Canada: Rob Olver from Positive Lite magazine gives an overview of the Rethinking Justice Symposium

Rethinking Justice with Renewed Hope 

So there I was, getting up at three in the morning once again in order to get to Toronto in time for an event. The event in this case was “Rethinking Justice 2017 Symposium on HIV Law and Human Rights” and I’d been looking forward to it especially since I knew a representative of the federal government would be there and I was very keen to hear what that representative might have to say to us. Two buses and a train later, I was in Toronto, waiting for the symposium to begin.

First off, Trevor Stratton of the Canadian Aboriginal AIDS Network (CAAN) welcomed us to the land and the conference. He went on to say that indigenous people understand about criminalization and to emphasize that indigenous women in particular are also disproportionately criminalized.

Next we heard Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, who also welcomed us, gave an overview of the day to come and posed the symposium’s overarching question: “Should we look at changing provisions in the criminal code that are used to criminalize people?”

After that the symposium proper got underway. The first segment was entitled “The State of HIV Criminalization” and it began with an audio presentation from Alex McClelland of Concordia University in partnership with the Canadian HIV/AIDS Legal Network. Alex does qualitative research, focusing on peoples’ lives in order to arrive at an empirical basis to assess the damage of injustice and violence at the hands of government employees. The audio portion of his segment consisted of various people talking about their experience of being criminalized and a lot of it was pretty hard to hear:

“I thought I was innocent until proven guilty.” “I was naked, along in a room with male guards watching me.” That sort of thing.

Unfortunately Alex was not able to attend in person but did address us by video after the audio presentation and then there was a live panel of persons living with HIV, during which Chad Clarke spoke in some detail about his own horrific experience, including beatings and deprivation of his HIV medication at the hands of the Canadian justice system employees.

And that set us up to hear our policy-makers’ response to HIV criminalization. The speaker was Marco Mendocino, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada and as I sat here listening, I began to feel unexpectedly, if cautiously, optimistic.

He began by reaffirming the government’s commitment to HIV criminalization reform, saying there is “No doubt that we have a long way to go.” He went on to say that “HIV is not a crime. It should not be criminalized,” and delivered the news that Prime Minister Justin Trudeau has “introduced legislation to quash and erase previous unjust convictions.”

“HIV non-disclosure is a public health issue,” he said, and also, “Mabior made clear that future scientific development must be taken into account.” He went on to say that the use of the aggravated sexual assault provision “deserves further consideration… we want to get this right and are committed to taking the time and resources to do so.” It was remarkable to hear such positivity about HIV decriminalization from a government representative and it drew a big hand of applause.

Next came a panel discussion on “Criminalization in Canada and Internationally”, which I didn’t get to attend as peers on the panel didn’t want any media presence during the discussion.

The subject of the second panel was “The Science and its Interaction with the Law,” and that panel featured Megan Longley, a criminal defense lawyer who was the counsel in R v JTC (NSSC, 2013) as well as Art Poon, an Assistant Professor at Western University.

Megan’s talk was on the role of scientific evidence in avoiding wrongful convictions. As she told us, she’s a lawyer who also likes science and who had come to feel that the current state of HIV criminalization made little rational sense. She impressed on us the importance of science in proving these cases and delivered a short “Prosecution 101” as it applies to aggravated sexual assault. One of the more startling points made was that sexual assault cases are in fact very difficult to convict. Only about 3% of them do. Until, that is, you factor in HIV. In HIV-related sexual assault cases the rate is over seventy percent. And once we start to factor in such things as race or background of the defendant, a very disturbing picture emerges.

Art Poon spoke on “Phylogenetic Forensic Science and Implications for HIV Criminalization”, which turned out to be about the limitations of said evidence in such cases. “Phyloclusters offer great potential for misuse… there is little talk about the implications of these methods.” Although two individuals may carry HIV strains that are closely related, these will not necessarily be unique to the two parties and could extend to other persons within the same transmission network. More on this in my interview with Edwin J. Bernard, here.

After lunch we reconvened for an update on the campaign for prosecutorial guidelines by Glenn Betteridge, who is a staff lawyer with HIV & AIDS Legal Clinic Ontario (HALCO). Glenn spoke on how in Canada the provinces are responsible for the administration of justice. The Attorney General can suggest or set guidelines for prosecution lawyers but cannot dictate. Cops lay charges. Crown attorneys filter and stream them and they go forward if they’re deemed to have a chance of success and/or there’s sufficient community interest.

B. C. has a guideline for prosecuting these cases, as do England, Wales and, since 2014, Scotland. But we heard that here in Canada the Attorney General had previously ignored the science as well as community advocacy and had secretly devised a playbook. Since then, Ontario has been making favorable statements regarding HIV criminalization, but seem to have adopted a “wait and see” stance.

As to where the resistance to reform is coming from, Glenn told us that Ministers have been passive, disinterested because they see the issue as a loser politically. Also, Attorneys General are not used to being challenged or to being responsive to outside concerns. He went on to call the situation “a study in bureaucratic intransigence.”

We then heard presentations by Notisha Massaquoi, who is the Executive Director of Women’s Health in Women’s Hands and who spoke on “Critical Feminist Approaches to HIV Criminalization and the Law of Sexual Assault” and then Richard Elliott laid out the pros and cons of “Criminal Code Amendments as a Strategy to Limit Unjust HIV Criminalization.”

Ryan Peck, co-chair of the Ontario Working Group on Criminal Law and HIV Exposure spoke to us then on “Forging a community consensus: identifying elements of a consensus statement,” and the Canadian Community Consensus Statement on Ending Unjust Prosecutions for HIV Non-disclosure, following which we split up into groups for an exercise in forging consensus on these questions:

1 – Do you think it is ever appropriate to prosecute non-disclosure of HIV-positive status as a crime? Why or why not? What kind of situations might be legitimately prosecuted? What kind of situations should clearly be excluded from prosecution?

2 – Do you think it’s ever appropriate to prosecute non-disclosure of HIV-positive status as “sexual assault?” Why of why not?

3 – What do you think about changing the criminal code to exclude prosecutions for sexual assault and instead having a specific offence about non-disclosure?

What this exercise showed me is that even within our community it’s not easy to get consensus on these issues. And while the majority clearly favoured prosecutorial guidelines, it wasn’t unanimous. One lady stated that such guidelines would be of no use to her because as a Black woman she will always be a target for criminalization in our society.

Directly following the exercise there was discussion, facilitated by Tim McCaskell, a founding member of AIDS Action Now! and Valerie Pierre-Pierre, Director of the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO)

Attending the Rethinking Justice Symposium presented a truly fascinating overview of the current state of play on the issue of HIV criminalization and I heard several people observe that here in Canada we seem to be on the cusp of some really favorable developments after moving so long in the other direction. Cautious optimism, as I said.

Here’s hoping that wave of optimism turns out to be justified and that we can ride it into a better future.

Canada: Positive Lite interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network

Rob Olver interviews Edwin J. Bernard, Global coordinator of the HIV Justice Network,  at “Rethinking Justice 2017 Symposium on HIV, Law and Human Rights” 

One of the things that made the “Rethinking Justice: 2017 Symposium on HIV, Law and Human Rights” a “must-attend” for me was the presence of Edwin J. Bernard, Global Co-ordinator of the HIV Justice Network and foremost expert on HIV criminalization worldwide. PositiveLite.com had interviewed Edwin before and published him as well, but that was all the way back in 2012 and 2016 so I attended the symposium hoping for the chance of an interview.

I wasn’t disappointed. Edwin proved very gracious and willing to talk and towards the end of that very long day we sat down to get his take on how the HIV criminalization situation has evolved since we last spoke and where he thinks it might go, in Canada and globally.

******

So Edwin, thanks for taking the time to chat with us. I think the last time we interviewed was all the way back in 2012.

Right, I think it was. I think that when we talked in 2012 Canada was in a pretty bad place… or maybe it wasn’t, maybe it was before, I think it was before the Supreme Court handed down the Mabior decision and we’d been a little bit hopeful that perhaps they would look at the science… that they would have made a different decision than they actually did.

Yes, we were all expecting them to say that if a condom was used OR there was an undetectable viral load… and instead they said AND.

Yes, that was the very least they could have done.

