Attorney-General has directed prosecutors to stop prosecutions for alleged HIV non-disclosure in cases where a person with HIV has had a suppressed viral load for at least six months. It’s a welcome development, but far from enough; it continues to leave people living with HIV unjustly criminalized.

But B.C., a province that has so often shown leadership, from harm reduction to HIV treatment, is lagging behind even Ontario’s half-hearted action.

Just last month, with zero consultation with the HIV community, the B.C. Prosecution Service released an updated policy that leaves the door wide open to a wide array of unjust prosecutions at odds with the available science, with human rights and with good public health practice. In four pages of bafflegab, there isn’t a single instance in which they actually rule out prosecuting someone living with HIV.

Disturbingly, even in the scenario described at the outset of this column, the new B.C. policy instructs prosecutors to “consider whether the public interest nonetheless requires a prosecution.” This is an embarrassing and disingenuous exercise that continues to stigmatize people living with HIV. B.C. can and must do better.

In the meantime, the threat of unjust criminalization continues to hang over all people living with HIV in Canada.

Richard Elliott is a lawyer and executive director of the Canadian HIV/AIDS Legal Network (aidslaw.ca) and a founding member of the Canadian Coalition to Reform HIV Criminalization (HIVcriminalization.ca).

Published in The Vancouver Sun on April 25,2018

US: Some states are broadening the scope of criminalisation laws to include viral hepatitis and other infections

Transmitting HIV Is a Crime in Most States. Is HCV Next?

Back when AIDS was dominating the news, 33 states passed laws making it illegal for HIV-infected people to have sex without their partner’s knowledge of the individual’s HIV status. Such laws were based on the idea that their bodily fluids constitute a deadly weapon.

Efforts to repeal or reform these laws have been gaining momentum in recent years, now that HIV infection is no longer considered a fatal disease. But in a surprising twist, some states are now broadening the scope of criminalization laws to include viral hepatitis and other infections, leaving some physicians dismayed and advocates deeply divided on the best path toward reform.

One of those states is Iowa, which in 2014 became one of the first states to repeal and replace its HIV criminalization law. However, the revised law now includes viral hepatitis, tuberculosis, and meningitis.

Earlier this year, South Dakota lawmakers considered a bill that would have created a hepatitis C-specific statute in addition to the state’s existing HIV criminal law.

“Fortunately, this portion of the [South Dakota] bill failed, but I wouldn’t be surprised if we see more efforts of this kind, especially in states that are being hard hit by the opioid crisis,” says Kate Boulton, JD, MPH, and staff attorney at The Center for HIV Law & Policy.

In addition to the 33 states with HIV criminalization laws, at least 12 states now have criminal laws specific to hepatitis, Boulton said. The laws vary, with some directly tracking HIV exposure and others limited to interactions with police or prison staff.

Such laws also raise the possibility that physicians will be forced to testify against their patients.

It’s not hypothetical. In 2014, Wendy Armstrong, an HIV specialist in Atlanta, was served a subpoena to testify against her own patient. The patient, who she refers to as ‘Paul’ to protect his privacy, was accused of misleading a former sexual partner about his HIV status — a criminal offense in Georgia punishable by up to 10 years in prison.

Armstrong reluctantly testified, confirming that Paul had been aware of his status for a decade. Although Paul claimed he was honest with his partner, who was never infected, he was found guilty. Later, the prosecutor congratulated Armstrong for helping to put a “scumbag” in jail.

“This impacts our patients,” Armstrong said. “And as such it’s our duty to understand — and to make sure our patients understand — what the legal environment they’re in is like.”

That might mean uncomfortable conversations with patients about the jail-time implications of sharing needles or having sex without first disclosing infection status — conversations that might make it even harder to build trust in the physician’s office.

What Happened In Iowa

Iowa’s HIV criminalization law from the 1990s had especially harsh penalties. One man was sentenced to 25 years in prison for theoretically exposing his partner to HIV, despite the fact that he had an undetectable viral load and had used a condom.

