US: Final report of the Georgia House Study Committee on access to care calls for modernisation of Georgia’s HIV criminal laws

A Moment of Outrage with a Silver Lining

Betty Price’s comments about HIV spark backlash, while her committee quietly issues a well-reasoned critique of Georgia’s HIV criminal laws

by Catherine Hanssens, CHLP Executive Director

Back in October 2017, there was a tsunami of outrage and media coverage in response to comments made by Georgia State Representative Betty Price during a committee hearing on access to HIV care and prevention. In response to testimony about the problem of access to the remarkable health and prevention benefits of current HIV treatment in Georgia, Price queried:

“… [A]re there any methods legally that we could do that would curtail the spread? I don’t want to say the quarantine word, but… It seems to me it’s almost frightening, the number of people who are living that are potentially carriers… with the potential to spread, whereas in the past they died more readily and then at that point they are not posing a risk. So we’ve got a huge population posing a risk if they are not in treatment.”

Even if Price’s comments were, as she later said, posed to provoke discussion, elected officials have no legitimate excuse for suggesting that people living longer with HIV are a public health problem, or that quarantine should ever be on the table.

Unfortunately, the view that sexually active PLHIV need to be “legally” contained is still pretty widely shared, yet rarely gets the press Price’s comments received. Media reports of a prosecutor referring to HIV, a treatable disease, as the equivalent of a “death sentence,” or calling sex while living with HIV the equivalent of pointing a loaded gun at someone’s head have yet to receive the type of outrage leveled at Price. What’s worse, Georgia’s criminal HIV law has effectively quarantined multiple PLHIV through felony convictions for sex without disclosure without any comparable national cry of outrage in response.

Media coverage of the Price controversy glanced over the substance of these hearings and what really should have been the big news—that local HIV advocates assembled an impressive panel of experts to testify about barriers to HIV treatment, including what likely was a first: a representative of the federal Centers for Disease Control and Prevention presenting powerful testimony in support of modernizing Georgia’s HIV criminal law.

And there’s more. Just a few weeks ago, in December 2017, the committee released its Final Report of the Georgia House Study Committee on Georgians’ Barriers to Access to Adequate Health Care. The report’s findings and recommendations are surprisingly progressive, and are based in no small part on the efforts of Georgia advocates who made sure committee members were equipped with information about the harms of Georgia’s HIV criminal laws and the need for reform.

In analyzing HIV care and prevention, the Committee’s report found that “[c]riminal exposure laws had no effect on detectable HIV prevention.” The report’s analysis goes on to echo the Department of Justice’s 2014 recommendation that these laws should be eliminated except in cases where a separate sex offense such as rape and an actual risk of transmission is involved; or when evidence clearly demonstrates that the person acted with the intent to transmit HIV and engaged in behavior significantly likely to do so. The report also cites a 2013 resolution from the Presidential Advisory Council on HIV/AIDS (PACHA), noting the failure of HIV criminal laws “to account for (1) the prevention measures, (2) the reality of disproportionate sentencing that often occurs, and (3) the fact that the laws are based on outdated beliefs about HIV transmission.”

Other highlights from the report’s findings on HIV criminalization include:

A remarkably salient and progressive observation about disparities affecting sex workers:

“Consider that both prostitution and solicitation of sodomy are misdemeanors under Georgia law when the accused is not infected with HIV. These crimes only become felonies when the accused merely knows they are infected with HIV and fails to disclose their status. Thus, the current [HIV law] falls short by penalizing behavior that does not require the type of intentional behavior for which an enhanced penalty is typically reserved….”

Recognition of the inequity of allowing prosecution of PLHIV under both an HIV criminal law and other sections of the criminal code:

“In Georgia, prosecutions of those infected with HIV whose actions fall under [GA’s HIV criminal law] has not been limited to those code sections. In fact, there are documented cases where the state has pursued charges of aggravated assault against an accused in such situations. This inequitable disparity in prosecution of HIV-infected people should be addressed in any reforms made to these laws.”

Recognition that Georgia’s HIV criminal law creates additional untenable dangers for survivors of assault:

“Because Georgia’s HIV law] criminalizes behavior upon mere knowledge of status, there is fear among those living with HIV of prosecution under this statute when they are victims of a sexual assault involving behaviors outlined in this code section. To curb this fear and empower such victims to report these serious assaults, the law should be clarified to account for these scenarios by explicitly exempting such victims from prosecution.“

In short, a legislative committee in a Southern state that included four Republicans and only one Democrat has issued a report calling for modernization of Georgia’s HIV criminal laws so that they are consistent with current scientific knowledge, focus more on intent to transmit rather than knowledge of status, and incorporate recognition of risk reduction measures. In the discussion supporting these recommendations, the committee notes opportunities and shared responsibility for preventing HIV transmission in intimate relationships involving people living with HIV and their HIV negative partners. It highlights the unacceptable disparities in the use of unique liability standards and onerous punishments against people living with HIV; the legitimacy of HIV positive sexual assault survivors’ fear of reporting crimes against them because they know the prosecutorial table could be turned against them; and the inequity of turning a potential misdemeanor into a serious felony when a sex worker is living with HIV.

