US: On-going research project shows strong regional and gender differences in the 99 HIV criminalisation convictions in Florida since 1995

HIV Criminalization Convictions in Florida from 1995 to 2016

In the 21 years from 1995 to 2016, Florida convicted 99 people under HIV criminalization laws. These 99 convictions differed by region. For example, Miami-Dade County had only one conviction, but the Jacksonville area had 31. These differences could result from differences in behavior, in prosecutor attitudes, or in local political culture.

Florida obtained convictions for 53 women and 46 men over these 21 years. Women accounted for 28 percent of all people living with HIV (PLWH) in Florida in 2014. In contrast, women accounted for 54 percent of those convicted under these HIV laws. Despite the argument that these laws protect women, Florida has convicted more women than men. Among current inmates, however, women constitute 17 percent of HIV convictions. As of January 1, 2017, Florida’s prisons hold 24 people convicted under these laws: 20 men and 4 women.

Sexual orientation and gender identity data were not available.

Over these 21 years, racial data showed a strange pattern. About 56 percent of those convicted were Blacks, 1 percent Latino, and 43 percent White. In 2014, the HIV epidemic in Florida showed a different pattern. About 47 percent of PLWH were Black, 21 percent Latino, 30 percent White, and 2 percent “other.” The low number of convicted Latinos may result from confusion between “racial” and “ethnic” identities. Several “White” inmates had Spanish-language names and “appeared” Latino in their mug shots.

Regional Differences

The Health Resources Services Administration has identified those areas with large numbers of PLWH, as Eligible Metropolitan Areas (EMAs). Florida has six EMAs. The Jacksonville EMA consists of Clay, Duval, Nassau, and St. John’s Counties. The Orlando EMA consists of Lake, Orange, Osceola, and Seminole Counties. The Tampa EMA consists of Hernando, Hillsborough, Pasco, and Pinellas Counties. While these three EMAs contain multiple counties, each of the three other EMAs contains only one county. Broward, Miami-Dade, and Palm Beach Counties each form their own EMA.

As shown in the chart “HIV Criminalization Convictions in Florida 1995 to 2016 Differ by Region,” these EMAs differ in their conviction rates. Two EMAs, Tampa and Jacksonville, accounted for 57 percent of convictions, over these 21 years. These two EMAs, however, did not have the largest number of PLWH among the six EMAs.

Florida has 67 counties. Together all six EMAs contain 15 counties and have convicted 76 people. Of the remaining 52 counties, 10 counties have convicted 23 people under these HIV laws. While every county in Florida has at least one PLWH, only 25 counties have convicted people under these laws.

Male / Female differences

In a binary system of gender, over-representation of women requires an under-representation of men. This may result from confusion about the legal definition of “sexual intercourse” in Florida. Florida courts have issued conflicting rulings about whether the legal term “sexual intercourse” includes anal intercourse. The Florida Supreme Court heard arguments about this issue in 2014, but has yet to rule. Prosecutors may be reluctant to bring a male-male HIV criminalization case to trial until that matter is resolved.

HIV criminalization laws over these 21 years have resulted in few convictions. That could change drastically, if the legal definition of “sexual intercourse” were to include anal intercourse.

The Florida HIV Justice Coalition has posted a Sign-on Statement to fight to modernize HIV criminalization laws. To sign-on is also the first step to becoming involved in that effort.

Please visit https://docs.google.com/forms/d/1UcFGh3A_nyeX0A3GdFWJApr830KrZ2hMTeguklWN3vM/prefill or Bit.ly/2leC1wx

For more on the legal question of whether anal intercourse constitutes “sexual intercourse” under Florida law, please visit http://southfloridagaynews.com/Local/is-supreme-court-s-same-sex-hiv-disclosure-ruling-on-its-way.html or http://bit.ly/2mqezML

This article is part of an on-going research project into HIV Criminalization in Florida.

Published in SFGN on March 24, 2017

New Zealand: Ex-partner of the first person prosecuted for HIV transmission in New Zealand believes HIV prosecutions are harmful

HIV prosecutions are harmful, says victim

By Amelia Wade

A victim of the first person prosecuted for infecting others with HIV says she is against making criminals out of transmitters.

Marama Mullen believes it only pushes the issue further underground.

The Waikato woman was given HIV by Kenyan musician Peter Mwai who was jailed for seven years in 1994 for having unprotected sex with seven women and infecting two.

Just 22 years old at the time, Mullen said she couldn’t “really fathom” what the trial would mean.

“Quite a few times I wanted to stop and back out because of the lack of support for being the person who was doing it. There was a lot of media and a lot of people had differing views and opinions.

“But a lot has changed for me since then – I’ve actually become an advocate for not criminalising the spread of HIV because I truly believe it creates more stigma.”