By 2010, advocates in Iowa felt the time was right to push for reform, but initially struggled to identify a platform that would be palatable to the state’s conservative lawmakers. The head of Iowa’s Department of Public Health at the time, a Republican and an ophthalmologist named Mariannette Miller-Meeks, MD, supported modernization. Working for her was Randy Mayer, head of the department’s Bureau of HIV, STD, and Hepatitis, who put together a fact sheet with several recommendations.

In his fact sheet, Mayer suggested a more moderate punitive system that reserved harsher punishment only for those who intend to infect others. Mayer’s fact sheet also zeroed in on the idea that focusing on HIV enhances stigma, and suggested that a reformed law could include other infections as well.

Those suggestions ultimately became part of a controversial law passed in 2014.

“I understand about why people were upset about that [because] none of us want the statutes even for HIV,” Mayer says, but “we also felt that repeal wasn’t a reasonable option, so we made this awful choice.”

Although counterintuitive, Iowa’s new, more comprehensive law may result in fewer prosecutions overall because it’s more difficult to prove someone intended to infect another person, says Allison Nichol, Legal and Policy Counsel at The SERO Project. Ultimately, some reform in Iowa was better than none, Nichol argues.

Not all advocates agree.

“I think it’s problematic,” says Boulton. “We don’t want to be pursuing a reform strategy that relies on naming and criminalizing other health conditions.”

“It’s just bizarre,” says Elizabeth Paukstis, Public Policy Director, National Viral Hepatitis Roundtable. Instead of reducing stigma against HIV, Paukstis argues an expanded law “perpetuates the stigma that’s already out there against people with hepatitis C.”

“While I am entirely in favor of modernizing HIV criminalization laws, it needs to be done correctly,” says Armstrong. “The wrong answer is to broaden the scope of the law to include other diseases…. I personally think it’s a very dangerous direction to go.”

Viral Hepatitis On The Rise

The United States is home to 3.2 million people living with hepatitis C, which kills more people every year than HIV, tuberculosis, and 58 other infectious diseases combined. Acute cases of hepatitis C have more than doubled since 2010, fueled by the opioid addiction crisis.

At least 12 states now criminalize viral hepatitis, meaning gastroenterologists and other clinicians could be compelled to testify against their own patients — though none of the sources interviewed for this story were aware of this happening.

Among states that now criminalize hepatitis, some, such as Tennessee and Mississippi, passed laws that track with existing HIV criminalization laws, says Boulton. Other states, such as Georgia, Pennsylvania and Missouri, passed stand-alone laws that only apply to interactions with police or corrections officers.

“It’s obviously a concern to see that this is being applied to an infection like hepatitis C,” especially because hepatitis C is now curable, says Raymond Chung, MD, Director of Hepatology and the Liver Center at Boston’s Massachusetts General Hospital. “The real crime, if you will, is that we haven’t been able to detect and refer to care and get into treatment each person who has hepatitis C.”

Because of the high rate of hepatitis C in prisons and its association with injection drug use, patients with hepatitis C are arguably even more marginalized than those with HIV, says Paukstis.

“These folks are in an incredibly vulnerable place, and it’s just not appropriate [to] penalize people for lacking education about the law and lacking education about this disease,” says Armstrong.

Little Awareness Among Clinicians

Armstrong estimates that about one-third of her colleagues who treat HIV infection are aware of criminalization laws, and medical associations such as the HIV Medicine Association (HIVMA) and the Infectious Disease Society of America (IDSA) continue to spread awareness of HIV criminalization by publishing position papers on this issue.

Meanwhile, the majority of gastroenterologists and liver disease doctors would be “quite shocked” to learn that some states criminalize hepatitis C, said Reau. The American Association for the Study of Liver Diseases (AASLD), does not have an official stance on this issue. Even in Iowa, where the 2014 reform was highly publicized, many physicians may not know about new restrictions.

“I think few HCV clinicians in Iowa are aware or the revised law regarding criminalization of hepatitis C transmission,” says Michael Ohl, MD, an infectious disease specialist at the University of Iowa. “My sense is that this conversation does not often come up with patients.”