This is big news and important progress for which Georgia advocates deserve a great deal of credit. The Committee’s findings should also be a call to action for advocates working to modernize these laws across the country. In a challenging political climate, where we see a frustrating lack of outrage among the press and the general public when it comes to HIV criminal laws, outcomes such as this demonstrate that while the substantive work may not grab headlines, it will have a more profound, lasting influence on public health and policy.

Webinar: PWN-USA HIV Criminalization First Responders Series: Laws, Facts and Policy (PWN-USA, 2018)

The first webinar in PWN-USA’s HIV Criminalization First Responder series included an an overview of respectful, person-first language use, facts about HIV criminalization, and what rights people living with HIV have when they are criminalized. This session also covered how to research state law and policy that impacts people living with HIV. This session featured PWN staff and chapter leaders Barb Cardell and Bonetta Spratley.

Canada: Prosecutions should not hinge on viral load, punishing people lacking access to treatment, but on actual, intentional transmission

Ontario, Canada Moves to Reduce HIV Non-Disclosure Prosecutions, Leaves Behind PLHIV Lacking Effective Health Care

Changes to HIV criminalization laws in Canada highlight the importance of the Consensus Statement on HIV TasP in Criminal Law Reform urging that prosecutions not hinge on an individual’s viral load but on actual, intentional transmission.

by Kate Boulton, CHLP Staff Attorney

Earlier this month Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins issued a joint statement announcing that Crown Attorneys will no longer prosecute cases of HIV non-disclosure where the person living with HIV has had a suppressed viral load for at least six months. Their rationale is that “HIV should be considered through a public health lens, rather than a criminal justice one, whenever possible.”

The statement occurred in tandem with the release of a report by the Canadian Department of Justice calling for a significant shift in the way cases of HIV non-disclosure are treated by the Canadian criminal justice system. The report concludes that criminal liability should not apply in instances where a person was on treatment, where a condom was used, or in cases of oral sex because these circumstances do not pose “a realistic possibility of transmission.”

Of course it makes sense to acknowledge that any move to reduce the number of prosecutions for HIV non-disclosure in Canada is a good thing. That said, the Ontario AG and Health Minister’s announcement does not go nearly far enough; it suggests that the appropriate “public health lens” is simply to narrow the discriminatory criminal legal system targeting of people living with HIV to those without effective health care.

A statement issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization essentially makes that point, observing that the Ontario announcement “falls well short” of even the relatively modest recommendations made in Justice Canada’s report. Citing the Community Consensus Statement released in November 2017 by the Canadian Coalition to Reform HIV Criminalization (CCHRC), the organizations stress that “criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.”

Earlier this year, the Center for HIV Law & Policy and partners addressed precisely this issue in the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The Consensus Statement cautioned against the use of viral detectability as a bright line test in HIV criminal law reform. By explicitly relying on viral detectability as a dispositive factor in the decision to prosecute or not prosecute someone, the announcement in Ontario manifests the major concerns articulated in the Consensus Statement.

The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform outlines how reliance on viral detectability in HIV criminal law reform efforts poses a number of harmful, if unintended, consequences:

Leads to using a person’s health status or access to health care as determinative of guilt or innocence, rather than a demonstrated intent to do another person harm;
Provides support to the misguided perception among prosecutors and policymakers that HIV is somehow easy to transmit or that sex without the benefit of treatment is inherently “risky,” and that an HIV diagnosis is akin to a “death sentence.”
Obscures or deemphasizes other essential arguments for HIV criminal law reform, including the right of PLHIV to be free from state-sanctioned stigma and discrimination on the basis of health status alone, and fundamental principles of fairness and justice.

National HIV data in Canada illustrate the problem this approach poses for nearly half of all Canadian PLHIV. At the end of 2014, just over half (54%) of the estimated total PLHIV in Canada were virally suppressed.[1]

Regardless of the country, HIV law and policies must reflect the hard fact that disparities in access to treatment and the ability to reach long-term viral suppression inevitably interact with disparities in the criminal legal system. The synergy between these two discriminatory and deeply unequal systems will result in compounded harm for communities that are already disproportionately affected by HIV criminalization:[2] sexual and gender minorities,[3] Indigenous communities,[4] individuals experiencing poverty or homelessness, people who use drugs,[5] sex workers,[6] and people of color.[7]

Staff from the Canadian HIV/AIDS Legal Network have also flagged this tension, writing in a June 2017 blog post that advocates must be mindful of how new scientific advancements are incorporated into HIV criminal reform efforts:

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

The Center for HIV Law & Policy welcomes Canada’s efforts to move away from the discriminatory and harmful criminalization of PLHIV. But Canadians deserve a more just, inclusive, and transformational conception of HIV criminal law reform that leaves no one behind, and which does not serve to reproduce and entrench inequalities in the public health and criminal legal systems.