And how do you see the progress that’s been made here in Canada since 2012? We’re looking at a different government now…

I don’t know if you know Elisabeth Kübler-Ross’s theory of the stages of grief. I came back after the Mabior decision in, I think, 2013 and there was, you know, anger and denial and depression … all of those things going on and I don’t think there ever was an acceptance that this was gong to be the legal standard for Canada.

But it’s taken a few years for there to be a resurgence of … figuring out how best to deal with it.

Today we’ve heard about all the different ways that Canada is at the forefront: the use of the sexual assault law and the disproportionate impact on racialized populations and on women and the fact that per capita it’s the highest number of prosecutions in the world and that the legal test is so unscientific that it’s non-disclosure and the risk of harm and not harm.

There’s a list of things that are so problematic. So of course a change in government has obviously helped tremendously. I’m very happy to hear that when Edwin Cameron, of the Constitutional Court of South Africa, when he spoke at the International AIDS conference in Durban, at our bidding highlighted the problem of Canada in particular in front of the Health Minister, who then called the Justice Minister and that led to the announcements today. And to me that’s amazing, that the federal government, that there’s a recognition that HIV is not a crime, it’s a public health issue. And to actually get to hear a government representative say that is a hell of a long way from where we were when I was here five years ago.

And the Legal Network and HALCO and COCQ SIDA and the community media, both PositiveLite and Xtra as well also did some amazing work. And the prosecutorial guidelines work, even though that didn’t lead to anything at the time.

One of the things I love about coming to Canada and particularly to Toronto is that this is where I get my inspiration, that there are so many brilliant advocates and activists with a wealth of knowledge and experience and despite Canada’s terrible reputation in terms of HIV criminalization or maybe because of it, the resilience of advocates and activists and the brilliance of mind. When I think about the work around guidance for nurses and health care workers .. that was world-leading.

There’s been so much amazing, world-leading work that’s been done here. The “Think Twice” campaigns that came from the grass roots, from AIDS Action Now … all of those things, to me, are so inspirational, that sometimes, even in the darkest times, it can actually inspire brilliance and so yeah – five years… but what a difference! It feels like we’re actually on the cusp of something brand new.

We certainly aren’t where we’d like to be but it seems like it’s all going somewhere now, after all those years of Tory rule.

Yeah and the other thing that I think is really special is the Canadian Coalition to Reform HIV Criminalization and Chad (Clarke) in particular. Chad reminded me that he had emailed me soon after he got out of prison. He said I was the first person he got in touch with, I guess because I was still blogging in those days and that I had put him touch with the Canadian HIV/AIDS Legal Network and those people and had led him on this path. And it’s so amazing to see now, how empowered he is, his courage and his strength and his leadership… it’s all so inspiring.

Yes it is. I know so many positive people who say that their lives are better now because of the way their situation brought them into focus and into this community. I feel that way myself.

I work on this issue all over the world and I think what’s interesting, what is special about HIV criminalization in Canada and how draconian the law is, is that once things are absolutely perfect in other ways, I mean there are still obviously issues, particularly around certain populations, undocumented migrants for instance, but in general things are pretty okay for people living with HIV, in terms of the medical side.

So it basically means that this is the thing, this is the thing you have to fight, have to work on. It’s the thing that’s most impacting your quality of life, your ability to feel… internalized stigma as well as discrimination and criminalization. So I completely get why this has been big in Canada.

I actually have to worry much more about my fellow human beings than about anything HIV is ever likely to do to me. So for me, the worst thing about living with HIV is other people… it’s not the virus. The virus is under control and I feel fine.

That’s like what Jean Paul Sartre’s play, Huis-clos (No Exit) said… “Hell is other people.” HIV stigma is other people. Yes.

You’re very active globally. How do you see Canada comparing with other countries at this point?

In my talk I was trying to situate where Canada sits globally and of course I did the… it’s very easy to do all the shaming and I’ve already listed all the different ways that Canada is a world leader in being problematic about criminalization. But I think that the announcements from the federal governmant, from Justice Canada, it actually sits very well in terms of where other countries with problematic provisions are rethinking criminaliation so … a number of states in the US have either modernized or are on their way toward modernizing their statutes. At the federal level there has been an attempt to pass a law for like the last six or seven years. It doesn’t ever get enough co-sponsors to be heard but there is a movement there in the US, even in the face of Trump and Trumpism.

Russia, in February of this year, their deputy minister for Social Affairs announced that they will be revising or removing their HIV-specific criminal law. And you know, the US and Russia have the highest numbers of criminal prosecutions in the world and then Canada’s third in terms of numbers.

But Canada is much higher per capita because you’ve got far fewer people with HIV than Russia or the US. So there’s a movement. Obviously there’s a grassroots movement and there’s a movement of civil society to push towards better laws or no laws at all around HIV. And Canada now is lookig like it could be part of the solution and not the problem that it’s been for so long. And it would be amazing if Canada could end up being a world leader in doing HIV justice rather than HIV criminalization.

U=U (undetectable = untransmittable) and the movement around it has been a game changer. There are other arguments for decriminalization or criminalization reform depending on how people want to come at it, but here in this country it’s certainly given advocates a greater palette to work from in their advocacy.

I helped Bruce (Richman)with putting the campaign together so in terms of the history, I wrote the English language news story about the Swiss Statement and covered it when I was a journalist and I’ve been pushing for many years to ensure that the criminal law is consistent with good science, not only around risk but also around the improved life expectancy, so the reduced harm of HIV and also the science of proof.

And I’ve done lots of work in that area. That’s what brought me to this work in the first place, was actually as a community-based journalist working on science. I wanted to bring the rationality to what felt like the irrationality of criminalization. So what Bruce and his colleagues have done with U=U is they’ve created a grassroots movement that’s popular.

And it’s taken far too long, you know – the Swiss Statement was in 2008. So Pietro Vernazza and I wrote a piece two years ago, looking at – I think it was called, “The Swiss Statement Seven Years Later”or eight years later… whenever it was. And he wrote about all of the studies, 052 and Partner had vindicated the Swiss statement of 2008. And I wrote about how it had impacted criminalization as well as stigma, both internalized and externalized stigma. And Bruce was inspired by that article to do the U=U campaign. So I have a huge amount of respect.

I think one of the problems has been, not the campaign itself, but the way that some groups and organizations and people living with HIV, rightly frustrated that many people do not have equitable lifetime access to treatment and are concerned about the medicalization of HIV above everything else.

And they sometimes want to kill the messenger. But the science is clear. If you’re on treatment, and it doesn’t even have to be undetectable because of course that’s a moving target. What is undetectable in one province is actually not in another, we’re discovering that. Alex McClellland’s talked about that.

So somebody who’s on treatment and adheres to it, whether or not they have access to viral load testing and whether or not that viral test shows undetectable or low levels, that person is extremely unlikely to pass on HIV to anyone and that’s fantastic and it’s something that we should celebrate.

It’s also a great advocacy tool to allow them to make sure that treatment and viral load testing are available to everyone who needs it, but that people shouldn’t be coerced into either knowing their status or taking treatment or to be afraid and to only take treatment because of criminalization.

But those are some of the more nuanced conversations that are going on about it, so in Canada of course it makes complete sense that the U=U message is welcomed and heard loud and clear because of the way that criminalization is framed around realistic possibility of transmission and the fact that the Supreme Court ignored the science in 2012.

So it makes complete sense to be focused on that. But there are a number of reasons why HIV criminalization shouldn’t be as problematic as it is in Canada and they’ve got nothing to do with science, but everything to do with human rights and equity.

The social determinants of health. HIV has been society’s way of condemning the sexually and behaviorally nonconformist. Any difference could be seized on and used against them.

In some ways HIV criminalization absolutely feeds into that and in some ways even the charges are often a surrogate marker of something else and it’s easier, it’s very easy to convict somebody for HIV non-disclosure.

It’s much harder to convict them of actual sexual assault or of domestic violence or of… it’s often due to a breakdown in a relationship and it’s just easier because there’s very little evidence that’s required to find someone guilty.

And the data that was shared this morning about how only three out of a thousand sexual assaults that are ever prosecuted result in a conviction, compared to probably 60 or 70 percent or probably even higher than that of all non-disclosure prosecutions being convicted.