“Any doctors who are treating hep C patients [should] be concerned,” says Paukstis. “There’s no scientific basis for these laws, and it’s something that can be used to discriminate and punish their patients.”

“I think it would be helpful for as many people involved in infectious disease and infection control be aware so they can counter ill advised laws from being enacted,” says Michael S. Saag, MD, past president of HIVMA and director of AIDS Research at the University of Alabama at Birmingham.

“In this way, they could also pivot the desire from legislators to ‘do something’ to having them do something that’s much more positive and effective,” Saag says.

When asked how these new laws might impact the doctor-patient relationship, Saag said the laws “could place the provider in conflict with the interest of patients.” But Saag, who treats patients with HIV and has known about HIV-specific criminalization laws for years, says the law should never get in the way of delivering good care.

“I never think about that when I’m taking care of a patient,” Saag says. “I’m always advocating for their best interest, and that means controlling the infection.”

 

Published in News Health on April 20, 2018

US: The Body Interviews Steven Thrasher about his 4 years coverage of Michael Johnson's case

Journalist Steven Thrasher Reflects on HIV Criminalization, Race, and the Press on the Eve of Michael Johnson’s Announced Parole Decision

By Tim Murphy

From TheBody, April 17, 2018

The story of Michael Johnson, a gay black wrestler who named himself “Tiger Mandingo” online, was the perfect storm of racism, homophobia, and the outdated HIV-phobia embodied in various laws criminalizing people with the virus for having sex. (Although the number of such laws is decreasing under pressure, they still exist in many states.)

From almost the beginning of the story in 2013, when Johnson was arrested in his dorm room, through the news last week that he will be paroled in 2019, New York-based journalist Steven Thrasher was virtually the only reporter to push past the prosecution’s press releases and talk directly to Johnson and others involved. The reporting, for Buzzfeed, resulted in a strikingly in-depth and complex look at the situation and the racial, sexual, and legal dynamics driving a trial that originally landed Johnson a 30-year sentence. (Here are all the stories, in chronological order: 1, 2, 3, 4, 5, 6, 7, 8, 9.)

 

TheBody talked to Thrasher, who is also a doctoral candidate in American Studies at New York University, about his four-year saga of covering Johnson’s case and what it says about how we have — and haven’t — changed when it comes to how we see race, sexuality, and HIV.

Tim Murphy: Have you talked to Michael Johnson since the parole (which won’t happen for another 18 months) was announced?

Steven Thrasher: I’ve talked to his friend in Indiana whom he’s going to be living with when he gets out. She’s lined up a part-time job for him in a warehouse; then, she’s going to help him get back into school. He actually is not allowed to go to public college for the first year. He’s 25 or 26 now. By the time he gets out, he’ll have served six years.

TM: How did you come onto the story in the first place?

ST: My editor Mark Schoofs at Buzzfeed put me on it. He said: “This black kid with HIV is being made out to be a black predator monster and nobody’s talked to him. Go to Missouri and talk to him.” The initial reporting on the case wasn’t reporting at all, but just rewrites of the prosecutor’s press releases, which were salacious. You see that happen a lot with legal stories about black, queer, or HIV-positive subjects, but it’s also a bigger problem in journalism.

TM: What are the big takeaways for you on this story?

ST: There are many. The biggest is that it puts HIV laws into the foreground and calls them into question. Many people, myself included, might first think that there could be some rational basis for these laws [that primarily criminalize people with HIV specifically for having sex without disclosing their HIV status to partners]. But it simply isn’t true. They’re at best ineffective and at worst harmful in terms of increasing HIV stigma and discouraging people from getting tested.

The story also shows, just like the story of the police murder of Michael Brown in Ferguson, that people don’t have to be “perfect” to rally around. [After receiving an HIV diagnosis, Johnson may or may not have disclosed his HIV status to multiple sex partners before having condomless sex — that much remains unclear.] Since this story began, the Black Lives Matter (BLM) movement has created a different way of standing up for people. We’ve had a long tradition from the mid-20th-century civil rights movement forward that people have to be the camera-ready ideal victims to rally around. The Michael Brown story said that all people are worth rallying around, and I feel that way about Michael Johnson.

