US: HIV criminalisation distracts from the real challenges involved in HIV prevention and compounds injustices

Rethinking Criminalization of HIV Exposure — Lessons from California’s New Legislation

Laws that criminalize certain behaviors on the basis of the person’s HIV status have long been challenged as ineffective prevention measures that harm public health. They are nevertheless widespread: according to the Center for HIV Law and Policy, 34 states have HIV-specific criminal statutes, and 23 have applied more general laws (e.g., against assault with a deadly weapon) in order to criminalize HIV exposure. Most of these laws don’t reflect current evidence regarding protective factors such as antiretroviral treatment (ART), and many encompass behaviors that carry negligible risk.

California is now breaking from these precedents. In October 2017, Governor Jerry Brown signed SB 239, which reduces the criminal charges associated with exposing a sexual partner to HIV without disclosing one’s HIV status. In place of former felony charges, California will impose misdemeanor charges that carry a maximum of 6 months of jail time and will reserve penalties for intentional disease transmission. The law also repeals felony charges for solicitation (prostitution) by people who have tested positive for HIV, and it decriminalizes their donation of blood or tissue.

The strongest arguments for criminalizing HIV exposure emphasize two functions of criminal law: retribution and deterrence. But emerging evidence casts doubt on both those justifications. The justification for criminalizing HIV exposure for the purpose of retribution is that such behavior is morally blameworthy. If we follow this rationale, the defendant’s state of mind is important. Most HIV-specific statutes, however, omit intent to infect as a condition of the offense — simply being aware of one’s HIV status is enough to warrant a penalty. Such laws also do little to differentiate among reasons for nondisclosure (e.g., fears of partner violence, or economic necessity for sex workers), and they often impose heavy penalties for conduct that poses slim risks of infection or about which there is substantial moral ambiguity.1 Retribution is particularly inappropriate for behaviors that have virtually no capacity to transmit infection, and prevention tools for HIV-positive people (e.g., ART) have reclassified many activities as lower risk.

Evidence also indicates that penalties associated with HIV-specific statutes are unevenly imposed on the basis of race and sex. In California, for example, black and Latino people compose half the population of people with HIV but two thirds of defendants in HIV-criminalization cases; black women, in particular, account for only 4% of the state’s HIV-positive population but 21% of these cases.2Moreover, among people arrested for HIV-related crimes, white men were released and not charged in 61% of incidents, as compared with 44% of incidents for black women, 39% for white women, and 38% for black men. Discriminatory enforcement of HIV-criminalization statutes compounds injustices based on race, sex, and socioeconomic status, and it undermines the retributivist rationale for HIV criminalization.

Judged against the goal of deterrence, HIV-specific statutes haven’t been successful, and they may detract from more effective prevention efforts such as advances in treatment and blood-supply screening. Past analyses have found that neither the presence of an HIV-criminalization statute nor people’s awareness of it affects their views regarding responsibility for HIV transmission.1 These statutes therefore may not affect moral calculations for people making disclosure decisions. And although awareness of the law and fear of prosecution have been associated with earlier disclosure of serostatus, analyses have found no effect of these statutes on rates of sex without using condoms or on HIV or AIDS incidence,1,3 perhaps in part because 40% of new infections can be traced to people who don’t know their HIV status.4

The deterrence rationale is particularly weak for statutes that neglect scientific evidence on HIV transmission and prevention. A majority of Americans with HIV have achieved viral suppression, which is proven to reduce, if not eliminate, transmission risk. Similarly, criminalization of blood donation neglects the fact that donated blood is now screened for HIV before use, resulting in residual risks that are lower than 1 per 1 million donations, and Food and Drug Administration guidelines exclude donors who may be at risk. Criminalizing blood donation by people with HIV doesn’t add to these protections and may discourage donors from disclosing information on risk behaviors.

Research increasingly suggests that HIV-criminalization statutes can also cause harm. Such laws may increase HIV-related stigma, which is linked to poor engagement in care. The possibility of criminal penalties for known exposure may also encourage people to remain unaware of their HIV status and to withhold information that is central to partner-notification efforts. One analysis, for example, found that HIV testing decreased after there was media coverage of HIV-specific prosecutions.5 Providers have also reported that criminalization inhibits trusting relationships with their patients with HIV, potentially leading to deferred ART treatment (and reducing its potential for preventing transmission).

Unlike most state legislation penalizing HIV exposure, California’s new misdemeanor statute reflects up-to-date science. The law applies only to people who know they have an infectious disease, who act with specific intent to transmit the disease to another person, who engage in conduct posing a substantial risk of transmission without attempting to prevent transmission, and who transmit the disease to someone who doesn’t know that the person is infected. Behaviors such as spitting and biting aren’t considered to pose substantial risk, and acquiring an infection while pregnant and refusing treatment while pregnant are specifically exempted. The statute encompasses all infectious diseases, not just HIV — which may mitigate HIV-related stigma.

We believe that California’s new legislation is a meaningful improvement over its former law, although the remaining misdemeanor charge may still permit discriminatory enforcement based on race and sex. HIV status may also still be used as a sentence enhancement for some nonconsensual sex offenses.

California is not alone in taking a more evidence-based and less stigmatizing approach to HIV prevention. In 2016, for example, Colorado repealed two HIV-criminalization laws and modernized its statutory language regarding sexually transmitted infections. But additional developments counsel against optimism; the Ohio Supreme Court recently upheld a charge of felonious assault for people with HIV who have sex without disclosing their HIV status.

Laws criminalizing HIV exposure and transmission can distract from the real challenges involved in preventing the spread of HIV, and they fail to account for the structural factors that underlie risk. We believe existing HIV-criminalization statutes should continue to be restructured, amended, or repealed. A broad-based harm-reduction approach could involve modernizing statutory language on infectious disease, updating prosecutorial guidelines, developing guidance to support HIV treatment and testing efforts that may be affected by laws, and supporting research into how criminal statutes affect HIV prevention and treatment. By providing draft language for amended legislation and crafting model policies for public health authorities, researchers and advocates can help states move toward more evidence-based and effective responses to HIV.

Authors affiliations

From the Department of Health Administration and Policy, George Mason University, Fairfax, VA (Y.T.Y.); and the Columbia Law School and the Mailman School of Public Health, Columbia University, New York, NY (K.U.).

References: 

  1. Burris S, Beletsky L, Burleson JA, Case P, Lazzarini Z. Do criminal laws influence HIV risk behavior? An empirical trial. Ariz State Law J 2007;39:467–519 (http://ssrn.com/abstract=977274).

  2. Hasenbush A, Miyashita A, Wilson BDM. HIV criminalization in California: penal implications for people living with HIV/AIDS. Los Angeles: The Williams Institute, December 2015(https://williamsinstitute.law.ucla.edu/research/health-and-hiv-aids/hiv-criminalization-in-california-penal-implications-for-people-living-with-hivaids/).

  3. Sweeney P, Gray SC, Purcell DW, et al. Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States. AIDS 2017;31:1483–1488.

  4. Dailey AF, Hoots BE, Hall HI, et al. Human immunodeficiency virus testing and diagnosis delays — United States. MMWR Morb Mortal Wkly Rep 2017;66:1300–1306.

  5. Lee SG. Criminal law and HIV testing: empirical analysis of how at-risk individuals respond to the law. Yale J Health Policy Law Ethics 2014;14:194–238.

Published in the New England Journal of Medicine, March 29, 2018

N Engl J Med 2018; 378:1174-1175

DOI: 10.1056/NEJMp1716981

US: The Crime Report discusses the origins of HIV criminalisation in the US with Trevor Hoppe, author of “Punishing Disease: HIV and the Criminalization of Sickness.”