And that’s also part of the problem, that HIV is not only a surrogate marker of being marginalized or stigmatized, but that criminalization is doing the same thing..

If I could ask you to just blue-sky for a moment, what do you think HIV criminalization is going to look like five years from now?

In Canada or globally?

Either one.

Well, it’s interesting that you ask about the five years because it’s five years since the Mabior decision, it’s five years since everyone was just devastated and it felt like it was pretty near the end of the world and you know, so much can happen in five years. We’ve got better science, science is behind us … the political will is behind us… even the fact that the Legal Network is part of our gobal movement, the HIV Justice Worldwide Coalition. It’s a global movement and they’ve played an incredibly important role.

So I would imagine as long as you continue to have the current political climate and there’s this coalition work, that in fiive years’ time I could well imagine that aggravated sexual assault will not be the law, will not be the charge. I can imagine that HIV non-disclosure, in and of itself may not end up being a thing that is prosecutable.

I would hope that there would be elements of mental, of mens rea, you know, that state of mind will be taken into consideration. The way it’s framed right now, you can’t even take state of mind into consideration. Whether that will be, as the global guidance recommends, malicious intent, or whether it will be more like a standard of recklessness, which is sort of a default standard and which is very much the same standard as in England and Wales.

And I would hope that it would be… whilst I really would hope, the ideal would be for there to be no criminal justice system interference in what is primarily a public health issue, I would imagine that the best-case scenario, as we’ve seen for example in the Netherlands.

I can imagine Canada being like the Netherlands. The Netherlands was the first country to do this, in 2005, through a number of Supreme Court rulings. Very different to your Supreme Court. It ended up in the situation they have now, where intentional exposure or transmission are the only things that can be prosecuted and there has only ever been one case since 2005. And I think that is probably the best case and I can imagine that happening.

Now, how it happens… there’s a lot to sort out. But if Canada could get from Mabior to here in five years then why not get to the point where only the very, very rare and difficult cases ever reach criminal court and that all the other cases are dealt with either by public health or through restorative justice or through community support. In five years, I think that’s quite, quite doable.

Sexual assault cases are difficult to even get to court, let alone prove and convict. If we contrast that with the startling success rate of HIV-related sexual assault cases and then factor n the racial stats for example, it paints a very strange picture.

Yes and I think that will be the sticking point in negotiations with the government and parliamentarians. When they discuss it, well that’s such a high legal standard, when I’ve talked with prosecutors, they’re like, “It is really hard to prove intent,” for example.

One would need to send a text afterward, saying, “Ha ha, welcome to the world of HIV.” Which has happened and if somebody was to produce an electronic paper trail to show state of mind, well, that would be used but that’s why potentially I think it’s possible that recklessness might be the compromise. We can prosecute reckless transmission or reckless exposure. And to be reckless, it’s slightly easier to prove but there’s a number of legal tests of recklessness, which means that you need to know your status, you need to know that HIV is transmitted by the way you’’ve behaved, you will have done nothing to prevent that. You will have no excuse as to why you didn’t disclose or use a condom.

So all of that. There’d be a whole load of those things to prove and then recklessness might be shown. But even then, they still need to prove transmission and that’s also very difficult. And I don’t know if you heard Art’s presentation on Phylogenetics but that’s also, there are huge limitations around that.

It’s not impossible; we’ve had reckless transmission in England and Wales. We’ve had 20 convictions in 15 years so it’s not like you can’t have them. It just means that there are a lot fewer of them.

I hadn’t been aware of that phylogenetic evidence is often misinterpreted.

That was actually how I got into doing this work. I was working for the U. K. equivalent of CATIE and we had our first prosecution in 2003.

And I was shocked and I didn’t know what to do about it, but I was writing about science. And the police actually contacted us and said, “We’ve got another case. Can you help us figure out how to prove that one person infected another?” And then I started looking at Phylogenetics.

And I realized that this was really complicated and that a tool which was really primarily used for public health was being misapplied in the criminal context as forensic evidence. I worked with a number of experts to produce a paper that Art referred to, in 2007, that for better or worse keeps being referred to as the paper that highlights the limitations of Phylogenetics in trying to prove that one person infected another.

And what is great about Phylogenetics and I think it should be used more often in criminal cases where transmission is alleged, because it can actually exonerate people. It can show that the viruses are not similar at all.

But when it shows that they are simlar, all it can say is that these viruses are similar and that’s consistent with the prosecutor’s arguments, but we need more evidence. You can’t just say, just because the Phylogenetic trees match, that cannot show direct transmission. There could always be other viruses in between, which means other people in between.

The complainant could have infected the defendant. Just because you’re diagnosed first doesn’t actually mean you were infected first. So all the other evidence needs to be brought in and so Phylogenetics alone cannot ever prove causation.

Can you direct me to that paper?

Sure, I’m the first author. It’s called “HIV Forensics”, so if you just search for E. J. Bernard HIV Forensics you’ll find it. And we did a second paper called “HIV Forensics 2”. That was produced by NAT, the National AIDS Trust. I was an author of that but we weren’t named for some reason. And that is also about this Recent Infection Testing Algorithm (RITA), which Public Health often does now, just to see if someone has been recently infected, compared to chronically infected.

And we did that to highlight that we were very concerned that these tests were being given back to newly diagnosed people to be told whether they had acquired HIV recently or not. We were concerned that someone who had been told that they had recently acquired HIV might thik that they could identify who had infected them, based on whether they had sex with them. And so we again highlighted that this is a public health tool that only suggests recency and it certainly can’t pinpoint timing.

That’s the thing about science. It can move forward and help us as it has with U=U, but it can move forward and create a number of problems if it’s misapplied and misunderstood.. So that’s the new frontier.

Particularly in Canada, if you’re going to change the law so that it’s about transmission and not about non-disclosure or exposure, then there’s a whole load of other science that needs to be understood and appreciated.

Oh, just to let you know, Richard, Notisha and I were on The Agenda. We taped The Agenda, which is on TVO and it’s going to be on on Monday. And even if you don’t catch it on TV I believe it’s also going to be on You Tube. And we had half an hour. I thought it was going to be a hard-hitting news show. We all did pre-interviews and in the end it was just half an hour of us telling Canada how problematic criminalization is. And we weren’t challenged. It was all like, “Yeah, you’re right.”

And they even read a statement from Justice Canada that basically said the same thing, you know, “We’re really concerned about the application of criminal law to HIV.”

So that’s why I feel that we’re at a turning point. Five years ago, if I was interviewed by mainstream media in Canada I would get such aggressive questions. Very moralistic. And that doesn’t happen any more. And that says to me that there is a change.

I mean, yes, I see on Twitter with the hashtag #HIVcrim and I remember looking it up and I see there’s someone who wants to impeach Justin Trudeau or something and he’s trolling us, but other than that, I think there’s a tide turning here.

Yeah, my experience of Canada is mostly… Canada as a country of compassion and it always felt so jarrring. I mean, it’s not over yet, there are still many issues around the treatment of indigenous people and sex workers and people who use drugs. But things seem to be improving in lots of areas so it’s part of the idea of the new Canada as a kinder, gentler country that people always thought it was, but that it just stopped being for a long time.

Let’s hope it’s going back there.

US: The Body reviews the latest development in HIV criminalisation in the United States

What’s New in HIV Criminalization in the United States: The Good, the Bad and the Ugly

By Victoria Law

From TheBody.com

June 15, 2017

Table of Contents

California Senate Passes Bill Modernizing HIV Criminalization Laws

HIV activists in California rejoiced when SB 239 passed the Senate on May 31.

The bill amends the state’s existing criminalization laws to incorporate current understanding of HIV and treatment. It reduces HIV transmission from a felony to a misdemeanor, meaning that people convicted face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV.

“There’s no evidence that criminalization inhibits HIV transmission,” stated Naina Khanna, the executive director of Positive Women’s Network-USA. Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment. Criminalization can be, and often is, used “as tools of coercion and control, particularly for women,” said Khanna. “The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships.” That fear is not unfounded: While women make up only 13% of Californians with HIV, they make up 43% of those criminalized under the state’s HIV laws.

Furthermore, criminalization disproportionately targets people of color. Though blacks and Latinx people make up only 51% of Californians living with HIV, they are 67% of those prosecuted based on their HIV status. “These laws target the most vulnerable communities, pushing them back into the shadows,” said Khanna.