The case is also an early example of thinking about how people are judged in court by their social media presence. [Johnson named himself “Tiger Mandingo” on Instagram and posted numerous pictures of his shirtless, buff body.] I would not want to be judged in court solely for my social media presence.

The case focused on interracial sexual desire and how often the responsibility for it is offloaded completely onto black people. The bulk of Michael’s accusers were white and, in court, they speak almost entirely in passive language about their own role in the sexual exchange, the way that, historically, white women would be framed as innocent in any sort of sexual exchange they had with black men, saying it was rape. Or it being considered rape even if it were consensual.

The case also exposed this perception on the part of many HIV-negative people that the world has to keep them from becoming HIV positive, and all they have to do is ask, “Are you clean?” and that absolves them from having to use a condom or taking any other kind of preventive measure. Actually, everyone needs to work together to try to keep HIV rates down.

TM: It’s interesting that the story started before the widespread emergence of pre-exposure prophylaxis (PrEP) or even the growing understanding that someone with HIV on meds who is undetectable is also virtually unable to transmit the virus.

ST: There was no PrEP in Missouri at the time. But, I’m not sure that it would have made a difference. Michael Johnson probably wouldn’t have had access to it. [Even today, PrEP access among gay black men is comparatively low.

TM: Also, the campus of Lindenwood University appears to have had little-to-no sexual health or HIV/AIDS prevention resources. Condoms weren’t even for sale at the health center.

ST: Right. They might not even know about or be offering PrEP today. [I called the university’s health center and asked about “getting on PrEP for HIV,” and the woman who answered had no idea what I was talking about. So, Thrasher is likely right.]

TM: It is an open question, though, whether Johnson clearly told his sex partners that he was HIV positive before they had sex without a condom. Should there have been any legal action against him?

ST: I would say no. I don’t think law enforcement is an effective or appropriate tool for this issue. But also, the punishment should not have been anything like the original sentence of 30 years, or even the six years he’ll end up doing. It was completely out of proportion to what he did. There are shorter sentences in Missouri for murder. In California, the maximum sentence on an HIV criminalization charge is six months.

TM: Did you ever ask him why he had unprotected sex when he knew he was HIV positive?

ST: I don’t think I asked him that. He said on the record in court that he always told his partners. No one will know for sure what he said. He said to me that he never wanted to hurt anyone. When I asked him whether he knew who gave him HIV, he said he couldn’t say for sure but that he wouldn’t want to because he’d never want what happened to him to happen to anyone else.

TM: Do you think the media have gotten better at covering this kind of intersection of race, sex, and HIV since Johnson’s story broke?

ST: I think coverage on both race and HIV has gotten a lot better. Even just a few years ago, most reporting on anything racial was from an unselfconsciously white perspective. BLM has had a big impact, not just in terms of writing about race but forcing a reflection on the subjectivity, biases, and assumptions of reporters themselves.

TM: How do you think HIV coverage has improved?

ST: For a long time, the only gay thing that was making news was gay marriage, which doesn’t address any number of injustices and challenges that many LGBT people face.

But HIV/AIDS brings up sex, drug use, poverty, homelessness, structural racism — all very difficult things to write about. Coverage has gotten better because editors have given people like me the opportunity to cover this stuff, and BLM has increased the viability of reporters and advocates getting their stories through newsrooms. There’s been a consciousness-raising that marriage is not the entire story and that homophobia plays out in other ways in society. Look at Linda Villarosa’s New York Times Magazine cover story last summer on HIV rates among gay black men in the South.

I also think the [Centers for Disease Control and Prevention] releasing the stat in 2016 that one in two gay black men would get HIV really forced mainstream gay organizations to realize that this was more urgent.

I also think the emergence of PrEP has made HIV an issue that’s clearer and more compelling for HIV-negative people.

TM: What is Michael Johnson like?