She’s now spent more than a decade working with agencies for HIV aids as well as indigenous groups. She said the stigma of infection was especially harmful for Maori and Pasifika people.

“You’re disappointing your family double – it’s one thing if you’re gay but to add to that the stigma of being HIV positive is another.”

Mullen said it was common for people of Maori or Pasifika descent to go into denial about their condition and believes that may have been the case for Mikio Filitonga.

“When you tell someone you’re positive, it gives them the power to do what they want with that information.”

Mullen said she “felt for” Filitonga because if he was in denial, being publicly identified in a criminal trial as a HIV positive person was the “worst thing that could have happened to him”.

Usually when people didn’t disclose their status it was more to do with the fear of rejection rather than a criminal intent to infect, Mullen said.

She doesn’t think prosecutions are the best approach unless the person actively intended to infect someone.

Making someone a criminal as well as HIV positive only worsened the problem, she said.

Mullen has worked on a management plan – similar to one in Australia – which refers people suspected of infecting others to an agency.

It would to establish whether there are any mental health or cultural reasons behind their actions and whether a prosecution is necessary.

Mullen said it was “sitting on a bureaucrat’sdesk somewhere” yet to see the light of day.

Today’s medication is able to suppress the virus to the point it is undetectable and non transmittable so it was questionable as to whether someone even needed to disclose their status to partners.

Mullen said she believed if a person was dutifully taking their medication, they were taking enough precautions not to pass on HIV.

Within two months of taking the antiviral drugs, Mullen said her viral load – the amount of HIV in someone’s blood – dropped from 1000 which was “heading towards Aids” to it being undetectable.

She’s since been able to have two children – who are both HIV negative – and live a totally normal life.

Except for the stigma.

After being an outspoken advocate for acceptance, she’s considering moving from the Waikato to live incognito for the sake of her children.

Other parents have tried to get her 10- and 7-year-old kicked out of school, they’ve been bullied, had people refuse to go to their home and have been excluded from birthday parties – despite both being negative.

“The biggest message we want to get out there is that if we’re on medication we can’t infect people and we’re not transmittable.”

THE AIDS FOUNDATION AGREES

The New Zealand Aids Foundation said the broad application of criminal law to HIV transmission risks undermining public health and human rights.

Executive director Jason Myers said a prosecution should only happen if someone acted with the express intent to transmit the virus.

“Broad application of criminal law to the transmission of HIV has the potential to do significant damage to the public health and human rights based HIV response in New Zealand.

“It also increases the HIV stigma and discrimination experienced by people living with HIV, the vast majority of whom take care of themselves and their sexual partners.”

Myers said they knew the vast majority of people living with HIV who know their status act responsibly to take care of the health of both themselves and their sexual partners.

PREVIOUS HIV PROSECUTIONS:

1994 – In a highly publicised case, Kenyan musician Peter Mwai was the first person charged with infecting someone with HIV. He sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.

1999 – Former male prostitute Christopher Truscott held in “secure” care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men.

1999 – David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man. Pleaded guilty.

2004 – Zimbabwean Shingirayi Nyarirangwe, 25, was jailed in Auckland for three years after pleading guilty to four charges of criminal nuisance and three of assault.

2004 – Justin William Dalley, an unemployed 35-year-old of Lower Hutt, was sentenced to 300 hours of community work, six months’ supervision and to pay a woman $1000 in costs because he did not wear a condom during sex with her, despite knowing his HIV positive status. The woman did not contract HIV.

Soon after, he was acquitted of a similar charge because he wore a condom and thus set the legal precedent that by wearing protection an HIV positive man is taking “reasonable precautions” against infection and need not disclose his HIV status.

2009 – Auckland train driver Glenn Mills took his own life facing re-trial for 28 charges relating to 14 people. He had been in custody for over six months.

November 2016 – Christchurch man Johnny Lumsden, 26, is arrested and charged with criminal nuisance following accusations he had unprotected sex with several men without telling them he was HIV-positive.

THE LAW AND HIV

• If you are HIV positive, you do not have to disclose your status before having intercourse as long as you are using a condom.

• If the sex is unprotected, the HIV-positive person has a legal duty to disclose his/her status.

HIV IN NZ

During Mikio Filitonga’s trial, the court heard from Dr Graham Mills, an infectious diseases expert at Waikato Hospital. He said the most common mode of HIV transmission in New Zealand is male gay sex with 80 per cent of positive people believed to have been infected that way.

More than 50 per cent those who are HIV positive – 1500 to 2000 people – in New Zealand are believed to be living within the Auckland District Health Board’s boundaries.

Current estimates are that there are up to 4000 people in NZ who are HIV positive, he said.

Published in the New Zealand Herald on March 24, 2017

US: Florida State Senate Committee Supports Public Health Measure To Modernize HIV Laws (Press Release)

Press release from the Sero Project

Tallahassee March 22, 2017

The Florida HIV Justice Coalition today applauded members of the Florida State Senate’s Criminal Justice Committee for voting unanimously yesterday in favor of Senate Bill 628.