How State Laws Criminalize People With HIV

By Victoria Mckenzie

Commentators often contrast today’s treatment of the opioid crisis as a public health epidemic with the punitive approach once taken toward crack cocaine addiction. But perhaps an equally stark example of how Americans have criminalized certain socially “disreputable” diseases is the justice system’s approach to the HIV-AIDS epidemic that swept through US gay communities in the 1980s.

The harmful after-effects of that approach linger today. Some 28 states have criminal statutes that require people living with HIV to disclose their HIV status to sexual partners before having sex. Trevor Hoppe, an assistant professor of sociology at the State University of New York-Albany, closely examines those statutes and the struggle to rescind them in his recent book, “Punishing Disease: HIV and the Criminalization of Sickness.”

In a discussion with TCR, Hoppe explores the origins of the HIV-specific criminal laws in the US, how local health officials became the chief enforcers of them, and why the approach to the AIDS epidemic offers a cautionary lesson for contemporary public health officials and legislators.

(The conversation has been slightly abridged and edited.)

The Crime Report: You write that HIV exposure-and-disclosure statutes in the states were largely driven by local police departments and prosecutors.

Trevor Hoppe: Legal scholars have been saying for over a decade that these laws were a result of the Ryan White Care Actor the President’s Commission on the HIV Epidemic released under President Reagan. Both of those documents did end up advancing criminal statutes targeting HIV, but as I show in the book many of these laws or bills were introduced well before those documents came into existence.

The book is really trying to show how gay men were seen by police as a threat, especially sex workers living with HIV, but also to a lesser extent gay men living with HIV who were being arrested for other crimes. Police officers wanted a tool to punish these individuals more harshly.

TCR:  What was behind the belief that HIV was being spread by sex workers?

HOPPE:   Studies that I cite in the book suggested that sex workers in African countries had high rates of HIV, but it became clear very early on in the epidemic that was not happening in the United States, and that sex workers in the US had much lower rates of HIV than [those in Africa].  For many years, it was prohibited for any group to do research that might be perceived as promoting homosexuality or sex work. Those things are definitely intimately linked, and have been a problem for AIDS researchers, and HIV-prevention practitioners.

TCR:  In the states that have criminal statutes pertaining to HIV, is it potentially a crime to have consensual sex after disclosing your HIV status?

HOPPE: In the vast majority of states, no. The crime is the failure to disclose the status in almost all states. There are states like Louisiana and Tennessee that have more broadly written statutes that could be construed to include cases where someone did disclose, but to my knowledge they’ve not been used in that way. That isn’t to say that there aren’t cases where the person living with HIV says “I told them,” and then the person they had sex with says, ”No they didn’t.”

TCR: You write about the ways in which local health officials in Michigan used the threat of criminal action to coerce people into specific behaviors, and how they even take on an active law enforcement role. For instance, a Macomb County Health Department form requires a client to acknowledge having been informed of a positive HIV status, and that the client is aware of Michigan’s felony laws pertaining to disclosure. On the same form, clients are informed that condoms “must” be used, making it appear they are liable to prosecution for having unprotected sex of any kind, regardless of the consent, knowledge and HIV status of their partner.

HOPPE: Right, and there are health departments around the country using similar forms, so Michigan is not alone in that respect. There’s a conflation of consensual sex with criminality, and I think that’s part of public health trying to flex muscles and coerce people. But I think it does a disservice to the community, in that it really erodes trust between public health and the communities that it works with.

TCR:  Besides being an early adopter of HIV disclosure laws that pertained to a wide range of sexual activities, Michigan also began using a names-based reporting system to track people who tested positive for HIV. You write that health officials also began using this list as an investigative tool to look for people who might be breaking the law, and passing these names on to investigators, which have resulted in prosecutions.

HOPPE: I think the state would say “no, we have firm policies in place,” but when I spoke to people on the ground, they made it clear that there’s a lot of leeway in how they interpret and apply those policies. So you have local health officials who were using partner services to try to track down people they suspect might have been breaking the law, and that is explicitly not something that the state health department of Michigan condones. Nonetheless, technologies are being used to that end. I think it’s just one of those things that the state health department would rather not talk about, but it’s definitely happened at the local levels.

TCR:  You conducted these interviews with local health officials from 17 jurisdictions in Michigan several years ago. Was there ever any response from the state?

HOPPE: There was a series of articles about the names-based reporting, and the way it was being used, [by] an investigative journalist named Todd Heywood. The result was that the state health department said to local health departments, “You don’t have to use these [client acknowledgement] forms.” To my knowledge that was the only result, and I don’t know that local health departments are doing anything different. But the state health department certainly did not publicly say that they had to start doing anything differently. So it’s a good question and I think one still worth asking local health departments. They certainly are not excited to talk to me about it anymore.

TCR:  Based on some of the interviews with health officials you included in the book, it seems they were pretty candid with you at first.

HOPPE: They were extremely candid, and I’m grateful for that, because they in many cases told me quite matter-of-factly about what they did. And that was one of the surprising things from my end in doing the study⸺how nonchalant they were about some of the practices they were engaged in.

They would never outright disclose someone’s status. They would dance around that [by asking] “Did anyone you had sex with tell you they were HIV positive?” And [the client] would say “no, nobody told me.” Then they would say, “are you sure?”  And they would bring you back in for more questioning. They would try to prod you into realizing something was amiss. So they were really cognizant of HIPPA, health privacy laws, and very careful not to break them.

TCR:  How did they use contact tracing to try and search for people who might be breaking the law?

HOPPE: The way that contact tracing works is that if I test positive for gonorrhea, chlamydia or HIV, they would ask me who my sexual partners were. I would tell them “Joe, Bob, and Larry.” And then they would go contact Joe, Bob and Larry and say “Someone you have had sex with has tested positive for gonorrhea, chlamydia or HIV; you need to get tested.”

But they would also ask: ‘Did Joe, Bob or Larry tell you that they were HIV positive?’

And I would say “No.” Then they would look at the names-based database to see whether Joe, Bob or Larry actually have HIV. They would use those names and report it to investigators if they suspected one of them of violating the law.

TCR:  You write that HIV statutes were part of a negotiation to get sodomy laws off the books.

HOPPE: In states like Nevada, it was a tit-for-tat agreement between Democrats and Republicans. Democrats wanted to repeal the sodomy laws; Republicans had a lot of anxiety over what legalizing homosexuality would mean for the epidemic, because they viewed it as dangerous and as they said a “cesspool of disease.” [After the sodomy law was repealed] conservatives introduced legislation immediately to criminalize HIV-nondisclosure…literally, the next day.

TCR:  Is there any mens rea requirement to the exposure-and-nondisclosure laws? 

HOPPE: There’s no requirement with intent whatsoever, it’s just presumed. Drunk driving is often framed in similar legal terms— you don’t have to show intent to show that you were violating the law.  HIV is treated in similar ways, with intent being explicitly not part of the requirement or element under the law.

TCR:  After looking so closely at how the government, the media, and the public reacted to HIV, do you see any parallels to the “epidemics” of today, such as opioids, sex trafficking, and school shootings?

HOPPE: Well, I think we are prone to panic when it comes to our policy, so HIV is not unique in that sense. School shootings are a good example. If you wanted to understand gun violence in America, school shootings would not be the place to start, because they are such a tiny fraction of that issue. But they nonetheless dominate our consciousness.

Similarly, we became stuck on these highly sensational— and maybe rightly so, emotional— aspects of certain issues that [prevent us] from stepping back and seeing the bigger picture. Homosexuality definitely did that for HIV, and while I think the school shootings that are happening are horrible and we ought to prevent them as best we can, it’s just the tip of the iceberg when it comes to gun violence.

TCR:  What were the unintended results of HIV statutes, and what does this have to teach us about criminalization in the opioid context?