ST: He’s very sweet, very nice, gentle, and simple. He’s literal-minded. When I asked him how he got to college, he said, “I took the bus.” I’ve seen him in person a couple times a year the past few years, and he has no ill will toward anyone about this. He’s extremely sorry for everything that’s happened. He’s very smart about exercise and fitness and says he wants to become a personal trainer. I really learned that if there’s one thing reporters can do differently, it’s to actually talk to all the people involved in a story.

TM: What was it like working on the story for you, as a gay black man?

ST: It’s been hard at times and made me feel vulnerable. I hadn’t remembered that the prosecutor turned to the judge and said, “There’s a so-called journalist in the room, and I think he has an agenda, and I’ve asked the court to admonish him.” And the judge did. He told me not to talk to the jurors. It was frightening to have the bailiffs with their guns standing there, watching me intently.

I felt like I was watching a slow-motion lynching. I never thought Michael was without any responsibility in the situation, but he was still scapegoated by being made to carry responsibility for everyone in those sexual encounters. Watching that unfold, the legal violence of this kid maybe getting sent away for life was difficult.

But, if I hadn’t reported this story, then “Black Monster Spreads AIDS” is all the reporting that would have happened. My reporting got the interest of the ACLU and Lambda Legal. I kept pointing out how all the national gay organizations would have nothing to do with Michael. But then a group of nearly 100 black gay men wrote an open letter of support to Michael, and some of them started a GoFundMe that raised $25,000 toward the private lawyer that appealed his case on the basis of withheld evidence and got his sentence down to 10 years from 30.

And a separate group of HIV public health experts and faith leaders wrote a letter to the prosecutors asking for a more reasonable sentence for Michael that would not destroy his life. And now, he will be out of prison and able to restart his life in his mid-20s.

So, overall, despite how the story started, I’ve felt positive about how it all played out.

This transcript has been lightly edited for clarity.

Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.

Webinar: Making Media Work for HIV Justice (PWN-USA for HIV JUSTICE WORLDWIDE, 2018)

This 90 minute webinar introduced attendees to some of the concepts and practices highlighted in the Making Media Work for HIV Justice media toolkit, and featured formidable activists, journalists, communications professionals, and human rights defenders working at the intersection of media and HIV criminalisation.

Canadian study finds that fear of prosecution deters some men from testing

Fear of Prosecution Over HIV Non-Disclosure Reduces HIV-Negative MSM Testing

According to a recently published study, fear of prosecution over HIV non-disclosure was reported to reduce HIV testing willingness by a minority of HIV-negative men who have sex with men (MSM).

Even though HIV transmission risk is low with effective antiretroviral therapy (ART), non-disclosure criminal prosecutions among gay, bisexual and other MSM are increasing. Because reduced testing may decrease the impact of HIV ‘test and treat’ strategies, researchers aimed to quantify the potential impact of non-disclosure prosecution on HIV testing and transmission among MSM.

Researchers recruited 150 HIV-negative MSM attending an HIV and primary care clinic in Toronto from September 2010–June 2012. Eligible participants included males 16 years or older, HIV-negative patients, and those that had sex with another man in the previous 12 months.

Participants completed an audio computer-assisted self-interview questionnaire that incorporated demographic and sexual behavior characteristics. HIV-negative participants were asked whether concern over non-disclosure prosecution altered the likelihood of HIV testing. Answers were based on a 5-point Likert scale that ranged from much less likely to much more likely to be tested.

Responses were characterized utilizing cross-tabulations and bivariate logistic regressions, while flowcharts modeled how changes in HIV testing behaviour impacted HIV transmission rates controlling for ART use, condom use and HIV status disclosure.

Findings concluded that 129 HIV-negative participants answered the question about concern of prosecution affecting HIV-testing decisions. Seven (5.4%) were much less likely to get tested, 2 (1.6%) were less likely to get tested, 90 (69.8%) reported no change, 11 (8.5%) were more likely to get tested and 14 (10.9%) were much more likely to get tested.

A total of 7% (9/124) were less or much less likely to be testing due to concern over future prosecution. There was no obvious socio/sexual demographic characteristics associated with decreased willingness of HIV testing to due concern.