SB 628 will modernize Florida statutes regarding sexually transmissible infections (STIs) to reflect advances in scientific knowledge and medical treatment, particularly as they concern prevention and treatment of HIV.

The Florida HIV Justice Coalition, comprised of physicians, healthcare workers, legal, public health and policy professionals, people living with HIV and other allies, has led a statewide effort to raise awareness and mobilize support for reform.

Senator Rene Garcia (R-Hialeah), the SB 628’s chief sponsor, said, “Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic. With the support of public health leaders, prosecutors, major HIV service providers in Florida, like the AIDS Healthcare Foundation, the Sero Project (a national network of people living with HIV) and others, we are going to get there. Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.”

Leaders in providing services for people with HIV in Florida, as well as nationally, agree that early testing and ongoing adherence to treatment can stop the spread of HIV.

“Virtually all HIV transmission in Florida is from people who have HIV but do not know it, because they have not been tested, or are not on treatment,” said David Poole, Director of Legislative Affairs at AIDS Healthcare Foundation, Florida’s leading HIV service provider. “Getting tested, treated and virally suppressed prevents HIV transmission. That’s why updating these statutes is a vital HIV prevention strategy for Florida.”

“Public health policies and criminal statutes should be aligned to incentivize HIV testing and treatment. Any criminal act concerning transmission of sexually transmitted infections should be based on an intent to harm, a significant risk of harm and actual infliction of harm,” said Mrs. Kamaria Laffrey, a Winter Haven resident who has led the Florida HIV Justice Coalition and is a woman living with HIV. “We will continue to work with Senator Garcia and other legislators to improve SB 628 as it continues through the legislative process.”

“We commend and thank Senator Garcia for his leadership. We look forward to working with the legislature and our allies to improve public health and ensure equality and justice for all Floridians,” said Tami Haught, a woman living with HIV who coordinates state organizing for the Sero Project, a national organization working to modernize HIV-specific criminal statutes in 32 states.

The bill next moves to the Senate Health Policy Committee. Similar legislation, HB 605, has been filed in the House and will be heard first by that chamber’s Criminal Justice Committee.

Further information:

Kamaria Laffrey, Coordinator, Florida HIV Justice Coalition Kamaria.laffrey(at)seroproject.com

David Poole, Director of Legislative Affairs, AIDS Healthcare Foundation david.poole(at)aidshealth.org

[Update]Mexico: Legislation to criminalise HIV transmission withdrawn in San Luis Potosi State Congress

A House Representative withdraws opinion/ruling that would criminalize HIV transmission in San Luis Potosi

The opinion/ruling with draft decree that was intended to add the crime of risk of contagion to the penal criminal code of the State of San Luis Potosi was withdraw The document established penalties and sanctions to whom or who put someone else at risk of contagion of  “a venereal disease or other serious infective period”.

A Member of San Luis Potosí friends fight against AIDS  /, Andrés Costilla Castro denounced than this initiative was an attempt against the dignity  of PLHIV and promoted stigma towards PLHIV in San Luis Potosí and  because of that, they demanded for such decree to be eliminated.

The document was presented by Esther Angelica Martinez Cardenas of the PRI and approved by justice committees; Health and Social Welfare.

Costilla Castro reiterated that this initiative would put people with HIV under a status of potential criminals, and that it opposed their dignity as persons, attempting to take away human rights and stigmatising them because of a health condition.

The opinion/ruling read as follows:

The offence of contagion is committed if a person puts someone in danger of contagion, knowing they are suffering from a venereal disease or other serious illness during an infectious period, putting in danger of contagion the health of another person, by sexual intercourse, or other transmissible method; shall be sentenced from one month to three years in prison, and up to forty days of the value of the unit of measurement and valid update. If the condition or disease was incurable, a sentence of six months to five years in prison shall be imposed. In  the case of spouses, boyfriends or concubines, only the case could proceed following a complaint by the offended party.

The opinion/ruling was removed during the session on Thursday to be analyzed again by the committees involved in the issue.

Diputada retira dictamen para penalizar el contagio de VIH en SLP

Fue retirado el dictamen con proyecto de decreto que planteaba  la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. El documento establecía penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

Por su parte el integrante de la organización Amigos Potosinos en Lucha Contra el Sida, Andrés Costilla Castro denunció que esta iniciativa  atenta contra la dignidad y promueve el estigma hacia las personas con VIH en San Luis Potosí por lo que solicitaron fuera bajado este dictamen.

El documento, fue presentado por la priista Esther Angélica Martínez Cárdenas y aprobado por las Comisiones de Justicia; y Salud y Asistencia Social.