SB239 now moves on to the Assembly.

Missouri Supreme Court Upholds Michael Johnson’s Right to a New Trial

On April 4, the Missouri Supreme Court voted to uphold a lower court’s decision that Michael Johnson, a college wrestler sentenced to 30 years in prison, is entitled to a new trial.

In July 2015, Johnson was convicted on four counts of HIV exposure and one count of HIV transmission. HIV transmission is a Class A felony in Missouri. Johnson, a young black college student, was tried in a nearly all-white town. His race and sexuality were front and center throughout the entire court process. During jury selection, prosecutors asked prospective jurors whether they believed that being gay was a choice. During trial, graphic descriptions and images of Johnson’s penis were admitted as evidence. Most of Johnson’s partners were white.

Both in Missouri and across the country, advocates rallied to his defense, pointing to Johnson’s sentence as a collision of racism, homophobia and HIV criminalization. In December 2016, an appeals court ordered that Johnson receive a new trial. At issue was the fact that prosecutors withheld more than 24 hours of recordings of Johnson’s phone conversations from jail until the first day of trial. By then, it was too late for Johnson’s legal team to mount an appropriate defense. Calling the state’s violation “knowing and intentional,” the judge wrote that the prosecution’s actions were “part of a trial-by-ambush strategy that this Court does not condone.” The decision was upheld by the state’s Supreme Court.

Johnson, now age 25, has already spent four years behind bars. Two of those years were because Johnson and his family were unable to afford the $100,000 cash-only bail that would have enabled him to stay out of jail — and participate in his defense — while awaiting trial. He remains behind bars while he awaits his new day in court.

Florida Says “Sex” Can Be Non-Vaginal — When Prosecuting HIV Exposure

Under Florida law, it is a crime not to inform a sexual partner about HIV status before engaging in sexual intercourse. Until recently, another Florida law defined sex to be between a man and a woman. This is what 65-year-old Gary DeBaun used to overturn his conviction of unlawful sexual transmission of a disease after he created a false report for a partner stating that he was HIV-negative. Since DeBaun’s partner was another man, he and his lawyer argued that the criminalization statute did not apply to him. A lower court agreed and dismissed the case.

While the HIV criminalization law still stands, the law narrowly defining sexual intercourse does not. The Florida Supreme Court ruled that, for purposes of HIV criminalization, sexual intercourse also encompasses anal and oral sex. The prosecutor announced that charges would be brought against DeBaun.

SB 628, a bill that would update existing HIV criminalization laws to acknowledge treatment and prevention efforts, died in the Senate’s Health Policy committee in early May.

Pennsylvania Bills Would Slash Medical Confidentiality of Incarcerated People With HIV

In Pennsylvania, Representative Dom Costa has introduced HB305 and HB306, which expand the current laws criminalizing people living with HIV or suspected of having HIV in the state’s prison system.

HB305 circumvents medical confidentiality if a prison staff member has direct contact with the blood or bodily fluids of an incarcerated person. The bill allows the staff member to learn the incarcerated person’s HIV, hepatitis B and hepatitis C status. If the incarcerated person’s status is unknown, the staff member can request that the person’s blood be tested. If the incarcerated person does not agree to be tested, the prison is allowed to test the person’s available blood if a physician agrees that the staff member had significant exposure to the blood, that tests are needed to treat the staff member and the staff member requests that the blood be tested.

HB 305 defines prison staff members to include health care staff, correctional officers (or guards) and volunteers.

HB 306 amends the state’s Confidentiality of HIV-Related Information Act for people in prison. If passed, the state Department of Corrections must disclose an incarcerated person’s HIV, hepatitis B and hepatitis C status to all corrections officers required to interact with the person. While the bill prohibits corrections officers from disclosing this information to others, incarcerated people across the country have noted that staff members often gossip about medical and other confidential information they overhear or learn, often within earshot of others.

Both HB 305 and HB 306 have been in the state’s House Committee on Judiciary since February 3.

Ohio Supreme Court Hears Challenge to State’s HIV Criminalization Statute

In May, the Ohio Supreme Court heard arguments in State of Ohio v. Orlando Batista, challenging the legality of the state’s HIV criminalization statute. Under the state’s 2000 HIV law, which classifies non-disclosure as felonious assault, Batista was convicted of not disclosing his HIV status to his girlfriend before they had sex. She later tested HIV-positive. Batista was arrested and, after pleading no contest and admitting to transmitting HIV to at least two other women, was sentenced to eight years in prison.

Batista appealed, arguing that requiring a person to disclose his or her status to potential sexual partners is a violation of free speech and that, because HIV is the only disease that is criminalized, the law is also a violation of equal protection. He lost his appeal, but the Ohio Supreme Court agreed to review the issue.

Ohio had 356 HIV-related prosecutions and 59 convictions between 2003 and 2013, giving it the fourth highest HIV-related conviction rate in the U.S. As of 2015, more than 22,300 people in Ohio were living with HIV]].

HIV Is Not a Crime 2018 Conference Planning Has Begun

HIV advocates will be heading to Indiana next summer to share strategies, insights and best practices on repealing and modernizing HIV criminalization laws. The third HIV Is Not a Crime National Training Academy will be held at Indiana University-Purdue University (IUPUI) from June 3-6, 2018.

The conference will offer skills-building training, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning.

“The HIV Modernization Movement (HMM) is excited to welcome HIV Is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” said Carrie Foote, Ph.D., HMM Chair and an associate professor at the university, in a press release.

“We hope that hosting the Training Academy in Indiana will highlight the archaic HIV-specific laws and empower advocates and allies to modernize Indiana’s statues,” added Tami Haight, conference coordinator with the Sero Project.

Interested in helping to organize the conference? Sign up here to participate in one of the conference’s planning work groups.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.

Mexico: Organisations call for the withdrawal of initiative aiming to criminalise HIV-transmission in Quintana Roo

Call ATTENTION TO A MEMBER of the legislative body Congresswoman BERISTAIN: STOP CRIMINALIZATION OF HIV INITIATIVE

NOTICARIBE

POSTED ON JUNE 08, 2017, 11:44 PM 6 MINS POST Views: 1,135

By Leslie Gordillo

CANCUN, MX,- Members of associations called for the commissions of Justice, Human Rights, Development and Family groups in situations of vulnerability and of the Great Commission, in particular Mrs Laura Esther Beristain Navarrete, to reconsider the criminalization of HIV and to lower this initiative, which aims to put people with HIV under a status of potential criminals.

“We cannot allow actions that criminalise and punish and much less from a party that supposedly embraces the causes and unveiled an agenda where you will work with at-risk groups, then it is not being consistent, much less the party and its members in this case, the member of the Commission on Health,” said Roberto Guzman, Network Posithiva of Quintana Roo AC, which joined ICW Mexico and UNAYAC.

This call was made through a letter delivered in the city of Chetumal to groups already mentioned, where the points for consideration, knowing that these commissions are responsible for determining the initiative of “Decree amending Article 113 and is added in the third section, crimes against society, the seventh title, crimes against public health”, which seeks to amend article 113 of the criminal code and the punishment of 5 to 25 years with imprisonment from spreading or becoming infected with dangerous viruses to other people.

Before this, expressed in the letter some clarifications requested were taken into account to avoid an initiative “that violates the dignity and promotes stigma toward people living with HIV”, among which are: the importance of promoting actions in favour of the recognition of the human rights of women in the international order of the various instruments in this field has signed and ratified the Mexican State; not to seek punishment for behaviour that is perceived as wilful misconduct in relation to HIV and other sexually transmitted infections, because the scientific evidence indicates that HIV prevention is not achieved with punitive measures, but with public health policies that facilitate actions that promote changes at the structural level.

Also mentioned that the criminalization stigma and discrimination toward people living with HIV, including girls, children, adolescents and women, so that it is contradictory to promote actions that are contrary to the dignity of these vulnerable groups; the difficulty of determining causality, fraud, the intentionality as a number of factors in HIV transmission, such as: the possibility of the transmission, the type of exposure, the use or not of the condom, the stage of the infection, if you take your antiretroviral treatment or not, if you have a detectable load or not, if there are concomitant diseases, the status of the receiving partner and agreements established between couples.