HOPPE: I think lawmakers had the idea that they were going to try to punish people who were out there trying to infect other people. Which seems like a good idea, right? That’s not something that we want people to be doing. But the language that they drafted in these statutes is so broad, that it encompasses behaviors that are far less nefarious, and far less harmful than what they had in mind.

It’s not just people out there trying to intentionally infect other people who are being prosecuted— it’s people who had a one-time sexual encounter with a condom, or who have an undetectable viral load, or who even (in Michigan) gave a lap dance. These are hardly the kinds of people I think those lawmakers had in mind.

Lawmakers, prosecutors, judges have no medical training. Nor are they medical experts. There are some exceptions, but [lawmakers] ought to take special caution when they try to create a law pertaining to a medical issue. The science around those issues changes quickly, and the law is unlikely to keep up with developments in the medical world. If you get it wrong, the consequences are unpredictable and, in the case of HIV criminalization, they have been devastating to many people.

TCR:  You examined 74 criminal cases in Michigan and Tennessee, looking at thousands of pages of court documents. What were you looking for?

HOPPE: I was interested in how prosecutors and judges make sense of these cases. How do they describe HIV? How do they describe the defendants? I was looking for the language that they used to represent HIV in the courtroom, and to represent the defendant’s behaviors, and what I found was that they consistently compared HIV to a death sentence, defendants to murderers, and their sexual activity as potential homicide. So they used these analogies to violent crime to kind of make sense of the punishments that they meted out.

I make the argument that the language matters. The language that they use to describe HIV is not inconsequential. It sort of justifies the punishment that they dole out.

TCR:  We now have plenty of research showing the extremely low risk of transmission when someone has an undetectable viral load. But these laws persist, under the same premise that people living with HIV represent a health threat. Where has science won in the courts? Some states have managed to repeal these laws.

HOPPE: Yes, but not through litigation. They’ve been repealed through legislation. California and Colorado have repealed their felony laws, and that surprised me, to be perfectly honest, in both cases. Because lawmakers really are not keen to repeal criminal statutes. I think states that have less left-leaning legislatures will have a harder time getting to repeal.

States like Tennessee and Iowa are instead moving to expand their laws to include other diseases. So I do think we’re at kind of a precipitous moment or a crossroads, where we could go one of two directions. And I don’t have a crystal ball.  I’m hopeful that more states will repeal.

TCR: In places where laws weren’t repealed, were there any amendments or provisions added to HIV statutes due to scientific advances?

HOPPE: Since it is no longer a death sentence, people living with HIV can’t automatically be characterized as “homicidal” for having sex; and we know more about how the disease is transferred.

There have been amendments, but mostly they’re technical in nature and not substantive. Carol Galletly and Zita Lazzarini at the University of Connecticut have done a study looking at those amendments. But my understanding is that they’re not radical overhauls, they’re just sort of housecleaning in most cases.

TCR:  Did the courts ever consider mitigating circumstances? For example, if someone had an undetectable viral load and used a condom?

HOPPE: They were raised as an issue by the defense several times. Mostly at sentencing, because most of these cases involved a plea. But I can think of at least one trial where a defendant tried to use his undetectable viral load as a defense, and it fell flat— it was entirely unsuccessful, to the court.

There is a possibility that could change, but those people don’t know what “undetectable” means. So I think until you have a judge, a prosecutor, etc, who has some basic understanding of HIV you’re going to still end up with the same outcomes. Part of the problem is that it’s not big cities that are leading the charge on this; it’s small towns.

TCR:  Tell me more about small towns and rural counties

HOPPE: To me, the criminalization of HIV is a problem of stigma. Where there is stigma you’ll find criminalization. So I went into this study, for example, expecting that gay men would be disproportionately targeted under these laws because of the homophobia that drove their implementation.

But what the book finds is that it’s mostly heterosexuals– particularly white heterosexuals, but also black heterosexual men, who are being disproportionately impacted. And what that tells me is that the people with the lowest probability of contracting HIV have the highest probability of being prosecuted. So we’re working on an analysis that’s looking geographically to get to some finer points on this question.

But what I can say right now is that prevalence of HIV does not predict prevalence of HIV criminalization. Counties where there’s lots of HIV don’t necessarily have lots of HIV criminal cases.

TCR:  How strong is the force of inertia in the court system, once scientifically invalid ideas are stamped into law?

HOPPE: It’s self-reproducing! Case law is really entrenched. It is very hard to grossly deviate from the course the courts are already on.

I think a powerful test case can certainly make a difference. But finding that test case that’s right, and getting it through the court, and finding a defendant who’s willing to go through that process seems quite difficult. Nick Rhoades in Iowa was an example of one of these test cases that I think made a huge difference, because he was sentenced to 25 years in prison for having sex with someone once and using a condom.

That’s indefensible, I think. And he’s also a very handsome white gay man, so he’s a sympathetic sort of defendant. So I do think that cases like that can have an effect, but they’re just so few and far between. It’s not a federal system, so it really takes one of these cases in every single state.

TCR:  So to your knowledge the issue of viral count hasn’t really made it into the statutes?

HOPPE: When Iowa revised its law a couple of years ago, they did reduce the penalties in cases where someone has undetectable viral loads, but they did not eliminate it. North Carolina’s [statute] was revised to say that if you had an undetectable viral load, you did not have to disclose. It was a law that to my knowledge was almost never used– but nonetheless it’s a sign that there could be some movement happening.

TCR:  Do you see states still moving toward repealing these criminal laws under the Trump administration?

HOPPE: I talk to people in states around the country, and many people on the ground are dedicated to making that happen, and hopeful that it will happen. And so, I’m hopeful for them.

Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. She welcomes readers’ comments.

Published in the Crime Report on March 26, 2018

HIV Criminalization in Canada: Testimonials (Alexander McClelland / Canadian HIV/AIDS Legal Network, 2018)

http://www.hivcriminalization.ca/testimonials/

New Toolkit Supports Advocates in Using Media to Fight for HIV Justice

When it comes to the widely misunderstood, complex issue of HIV criminalisation, media can be a powerful tool–or a blunt-force weapon.

And so today, as people around the world living with HIV continue to be criminalised and convicted at alarming rates, HIV JUSTICE WORLDWIDE has released “Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation.”

The new resource is the latest addition to the HIV JUSTICE Toolkit, which provides resources from all over the world to assist advocates in approaching a range of advocacy targets, including lawmakers, prosecutors and judges, police, and the media.

The purpose of this critical media toolkit is to inform and equip global grassroots advocates who are engaged in media response to HIV criminalisation–and to demystify the practice of working with, and through, media to change the conversation around criminalisation.

“As advocates work to build community coalitions and consensus about the importance of limiting and ending HIV criminalisation, we need to articulate our common positions to the public and to decision-makers; thus, working with the media is critically important,” says Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network and a member of the HIV JUSTICE WORLDWIDE Steering Committee. “Also, particularly in settings where sexual assault laws are used to criminalise people living with HIV, it is important to communicate via the media why this misuse of the criminal law is harmful to women.”

The toolkit provides an introduction to the topic of HIV criminalisation and the importance of engagement with media to change narratives around this unjust practice. The toolkit also includes reporting tips for journalists, designed to educate writers and media makers around the nuances of HIV criminalisation, and the harms of inaccurate and stigmatising coverage.

Positive Women’s Network – USA (PWN-USA), the HIV JUSTICE WORLDWIDE Steering Committee member organisation that produced the toolkit, has been working on HIV criminalisation for many years, and was an instrumental part of the coalition that brought HIV criminal law reform to the US state of California.

“With HIV rarely making front page news anymore, the highly sensationalised reporting of criminalisation cases–which most often contains little in the way of facts or science–paints a dehumanising picture of people living with HIV,” says Jennie Smith-Camejo, Communications Director for PWN-USA. “This kind of coverage can and does destroy real lives of those affected by HIV criminalisation laws, while fueling and feeding misinformation and stigma.”