Costilla Castro reiteró que esta iniciativa colocaría a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, a tentando a sus derechos humanos y estigmatizándolos por su condición de salud,

El dictamen marcaba lo siguiente:

Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida

El dictamen fue retirado durante la sesión de este jueves para ser analizado nuevamente por las comisiones involucradas en el tema.

Published in La Orquesta on March 17, 2017

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First article published on March 16, 2017 (English google translation, scroll down for Spanish article)

Congress a step away from criminalising HIV transmission…Again

The Secretary of health, international treaties and activists are against the proposal.

By María José Puente

This Thursday, in a plenary session, the State Congress will vote on a draft decree that adds the crime of Danger of Contagion to the Penal Code of the State of San Luis Potosí. If approved, the new legislation establishes penalties and sanctions to those who put someone else at risk of contagion of “a venereal or other serious illness when being infectious.”

The document, already approved by the Justice Commissions; and Health and Social Services , was presented to the Congress by Esther Angélica Martínez Cárdenas, from the PRI group. There, the deputy says that it is necessary for the Potosino penal code to adopt the federal standard, where the crime is mentioned and allows for a penalty of up to 5 years in prison, equal to the one raised in the State decision.

The text reads:

“The offense of contagion is committed by a person who, knowing that he suffers from a venereal or other serious illness in an infectious period, endangers the health of another person by sexual intercourse or other transmissible means; Will be sanctioned from one month to three years in prison, and up to forty days of the value of the current unit of measurement and update.

If the illness suffered is incurable, a sentence of six months to five years’ imprisonment shall be imposed. In the case of spouses, or concubines, the case may only proceed following a complaint by the offended party “.

For the organizations that defend the rights of the LGBT population and the Ministry of Health at the national and even state level, this homologation is not only anachronistic, but it  also puts at risk the population suffering from ilnesses such as those mentioned there and particularly those who have been or may be diagnosed with HIV or AIDS.

REPEATED ERROR

In October of 2016, Juan Manuel Carreras, governor of San Luis; In conjunction with the Women’s Institute, attempted a similar legislative move, presenting a package of initiatives aimed at preventing violence against women.

The argument, said in an interview Jeús Paul Ibarra Collazo , head of Red Diversificadores Sociale was directed in such a way because the rate of contagion of women by way of their spouses could increase because part of the male population, openly heterosexual, actually had sexual relations with other homosexual men, contracted the disease and then, continued at the same time with their female partner, which resulted in her being infected as well.

Ibarra Collazo recognizes that the male homosexual population leads the statistics of HIV or AIDS, because by keeping alive what he calls internalized homophobia, the spread of the disease through sexual contact between men increases the number of cases.

Regardless of this, the Ministry of Health sent a press release specifically addressed to Juan Manuel Carreras, who asked him to take a second look at the initiative because, according to international treaties to which Mexico is a signatory, the measure that the governor and the IMES intended to boost is useless.

” The National Center for Prevention and Control of HIV / AIDS of the Ministry of Health calls for an analysis of this proposal in the framework of international and national recommendations in this area, since criminalization or criminalization of people with HIV is not a public policy that helps to reduce and control the epidemic, quite the contrary, it has been shown that the establishment of restrictions, indications or penalties for people with HIV does not prevent them from spreading the virus and there is little evidence that Criminal sanctions will ‘rehabilitate’ a person so as to avoid future risk behavior of HIV transmission, “the statement said.

After reception of the document and after a dialogue between the state agencies, Red Diversificadores Sociales and the pressure of the group Amigos Potosinos in Fight against Aids, the initiative seemed to have been withdrawn; However, this March 16, again and after already having been approved by the aforementioned committees, the article will be voted on by the 27 deputies that make up the Congress, without it being clear whether Congresswoman Esther Angélica Martínez Cárdenas is aware or not of the previous initiative.

STIGMA, DISCRIMINATION AND LACK OF PREVENTION POLICY

  Although the Ministry of Health points out that “imposing penalties can only be justified in case of conduct that is legally condemnable, so that criminal law based on this objective can only legitimately be applied to a subset of cases of HIV transmission” it also highlights that “this does not have anything to do with the primary goal of preventing HIV transmission. “

This can also be seen as presented by APELCS : “It is very difficult to determine causality, deceit, intentionality and various factors involved in the transmission of HIV”, and also, as stated by Paul Ibarra, and reaffirmed by the Ministry of Health, establishing punitive measures for the contagion of HIV or any other disease could inhibit the will of the key subjects to undergo the screening tests that finally have proven to be a palliative way to avoid transmission.

That is, when there is a penalty for contagion, it automatically pose a warning sign on the carriers, whether men, women, children or girls, which can facilitate discrimination and stigma on a disease that, with the advance of science and effective public policies of prevention, has ceased to be a death sentence for a large part of the population.