They emphasized that the punitive measures, such as which is intended to legislate, could hinder and affect the various multisectoral action in the field of prevention, detection and care in our state. Could influence that people perceive HIV risk factors, to bypass an early detection in order not to know their status, in virtue of preventing a possible criminal proceedings.

In addition to the specific content of this initiative of “danger of contagion” could cause the legal responsibility of the HIV prevention falls only on those living with HIV, and this could be invisibilizarse the public health message that sexual partners have shared responsibility about their sexual health. And that this type of adjustments to the Criminal Code will promote higher levels of stigma and discrimination toward the various populations with HIV and their families.

Contrary to this, recounted in the Charter, should label resources to prevent, detect and respond in a timely manner HIV; to improve the quality and comprehensiveness of care services provided from the capasits and hospitals in the health sector; and reduce stigma and discrimination toward the populations affected by HIV and other STIS.

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Le Llaman la atención a Diputada Beristain: Piden asociaciones detener iniciativa de penalización del VIH

Leslie Gordillo

CANCÚN, MX,- Integrantes de asociaciones exhortaron a las comisiones de Justicia, Derechos Humanos, Desarrollo Familiar y Grupos en Situación de Vulnerabilidad y de la Gran Comisión, en particular a la diputada Laura Esther Beristaín Navarrete, a reconsiderar la penalización del VIH y a bajar esta iniciativa, que pretende colocar a las personas con VIH bajo un estatus de posibles criminales.

“No podemos permitir acciones que criminalidad y penalicen y mucho menos a partir de un partido que supuestamente abraza las causas y dieron a conocer una agenda donde va trabajar con los grupos de riesgo, entonces no está siendo congruente el partido y mucho menos sus integrantes en este caso la diputada de la comisión de salud”, expresó Roberto Guzmán, de Red + Posithiva de Quintana Roo AC, organismo que se unió a ICW México y UNAYAC.

Este llamado se hizo a través de una carta entregada en la ciudad de Chetumal a los grupos ya mencionados, en donde expresan los puntos a consideración, a sabiendas que estas comisiones son responsables de dictaminar la iniciativa de “Decreto por el que se reforma el Artículo 113 y se adiciona dentro de la sección tercera delitos contra la sociedad, el titulo séptimo, delitos contra la salud pública”, la cual pretende reformar el artículo 113 del código penal y castigar de 5 a 25 años con prisión a quien contagie o infecte con virus peligrosos a otras personas.

Ante esto, manifestaron en la carta algunas precisiones que pidieron fueran tomadas en cuenta para evitar así una iniciativa “que atenta contra la dignidad y promueve el estigma hacia las personas con VIH”, entre las que destacan:

La importancia de impulsar acciones a favor del reconocimiento de los derechos humanos de las mujeres en el orden internacional de los diversos instrumentos que en esta materia ha suscrito y ratificado el Estado mexicano; no buscar castigo para las conductas que se perciben como dolosas en relación al VIH y otras infecciones sexuales, ya que la evidencia científica  señala que la prevención del VIH no se logra con medidas punitivas, sino con políticas en salud pública que faciliten acciones que promuevan cambios a nivel estructural.

Mencionaron también que la penalización favorece el estigma y la discriminación hacia personas con VIH, incluyendo a las niñas, niños, adolescentes y mujeres, por lo que resulta contradictorio impulsar acciones que contravienen a la dignidad de estos grupos vulnerables; la dificultad de determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH, como: la posibilidad de la trasmisión, el tipo de exposición, el uso o no del condón, la etapa de la infección, sí lleva tratamiento antirretroviral o no, si tiene carga detectable o no, si existen enfermedades concomitantes, el estado de la pareja receptora y los acuerdos establecidos entre parejas.

Enfatizaron que las medidas punitivas como las que se pretende legislar, podrían obstaculizar y afectar las diversas acciones multisectoriales en materia de prevención, detección y atención del VIH en nuestro Estado. Podría influir a que las personas que se perciban con factores de riesgo ante el VIH, omitan realizarse una detección temprana a fin de no conocer su estado serológico en virtud de prevenir un posible proceso penal. 

Además de que el contenido en específico de esta iniciativa de “Peligro de contagio” podría provocar que la responsabilidad jurídica de la prevención del VIH recaiga solamente en quienes viven con VIH, y con ello podría invisibilizarse el mensaje de salud pública de que las parejas sexuales tienen responsabilidad compartida sobre su salud sexual. Y que este tipo de adecuaciones al Código Penal promoverán mayores niveles de estigma y discriminación hacia las diversas poblaciones con VIH y sus familias.

Contrario a esto, relataron en la carta, deberían etiquetar recursos para prevenir, detectar y atender oportunamente el VIH; mejorar la calidad e integralidad de los servicios de atención otorgados desde los CAPASITS y hospitales del sector salud; y disminuir el estigma y la discriminación hacia las poblaciones afectadas por el VIH y otras ITS. 

Canada: People of African, Caribbean and black descent over-represented in the mainstream media coverage of HIV non-disclosure.

Skewed Stories: Race and HIV Criminalization in the Media

By Sané Dube

From Canadian AIDS Treatment Information Exchange

June 12, 2017

In Canada, not disclosing your HIV status to a sex partner can, in some circumstances, be deemed a crime. Media stories of people prosecuted for not disclosing their status show black men on trial in disproportionate numbers. What impact does this have on African, Caribbean and black communities?

“In a word, it’s dehumanizing.” Robert Bardston is talking about media coverage of HIV non-disclosure cases. I’ve spent the past couple of months engaged in a series of poignant, inspiring and sometimes-heartbreaking conversations about the criminalization of HIV non-disclosure. I am trying to understand how mainstream media stories on the issue impact African, Caribbean and black (ACB) people across the country. Robert and I are speaking on the phone — miles stretch between his Medicine Hat and my Toronto. It’s early and the sleep is still working its way out of his voice.

He lets out a weighty sigh and continues: “It’s dehumanizing to see yourself branded as deviant in the public eye, especially through the media.” Robert, an HIV activist and co-chair of the Canadian HIV/AIDS Black, African and Caribbean Network (CHABAC), has lived with the virus since 1988.

In an illuminating conversation, we explore what it feels like to see and hear stories of people criminalized for not disclosing their HIV status before sex. We cycle through the emotional toll the coverage can take and the complicated feelings it evokes. Robert says that people living with HIV are treated as pariahs and that black people living with HIV face both HIV stigma and debilitating racism in how their stories are told.

Throughout our conversation he juxtaposes two key elements of his identity — his status as a person living with HIV and his identity as a black person in Canada. As Robert points out, African, Caribbean and black people living with HIV have pressing and unique concerns regarding the criminalization of HIV non-disclosure. To fully understand how deeply this issue impacts individuals and communities, we must first understand what it means to inhabit both of these spaces. To understand this moment in time, we must look at it in context.

The first cases of people being charged for not disclosing their HIV status to sex partners date back to the late 1980s. Since 1989, more than 180 HIV-positive people have been prosecuted in Canada for not disclosing their status. A sharp rise in the number of cases, which began in 2004, has been accompanied by increasing severity in the type of criminal charges laid at the feet of people living with HIV.

Today, someone facing prosecution typically faces an aggravated sexual assault charge — a serious criminal charge with potentially grave consequences. If convicted, a person can be added to the sex-offenders registry and face a sentence of up to life in prison. In cases where the accused has immigrated to Canada, they may also face deportation.

In all of my conversations, the year 2012 pops up as a recurring focal point. That year the Supreme Court of Canada released decisions on two highly anticipated cases. The Court had been asked to clarify the conditions under which people living with HIV could face criminal prosecution for not disclosing their HIV status to sex partners. Legal obligations to disclose one’s status had already been in effect since the late ’80s, but in 2012 the court was asked to determine how using a condom or having a low viral load could impact criminal liability in cases of HIV non-disclosure.

By 2012 the global HIV epidemic was entering its third decade. Tremendous gains had been made in better understanding the biology of HIV transmission and advocates hoped that the highest court in Canada would seize this opportunity to integrate the latest scientific evidence on HIV transmission risks — showing that condoms and maintaining a low viral load significantly cut the risk — into legal processes. In a 1998 decision the Court had ruled that people living with HIV had a legal duty to disclose their status before having sex that might pose a “significant risk” of transmission. The court’s definition of “significant risk,” however, was vague and unclear, and advocates hoped that the 2012 ruling would bring greater clarity to the law.