Researchers estimated that this 7% reduction in testing could cause an 18.5% increase in community HIV transmission and that 73% is driven by unmet needs of HIV-positive undiagnosed MSM individuals.

“This reduction has the potential to significantly increase HIV transmission at the community level which has important public health implications,” study authors said in the study. “There are also great concerns surrounding how negative, crime-related framing of media reports and discourse surrounding HIV criminalization cases could deter HIV testing and increase HIV stigma and discrimination. Hence, HIV criminalization laws could also make disclosure and/or condom use conversations even harder.”

Study limitations include the fact that a clinic-based recruitment was used, which could lead to selection bias with respect to MSM seeking primary care. There was also not sufficient variability in the outcome in order to carry out a multivariable analysis.

Even though the full impact of non-disclosure laws are unclear, decreasing the population on ART through reduction in HIV testing will not reduce transmissions. Future studies are needed to determine the awareness and knowledge of HIV criminalization laws among HIV-positive and HIV-negative individuals. It’s also unclear if never having had a positive HIV test would be a legitimate argument against possible future prosecution.

The study, “Prosecution of non-disclosure of HIV status: Potential impact on HIV testing and transmission among HIV-negative men who have sex with men” was published February 2018 in PLOS One.

Published in MD Magazine on April 1, 2018

US: HIV criminalisation laws remain in more than 30 states

Imprisoned for Offering Oral Sex: Ill-Founded Laws Criminalize People With HIV

Saturday, March 31, 2018 By Eleanor J. Bader, Truthout | Report

Eighteen months ago, in September 2017, the Centers for Disease Control (CDC) finally recognized reality, posting on their website that “suppressing HIV through antiretroviral therapy (ART) prevents sexual transmission of HIV.” This was a huge victory for HIV activists whose campaign, Undetectable Equals Untransmittable, or U=U, has long demanded that public policy catch up to advances in treatment of the disease and acknowledge that those with no viral load pose no risk of giving the virus to their sexual partners.

But despite the CDC’s concession, laws remain on the books in more than 30 states making the possible transmission of HIV a criminal act punishable by fines, incarceration or both.

“In order to understand HIV criminalization, you need to understand that the stigmatization of people with HIV has changed,” Sean Strub, executive director of the SERO Project, a national network of HIV-positive men and women, told Truthout. “In the old days, people didn’t keep their status secret. There were networks of people who were HIV-positive all over the country and we would get together and support each other. People who did not have the virus by and large treated us with compassion because they thought we were likely to die quick, horrific deaths.”

This changed, Strub says, with the advent of combination or antiretroviral therapies — ART — in the 1990s. Almost overnight, he says, it became apparent that people living with HIV could live long, productive lives. At the same time, he adds, “it also meant that we would be around to infect others.”

The 1990 Ryan White Comprehensive AIDS Resources Emergency Act, Strub continues, increased the stigma toward people with HIV when it mandated that in order for states to qualify for funding, they had to certify that “their criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.” According to the CDC, by 2011, 67 laws that explicitly targeted HIV transmission — impacting the country’s 1.1 million HIV-positive people — had been enacted in 33 states. Twenty-one make it a crime for someone with HIV to have sex — anal, oral or vaginal — without first telling a would-be partner that they have the virus; 14 states require prior disclosure before IV-drug needles are shared. Charges ranging from assault and battery to reckless endangerment to attempted murder have been levied against individuals arrested on these grounds — typically without regard to whether or not HIV was actually transmitted.

There is evidence, Strub says, that this policy has done the opposite of what it was intended to do, leading people to avoid getting tested because a person who is unaware of his or her status cannot be prosecuted. This, of course, delays treatment with antiretroviral medications, unwittingly allowing the virus to worsen and, perhaps, spread.

A State, Not Federal, Issue

“Specific criminal laws that apply to people with HIV are the rule rather than the exception in states across the country,” Kate Boulton, staff attorney at the Center for HIV Law and Policy reports. “They were passed in the peak years of AIDS hysteria and have basically remained unchanged for 30 years. HIV criminalization is a state issue and the laws that govern it need to be reframed at the state level.”