More resources can be found on our website: www.hivlawandpolicy.org and at www.hivtaspcrimlaw.org

[1] https://www.canada.ca/en/public-health/services/publications/diseases-conditions/summary-measuring-canada-progress-90-90-90-hiv-targets.html (As of 2014, approximately 80% of PLHIV in Canada were diagnosed. 76% of those diagnosed were receiving ARV treatment, 89% of whom were virally suppressed). See also Peter Rebeiro et al., Sex, Race and HIV Risk Disparities in Discontinuity of HIV Care After Antiretroviral Therapy Initiation in the United States and Canada, 31 AIDS Patient Care & STDs 129 (2017).

[2] http://www.aidslaw.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns/?lang=en (“[T]he [HIV] criminal law is increasingly used against people living with HIV from marginalized populations. Since Mabior, the proportion of Black men charged in HIV non-disclosure cases has grown . . . The proportion of gay men charged in HIV non-disclosure cases has also increased.”

[3] See, e.g. http://www.catie.ca/en/fact-sheets/epidemiology/epidemiology-hiv-gay-men-and-other-men-who-have-sex-men

[4] http://blog.catie.ca/2016/10/04/we-need-to-address-the-unique-and-complex-issues-of-indigenous-people-living-with-hiv/

[5] http://www.catie.ca/fact-sheets/epidemiology/injection-drug-use-and-hiv-canada

[6] See, e.g., http://pubmedcentralcanada.ca/pmcc/articles/PMC4704989/

[7] http://online.liebertpub.com/doi/abs/10.1089/apc.2016.0178; http://www.accho.ca/portals/3/documents/acb_strategy_web_oct2013_en.pdf(In 2009, African, Caribbean, and Black people represented an estimated 19% of people living with HIV in Ontario, with a relative rate of heterosexual HIV acquisition that was 24 times higher than among others infected through heterosexual contact.)

US: Georgia Coalition to End HIV Criminalization seeks re-evaluation of state's HIV criminal laws

Are state’s HIV laws unfair? Activists say it’s time for change

Nina Martinez moved to Georgia from Washington, D.C., in 2005. Just a few months after she settled into her new Atlanta home, she learned about Georgia’s criminal laws regarding people disclosing their HIV status to others. It personally changed things for her.

“As a person living with HIV, I didn’t even form relationships because I didn’t want someone who was just mad at me, who said, “ ‘She didn’t tell me she was HIV-positive,’ ” said Martinez. “I haven’t minded being single for the last 12 years or so, but it’s not necessarily by choice. I guess.”

The Georgia laws that Martinez is referring to are almost 30 years old. They state that people with HIV can serve jail time for not disclosing their HIV status to others in certain situations. Those situations include having sex with someone; sharing a needle; performing paid sex work; or donating blood, body fluids, body organs or body parts. People with HIV can be imprisoned for up to 10 years for any of these violations.

The sentence goes up to 20 years of prison time (and no less than five years) for a person with HIV to put their body fluids on a peace office or a correctional officer, while the officer is on duty. This includes the acts of biting, spitting or throwing bodily fluids such as blood, semen, vaginal secretions, saliva, urine and feces.

Numerous other states also have such laws, and their purpose is obvious: to prevent people from deliberately infecting others with HIV. There have been cases of people doing so.

But with improved understanding of HIV transmission, and scientific strides that have made infection less deadly, critics say the laws are largely outdated..

Martinez says the current Georgia laws are unfair because they allow prosecution of people who did not intend to transmit the disease, and even people who had taken precautions against transmission, like using condoms or taking HIV medication. And she says the disclosure laws create a “he said, she said” situation, because it’s hard to prove what people in an intimate relationship communicated to each other.

“This law does not allow me to provide a good defense for myself against cases where somebody might falsely accuse me of not disclosing,” said Martinez. “It doesn’t require that I actually harm someone for me to be prosecuted. And that’s not right.”

“I just want the ability to be able to have somebody else be legally responsible for their own health,” Martinez continued. “Like why am I legally responsible?”

A movement to change HIV laws has been under way for some time. Martinez is one of the steering members of the Georgia Coalition to End HIV Criminalization, an advocacy group.

The coalition would like to see several changes to Georgia’s current code. One of those changes would be a requirement that a person be prosecuted only if there’s proof of intent to transmit HIV.

“Another thing that we want to see is to get these laws aligned with science,” said Sequoia Ayala, a lawyer and policy fellow at Sister Love, and a member of the Georgia Coalition.

The CDC has stated that the risk of transmission of HIV from biting, spitting or throwing fluids is negligible. Because of this, the coalition wants to see that section of the law removed. Assaults with bodily fluids would still be illegal, but the offender’s HIV status would not be relevant.