Instead, the law became stricter. People living with HIV were now required to disclose their status before sex that posed a “realistic possibility” of HIV transmission. The problem was that sex posing a realistic possibility included situations where there is effectively zero risk. Critics called the decision a step back that diminished the rights of people living with HIV.

While the cases were being deliberated in the highest court in the land, they were also being dissected in the court of public opinion. One case involved a black man accused of failing to disclose his HIV-positive status to several sex partners. Although HIV was never transmitted to any of his partners, he was charged with six counts of aggravated sexual assault.

By the time the Supreme Court issued its landmark ruling, dangerous and harmful ways of talking about HIV and, in particular, African, Caribbean and black men living with HIV had become the norm. Some of the most discussed cases of that period involved black men; the result was a disturbing fusion of blackness and criminal deviance.

Looking back, people living with HIV and advocates describe popular coverage of criminalization cases during that era as uniformly poor, increasing stigma and undermining education and knowledge about the science of HIV. The coverage not only normalized language that framed people living with HIV as inherently deceptive and dangerous to the public, the disproportionate focus on people of African, Caribbean and black descent, particularly straight black men, told a singular, dangerous story.

The fusion of black identity and negative stereotypes is not new. Indeed, it is something black people and communities contend with daily. In another illuminating conversation, Shannon Ryan, the executive director of Black CAP (Black Coalition for AIDS Prevention), who has worked in HIV organizations for two decades, tells me, “Being black in Canada means something. Systemically and institutionally, it means something — whether you stepped off a plane this morning or your family has been here since the 1700s. I try to remind the people I work with that our blackness is something to celebrate and includes strength and solidarity. But in the world outside these doors, being black can also include facing anti-black racism, it means marginalization, it means oppression and vulnerability.” Contemporary narratives about the criminalization of black people who don’t disclose their HIV status draw from and feed into these problematic and stifling conceptions.

Equally stifling is the criminalization that black communities must contend with in the first place. Black people are vastly over-represented in Canada’s prisons. A 2015 report from the Office of the Correctional Investigator found that the federal incarceration rate for African, Caribbean and black people in Canada is three times their representation rate in the general population.

“The criminalization of HIV non-disclosure is another way our communities are being criminalized and torn apart,” says Ciann Wilson, an assistant professor at Wilfred Laurier University who has worked with African, Caribbean, black and Indigenous communities responding to HIV. “HIV follows lines of existing inequity and the criminalization of people living with HIV further disenfranchises communities that are already dealing with structural racism.”

There’s an old adage that we understand the world around us by the stories we tell about it. A team of Ontario researchers analyzed 1,680 Canadian newspaper articles about HIV non-disclosure criminalization cases that were published between 1989 and 2015. They found that 62 percent of the stories focused on cases involving black immigrant defendants, yet only 20 percent of the 181 people charged during the same period were African, Caribbean or black men. The research team concluded that the media disproportionately focuses on cases involving black people facing prosecution for non-disclosure.

“There’s no question about it: Straight black men in particular are over-represented in the media coverage of these cases,” says sociologist Eric Mykhalovskiy, one member of the research team. “If you take a closer look at the coverage, half of the 1,680 articles focused on four black men facing prosecution. The fact that the coverage is so skewed toward those defendants really produces in the public imagination the idea that HIV non-disclosure is a crime of black heterosexual men — when it’s not,” he says. “It’s a profound example of what is clearly a long history of over-representing black people in crime stories in the media.” [To read the full report, Callous, Cold and Deliberately Duplicitous: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers, click here.]

The storytelling pattern Mykhalovskiy references traces back to some of the first HIV non-disclosure cases involving African, Caribbean and black men in Canada. Early media reports drew from racialized stereotypes about black men, masculinity and gender. They conjured images of hyper-sexualized black men maliciously transmitting HIV to unsuspecting partners — usually white and female. News headlines frequently described defendants as “predators” while making reference to “potent” African strains of HIV.

The same patterns emerge in contemporary mainstream coverage of HIV non-disclosure cases involving ACB individuals. “Many people may not personally know someone who is HIV positive. They know about HIV through the media,” Mykhalovskiy says. “When you look at the stories that are told, you see that the kind of knowledge that’s available paints black people living with HIV as a significant threat and danger. It’s really concerning.”

The effects are far reaching. HIV is a pressing concern for many African, Caribbean and black communities across the country and these problematic narratives impact the ways in which communities and individuals experience and respond to HIV.

Take, for example, Linda, who has had HIV since 2003. She currently lives in B.C., where she’s been working with groups supporting black people living with HIV in that province. Linda is a force to reckon with. She is a quiet revolution who resists the oversimplification of the lives of people living with HIV. Yet it’s impossible to miss the fatigue that clouds her voice when she talks about the impact of HIV non-disclosure media stories on the lives of people with HIV.

“The ways they talk about us in the media — it makes you feel worthless. It’s a huge problem for us African people living with HIV. We talk amongst ourselves and we are scared.” She continues after a measured pause: “I think it’s cruel. It’s only expanding the stigma. It’s pushing people away instead of encouraging people with HIV to come forward and talk about stigma.”

Increasing stigma and isolation are top concerns for service providers at HIV organizations, too. These organizations work to disrupt the problematic stories told in the popular press about HIV and the criminalization of non-disclosure. They have been working diligently to shift the conversation and advocate for laws that don’t further marginalize people living with HIV. They argue that stigma is a major barrier in effective responses to HIV.

Two such organizations — Black CAP and the African and Caribbean Council on HIV/AIDS in Ontario (ACCHO) — are located in an inconspicuous office building in downtown Toronto. I’m delivered to the fourth floor of the building by a shaky elevator reminiscent of an earlier time. Stepping into the waiting area I am aware of the unique place in the Canadian conscience and HIV service organization landscape held by agencies like Black CAP and ACCHO.

African, Caribbean and black people make up less than 3 percent of Canada’s population, yet they account for 14 percent of HIV infections. Here again, African, Caribbean and black communities are over-represented and disproportionately impacted. Despite these telling demographics, organizations like Black CAP and ACCHO, which both work specifically with and for ACB communities, are few, far between and often crippled by limited funding.

The situation creates a paradox — one where ACB communities are over-represented among people living with HIV and where the public imagination creates strong links between blackness and HIV — yet interventions that cater specifically to ACB communities are limited. HIV in ACB communities is simultaneously hyper-visible and erased in the same breath.

ACCHO director Valérie Pierre-Pierre begins our conversation by reflecting on the coverage of HIV criminalization cases. “Even though high-profile cases don’t necessarily represent the majority of cases, the media covers those cases in ways that further demonize the accused. They elicit negative reactions toward people living with HIV, especially black men.” She is referring to narratives that frame people living with HIV as maliciously transmitting the virus to unsuspecting partners. She and others in HIV service organizations argue that these portrayals have driven misinformation and stigma — which fuel fear and, in turn, create barriers to addressing HIV in ACB communities.

Black CAP executive director Shannon Ryan, reflecting on the aftermath of the Supreme Court rulings and the media coverage, says, “It does not help us do our work. It does not promote testing. It does not promote diagnosis. It does not promote disclosure. It does not reduce stigma. It diminishes our work.”

While proponents of the current law argue that it helps prevent HIV (that the fear of prosecution will make people living with HIV take precautions with their sex partners), many people living with HIV and many working in the field argue that the criminalization of non-disclosure and the discourses around it become marginalizing forces. In African, Caribbean and black communities, this can have a particularly damaging and splintering effect.

Months after my first call with Robert Bardston and many conversations later, I have talked to people living with HIV, service providers, legal experts and researchers about the impact of HIV non-disclosure criminalization on African, Caribbean and black communities and the stories we tell about it. To be sure, this is a difficult and divisive issue. Yet in the midst of it all, there are extraordinary individuals and groups resisting and challenging harmful narratives about these communities and criminalization.

They are claiming space and demanding this story be told a different way. They want the story to begin with an acknowledgment that structural violence and marginalizing narratives about African, Caribbean and black communities drive increasing rates of HIV and, indeed, criminalization. Many also want to make it clear that the current system does not serve already-vulnerable communities.