APELCS , on the other hand, exhorts “the members of the Health Commissions; Justice and social services; In particular to Congresswoman Esther Angélica Martínez Cárdenas to reconsider the criminalization of HIV and to lower this initiative, as they would put people with HIV under the status of potential criminals, in contravention to their dignity as persons, undermining their human rights and stigmatizing them for their Health condition “.

Paul Ibarra , on the other hand, points out what seems to be obvious and that is that there is a dislocation between the powers of the state, since the return of this attempt to change the Criminal Code, denotes that the deputy who is promoting it did not take into account the antecedent in October, nor was aware of the pronouncement against by the Ministry of Health, RDS and APELCS scarcely 5 months ago.

Published in La Orquesta on March 16, 2017

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Congreso, a un paso de penalizar el contagio de VIH… Otra vez

Secretaría de Salud, tratados internacionales y activistas están en contra de la propuesta.

Por María José Puente

Este jueves, en el Pleno del Congreso del Estado será votado un dictamen con proyecto de decreto que plantea la adición del delito de Peligro de Contagio al Código Penal del Estado de San Luis Potosí. De aprobarse, la nueva normativa establece penas y sanciones a quien o quienes pongan a otra persona en riesgo del contagio de “una enfermedad venérea u otra grave en período infectante”.

El documento, ya aprobado por las Comisiones de Justicia; y Salud y Asistencia Social, fue presentado en el Congreso por Esther Angélica Martínez Cárdenas, de la bancada priista. Ahí, la diputada expone que es necesario que el código penal potosino tome de molde la norma federal, donde el delito mencionado sí se contempla y establece una pena que puede llegar a los 5 años de prisión, igual que lo plantea el dictamen estatal.

Textualmente, en el dictamen se lee:

“Comete el delito de peligro de contagio quien, a sabiendas de que padece una enfermedad venérea u otra grave en período infectante, ponga en peligro de contagio la salud de otra persona, por relaciones sexuales, u otro medio transmisible; será sancionado de un mes a tres años de prisión, y hasta cuarenta días del valor de la unidad de medida y actualización vigente.

Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión. Cuando se trate de cónyuges, concubinarios o concubinas, sólo podrá procederse por querella de parte ofendida”.

Para las organizaciones de defensa de los derechos de la población LGBT y la propia Secretaría de Salud a nivel nacional y hasta estatal, dicha homologación es no solo anacrónica, sino que pone en riesgo a la población portadora de enfermedades como las que ahí se señalan y particularmente a quienes han sido diagnosticados o podrían serlo con VIH o Sida.

ERROR REPETIDO

En octubre de 2016, Juan Manuel Carreras, gobernador de San Luis; en conjunto con el Instituto de las Mujeres intentó una movida legislativa similar, presentando un paquete de iniciativas que tenían como objetivo prevenir la violencia contra las mujeres.

El argumento, dice en entrevista Jeús Paul Ibarra Collazo, titular de Red Diversificadores Sociales; se dirigía en el sentido de que el índice de contagio de mujeres por la vía de sus cónyuges podría ir en aumento porque parte de la población masculina, abiertamente heterosexual, en realidad mantiene relaciones sexuales con otros hombres homosexuales, contrae la enfermedad y luego, al continuar con su pareja mujer, ella también resultaba contagiada.

Ibarra Collazo reconoce que la población homosexual masculina lidera la estadística de contagio de VIH o Sida, pues al mantenerse vivo lo que él llama homofobia interiorizada, el contagio y diseminación de la enfermedad por contacto sexual entre hombres incrementa el número de casos.

Independientemente de ello, la Secretaría de Salud envió un comunicado de prensa específicamente dirigido a Juan Manuel Carreras, a quien le pidió echar un segundo vistazo sobre la iniciativa pues, según tratados internacionales a los que México está suscrito, la medida que el gobernador y el IMES pretendían impulsar es inservible.

“El Centro Nacional para la Prevención y Control del VIH/Sida de la Secretaría de Salud hace un llamado para que se analice esta propuesta en el marco de las recomendaciones internacionales y nacionales en la materia, ya que la penalización o criminalización de las personas con VIH no es una política pública que ayude a la disminución y el control de la epidemia, muy por el contrario está demostrado que el establecimiento de restricciones, señalamientos o penas a personas con VIH no impide que propague el virus y existe poca evidencia de que las sanciones penales ‘rehabilitarán’ a una persona de modo que evite un comportamiento futuro de riesgo de transmisión del VIH” sentencia el comunicado.

Recibido el documento y tras un diálogo entre las dependencias estatales, Red Diversificadores Sociales y la presión del grupo Amigos Potosinos en Lucha contra el Sida, la iniciativa parece haber sido retirada; sin embargo, este 16 de marzo, nuevamente y ya aprobado incluso por las comisiones mencionadas, el dictamen será votado por los 27 diputados que integran el Congreso, sin que quede claro si la diputada Esther Angélica Martínez Cárdenas tiene conocimiento de la iniciativa anterior.