The current statute does not consider any measure a person with HIV has taken to prevent the risk of transmission. This includes the use of a condom or adherence to antiretroviral medication regime.

“We know now that if an individual has access to their medication, and they have taken the medication, and have achieved a viral load of less than 200 copies, they’re unable to transmit HIV via sex,” said Ayala. “And yet the reality is that an individual being adherent to their drugs does not relieve them of any culpability.”

After several years of discussion with the coalition, the Georgia Legislature is now considering the issue. In the spring, Rep. Sharon Cooper (R-Marietta), four other House representatives and four members of the medical community formed a study committee focused on addressing barriers to adequate health care in Georgia.

The House study committee met in mid-October to discuss HIV laws, and recently released a final report. Possible changes, in line with the coalition’s goals, and best practice recommendations released in 2014 by the U.S. Justice Department were outlined in the final report.

The changes include removing most HIV-specific criminal penalties. But penalties would remain in the following situations: If an HIV-positive person commits a sexual assault where there is a risk of transmission, or when a person is aware of being HIV-positive and intends to transmit the virus, and there is a significant risk of transmission.

The final report said that if people with HIV are taking medication, they should be able to present that as a defense in an HIV criminal case.

Though the committee recommended significant changes to the law, no immediate action was outlined. In fact, Cooper told one of the presenters at the October study committee meeting not to expect any changes in Georgia’s HIV criminal law in the next year.

“There is a time for everything,” said Cooper. “And next year’s session is probably going to be really, really short. Probably not the time to introduce any new legislation on certain things. But certainly this is information to look forward to.”

A mixed picture nationally

According to 2017 statistics from a national advocacy organization, the Center for HIV Law and Policy, 34 states have HIV-specific criminal laws. In six of those states, people who are convicted under the law are required to register as sex offenders. Over the past nine years, 303 people with HIV have either been arrested or charged under these laws.

In Georgia, at least 12 people have received lengthy prison sentences for not disclosing their HIV status. Other recent news stories of alleged reckless conduct by people with HIV may add more to that list

The coalition says these cases “required characterizing otherwise normal and legal behavior as criminal for no reason other than the defendant’s HIV status.”

Several states have been re-evaluating their HIV criminal laws. Texas repealed its statutes in 1994. Illinois revised its laws in 2012, and Iowa passed revisions in 2014.

In 2016, Colorado repealed two of its HIV criminal laws and changed language in other statutes to regard HIV like other sexually transmitted diseases. In October, California changed exposing someone to HIV from a felony to a misdemeanor, treating the virus like other STDs under the law.

Every state in the Southeast except Alabama has criminal laws related to HIV. Right now, Florida and Georgia seem to be the only two states in the region that are looking at changes. In May, the Florida Legislature considered changing HIV-related felonies to misdemeanors. It failed in the Senate, but legislators will likely re-introduce it next year.

And now Georgia has the study committee’s recommendations.

Rep. David Dreyer (D-Atlanta), who was not a member of the House study committee, is firmly for changing the HIV laws. But he thinks just as Rep. Cooper predicted, real action may take some time.

“I think these [laws] were enacted when people were afraid of HIV. When the science might not have been in on how HIV gets transmitted. And it was just a reaction out of fear, rather than science,” said Dreyer. “But these things do take a few years,” said Dreyer. “And this issue is going to be important in policy circles for years to come.”

Martinez is determined to keep fighting for reform, even if it takes years.

“Our HIV criminal laws don’t even fit the attributes of traditional criminal laws. Criminal law says you have to have intent to harm and you acted in a way that made harm likely,” said Martinez. “Our current Georgia law does not require intent to transmit or actual transmission. It literally only requires that you didn’t say something you should have said.”

Victoria Knight is a graduate student studying health and medical journalism at the University of Georgia. She also works as a health reporter for WUGA-FM, the Athens-area NPR station, and has a bachelor’s degree in microbiology from the University of Tennessee. You can follow her on Twitter at: @victoriaregisk

Published in The Pulse on Dec 16, 2017

Zimbabwe: Country's laws on deliberate transmission are too broad and should be reviewed

PREGNANT HIV-positive mothers who do not take precaution to prevent transmission of the virus to their unborn babies are liable for prosecution and face up to 20 years in prison under the country’s laws, a lawyer has noted.

Anyone living with the virus who has sexual intercourse with an HIV-negative partner using protection without disclosing their status may also be legally liable, even when transmission has not occurred, Mr Lizwe Jamela of the Zimbabwe Lawyers for Human Rights (ZLHR) said.

In an interview on the sidelines of the just-ended International Conference of Aids and STIs in Africa (Icasa) in Abidjan, Ivory Coast Mr Jamela, who heads ZLHR in Matabeleland and Midlands provinces said the country’s laws on deliberate transmission of HIV were too broad and should be reviewed.

He said the broadness of the laws made almost everyone who is sexually active liable for prosecution, and thus called for the repealing of the legislation.