Listening to their stories of resistance, I allow myself to start imagining and dreaming about a system that better serves our communities.

For more on the criminalization of HIV non-disclosure, visit the Canadian HIV/AIDS Legal Network‘s website.

Sané Dube is a Zimbabwean transplant to Canada. She lives in Toronto.

US: Plus magazine journalist writes about the latest case of HIV criminalisation in Florida highlighting how the law discriminates against those living with HIV

Alcid Jean was charged with five felonies in the latest HIV criminalization overreach

By Desiree Guerrero
JUNE 07 2017 7:00 AM EDT

An Orlando, Fla. resident, Alcid Jean, was arrested last Thursday on five felony counts of an “unlawful act referencing sexual transmitted disease,” for allegedly not disclosing his HIV-positive status to sexual partners. Jean, 44, was arrested May 25th while working his shift at Walt Disney World’s Old Key West Resort, reports Orlando’s WKMG News 6.

Jean’s arrest highlights the ongoing controversy around laws that criminalize HIV or discriminate those living with HIV. The Florida law (penal code 384.24) that Jean was arrested under states that those with various other sexual transmitted infections—including syphilis—who do not disclose to their sexual partners can only be charged with a misdemeanor. The law singles out people with HIV by allowing them to be charged with a felony for not disclosing their status to partners.

Most of these types of laws were enacted decades ago when HIV was seen as a death sentence. They don’t reflect current medical and scientific realities and thus are discriminatory against people living with HIV. Especially since untreated syphilis can be equally harmful and potentially deadly (once curable, a strain of syphilis has emerged that is resistant to all current antibiotics).

Being able to charge HIV-positive people with a felony versus a misdemeanor under this law, means that much harsher sentencing applies. While first degree misdemeanors are punishable by up to one year in jail under Florida law; just one count of an unlawful act referencing sexual transmitted disease as a felony in the first degree in can result in a 30-year prison sentence. If convicted on all five counts, he would likely remain in jail for the rest of his life.

Racial and sex discrimination are significant factors in HIV criminalization. Research shows that African Americans, sex workers, and women significantly higher rates of conviction and jail sentences. In fact, those who aren’t white men are more likely to see these types of charges proceed to court—and in California, for example, prosecutors have won nearly every case that has gone to trial.

According to a study from University of California Los Angeles School of Law’s Williams Institute, 95 percent of the state’s HIV criminalization arrests involved sex workers. Black and Latinx people make up two-thirds (67 percent) of those who came into contact with the criminal justice system around these statutes. Across all HIV-related arrests, white men were significantly more likely to be released and not charged (60 percent were released).

Florida and California are not the only states that carry these types of HIV criminalization laws. In an analysis by the Centers for Disease Control and Prevention and the Department of Justice, researchers found that, as of 2011, a total of 67 laws explicitly focused on persons living with HIV existed in 33 states.

Another disturbing factor of these laws is that many don’t specify a difference in charge or punishment even if the individual is unaware of their status, or if they have an undetectable viral load (which means one cannot transmit the virus). Partly, that’s because most of these laws were enacted during the 1980s and ‘90s, at the height of the epidemic in this country, when transmission was considered a death sentence.

The ideas that support these laws are grossly outdated in light of the advances in treatment and prevention options, such as antiretroviral therapy and the HIV prevention protocol, PrEP. Today, people living with HIV who are on ART can expect near-normal life expectancy rates, which supports the argument that these laws need serious reform. In February of this year, California has taken the first step in doing so, by introducing a bill to reform the state statutes that criminalize HIV.

Florida, however, has not taken similar steps. Although reports indicate Jean had “unprotected sex” it’s not yet known if he is on ART, or if his viral load is currently undetectable. Though Inside Edition reported that one of Jean’s past partners claims he transmitted HIV to her, but whether she is indeed positive hasn’t been officially confirmed. (It’s also very difficult to prove transmission has occurred between two people, even if both have the same strain of HIV.)

After several media outlets sensationalized the story by using headlines like, “Disney Worker Failed to Tell Women He Was HIV-Positive Before Sex: Cops” (thus connecting children, HIV, sex, and crime in readers’ minds), it should come as no surprise that a representative for Disney announced Jean has been placed on unpaid leave pending the outcome of the case.

Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

Published on CATIE’s blog on 06/06/2017

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

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.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

US: Help stop criminalisation laws in Pennsylvania by signing petition to express your opposition to Bills proposing to expand the current laws criminalising people living with HIV

HIV Is a Medical Condition, Not a Crime. STOP HIV Criminalization Laws in Pennsylvania!

Target: PA Rep. Dom Costa and PA House Judiciary Committee

Dear Pennsylvania Community Members, Colleagues & Supporters:

We, the Positive Women’s Network-USA Pennsylvania Chapter, oppose all forms of criminalization against people living with HIV in our communities, including those who are currently incarcerated.

Two current PA House Bills, HB 305 & 306, if passed, will expand the current laws criminalizing people living with HIV or suspected of having HIV within the Pennsylvania Department of Corrections.

Please sign this petition to express your opposition to PA House Bills 305 & 306.

To: PA Rep. Dom Costa and PA House Judiciary Committee

From: [Your Name]

Pennsylvania House Bills PA-HB 305 and PA-HB 306, if passed, will expand the current laws criminalizing people living with HIV or suspected of having HIV within the Pennsylvania Department of Corrections. HIV is a medical condition, not a crime. Laws criminalizing perceived HIV exposure are extremely damaging to efforts at prevention and treatment, are stigmatizing to people living with HIV, and violate the human rights of people living with HIV.

Our communities stand united as Pennsylvanians in our view that criminalization of people living with HIV is wrong. We, the Positive Women’s Network-USA Pennsylvania Chapter and allies, oppose all forms of criminalization against people living with HIV in our communities, including those who are currently incarcerated.

We urge you to reject HB 305 and HB 306.

US: PJP Update – May 2017

State Advocacy Working Group Updates

California

SB 239, proposed legislation that will modernize California HIV criminalization laws, passed out of the Senate Public Safety Committee in March and is now waiting to be heard in the Senate Appropriations Committee. The bill has the support of nearly 150 organizations, including CHLP.

On May 16, Californians for HIV Criminalization Reform partnered with ACLU, APLA Health, Equality California, GSA Network, Los Angeles LGBT Center, Lambda Legal, Project Inform, National Center for Lesbian Rights, San Francisco AIDS Foundation, and the Transgender Law Center for an HIV/LGBT Advocacy Day at the State Capitol in support of 11 bills, including SB 239. Nearly 300 people participated in the event.

If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.

Georgia

On March 30, House Resolution 240 passed, which requires the creation of a House Study Committee to examine health care barriers for a range of chronic conditions, including HIV. The resolution also requires the state to “assess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.” The full text of the current resolution can be found here.

Members of the Georgia Coalition to End HIV Criminalization convened in April and May, and conducted an HIV Criminalization 101 Advocacy Training on March 23.  The training included over 30 attendees.

Meetings are held the first Thursday of the month from 4:00-6:00pm (ET)

If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Nina Martinez (nina.i.martinez@gmail.com) or Emily Brown (emily@georgiaequality.org) for additional information.

Indiana

On April 12, HIV Modernization Movement-Indiana (HMM) hosted an HIV Advocacy Day at the Indiana Statehouse. The event was very successful in drawing media attention to the issue of HIV criminalization in Indiana and was featured in the NUVO newspaper and on WISHTV.

If you are interested in information about HIV criminalization in Indiana or in participating, supporting or endorsing HMM-Indiana, visit our get involved page or contact us at hmm.indiana@gmail.com.

Louisiana

In April, Louisiana advocates reviewed a draft modernization bill that was ultimately not introduced during the legislative session, but the discussions helped clarify priorities for next year. The group also identified a prospective bill sponsor for 2018. Currently, advocates are developing their longer-term strategic plan and are in the process of selecting a name for their coalition. Louisiana advocates began monthly meetings in Fall 2016 to work on modernizing Louisiana’s HIV criminal law.

Meetings are held on the second Wednesday of the month at 11:00am (CT).