The toolkit also includes a number of case studies providing examples of how media played a significant role in the outcome, or the impetus, of HIV criminalisation advocacy.

“I have been monitoring media coverage of speculations, arrests, prosecutions, and convictions of people living with HIV, and also legal and policy proposals for new laws and/or reform, for more than a decade,” notes Edwin J Bernard, Global Co-ordinator of the HIV Justice Network and a member of the HIV JUSTICE WORLDWIDE coalition. “It’s time for the injustice to end. ‘Making Media Work for HIV Justice’ is a long-overdue welcome addition to the HIV JUSTICE Toolkit, and an important step towards realising a world where people living with HIV are not singled out by the criminal justice system simply for having a virus.“

“Making Media Work for HIV Justice: An introduction to media engagement for advocates opposing HIV criminalisation” was supported by a grant from the Robert Carr Fund for Civil Society Networks. It  will also be translated into French, Spanish, and Russian later this year.

Webinar: Making Media Work for HIV Justice

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

About HIV JUSTICE WORLDWIDE

HIV JUSTICE WORLDWIDE is an initiative made up of global, regional, and national civil society organisations–most of them led by people living with HIV–who are working together to build a worldwide movement to end HIV criminalisation. All of the founding partners have worked individually and collectively on HIV criminalisation for a number of years.

HIV JUSTICE WORLDWIDE is run by a 10-member Steering Committee: AIDS Action Europe / European HIV Legal Forum; AIDS-Free World; 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); Sero Project (SERO); and Southern Africa Litigation Centre (SALC).

To learn more and to join the movement, visit: http://www.hivjusticeworldwide.org.

Download the media release as a pdf here: http://bit.ly/HIVJusticeToolkitMediaRelease

France: HIV criminalisation laws have a disproportionate impact on women

HIV: The share of women!

For the 8th of March, International Women’s Rights Day, Seronet takes stock of some figures on HIV related to women worldwide.

HIV in the world: women’s numbers

In 2015, globally, about 17.8 million women (aged 15 and over) were living with HIV, equivalent to 51% of the total population living with HIV. About 900,000 of the 1.9 million new HIV infections worldwide in 2015 – 47 percent – were women. It is young women and girls aged 15 to 24 who are particularly affected. Globally, about 2.3 million adolescent girls and young women were living with HIV in 2015, representing 60% of the entire population of young people (aged 15 to 24) living with HIV. 58% of new HIV infections among 15-24 year olds in 2015 were among adolescent girls and young women.

According to the same source, regional differences in new cases of HIV infection among young women and the proportion of women (aged 15 and over) living with HIV compared to men are considerable. They are even more important between young women (aged 15 to 24) and infected young men. In sub-Saharan Africa, 56% of new HIV infections occurred in women, and the rate was even higher among young women aged 15 to 24, accounting for 66% of new infections.

In the Caribbean, women accounted for 35% of newly infected adults, and 46% of new infections occurred among young women aged 15 to 24 years. In Eastern Europe and Central Asia, 31% of new cases of HIV infection have affected women; however, the rate of new infections among young women aged 15 to 24 reached 46%. In the Middle East and North Africa, women represent 38% of newly infected adults, while 48% of young women aged 15 to 24 are newly infected. In Western Europe, Central Europe and North America, 22% of new infections occurred in women, the highest rate among young women aged 15 to 24, with 29% of new infections (1).

Inequalities between women themselves

Some women are more exposed to HIV than others. This is a function of belonging to certain groups. The incidence of HIV in specific groups of women is disproportionate. According to an analysis of studies measuring the cumulative prevalence of HIV in 50 countries, it is estimated that sex workers around the world are about 14 times more likely to be infected with HIV than other women of childbearing age. (2). In addition, data from 30 countries indicate that the cumulative prevalence of HIV among women who inject drugs was 13%, compared to 9% among men who inject drugs (3).

A feminization of the HIV epidemic in France

Over the years, the HIV / AIDS epidemic has been strongly feminized in France too: the share of new diagnoses has increased in France from 13% in 1987 to 33% in 2009. Heterosexual contamination is the main vector of HIV transmission (54% of HIV-positive discoveries) and women make up the majority of these infections. Compared to men, they are infected younger.

In France, women account for about 30% of new HIV infections each year, a significant proportion of whom are born abroad and especially in sub-Saharan Africa. If we look at the 2016 data, we note that among heterosexuals, the majority of diagnostics relates to 2,300 people born abroad. 80% are born in sub-Saharan Africa and 63% are women. Late-stage discoveries are more specific to men than women.

Migrant women, in greater numbers than men in France, suffer more problems related to sexual health: complications specific to pregnancy and childbirth and sexual violence. These states are dependent on the conditions of the country of origin (sexual mutilation, forced marriages), and migration (rape, trafficking in human beings). They can be strengthened upon arrival in the host country, as the period of installation often corresponds to a period of health and social precariousness, which increases the risks of exposure to HIV and sexually transmitted infections.

What factors exacerbate the prevalence of HIV?

It’s obvious … but it’s worth remembering. Violence against women and girls increases their risk of HIV infection (4). A study in South Africa found that the link between intimate partner violence and HIV was more pronounced in the presence of domineering behaviour and high HIV prevalence.

In some settings, up to 45% of adolescent girls report that their first sexual experience was forced. Worldwide, more than 700 million women alive today were married before their eighteenth birthday. Often, they have limited access to prevention information and limited means to protect themselves from HIV infection. Worldwide, out of ten adolescent girls and young women aged 15 to 24, only three of them have complete and accurate knowledge of HIV (5). Lack of information on HIV prevention and the inability to use such information in the context of sexual relations, including in the context of marriage, undermine women’s ability to negotiate condom use and engage in safer sex, says UN Women.

Seropositivity: a double sentence for women

Other data indicate that women living with HIV are at increased risk of violence (6), including violations of their sexual and reproductive rights (reproductive health). Cases of involuntary or forced sterilization and forced abortions among women living with HIV have been reported in at least fourteen countries. In addition, legal standards directly affect the level of risk for women to contract HIV, says the UN Women. In many countries where women are most at risk, the laws that are supposed to protect them are ineffective. The lack of legal rights reinforces women’s subordinate status, particularly with regard to women’s rights to divorce, to possess and inherit property, to enter into contracts, to prosecute and to testify in court, to consent to medical treatment and open a bank account. Discriminatory laws on the criminalization of HIV transmission can also have a disproportionate impact on women, as they are more vulnerable to being tested for HIV and to find out whether or not they are infected with HIV when they access healthcare for their pregnancy. HIV-positive mothers are considered criminals under HIV-related laws in several countries in West and Central Africa, which explicitly or implicitly prohibits them from being pregnant or breastfeeding. for fear that they might transmit the virus to the fetus or to the child (7).

The response to HIV for women

Globally, between 76% and 77% of pregnant women have had access to antiretroviral drugs to prevent mother-to-child transmission of HIV, says UN Women (data for 2015). Despite this encouraging rate, more than half of the 21 priority countries of the UNAIDS Global Plan were unable to meet the need for family planning services for at least 25% of all married women. Another element is that governments are increasingly recognizing the importance of gender equality in HIV interventions at the national level. However, only 57% (out of the 104 countries that submitted data) had a specific budget. For their part, Global Fund expenditures on women and girls have increased from 42 percent of its total portfolio in 2013 to about 60 percent in 2015.

(1): UNAIDS, 2015 estimates from the AIDSinfo online database. Additional disaggregated data correspond to unpublished estimates provided by UNAIDS for 2015, derived from country-specific AIDS epidemic models.

(2) : Stefan Baral and al. (15 mars 2012), “Burden of HIV among female sex workers in low-income and middle-income countries: a systematic review and meta-analysis”, The Lancet Infectious Diseases, vol. 12, no 7. p. 542.