Under section 79 of the Criminal Law (Codification and Reform) Act chapter 9:23 deliberate transmission of HIV is a criminal offence which attracts a sentence of not more than 20 years.

“On the face of it the law talks about deliberate transmission of HIV but when you analyse it further you observe that almost everyone can face prosecution,” he said.

Section 79 (b) states that “Any person, realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years”.

Mr Jamela said, “Anyone can fall into that category. There is just too much conjecture in that law.

“If a pregnant woman who is HIV-positive fails to undergo the Prevention of Mother to Child Transmission (PMTCT) programme she is liable for prosecution.

“Anyone who is HIV positive who has intercourse with someone who is negative and uses protection can still be prosecuted under this law because that person would have done something which involves a real risk of possibility of infecting another person with HIV.

“The fact that one used protection can only be used as mitigation but not to absolve anyone.”

He added, “So under this law, the criminal offence is not only about deliberate transmission but even exposure to risk of transmission, which in my view is very wide and broad.”

Mr Jamela said the law should either be amended to deal specifically with cases of deliberate transmission or be totally repealed.

“We don’t need a law that criminalises HIV. Instead we should be reinforcing the human rights response to HIV intervention by increasing issues of education and advocacy.

“We could limit the law to genuine cases of deliberate transmission,” he said.

Mr Jamela further argued that it was also humanly impossible to prove in a court of law who would have infected who between complainant and defendant in cases of deliberate transmission of HIV.

“Judiciary can’t deal with who infected who. There is no technology to generate evidence to prove that. So in most cases the person who would report first becomes the complainant. But what if the complainant is the one who infected defendant, how do you prove that?

“For a criminal conviction to happen someone should be guilty beyond reasonable doubt, but we have people being convicted of deliberate infection when that threshold has not been passed,” he said.

Head of the HIV and TB unit in the Ministry of Health and Child Care Dr Owen Mugurungi described the enactment of the law as “a moment of madness”.

He said the law was counterproductive in the fight against stigma around HIV.

“It was a moment of madness. This is what happens when decisions are made based on emotions.

“The law attacks the basic rights of people living with HIV. It’s counter-productive to our interventions and defeats everything we are trying to do to fight the virus.

“That law causes people to go underground, it scares away people from getting tested because it stigmatises HIV,” he said.

Dr Mugurungi added that there was engagement between the National Aids Council and legislators to look into possible ways of repealing or amending the law so that it does not criminalise HIV.

Zimbabwe Network of People Living with HIV (ZNPP+) national chairperson Sebastian Chinhaire said the law countered the country’s efforts to end Aids by 2030 and should be done away with immediately.

“We should do away with that law. We will not end Aids by 2030 if we still have that law. All the gains recorded in the fight against HIV are being reversed by this law. It should go,” he said.

Published in Bulawayo 24 on Dec 17, 2017

US: Trevor Hoppe discusses the history and future of HIV criminalisation activism

What’s the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe

By Kenyon Farrow

From TheBody.com

December 12, 2017

After 30-plus years of states using laws to criminalize people living with HIV for exposure or transmission, the movement to change these laws has gained momentum. TheBody.com’s senior editor, Kenyon Farrow, sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology at the University at Albany, State University of New York (SUNY), to discuss the history and present-day activism detailed in his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).

Kenyon Farrow: Part of what I want to talk about is the kind of current activism movement that is beginning to emerge to take on these laws — some federal attempts and some state-level organizing. I think the dominant framework here is that the Ryan White Care Act is the reason why we have state laws criminalizing HIV, in that the first iteration of the bill told states that they had to have these laws on the books in order to get the money.

Trevor Hoppe: To certify, yeah.

KF: Right. But what you’re suggesting is, actually, these laws were already pretty well established by the time we even got to the Ryan White CARE Act for that to even have been the case.

TH: Yeah. You know, this is really a problem with the legal literature — where you can just sort of say anything and claim that it’s true. And so, we’ve had legal scholars making this argument without any evidence for decades now, where they just say, “Oh, it must have been the Ryan White Act.”

But Ryan White was in the 1990s and, by that point, almost all the states that were going to criminalize HIV had already done so. When I look at other states — such as Alaska, for example, they were debating whether to add an HIV-specific felony law. And they said, “Well, do we have to do this because of Ryan White?”

The lawmakers said: “No, no. We looked into it. All we have to do is certify that we could punish someone living with HIV under any law, whether or not it’s specific to HIV. So, no. Ryan White is not a reason to enact this law.”

So, you have lawmakers even acknowledging that Ryan White was not a factor in their decision. So, yeah. I think that’s a farce, really, that Ryan White is to blame.

KF: Got you. Yeah, so let’s talk more about the current moment. We’ve had a number of both national organizations that are taking on more of the work, either repealing or [creating] the framework of modernizing the HIV criminal codes, and then some local efforts to do so, as well. They have had a couple of recent legal successes. Well, I’ll say legal reforms — we can debate the level of whether it’s a success or a win, or some phase. So, you know, Iowa kind of being the first state, and now California and some other places are looking at reform bills.