Let’s look at Tennessee as an example of current law. The “volunteer state” makes it a Class C felony “for a person who knows he or she has HIV to engage in intimate contact with another person” unless they receive consent prior to initiating sexual activity. Conviction can result in up to 15 years in jail, fines of up to $10,000 and permanent placement on the state’s sex offender registry.

Tennessee also makes “aggravated prostitution” — defined as sex work while knowing one has HIV — a crime, subject to the same penalties. As written, “exposure to HIV is not required, nor is sexual or even physical contact” for an aggravated prostitution arrest to be made. It is enough for a sex worker to approach someone and offer sex for money for the charge to stick.

Lastly, knowingly donating infected blood or tissue is deemed a criminal act.

A study of Tennessee arrests between January 1, 2000, and December 31, 2010, revealed that 74 percent of those charged with HIV exposure were male, as were 56 percent of the complainants, most of them police officers or hospital emergency room staff who feared infection because of exposure to blood, urine, feces or saliva. Sixty percent of those arrested on this charge were convicted, with prison sentences ranging from one month to eight years — even though by all accounts, saliva, urine and feces do not transmit the virus.

On the aggravated prostitution charges, more than two-third of those arrested — 68 percent — were female; nearly half, 44 percent, were simultaneously charged with illegal drug possession. The conviction rate was 92 percent, with prison sentences ranging from two to six years.

The study further revealed that half of those convicted were arrested for offering oral sex, an activity widely known to pose absolutely no danger of HIV transmission. What’s more, having HIV results in what is called “enhanced” penalties since “solicitation of sex for money” by a person who is HIV-negative is typically a Class A or Class B misdemeanor, charges that carry a still-steep maximum penalty of six months in jail and a $500 fine.

Larry Frampton, director of public policy at Nashville Cares — an educational, advocacy and support group for those living with HIV in Middle Tennessee — says there are blatant disparities in his state’s arrest policies. “The police generally don’t go after the middle-class gay community,” he explains. “They mostly go after trans people, African Americans, sex workers and IV drug users. They’re easy targets. Once in a blue moon, a vindictive ex-lover will complain to the police that he got HIV from a former partner, but that’s rare.”

Indeed, a study of HIV-related prosecutions by the Williams Institute at UCLA Law School, released in January 2018, confirms Frampton’s conclusion: Black men in the two states studied — Georgia and California — were twice as likely as white men to be convicted of HIV offenses.

Nashville Cares, Frampton adds, sees approximately 25 arrest cases a year and they are currently working with other state organizations to change the way law enforcement personnel treat those with HIV. “We would like to slide HIV into the existing STD Code,” he says, referring to state laws that criminalize transmission of most sexually transmitted diseases but that vary from state to state. In Tennessee, the Code governs the transmission of Hepatitis C, gonorrhea and syphilis. Those arrested are subject to a $50 fine and it is incumbent on the prosecutor to prove intent to transmit.

Modernizing the Law

California’s legislature took an incremental step similar to the one Frampton is proposing earlier this year, making engaging in sexual conduct that poses a substantial risk of HIV transmission punishable by up to six months in jail. Intent to transmit is required for conviction, and oral sex or sex while virally suppressed are both excluded. Enhanced penalties for sex workers, however, remain on the books, with an additional three years in prison tacked onto whatever sentence the arrested person receives for solicitation.

“It’s a step toward modernization,” says Kate Boulton of the Center for HIV Law and Policy. “Of course, we’d love to see all HIV criminalization laws repealed. The problem is that, in places where the impulse is to target people with HIV, police start making arrests using reckless endangerment, attempted murder, or assault or sexual assault charges instead. This is what happened in Texas after they repealed their HIV criminalization laws. By making the penalties for HIV transmission less severe, we are bringing state laws into alignment with what we now know about HIV infection and the science of HIV. This gives law enforcement a much smaller set of circumstances in which behaviors are considered blameworthy.”