(3) : UNAIDS (2014) The Gap Report, p. 175.

(4) : R. Jewkes and al. (2006) « Factors Associated with HIV Sero-Status in Young Rural South African Women: Connections between Intimate Partner Violence and HIV », International Journal of Epidemiology, 35, p. 1461-1468 ;

(5) : UNAIDS (2015) 2015 Report on World AIDS Day “On the Fast-Track to end AIDS by 2030: Focus on Location and Population“, p. 75.

(6) : WHO and UNAIDS (2010) “Addressing violence against women and HIV/AIDS: What works?“, p. 33.

(7) : Commission mondiale sur le VIH et le droit (2012) « Risques, droit et santé », p. 23.

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VIH : La part des femmes!

A l’occasion du 8 mars, Journée international des droits des femmes, Seronet fait le point sur quelques chiffres relatifs au VIH concernant les femmes dans le monde.

VIH dans le monde : la part des femmes

En 2015, à l’échelle mondiale, environ 17,8 millions de femmes (âgées de 15 ans et plus) vivaient avec le VIH, soit 51 % de toute la population vivant avec le VIH. Environ 900 000 des 1,9 million des nouveaux cas d’infection par le VIH constatés dans le monde en 2015 – soit 47 % – ont concerné des femmes. Ce sont les jeunes femmes et les adolescentes de 15 à 24 ans qui sont particulièrement touchées. A niveau mondial, environ 2,3 millions d’adolescentes et de jeunes femmes vivaient avec le VIH en 2015, représentant 60 % de toute la population de jeunes (de 15 à 24 ans) vivant avec le VIH. 58 % des nouveaux cas d’infection par le VIH chez les jeunes de 15 à 24 ans en 2015 touchaient des adolescentes et des jeunes femmes.

Selon la même source, les différences régionales concernant les nouveaux cas d’infection par le VIH chez les jeunes femmes et la proportion de femmes (âgées de 15 ans et plus) vivant avec le VIH par rapport aux hommes sont considérables. Elles sont encore plus importantes entre les jeunes femmes (âgées de 15 à 24 ans) et les jeunes hommes infectés. En Afrique subsaharienne, 56 % des nouveaux cas d’infection par le VIH ont touché des femmes, et ce taux a été encore plus élevé chez les jeunes femmes de 15 à 24 ans, représentant 66 % des nouveaux cas d’infection.

Dans les Caraïbes, les femmes ont représenté 35 % des adultes nouvellement infectés, et 46 % des nouveaux cas d’infections ont touché les jeunes femmes de 15 à 24 ans. En Europe de l’Est et en Asie centrale, 31 % des nouveaux cas d’infection par le VIH ont touché des femmes ; toutefois, le taux des nouveaux cas d’infection touchant les jeunes femmes de 15 à 24 ans a atteint 46 %. Au Moyen-Orient et en Afrique du Nord, les femmes représentent 38 % des adultes nouvellement infectés, alors que 48 % des jeunes femmes de 15 à 24 ans sont nouvellement infectées. En Europe occidentale, en Europe centrale et en Amérique du Nord, 22 % des nouveaux cas d’infection ont touché des femmes, ce taux étant plus élevé chez les jeunes femmes de 15 à 24 ans, avec 29 % de nouveaux cas d’infection (1).

Des inégalités entre les femmes elles-mêmes

Certaines femmes sont plus exposées au VIH que d’autres. C’est notamment fonction de l’appartenance à certaines groupes. L’incidence du VIH sur certains groupes spécifiques de femmes est disproportionnée. Selon une analyse d’études mesurant la prévalence cumulée du VIH dans 50 pays, on estime que, dans le monde, les travailleuses du sexe ont environ 14 fois plus de risques d’être infectées par le VIH que les autres femmes en âge de procréer (2). Par ailleurs, d’après des données émanant de 30 pays, la prévalence cumulée du VIH chez les femmes qui consomment des drogues injectables était de 13 %, contre 9 % chez les hommes qui consomment des drogues injectables (3).

Une féminisation de l’épidémie de VIH en France

Au fil des années, l’épidémie à VIH/sida s’est fortement féminisée en France aussi : la part de nouveaux diagnostics est passée, en France, de 13 % en 1987 à 33 % en 2009. La contamination hétérosexuelle est le principal vecteur de transmission du VIH (54 % des découvertes de séropositivité) et les femmes constituent la majorité de ces contaminations. Par rapport aux hommes, elles sont contaminées plus jeunes.

En France, les femmes représentent environ 30 % des nouvelles contaminations par le VIH chaque année, une part importante d’entre elles sont nées à l’étranger et en particulier en Afrique subsaharienne. Si on regarde les données de 2016, on note que les hétérosexuels, la majorité des découvertes de séropositivité est constituée par les 2 300 personnes nées à l’étranger. Il s’agit à 80 % de personnes nées en Afrique subsaharienne et à 63 % de femmes. Les découvertes à un stade avancé concernent plus particulièrement les hommes que les femmes.

Les femmes migrantes, en plus grand nombre que les hommes en France, subissent plus de problèmes liés à la santé sexuelle : complications propres à la grossesse et à l’accouchement, violences sexuelles. Ces états sont dépendants des conditions du pays d’origine (mutilations sexuelles, mariages forcés), et du parcours migratoire (viols, trafic d’êtres humains). Ils peuvent être renforcés à l’arrivée dans le pays d’accueil, la période d’installation correspondant souvent à une période de précarité sanitaire et sociale, qui accroît les risques d’exposition aux VIH et aux infections sexuellement transmissibles.

Quels facteurs exacerbent la prévalence du VIH ?

C’est une évidence… mais qu’il est bon de rappeler. La violence à l’égard des femmes et des filles augmente leurs risques d’infection par le VIH (4). Une étude menée en Afrique du Sud a démontré que le lien entre la violence infligée par un partenaire intime et le VIH était plus marqué en présence d’un comportement dominateur et d’une prévalence élevée du VIH.

Dans certains contextes, jusqu’à 45 % des adolescentes indiquent que leur première expérience sexuelle a été forcée. Dans le monde, plus de 700 millions de femmes en vie aujourd’hui ont été mariées avant leur dix-huitième anniversaire. Souvent, elles disposent d’un accès restreint aux informations de prévention, et de moyens limités pour se protéger contre une infection par le VIH. A l’échelle mondiale, sur dix adolescentes et jeunes femmes de 15 à 24 ans, seulement trois d’entre elles ont des connaissances complètes et exactes sur le VIH (5). Le manque d’informations sur la prévention du VIH et l’impossibilité d’utiliser de telles informations dans le cadre de relations sexuelles, y compris dans le contexte du mariage, compromettent la capacité des femmes à négocier le port d’un préservatif et à s’engager dans des pratiques sexuelles plus sûres, rappelle l’ONU Femmes.

La séropositivité : une double peine pour les femmes

D’autres données indiquent que les femmes vivant avec le VIH sont davantage exposées à des actes de violence (6), y compris des violations de leurs droits sexuels et génésiques (la santé reproductive). Des cas de stérilisation involontaire ou forcée et d’avortements forcés chez les femmes vivant avec le VIH ont été signalés dans au moins quatorze pays. De plus, les normes juridiques affectent directement le niveau de risque pour les femmes de contracter le VIH, rappelle l’Onu Femmes. Dans bon nombre de pays où les femmes y sont le plus exposées, les lois qui sont censées les protéger sont inefficaces. Le manque de droits juridiques renforce le statut de subordination des femmes, en particulier au regard des droits des femmes de divorcer, de posséder et d’hériter de biens, de conclure des contrats, de lancer des poursuites et de témoigner devant un tribunal, de consentir à un traitement médical et d’ouvrir un compte bancaire. Par ailleurs, les lois discriminatoires sur la criminalisation de la transmission du VIH peuvent avoir des répercussions disproportionnées sur les femmes, car elles sont plus exposées à être soumises à des tests de dépistage et ainsi à savoir si elles sont ou non infectées lors de soins au cours de la grossesse. Les mères séropositives sont considérées comme des criminelles en vertu de toutes les lois relatives au VIH en vigueur dans plusieurs pays en Afrique de l’Ouest et en Afrique centrale, ce qui leur interdit, explicitement ou implicitement, d’être enceintes ou d’allaiter, de crainte qu’elles transmettent le virus au fœtus ou à l’enfant (7).