So much of the narrative and the messaging around reforming the HIV criminal legal code is around this idea of modernization. What I hear a lot of advocates saying — and using to speak to lawmakers — is that these laws were created when we didn’t know how HIV was spread and there was a lot of panic and fear in the country. Now that we know that people who are on treatment and get to be undetectable can’t transmit the virus, then a number of other things that we understand about treatment and disease progression, and what have you — these are reasons why we need to reform the laws.

I’m curious to hear your take on the current moment. There’s more energy and focus on criminalization laws where HIV is concerned, and particularly this sort of modernization framework. How do you respond to it, based on your research?

TH: I guess what immediately comes to mind is: Who do you think is being punished under these laws? Do you think it’s really the middle class gay man living in San Francisco who’s being arrested? No. It’s the poor white woman living in the middle of Michigan: The people who are least likely to be on treatment and have access to treatment are being caught up in this wave of criminalization.

So, I am very wary of attempts to just tweak these laws — to only punish people, for example, who have detectable viral loads — because I think that’s really just kicking the can down the road. It avoids the hard question, which is: Is the criminal justice system the best tool, the right tool, the appropriate tool, to respond to these cases? Or are there public health interventions that might be better suited to respond to these individuals, who may not be disclosing their status or, you know, may be accused, at least, of doing so.

I really think that we have two possibilities emerging. We have states like California and Colorado, who have fully repealed several of their HIV-specific felony laws. Those were huge successes, I think. They were repealed, and that’s rare. Lawmakers do not like to repeal criminal statutes because they’re worried about looking soft on crime.

On the other hand, we have states like Iowa and Tennessee, in the Midwest and the South — which is really the hotbed of criminalization in the U.S. We see there that state legislatures are moving to expand their laws to include other diseases. Now, in Iowa, they also reduce the penalties in the most harmless cases to much lower levels. And that is a success. But I think the expansion to other diseases is a huge failure, in the sense that all you’re doing there is just further entrenching the idea that the criminal justice system is the right tool to handle these situations.

I think that’s wrong. I hope we don’t see more Iowas and Tennessees out there. I hope we see more Californias and Colorados.

KF: Thank you. I got into a lot of trouble for saying that a few years back.

TH: I get [it]. I understand; I know some of those activists on the ground in Iowa. I understand that they really felt like that was the best outcome that they could achieve in that political moment. So, I understand the political realities are challenging. That’s going to be true in all of the states where criminalization is most extreme. It’s really not the Californias and New Yorks of the world where we’re locking up dozens or hundreds of people living with HIV; it’s the Michigans and the Floridas and the Missouris of the country [where] we’re seeing those outcomes.

Getting a bill, a repeal bill, passed in Michigan and Florida –that’s a different beast altogether. So, I get why Iowa activists celebrated that move. I just think it’s ultimately shortsighted. But, for people like Nick Rhoades, who was convicted under Iowa statute and had that conviction tossed out after that reform, obviously, it was a huge victory.

But it’s a question to see who are going to be the future Nick Rhoades of the world under the new law. We don’t know that yet. But I would suspect there will be more cases down the road, rather than less cases, under this new law.

KF: In closing, I would just like to hear: Where do you think we should be going in terms of the legislative strategy, in terms of the legal change, and eradicating criminalization. But I’m also curious what you think [about] aspects of either public health, community-based programs for HIV or LGBT folks, or in poor communities or what have you.

One of my concerns is that, for instance, when Michael Johnson’s trial was happening, and I, with some other folks, were doing some of the advocacy to try to support his case, one of the things I became painfully aware of was [that] there was by no means a consensus among people living with HIV, among LGBT folks, among black folks that these laws are a bad idea. To me, it actually suggests that there is some other work that we have to do, in addition to the small set of people who are going to be doing the sort of legal advocacy piece.

TH: You know, I talk to a lot of people on the ground in different states. Their first reaction is always: “What can we do? How can we get involved?”

I think sometimes it’s great that there’s this excitement and energy and interest in reforming the laws. But the reality is that the first step is not to run to the Lansings or to the Raleighs of the world — not to the state capitals — [but] to start local. That will always be the first step: to see what you can really achieve at the local level.

Talk to the local health department and see where are they on this issue. Because we may think that they’re all on board. But I can just say from my experience traveling around the country, that’s not the case in a lot of places. Local health officials are really mixed as to what the appropriate response is to these cases.

We can [do] outreach to local health officials. We can also [do] outreach to prosecutors and judges, because they’re not medical experts. They have no training in HIV science. So, when someone comes before their court — a partner, for example, comes before the court — and testifies that they have to be tested for the next 10 years to know whether they were actually infected by this person, it goes unquestioned. Because [these officials] have no expertise or knowledge.