If you are interested in information about HIV criminalization or actively participating in the Louisiana coalition, please contact Chip Eakins at ceakins@philadelphiacenter.org.

Missouri

In May, the Missouri HIV Justice Coalition launched a new website, where members of the public can learn about the group and sign up to get involved.

The coalition is hosting a training later this summer in Springfield with SERO Project. People living with HIV and allies are invited to attend to unify state policy goals for Missouri’s HIV laws, and learn how to educate, engage with the media, and handle Q&A. Those interested in attending are invited to complete this doodle poll to help select the best dates to hold this training.

The coalition is planning some roundtable discussions across the state in June, with a focus on the perspectives and priorities of those who are most severely affected by these laws. If your group or organization is interested in setting up a discussion, please contact Ashley Quinn.

Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.

If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org.

Ohio

On April 13, the Ohio Criminal Justice Recodification Committee voted down a proposed amendment to the state’s HIV-specific felonious assault law which would have expanded the scope of criminalized conditions and retained felony punishment, including in instances where there was no intent to harm. The Committee holds its final meeting and vote on June 15—it will then issue a set of recommendations for the Ohio legislature to consider. Ohio advocates are strategizing about the most effective response to those recommendations and planning outreach to key legislators.

The Working Group held regular meetings in April and May, and is also planning a large community forum event in centrally located Columbus for July 8. The forum will bring advocates together face-to-face to consolidate their energy and planning efforts, but will also offer an opportunity to engage in education, expand the coalition, and build new partnerships.

Next Meeting: Wednesday, June 14 at 5:00pm (ET)

If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, contact Kate Boulton at kboulton@hivlawandpolicy.org

Tennessee

The PJP Working Group convened in April and May and reviewed updates from recent legislative advocacy efforts. A needle exchange bill passed both houses of the legislature and was signed by the governor. AIDS Watch also had high levels of participation, and advocates have identified several new prospective sponsors to support their HIV modernization bill in the next legislative session.

This summer advocates will focus on fine-tuning their legislative strategy, working on a rapid response plan, and creating opportunities for prosecutorial and public defender education.

Meetings are held on the fourth Thursday of the month at 1:00pm (CT).

If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Kate Boulton at kboulton@hivlawandpolicy.org.Texas

Advocates convened in April and May and continue to monitor the legislature for the introduction of any harmful legislation. The group is currently finalizing a work plan that reflects the major planks of their strategy moving forward, including advocacy and education, outreach and coalition building, and legal/policy research.

Advocates are also focused on the creation of resources to support their education and advocacy efforts, including a presentation, a palm card, and a one-page fact and advocacy sheet. The group also wants to prioritize the inclusion of other social justice movements in its coalition, such as those focused on racial justice, reproductive rights, and mass incarceration.

Meetings are held on the third Friday of the month at 1:00pm (CT).

If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Kate Boulton at kboulton@hivlawandpolicy.org

Criminal Case Update

CHLP’s assistance in criminal cases includes counseling defendants and their families, referring defendants to attorneys, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.

MIssouri

On April 4, the Missouri Supreme Court denied the State’s application for transfer in Michael Johnson’s case. This upholds the Court of Appeals decision, overturning Johnson’s conviction and remanding for retrial. A preliminary hearing occurred on May 25, at which time Michael, represented by his new trial counsel, entered a plea of not guilty to the charges. The next court date is July 17.

Thanks to many generous donors, the MJ Working Group, coordinated by Charles Stephens of the Counter Narrative Project, has raised more than $25,000 for Michael’s legal defense. Stay up-to-date on developments in this case with our fact sheet and case timeline, which can be found here.

New York

On December 15, 2016, the New York Court of Appeals denied Nushawn Williams’ request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity with women while living with HIV. 

On April 27, a petition to the United States Supreme Court seeking review of the case, was filed by Mark Davison, Williams’ attorney. The brief argues that the petition should be granted due to Constitutional violations occurring in a civil commitment hearing when (1) proof of positive HIV status is considered; and (2) a person is deprived the effective assistance of counsel. CHLP, with the support of 7 national and local organizations, and four individuals, filed a brief in support of Williams’ petition, arguing that Williams represents the only case in New York where an individual has been essentially isolated or quarantined in whole or part based on his HIV status, in violation of his Constitutional rights. We also argued that singling out a person living with HIV for this kind of extraordinary treatment under the law violates the Americans with Disabilities Act.

 Ohio

Orlando Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds.

The Ohio Supreme Court has a background page on its website that provides an overview of Batista’s primary challenges to the HIV-specific felonious assault statute, the arguments put forward by the State of Ohio, and those of the friends-of-the-court. Oral arguments in the case, including that of attorney Avram Frey from Gibbons P.C., representing CHLP and the other organizations, took place on May 17 and can be viewed here.

If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.

US: Lambda Legal describes California Senate Bill purpose to update HIV criminalisation laws

SB 239: A Long-Overdue Update of CA’s Discriminatory HIV Criminalization Laws

Lambda Legal | Scott Schoettes – California Senate Bill 239 is a long-overdue update of California’s outdated and discriminatory criminal laws targeting people living with HIV. As a co-sponsor of this important legislation, Lambda Legal wants to correct some misperceptions and clarify the purpose of this bill.

SB 239 was introduced to improve public health by creating an environment in which more people are willing to get tested for HIV, to obtain the medical treatment they need to protect their own health and the health of others and to discuss their HIV status with sexual partners.

By singling out people who know they are HIV-positive for severe criminal punishment as a result of sexual activity, regardless whether there was any real risk of transmission or any harm actually occurred, current law inhibits rather than encourages the exact practices that will help combat HIV/AIDS.

Let’s get the biggest misperception about SB 239 out of the way first.

SB 239 does not change California law with respect to disclosure of a person’s HIV status.

Current law does not require disclosure of one’s HIV-positive status prior to sexual activity. While it is true that the current HIV exposure statute applies only if the person did not disclose their HIV-positive status; mere nondisclosure isn’t a violation of the law. Rather, the person must also act with the specific intent to transmit HIV.

SB 239 would not change that.

Instead, SB 239 updates the law to incorporate the current scientific understanding of HIV.

For example, we now know that people living with HIV who are taking HIV medications—and therefore have a suppressed viral load—cannot transmit HIV to their sexual partners. With that in mind, SB 239 clarifies that activities undertaken to reduce the risk of transmission—such as using a condom or being on treatment—demonstrate a lack of intent to transmit HIV (or, for that matter, any other disease).

These refinements of the law help define the limited circumstances under which it is appropriate to penalize disease transmission.

SB 239 also eliminates the injustice in California criminal law for people living with HIV.

Under current law, HIV is the only medical condition that can result in a felony conviction. And individuals with HIV can be subject to a longer potential sentence than for certain types of manslaughter.

Exposure to all other infectious or communicable diseases—several of them also incurable or potentially fatal if untreated—would result in at most a misdemeanor conviction.

Given that HIV is now a manageable condition for people with access to care, it is time to stop putting it in a class all by itself. SB 239 would pull HIV out of its own separate statute and include it in the law that applies to every other serious communicable disease.

Eliminating this type of discrimination against people living with HIV is an important step in achieving the public health goals of SB 239.

Thanks to modern medical science, we now have the tools needed to make AIDS a thing of the past.

People who are diagnosed with HIV in a timely fashion and receive the necessary medical care can expect to lead long, healthy lives. But currently, approximately one in seven people living with HIV in the United States is unaware of their HIV-positive status, and only 40% of people living with HIV are engaged in medical care and have a suppressed viral load.

We must increase the number of people who know their HIV status and are on treatment, and SB 239 will help achieve that.

There is a tremendous amount of work to be done to eliminate public misconceptions about HIV, the routes and relative risks of transmission and the stigma that stems from these misconceptions.

But one thing California can do immediately is remove the discrimination in the law against people with HIV.

That is what SB 239 is designed to do and that’s why over 100 organizations support the bill, including APLA Health, the Black AIDS Institute, Equality California, Positive Women’s Network-USA, ACLU of California, National Alliance of State and Territorial AIDS Directors (NASTAD), HIV Medicine Association, SF AIDS Foundation, Bienestar, Planned Parenthood of California, Transgender Law Center and Human Rights Watch.

Together, we can make California law on this subject a model for the whole country.