La réponse face au VIH pour les femmes

A l’échelle mondiale, entre 76 et 77 % des femmes enceintes ont eu accès à des médicaments antirétroviraux pour prévenir la transmission du VIH de la mère à l’enfant, indique l’Onu Femmes (données pour 2015). Malgré ce taux encourageant, plus de la moitié des 21 pays prioritaires du Plan mondial d’Onusida ne parvenaient pas à répondre aux besoins en services de planning familial d’au moins 25 % de l’ensemble des femmes mariées. Autre élément : les gouvernements reconnaissent de plus en plus l’importance de l’égalité des sexes dans les interventions face au VIH qui sont menées à l’échelle nationale. Cependant, seulement 57 % (sur les 104 pays qui ont soumis des données) d’entre eux disposaient d’un budget spécifique. De leur côté, les dépenses du Fonds mondial de lutte contre le sida consacrées aux femmes et aux filles ont augmenté, passant de 42 % de son portefeuille total en 2013 à environ 60 % en 2015.

(1) : Onusida, estimations de 2015 provenant de la base de données en ligne AIDSinfo. Les données désagrégées supplémentaires correspondent aux estimations non publiées fournies par l’Onusida pour 2015, obtenues à partir de modèles des épidémies de sida spécifiques aux pays.

(2) : Stefan Baral et al. (15 mars 2012), “Burden of HIV among female sex workers in low-income and middle-income countries: a systematic review and meta-analysis”, The Lancet Infectious Diseases, vol. 12, no 7. p. 542.

(3) : Onusida (2014) The Gap Report, p. 175.

(4) : R. Jewkes et al. (2006) « Factors Associated with HIV Sero-Status in Young Rural South African Women: Connections between Intimate Partner Violence and HIV », International Journal of Epidemiology, 35, p. 1461-1468 ;

(5) : Onusida (2015) Rapport 2015 sur la Journée mondiale de lutte contre le sida “On the Fast-Track to end AIDS by 2030: Focus on Location and Population“, p. 75.

(6) : L’OMS et ONUSIDA (2010) “Addressing violence against women and HIV/AIDS: What works?“, p. 33.

(7) : Commission mondiale sur le VIH et le droit (2012) « Risques, droit et santé », p. 23.

Published in Seronet on March 7, 2018

Sean Strub Harvard Lecture: HIV Criminalization: Creating a Viral Underclass in the Law (US, 2018)

HLS Lambda hosted this lecture on HIV stigma, criminalization, and activism.

Sean Strub is a longtime HIV survivor, founder of POZ magazine, director of the Sero Project, and an advocate for people living with HIV. He is the author of Body Counts: A Memoir of Politics, AIDS, Sex, and Survival. His short film, HIV Is Not a Crime, introduced the problem of HIV criminalization to audiences worldwide. A longtime activist, Strub was the first openly HIV-positive person to run for the U.S. Congress. He has also produced the off-Broadway hit The Night Larry Kramer Kissed Me, and served as a member of the board of the Global Network of People Living with HIV.

For more information, visit our website at: petrieflom.law.harvard.edu/events/details/hiv-criminalization-lambda

Canada: Experts believe that the Novia Scotia Court of Appeal recent decision in a non-disclosure case will guide future cases

N.S. appeal will give guidance for future HIV non-disclosure cases, lawyers say

Tuesday, February 27, 2018 @ 9:25 AM | By Terry Davidson

The acquittal of an HIV-positive man in an East Coast non-disclosure case will further guide Canada’s legal community in its response to new science around risk of transmission, experts say.

The Nova Scotia Court of Appeal decision in R. v. Thompson 2018 NSCA 13, rendered Feb. 15, involves Claude Thompson, an Antigonish man who was charged with failing in 2011 to tell two women he was HIV-positive before having consensual sex with them.

During Thompson’s 2016 trial, Justice Suzanne Hood found that Thompson had been taking antiviral drug therapy and used a condom with the first complainant but not the second. She also leaned on expert testimony that there was negligible risk of transmission in this case.

As a result, Justice Hood acquitted Thompson of two counts of aggravated sexual assault, but deemed him guilty of the “lesser and included offences of sexual assault causing bodily harm” after finding the two women suffered psychologically from the initial uncertainty of not knowing if they had been infected. (Both subsequently tested negative.)

This, she ruled, vitiated their consent.

But Appeal Court Justice Duncan Beveridge threw out Thompson’s bodily harm convictions, ruling that unless there was a realistic possibility of transmission, consent could not be vitiated simply by psychological harm.

“The sole issue in this case is whether psychological harm said to have been caused by non-disclosure of HIV status vitiates consent to sexual activity.” The short answer is no, it does not,” stated Justice Beveridge, with Justices Linda Lee Oland and Joel Fichaud in agreement. “Failure by a sexual partner to disclose that he or she has a sexually transmitted disease is morally reprehensible, but it is not usually a crime.”

Justice Beveridge went on to talk of stress and upset being “irrelevant” in the “eyes of the law.”

“Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, are, in the eyes of the law, irrelevant.”

In December, the federal government released the Criminal Justice System’s Response to Non-Disclosure of HIV, a research paper warning of the over-criminalization of infected people who don’t disclose their condition but pose a “negligible” risk to non-infected partners. It also lays out various sexual scenarios which would involve a low — or even nonexistent — possibility of transmission, even if a condom is not used.

Criminal law, it stated, should not apply to those who do not disclose but have maintained a suppressed viral load, are taking antiretroviral treatment, use condoms or engage only in oral sex.

Following the paper’s release, Ontario’s Ministry of the Attorney General announced that the province’s Crowns would be told to limit non-disclosure prosecutions, particularly for those on antiretroviral therapy and with “a suppressed viral load.”

Defence lawyers urged Crowns to re-examine both current non-disclosure cases and past convictions in light of evolving medical science.

The release of the paper was the next chapter in the changing legal landscape when it comes to non-disclosure cases.

Before it came Mabior.

In 2012, the Supreme Court of Canada ruled in R. v. Mabior 2012 SCC 47 that an infected person was not legally required to disclose their HIV-positive status if they carried a low viral load and used a condom. However, the SCC left room for some tweaking should laws need to adapt to changing science.

Toronto lawyer Cynthia Fromstein said the adherence to medical science in the Thompson case will serve to further guide Canada’s legal community in non-disclosure cases.

“It’s important because it’s a court of appeal decision that is making it very clear in terms of the reliance on medical science [being] the directive as to whether someone poses a realistic risk of transmission,” said Fromstein. “That’s important because we can now use that. As a defence counsel, I can use that on cases where they are still prosecuting. If there is a prosecution for oral sex, or a prosecution where there is a condom used, now there is some law that is supportive of the notion of what it takes … to find someone guilty, and perhaps it will also influence (provincial attorney generals) in not prosecuting, the fact that there is a legal directive, a court of appeal decision.”

Cecile Kazatchkine, senior policy analyst with the Canadian HIV/AIDS Legal Network, said Justice Hood’s psychological harm conviction of Thompson was of some concern.