So, I think just starting a basic communication campaign, that if these individuals are going to be tasked with litigating HIV, they ought to be informed, at the very least. And I think once you’re informed, it’s hard to come to the same kinds of conclusions in these cases if you have the science at hand. There are gross exaggerations made about HIV — that it’s a death sentence, that these defendants are murderers, that you have to be tested for 10 years to know whether you were infected — and those kinds of claims have no factual basis. And so, I think we can [do] outreach to prosecutors and judges at the local level, quietly, behind the scenes, to see what we can achieve there.

I know people want to just get up and go to the state capital. I think in some cases that’s appropriate. But, before we get there, I think, start local. It’s really at the local level that these cases play out. I think we can have potentially more success in some states, very conservative states, at the very least, by starting local.

KF: OK, great. Thank you. Is there anything else that we didn’t get to talk about that you would like to mention before we go?

TH: Well, I would say — and I say this every time I get asked this question — I think, as a gay man, I know that many of us, our community, struggles with HIV. And many of us have had the experience of finding out that someone we had sex with is living with HIV. And maybe we didn’t know it. And maybe we didn’t ask, or whatever. But we have a lot of mixed emotions about those cases. It’s something that we have to deal with as gay men; that’s a reality that many of us are going to test positive at some point in our lives.

I would just say to keep an open mind, thinking about these criminal cases. Because most defendants are not that boogeyman that you have in your imagination — the man lurking in the shadows [who] is going to intentionally, maliciously infect you. That is really almost never whom the defendant resembles. It’s much more likely to be someone who used a condom, or had an undetectable viral load, or just couldn’t figure out, for a one-time sexual encounter, how to disclose their status in a very high-stigma environment.

So, yeah. That’s all I would say, is just keep an open mind. Know that the boogeyman is really not representative of most defendants in these cases.

This transcript has been lightly edited for clarity.

Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com.

Follow Kenyon on Twitter: @kenyonfarrow.

Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

African Commission launches report providing framework for an African human rights-based response to HIV

News release: Human Rights organisations applaud African Commission’s launch of HIV report

SALC : STAFF WRITER

Abidjan, Côte d’Ivoire – On this International Human Rights Day, regional human rights organisations commend the African Commission on Human and Peoples’ Rights (ACHPR) on the adoption and launch of the summary version of the Report on the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities during ICASA 2017 in Abidjan, Côte d’Ivoire.

The Report was developed by the Commission’s Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV (HIV Committee) through a process of extensive consultation and engagement with experts and civil society over a period of two years. This report is the first of its kind. It provides a framework for an African human rights-based response to HIV. It illustrates what human rights law demands of States in the context of HIV, and describes both barriers and good practices for effective rights-based responses. As a body vested with the broad mandate for the protection and promotion of human rights in Africa, it is significant that the Commission is recognising HIV as an urgent and significant human rights concern.

In trying to push for an end to the HIV epidemic, some States in the region continue to propose and implement coercive and punitive solutions that violate human rights. While there have been great strides in new biomedical interventions in the HIV response, the Commission’s Report is a reminder that the end of HIV will not be achieved without human rights at the heart of the response.

“The Commission is a critical instrument for enforcing human rights in Africa. We commend the Commission for its leadership in ensuring that human rights are at the centre of the HIV response. The advancements in medicines for HIV and models of care cannot be of any use unless people’s human rights are respected and structural barriers to accessing HIV care and treatment are removed,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).

“Through the Report, the Commission affirms the obligation of States to promote non-discrimination particularly, discrimination based on sexual orientation and gender identity; and to address the systemic violations of the rights of key populations and marginalised groups in particular, the right to health which exacerbates vulnerability to HIV ,” says Humphrey Ndondo, Executive Director of the African Men for Sexual Health and Rights (AMSHeR).

“We hope that the Report will guide the Commission, States, and other stakeholders, in their decision making,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre. “We call on States to engage with this important Report, and take note of both the barriers and good practices described.”

International Human Rights Day, marked on 10 December, must serve as a reminder of the importance of human rights when addressing HIV. It is a day where society should not only celebrate human rights, but keep in mind the long road ahead and the continuing human rights challenges that must be addressed if we are to end AIDS as a public health threat.

ENDS

For more info:

Lesley Odendal, Communications Lead, AIDS and Rights Alliance for Southern Africa (ARASA): communications@arasa.info, +27 72 960 8991

Annabel Raw, Southern Africa Litigation Centre (SALC): annabelr@salc.org.za, +27 10 596 8538

See www.achpr.org for more about the African Commission on Human and Peoples’ Rights (ACHPR) and the report.

Canada: Alberta courts urged to follow Ontario example and stop prosecuting people for not disclosing their HIV status

Alberta should curb prosecutions for HIV non-disclosure

The Ontario government announced Crown attorneys will no longer prosecute certain cases of HIV-positive people who don’t disclose their status to their sexual partner.