ESTIGMA, DISCRIMINACIÓN Y ESCASA POLÍTICA DE PREVENCIÓN

 Aunque la Secretaría de Salud apunta que “imponer penas solo puede justificarse en conductas que sean jurídicamente condenables, de modo que el derecho penal basado en este objetivo solo puede aplicarse legítimamente a un subconjunto de casos de transmisión del VIH” también remata que “esto no tiene nada que ver con el objetivo principal de prevenir la transmisión del VIH”.

Eso puede también verse como lo plantea APELCS: “Es muy difícil determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH” además, como también secunda Paul Ibarra y reafirma la Secretaría de Salud, establecer medidas punitivas por el contagio de VIH o cualquier otra enfermedad podría inhibir la voluntad de los sujetos clave para someterse a las pruebas que finalmente sí han demostrado ser un paliativo para evitar el contagio.

Es decir, que al existir una pena por el contagio, automáticamente se establece una señal de alerta sobre los sujetos portadores, sean hombres, mujeres, niños o niñas, lo que puede favorecer la discriminación y el estigma sobre una enfermedad que, con el avance de la ciencia y las políticas públicas efectivas de prevención, ha dejado de ser, para una buena parte de la población, una sentencia de muerte.

APELCS, por su parte, exhorta “a las y los integrantes de las Comisiones de Salud; Justicia y asistencia social; en particular a la Diputada Esther Angélica Martínez Cárdenas a reconsiderar la penalización del VIH y a bajar esta iniciativa, pues colocarían a las personas con VIH bajo un estatus de posibles criminales, contraviniendo a su dignidad como personas, atentando a sus derechos humanos y estigmatizándoles por su condición de salud”.

Paúl Ibarra, por otro lado, señala lo que a ojos vistas parece saltar y es que existe una desarticulación entre los poderes del estado, pues el regreso de este intento de modificación al Código Penal, denota que la diputada que la promueve no tomó en cuenta el antecedente de octubre, ni tuvo conocimiento del pronunciamiento en contra hecho por la Secretaría de Salud, RDS y APELCS hace escasos 5 meses.

Published in La Orquesta on March 17, 2017

Mexico: Roberto Guzman on why HIV criminalisation laws do not protect women from HIV or violence and are inappropriate

Women and HIV criminalisation(Google translation – For the original Spanish version, please scroll down)

By Roberto Guzmán

Despite the fact that HIV infection has no cure, it has now become treatable and mortality has fallen. HIV has become a chronic disease with a higher quality of life and life expectancy. However, social perceptions have not significantly changed and HIV transmission and its gender-implications are still the cause of associated stigma and strong discrimination throughout the infection process and have become a major obstacle for prevention and medical care.

If a woman lives with HIV, her discrimination inhibits personalization of the risks for fear of distrust or of criticisms in her social environment, a situation that reduces the possibility of negotiating preventive measures and undermines her willingness towards her partners, by limiting a systemic diagnosis, by not wanting to share her results and her new life condition and by increasing the probability of not being able to seek treatment for its control.

Although the infection rates in this sector remains stable, women who contract HIV today continue to be ostracized, not only by their own families but also by their communities. They are expelled from their homes or rejected by their spouses to live in terror or to suffer violence, even to be deprived of life as if they were criminals.

If our Congress intended to apply a criminal law to the exposure and transmission of HIV as an outlet for this, perhaps its decree resulted from a well-intentioned desire to protect them in response to a legitimate concern for its rapid expansion. But continuing to allow society to criminalize them, does not foresee the emergence of new transmissions or reduce their vulnerability to the virus, on the contrary it would hurt them rather than help them, by having a negative impact on public health needs and the protection to their human rights. Continuing to criminalize them also does not protect them from sexual violence and rape, nor from unwanted pregnancies, on the contrary, it increases the risk of “secondary criminalization” when rape survivors infected with HIV could be persecuted for a possible exposure and transmission to their babies or their partners.

I believe that instead of responding to HIV by raising fears or laws, a human rights approach would emphasize protecting the dignity of all of them by creating conditions for free and informed taking of their health and life.

————————————————-

EL CIELO DE LA OPOSICIÓN

Por Roberto Guzmán

La mujer y su criminalización por VIH

Pese a que la infección del VIH no tiene cura, hoy se vuelve tratable y disminuye su mortalidad al tornarse crónica y con mayor calidad y esperanza de vida. Sin embargo, los cambios en la percepción social que aún continúan son menos significativos ya que su transmisión y sus implicaciones respecto al género son causa de un estigma asociado y motivo de una fuerte discriminación en los distintos ámbitos del proceso de la infección al volverse obstáculo importante para la prevención y su asistencia médica.