“For years we have seen many different attempts by some actors in the justice system to expand the criminal law against people living with HIV,” said Kazatchkine in an e-mail. “Such attempts have included pushing the psychological harm argument. While the trial judge’s verdict in Thompson … was concerning (and unjust), we knew there was no legal basis for such argument. … The interpretation of the legal text of a ‘realistic possibility of transmission’ has created uncertainty, but the law around HIV non-disclosure has always been clear: there can be no conviction for non-disclosure in absence of actual transmission or a significant risk of transmission.”

Published in The Lawyer’s Daily on February 27, 2018

 

US: Outdated HIV criminalisation bills are currently being considered in seven US States

A Look At HIV Criminalization Bills Across The Country

By Hope Jackson

As state legislative sessions get underway across the country, HRC and equality partners are tracking seven HIV criminalization measures that threaten the lives of those living with HIV & AIDS, LGBTQ Americans and their families. Despite advances in medicine that can prevent the transmission of HIV or treat those exposed to the virus, unconscionable HIV criminalization bills are currently being considered in Georgia, Kentucky, Arizona, New York, West Virginia and Oklahoma. According to HRC’s 2017 State Equality Index, 25 states currently have laws that criminalize behaviors that carry a low or negligible risk of HIV transmission.

HIV criminalization legislation does not work in the context of modern scientific developments. There is no evidence to suggest HIV criminalization helps to lower HIV transmission rates.

Georgia’s HB 737 would force individuals to submit to court ordered blood tests where a law enforcement officer alleges to have been exposed to blood or other bodily fluids that could result in HIV, Hepatitis B or Hepatitis C. The bill passed committee on February 5th. Kentucky’s HB 193 reached the House for consideration on February 16 and could be voted on any day now. As introduced, the Kentucky bill would criminalize the common cold as the definition of “communicable disease” would include diseases that are unlikely to cause lasting harm, much less harm warranting felony punishment. In the face of affirmative votes to push the bill to the House floor, a number of legislators took issue with the dangerously broad language that would punish the mere passing of the flu or common cold. This hearing revealed that HIV education is still needed in both the legislature and in the community.

The very nature of the HIV & AIDS epidemic means that the enforcement of these laws will target specific, vulnerable populations. These laws target transgender Americans as 1.4 percent of transgender individuals report living with HIV, compared with 0.3 percent of the general population who report living with HIV.  Furthermore, a 2015 Williams Institute report found that prior to California’s HIV modernization bill, every incident where there was an HIV-specific charge led to a conviction and 90 percent of those convictions led to immediate confinement. The report showed that white men were “significantly more likely to be released and not charged (16 percent)” and “black men (38 percent), black women (44 percent), and white women (39 percent) were significantly less likely to be released and not charged.”

Understanding the science behind HIV underscores just how ineffective these bills are in 2018. HIV can only be transmitted by blood, pre-seminal fluid, semen, vaginal fluid, breast milk or rectal fluids. Saliva, feces, urine and other secretions alone do not transmit HIV. Moreover, those who adhere to HIV treatment can expect to live long and healthy lives. Over the last 35 years, the medical community has made significant advancement in the treatment and prevention of HIV & AIDS. An individual may take Truvada, also called pre-exposure prophylaxis or PrEP, once a day to prevent contracting HIV before exposure. Lastly, for some people who know they are living with HIV, there is the possibility that the transfer of the virus to another person would be nearly zero because the undetectable viral load of HIV makes the virus untransmittable. HIV criminalization ignores these developments and perpetuates stigma.

HRC and HRC Foundation are committed to working to end the criminalization of HIV & AIDS.

 Published on Human Rights Campaign Blog on February 26, 2018

US: Hepatitis C criminalisation on the rise, a worrying echo of HIV criminalisation laws

Hepatitis C Exposure Is a Crime in Some States; Is This the New HIV Criminalization?

By Sony Salzman

From TheBody

On Jan. 19, Matthew Wenzler, a 27-year-old Ohio man, was arrested in the early morning hours for public intoxication and disorderly conduct. During his arrest, Wenzler allegedly spit at police officers repeatedly until he was eventually spitting blood.

After officers learned that Wenzler has hepatitis C (HCV), he was charged with felonious assault, Ohio’s most serious assault offense. His bail was set at $75,000. Although news of his arrest quickly faded from the local news, it may mark a watershed moment in a growing trend of HCV criminalization across the country.

“There are certainly statutes around the country that criminalize hepatitis,” said Trevor Hoppe, assistant professor of sociology at University at Albany, State University of New York. “They are not as numerous as HIV-specific criminalization laws, and they’re not enforced as widely, but they do exist.” Moreover, HCV criminalization may be on the rise, repeating the wave of HIV criminalization laws that sprang up in the wake of the AIDS crisis.

During the 1990s, Ohio and many other states passed laws that specifically criminalize certain behaviors by people living with HIV and essentially classify their bodily fluid as a deadly weapon. Today, however, Ohio’s criminal law also references people with HCV and other infectious diseases, the effect of which “is to allow prosecutors to punish people living with hepatitis in a broad range of contexts,” said Hoppe.

Wenzler was charged under a statute that criminalizes any “attempt to cause [another] person to come into contact with blood, semen, urine, feces, or another bodily substance” when they are HCV-positive and aware of their status. Confusingly, this statute is called “harassment by inmate,” but in this case, it is being applied more broadly, said Hoppe.

Only a few cases of HCV infection among health care workers from a blood splash to the eye have been reported, and overall, the risk of transmitting HCV through direct blood contact to the eyes, nose, or mouth is “is believed to be very low,” according to the Centers for Disease Control and Prevention.

“Hepatitis C is transmitted predominantly through blood-to-blood routes,” said Donald M. Jensen, M.D., professor of medicine, Rush Medical College. “It probably takes a relatively large inoculum of virus to transmit. … Even with accidental needlesticks among health care workers, the likelihood they will develop hepatitis C is 1.8 to 2%.”

On the other hand, “The risk of transmission of hepatitis C by [spitting] is almost non-existent,” he said. “For me, that doesn’t make a lot of sense to make that a felony.”

Several broader trends may be fueling HCV criminalization. Over the past five years, the opioid epidemic has contributed to a three-fold increase in the number of new infections, with several high-profile outbreaks across the country catching media attention.

At the same time, while activists’ efforts to rollback felony charges specifically related to HIV have succeeded in states such as California and Colorado, other states have taken a different approach to HIV criminalization reform.

“Other states are trying to get rid of the HIV-specific nature of laws by [including] a larger laundry list of communicable disease and [sexually transmitted infections],” said Allison J. Nichol, legal and policy counsel, The Sero Project. States that have adopted the second approach include Tennessee and Iowa, according to Hoppe, which only recently expanded their criminal laws to include hepatitis C.

For Hoppe, the circumstances of Wenzler’s arrest are a worrying echo of the early days of HIV criminalization. At that time, “people living with HIV were being prosecuted after spitting at or biting police officers,” Hoppe said. “Across the country, there were assault of a deadly weapon charges, [and] they were almost universally cases involving police officers.”

Over time, “the application of the law can change,” Hoppe said. Today, he said, HIV criminalization laws are still on the books, but they’re being used differently. Instead of being focused on police officers, many current HIV criminalization cases revolve around a lack of disclosure among sexual partners.

While HIV and HCV are comorbid infections, “they’re two totally different diseases,” said Jensen.

Most notably, starting in 2013, a new generation of medications was approved that can cure HCV in most people. In addition, when people are exposed to HCV and contract the virus, some will be able to clear the virus on their own without the need of curative therapy, said Jensen. But the cost of the drugs to cure the disease has caused private and public insurers to enact policies that restrict treatment to once per lifetime, people not using alcohol or other drugs, and people with late-stage liver disease. Many activists have been fighting to change these rules around the country with the goal of expanding access to the curative drugs to anyone with an HCV diagnosis.

“The outcome of hepatitis C is clearly much better today than it was five or six years ago,” Jensen said.