That said, Boulton notes that HIV remains highly stigmatized. While the Americans with Disabilities Act considers the virus a disability, not everyone is covered by the law’s provisions. Public employees and those working for private employers with 15 or more workers, however, are covered, and at least on paper, are protected from discrimination in hiring, firing, job assignment, and wages and benefits.

This is not to say it’s easy to file a claim.

Kamilla Sjödin, managing director, legal services, at Gay Men’s Health Crisis (GMHC) in New York City, concedes that there are both barriers and obstacles that limit legal challenges to perceived discrimination. “What can you prove?” she asks. “In addition, once a claim is filed, the charge can become public and a lot of our clients don’t follow through because of stigma about HIV or fear of having their sexual preference known within their families or communities.”

She described a recent case in which a man applied for a job as an entertainer on a cruise ship, got hired, and was then sent for a medical exam. “This was when he learned he was HIV-positive,” she says. “He consulted with us but ultimately decided to withdraw his application for the position because he did not want to go through the additional medical testing that the company required. We investigated and what they were asking him to do was completely legal.”

Even when there is overt discrimination, it’s a hassle to fight back, says videographer, writer and teacher Christian Kiley. Several years ago, Kiley was working as an afterschool program coordinator at the Boys & Girls Clubs of Boston. “The kids were from the poorest parts of the city and a lot of them had experienced different kinds of trauma,” he begins. “I’d been working there for a few months and saw that World AIDS Day was coming up on December 1 so I asked the executive director if I could organize something for the kids. He said yes, and I contacted several people who agreed to come in and talk about HIV. I even made a short video that showcased people who were thriving despite living with the virus.”

Then, two hours before the program was set to launch, one of Kiley’s supervisors called him in and told him that the program could not take place. When he asked why, the answer stunned him. “What do you think would happen if people found out you have HIV?” the supervisor replied. “My head was spinning,” Kiley recalls. “I could not wrap my brain around this and it was not until a few days later that I realized that his ill will toward me was discriminatory.”

Shortly thereafter, Kiley went to the Equal Employment Opportunity Commission in Boston and filed a claim. “It was so stressful,” he says. “I knew it was going to be a long process and I was already exhausted. I eventually wanted to feel less anxiety so I withdrew the claim. I now regret doing this, but at the time I just wanted to get on track and get a better handle on other parts of my life.”

Employment and Housing Discrimination Are Common

Most discrimination, GMHC’s Sjödin says, is in the areas of housing and employment, but it can also be found in other arenas.

Sequoia Ayala, policy and advocacy program manager at Sister Love, a 30-year-old women’s health organization with offices in Atlanta and South Africa, says that she recently met a woman whose HIV status was listed on her public assistance paperwork.

“She had been living with HIV for more than 20 years but had never told her children her status. She was understandably very upset that her confidentiality had been violated,” Ayala says.

Worse, when the woman asked how to go about getting her status removed from the file, caseworkers dismissed her concerns. Similarly, Ayala says, she has seen numerous violations of the Health Insurance Portability and Accountability Act of 1996 (HIPPA).

Part of the problem, Ayala concludes, is ignorance, for despite decades of activism and work by community organizations, many people still don’t understand how HIV is contracted.

“I have a pretty telling example,” says Catherine Hanssens, executive director of the Center for HIV Law and Policy. “I recently did a training for dental students and dentists at a highly regarded university and although there has never been a documented case of HIV transmission between a patient and a dentist, there’s still a lot of fear.” Public health officials at the state, local and federal levels continue to be coy about transmission, she says, and about sexual health more generally, which increases the stigma.

“We need to speak frankly and be clear that the risk of transmission from a blowjob is little to none, that the risk of transmission from women to men is one in 1000, and that no one has gotten HIV from having an HIV-positive dental assistant clean their teeth,” Hanssens says. “Messages that present people as walking disease vectors make it seem like there is no way to be safe. We have to stop acting like having the virus is the worst thing that can happen to someone.”

Published in Truthout on March 31, 2018