Sí una mujer vive con VIH, su discriminación inhibe la personalización que tiene frente al riesgo por miedo a generarse desconfianza o crítica en su entorno social, situación que reduce la posibilidad de que se negocien medidas preventivas y el socavar su predisposición con sus parejas, al limitar su detección sistémica al no querer compartir su resultado y nueva condición de vida y la  probabilidad de no poder buscar tratamiento para su control.

Pese a que la tasa de infección de este sector permanece estable, las mujeres que hoy contraen VIH continúan siendo condenadas a un ostracismo, no solo por sus propias familias sino por sus comunidades que las expulsan de sus casas o al ser rechazadas por sus cónyuges teniendo que vivir aterradas o sufrir violencias, incluso ser privadas de la vida como si fuesen criminales.

Si nuestro Congreso tuviera la intención de aplicar una ley criminal a la exposición y transmisión del VIH como una salida a esto, quizá su decreto resultaría un bien intencionado deseo por protegerlas como respuesta a una preocupación legítima por su rápida expansión. Pero el continuar permitiendo que la sociedad las criminalice, no prevé la aparición de nuevas transmisiones ni reduce con ello su vulnerabilidad frente al Virus, al contrario las perjudicaría más que ayudarlas, al lograr un impacto negativo en las necesidades de salud pública y en la protección a sus derechos humanos. El seguir criminalizándolas tampoco las protege de la violencia sexual y la violación, ni de los embarazos no deseados, por el contrario, aumenta el riesgo a una “criminalización secundaria” cuando las sobrevivientes de violación si fuesen infectadas por VIH pudieran verse perseguidas por una posible exposición y transmisión a sus bebes o a sus parejas.

Considero que en lugar de responder al VIH generando temor o leyes, un enfoque de derechos humanos pondría énfasis en la protección a la dignidad de todas ellas al crearse condiciones para la toma libre e informada en relación a su salud y su vida.

 

US: PWN-USA publishes framework to assert and celebrate the bodily autonomy of all women and girls, including the right to enjoy sex free from fear of HIV Criminalisation

Bodily Autonomy: A Framework to Guide Our Future

Download the printer-friendly PDF version.

Watch the recorded webinar here.

Bodily autonomy is the simple but radical concept that individuals have the right to control what does and does not happen to our bodies. When we have full bodily autonomy, not only are we empowered to make decisions about our health and future – without coercion or control by others – we also have the support and resources needed to meaningfully carry out these decisions.

The concept of bodily autonomy is central to Positive Women’s Network – USA’s vision of a world where all women and girls living with HIV can lead long, healthy, dignified and productive lives, free from stigma, discrimination, and violence in all forms. In this era of increasing surveillance and political repression, hate-fueled violence, and attempts to further restrict reproductive rights and freedom of movement, we assert the fundamental rights of all people, and in particular for women and folks of trans experience living with HIV, to control our bodies and futures. When women and girls living with HIV are free, all of us will be free.

In the U.S. context, the bodies, sexuality, reproduction, and movement of women of color have been controlled and policedfor hundreds of years, often violently and at a great cost to our rights. Today, for women and girls living with HIV, who areprimarily from communities of color, HIV stigma, misogyny, transphobia, and racism intersect to magnify attacks on our rights from all fronts. Yet we know that our human rights should never be conditioned on HIV status, race, ethnicity, sex, gender expression or identity, or any other aspect of who we are.

Bodily Autonomy Means:

Freedom from all forms of state violence.

Women and girls living with HIV deserve a world where our bodies are not threatened by state violence and brutality, and where our physical safety is protected.

This includes:

Ability to control our labor without exploitation, harassment, or policing.

All women and girls living with HIV deserve to control and be compensated fairly for our labor.

This includes:

  • Earning a living wage and receiving equal pay, without discrimination or coercion.
  • The ability to take time off from work without fear of retaliation or losing our jobs, including paid sick leave, family leave, and disability leave.
  • The right to organize in our workplaces to leverage better wages, benefits and working conditions, including forming or joining a union.
  • Those of us who engage in sex work, which is a form of labor, should be able to do so safely and without criminalization, with access to the support and resources we need to stay healthy, and without fear of violence, stigma, or harassment.
  • The ability to work without losing benefits, like health care coverage and supplemental income, that may be needed to maintain a decent quality of life.

Freedom to migrate and move within and across borders.

All women and girls living with HIV deserve to travel and live in a place that is safe and welcoming, regardless of immigration status or religion.