According to Hoppe, some of the new criminal charges that specifically target acts by people with hepatitis C, such as spitting and biting, were put in place after the new era of “cures” had already been approved.

“I find it especially curious that a disease that is now curable is being actively criminalized,” he said. “It’s not clear how this is going to progress,” Hoppe added, but “this could be the beginning of a new area of criminalization specific to hepatitis.”

Sony Salzman is a freelance journalist reporting on health care and medicine, who has won awards in both narrative writing and radio journalism. Follow Salzman on Twitter: @sonysalz.

Published in The Body on February 26, 2018

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Note from CHLP on Feb 27, 2018

Under Ohio’s law, felonious assault (ORC §  2903.11) and harassment with a bodily substance (ORC § 2921.38) are different offences located in different statutes. They also have different penalties. Felonious assault is a second-degree felony, punishable by up to 8 years in prison. Harassment with a bodily substance for a person living with HIV, hepatitis, or tuberculosis is a third-degree felony punishable by up to three years in prison. This person was charged with four counts of harassment with a bodily substance, and so is facing up to 12 years of incarceration.
The felonious assault statute does include sex without disclosure, though. These and the laws of every other state can be found in CHLP’s Sourcebook. 

Ukraine: HIV stigma, threats of violence and a culture of blame make women fearful of disclosing their status or seeking care

Women with HIV abused by partners, rejected by society

Shunned by relatives, doctors and the community, Ukrainian women struggle to survive and protect their children.

by

Kiev, Ukraine – In October 2012, 31-year-old Hanna Lilina, a Donetsk-native, was told she had HIV during a pre-natal check-up.

When she found out, she felt confused.

“I started to clean my apartment obsessively as if people could contract HIV just by touching a surface. I didn’t understand it, I was so afraid and paranoid,” she says.

Lilina became infected with HIV after having unprotected sex with her boyfriend, whom she suspects contracted the virus by sharing a needle with friends who injected opium.

He had been an abusive partner, and so by the time she discovered she had the virus, they had already parted ways.

“At first, it was just emotional abuse. Then he started to beat me, especially after he had been drinking. It was always worse then,” she says.

Lilina left her partner to rebuild her life in Kiev.

“Telling my family was difficult. My parents were shocked and upset at first but now they’re very supportive. However, my sister immediately assumed that I was a drug addict. She hates me and wants nothing to do with me.”

In Kiev, she started a new relationship.

But when her new boyfriend found out about the virus, “he started acting differently around me”, she says.

“When I was seven months pregnant, he tried to get me to have an abortion. By the time the baby was born, he had left me.”

Ukraine has one of the fastest growing HIV epidemics in Eastern Europe and Central Asia, with approximately 240,000 people living with the virus and a prevalence of 0.9 percent in the general adult population.

In Ukraine, 35 percent of women living with HIV have experienced violence from a partner or husband since the age of 15, compared to 19 percent of women who do not have HIV, according to a November 2016 survey by Positive Women, a Ukrainian NGO.

Approximately half of the 1,000 HIV-positive women surveyed across the country had no support after they suffered violence.

“There is an epidemic of gender-based violence in many regions of the world, disproportionately affecting women and girls, making them more vulnerable to becoming infected with HIV,” Vinay P. Saldanha, UNAIDS regional director for Eastern Europe and Central Asia, tells Al Jazeera.

‘A culture of blame’

According to UN Women, women living with HIV are more likely to experience violence, including violations of their sexual and reproductive rights.

“Involuntary and coerced sterilisation and forced abortion among women living with HIV has been reported in at least 14 countries worldwide,” UN Women reports.

“The relationship between violence and HIV is complicated, but a significant factor is the culture of blame that surrounds HIV.

“In Eastern Europe and Central Asia, as in many other regions, the blame for HIV tends to fall on women,” says Saldanha.

Women are also often the first in a couple to learn of HIV in the family as the coverage of HIV testing and treatment in Ukraine is higher among women.

Most women are tested for HIV at least once at gynaecology and obstetrics clinics.

“It can tragically unfold that her husband or sexual partner points the finger of blame at her, even if her male partner was the one to infect her with HIV.

“In such a situation, she is at potential risk of domestic and sexual violence.”

The consequences can be life-threatening.

“As a result, a woman’s de-facto response can be to refrain from telling her family or partner that she has HIV, and she might even be too afraid to seek out the life-saving health services available,” says Saldanha.

And even if a woman does want treatment, it is not always guaranteed.

In some cases, women are unable to access medical support because their partners refuse to pay for travel to the hospital.

“‘You can get treatment, just not with my money,’ is what they say. But when a woman is financially dependent, what can she do?,” says Sofia, an HIV-positive officer working for the All-Ukrainian Network of People Living with HIV/AIDS, the country’s largest patient organisation.

The situation became so precarious that in May 2017, the Positive Women NGO filed a joint report to the United Nations on the violations of women’s rights, along with other civil society organisations representing drug-users, sex workers and members of the LGBT community.

“In small towns and the provinces, the situation is particularly difficult. It can be impossible for an HIV-positive woman to find a gynaecologist who will voluntarily examine or simply look at her,” says a member of Positive Women, who wished to remain anonymous.

“It’s only on the orders of high authorities that doctors will agree to an examination. And these are cases involving ‘safe’ women.”

If a woman is considered “unsafe” – an alcoholic, drug-user or sex worker – she cannot even enter a doctor’s office.

A community’s attitude to HIV can be so unsupportive that patients are often harassed or forced out.

“Doctor’s attitudes are not much better,” says the Positive Women member.

Sterilisation threats and protecting children

The group’s report to the UN detailed the case of Vera, a sex worker from the Kirovograd region who underwent a caesarean section to deliver her baby.

After the procedure, the 24-year-old was told that she had been sterilised because, in the words of her doctor, she had “no right to build a family and have children”.

“Over a year and a half later, Vera is still coming to terms with what happened to her,” said the Positive Women member.

Mothers are also challenged with having to protect their children from discrimination.

Olga Rudneva, head of the Elena Pinchuk ANTIAIDS Foundation (ANTIAIDS) in Kiev, tells Al Jazeera that mothers often hide their children’s HIV status.

“If, for example, a school director finds out that a student has HIV, the child could be kicked out.

“This leaves some women in extremely poor financial situations, unable to work because they must look after their child. Women prefer to just to pay for a clean medical record to avoid such problems – you can do that in Ukraine,” she says.

Lilina, the HIV patient and domestic abuse survivor, says her daughter’s paediatrician tried to inform her school of the child’s HIV status.

With the help of ANTIAIDS, she managed to block the doctor’s attempt.

“[He] was certainly not happy when he finally agreed to keep my status confidential,” says Lilina.

Government officials failed to respond to Al Jazeera’s repeated requests for comment.

But the Ukrainian government is taking this situation “very seriously”, says UNAIDS’ Saldanha.

In 2017, the National Coordination Council on preventing HIV/AIDS in Ukraine (NCC) accepted two representatives from Positive Women to help create an HIV/AIDS strategy over the next five years.

ANTIAIDS’ Rudneva says there is more to be done, however.

“If you have HIV, you deserve HIV. That’s the mentality in this country,” she says.

The foundation gave Lilina the support to start rebuilding her life in Kiev, helping her helping her find accommodation and providing her baby with a supply of nappies.

It also encouraged her to join Kyyanka, a support group.

At first, Lilina was sceptical and it took her a while to go to a meeting.

“But now the women are like my family,” she says. “It wasn’t until I joined Kyyanka that I understood how I’d been struggling with self-stigma and repressing negative feelings about myself.

“The self-stigma is still there, but at least I’m aware of it now. It’s only when you’re aware of the stigma, that you can start to fight against it.”

Published in Al Jazeera News on February 25, 2018