By: Kevin Maimann Metro Published on Mon Dec 04 2017

Advocates are urging Alberta courts to stop prosecuting HIV-positive people who don’t tell their sexual partners their status, as long as they’ve been on medication for a certain length of time.

The call comes after a federal justice department report released Friday concluded that criminal law should generally not apply to people who are on HIV treatment, are not on treatment but use condoms, or engage only in oral sex.

The Ontario government also announced Friday, which was World AIDS Day, that Crown attorneys will no longer prosecute cases of HIV-positive people who don’t disclose their status to their sexual partner when the HIV-positive person has had a suppressed viral load for six months.

Viral load refers to the amount of HIV virus in a person’s blood.

“It’s a huge step forward,” said Brook Biggin, founder of the Edmonton Men’s Health Collective and regional manager of the Community Based Research Centre for Gay Men’s Health.

“Our hope is that Alberta will make a sensible decision as well, and look at the evidence and follow suit.”

The announcement was made in response to the report, which was titled “Criminal Justice System’s Response to Non-Disclosure of HIV” and backed by analysis from the Public Health Agency of Canada.

The report found there is no realistic possibility of a person transmitting HIV if they have been on treatment and have an undetectable viral load.

Biggin said Canada is notorious for being “one of the worst countries” in terms of the number of recorded prosecutions for HIV non-disclosure.

The Canadian HIV Legal Network has recorded more than 200 prosecutions.

Because there is no specific law around non-disclosure in Canada, other laws are used to prosecute cases.

Offenders are often charged with aggravated sexual assault, with the idea being that a failure to disclose the condition invalidated consent, and that HIV could cause significant bodily harm.

Aside from often lengthy jail terms, those convicted have also faced mandatory designation as sex offenders.

“These are charges that ruin people’s lives,” Biggin said.

Veronica Jubinville, press secretary for Alberta Justice Minister Kathleen Ganley, said in an e-mailed statement that the ministry is taking the report into consideration.

“We are evaluating how this potential change could impact our courts and these types of cases in Alberta,” the statement reads.

Published in Metro News on Dec 04, 2017

Canada: Ontario decision to limit HIV criminalisation seen as a step forward but more still needs to be done

HIV-positive community says Ont. ruling is first step of long process

TORONTO — A move by the Ontario government to limit the prosecution of HIV-positive people who don’t disclose their status to sexual partners is being called a step in the right direction by those affected, but they say there’s much more progress to be made.

The government announced on Friday that people with low viral loads who don’t have a realistic chance of transmitting the disease can’t be charged with a crime if they don’t disclose their medical status to a sexual partner.

Previously, non-disclosure could lead to an aggravated sexual assault charge that landed convicted people on a sex offender list.

Ontario made the changes after studies showed that the risk of transmission is negligible if people are being treated for the disease or if appropriate precautions are taken.

Chad Clarke, 46, who served 39 months in prison for non-disclosure, said he cried when the announcement was made and said progress was being made to end what community advocates called the criminalization of HIV.

“I feel great because they’re listening to our voices,” said Clarke. “I look forward to see where we go … they just proved that you have them willing to sit down, and maybe Canada will sign on to this.”

However, advocates in the community say there are downsides to the ruling as well.

Jeff Potts, managing director of the support and advocacy group Canadian Positive People Network, said that decriminalizing only people with low viral loads means the community will be divided between people who are fortunate enough to get the medical treatment they need, and marginalized people who are not.

“At the end of the day, laws that criminalize people living with HIV for any reason, unless it can be proven there was intentional harm, are unjust,” said Potts, who has been HIV-positive for three decades.

“They don’t make sense, they don’t keep up with the science, it does nothing more than perpetuate stigma and further marginalize people who live with HIV.”

Potts said that some people will see this as a wrong step because of that division, but acknowledged that it’s important that the government has shown it understands there’s a conversation that needs to happen.

The government said Sunday it had no comment about any plans to further limit prosecution of HIV-positive people for non-disclosure.

Potts and Clarke spoke of the stigma that came with being HIV-positive and said that the fear of prosecution was “unbearable.”

Clarke, who was originally sentenced to four years in prison, says his daughter still won’t let him speak to his grandson, and said he still isn’t on speaking terms with his parents. He used to feel at home in Toronto’s Church and Wellesley neighbourhood, where there is a strong LGBTQ community, but has since moved to a small rural community because the area brings back too many bad memories

“Knowing that I’m on a national sex registry that puts me on the same category as people that actually harm children or dismember bodies when they do a sexual thing doesn’t make me feel to good,” said Clarke.

While Clarke is also calling for further changes to non-disclosure rules, he said the HIV community has to be mindful of how they carry on the fight and that they must focus on educating Canadians.

“We need to use our voices properly, hold them accountable, and educate,” said Clarke. “If we don’t educate and show them the love of this community, they’re not going to hold that door open for us no more.”