This includes:

  • The right to seek refuge and asylum from conditions that are physically, economically, or otherwise insecure or unsafe.
  • Staying together as a family without fear of losing a parent, child, or loved one to deportation.
  • The right to return to our country of origin if we choose.
  • The right to move around freely, without fear of profiling, detention, or harassment based on perceived immigration status.
  • The ability to enjoy the same legal rights and protections as other members of society, without regard to immigration status or previous contact with the criminal justice system.
  • The ability to access education, employment, healthcare and other opportunities in our country of residence, regardless of legal status.
  • The right to accessible, culturally and linguistically relevant public services and benefits without discrimination or government reprisal.

Freedom to express our gender and sexual orientation in a way that affirms who we are.

Women and girls living with HIV deserve to live authentically, and to express our gender and sexual orientation freely.

This includes:

  • The ability for our bodies to exist in public in a way that is comfortable for us, without being subject to homophobic or transphobic harassment, threats, or violence.
  • Recognition of our gender identity by the state and all social, political, economic, and community institutions with which we interact.
  • Health care responsive to people of all genders, and the employment opportunities, public benefits, and services necessary to thrive with dignity.
  • Support, respect and protection for the relationships and families we form.

    Freedom to choose whether or not, when, and how to form families and raise children.

    All women and girls living with HIV deserve to decide for ourselves whether or not, when, and how we will form families and raise children, regardless of age, income, disability, gender identity or expression, or sexual orientation.

    This includes:

Resources, tools, and ability to make empowered and informed decisions about sex and relationships.

All women and girls living with HIV deserve to control our sexual lives, and should have the resources we need to support pleasurable and healthy sex and relationships.

This includes:

Access to the care and services necessary to keep our bodies, minds and spirits healthy and whole.

All women and girls living with HIV deserve to receive care and services that support holistic wellness – emotionally, physically, psychologically and spiritually.

This includes:

  • Affordable, accessible, trauma-informed and culturally-competent health care, including gender-affirming health care and hormones.
  • The right to refuse medical care that does not affirm us or make us feel whole.
  • Adequate nutrition and food security.
  • Freedom to practice our faith without fear of harassment, discrimination, or violence.
  • Safe, affordable, and stable housing.
  • Mental, emotional, and spiritual support services.
  • Access to harm reduction programs, safe injection sites and equipment, and overdose prevention resources for people who use drugs.

Download the printer-friendly PDF version of this framework here.

US: California LGBT Caucus holds briefing on the proposed repeal of HIV criminalisation laws

On Thursday, the LGBT Caucus held a briefing on the decriminalizing HIV and SB 239 introduced by State Senator Scott Wiener (D-San Francisco).

The controversial bill, Senate Bill 239, introduced in early February, would repeal laws passed more than three-decades ago that Wiener and supporters say are discriminatory and not based in science. The proposed bill would treat HIV like other communicable diseases under California Law.

According to the proposed bill, it would make it a misdemeanor instead of a felony to intentionally expose someone to HIV.

Here is a look at the Legislative Digest regarding the bill:

LEGISLATIVE COUNSEL’S DIGEST

 

SB 239, as introduced, Wiener. Infectious and communicable diseases: HIV and AIDS:criminal penalties.
(1) Existing law makes it a felony punishable by imprisonment for 3, 5, or 8 years in the state prison to expose another person to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV. Existing law makes it a felony punishable by imprisonment for 2, 4, or 6 years for any person to donate blood, body organs or other tissue, or, under specified circumstances, semen or breast milk, if the person knows that he or she has acquired immunodeficiency syndrome (AIDS), or that he or she has tested reactive to HIV. Existing law provides that a person who is afflicted with a contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, or any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.
This bill would repeal those provisions. The bill would instead make the intentional transmission of an infectious or communicable disease, as defined, a misdemeanor, if certain circumstances apply, including that the defendant knows he or she is afflicted with the disease, that the defendant acts with the specific intent to transmit the disease to another person, that the defendant engages in conduct that poses a substantial risk of transmission, as defined, and that the defendant transmits the disease to the other person. The bill would impose various requirements upon the court in order to prevent the public disclosure of the identifying characteristics, as defined, of the complainant and the defendant. By creating a new crime, the bill would impose a state-mandated local program.
(2) Under existing law, if a defendant has been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed, the previous conviction and positive blood test results are to be charged in any subsequent accusatory pleading charging a violation of prostitution. Existing law makes defendant guilty of a felony if the previous conviction and informed test results are found to be true by the trier of fact or are admitted by the defendant.
This bill would delete that provision. The bill would also vacate any conviction, dismiss any charge, and legally deem that an arrest under the deleted provision never occurred. The bill would require any court or agency having custody or control of records pertaining to the arrest, charge, or conviction of a person for a violation of the deleted provision to destroy, as specified, those records by June 30, 2018. By imposing this duty on local agencies, the bill would impose a state-mandated local program. The bill would also authorize a person serving a sentence as a result of a violation of the deleted provision to petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case. The bill would require a court to vacate the conviction and resentence the person to any remaining counts while giving credit for any time already served.
(3) Existing law requires the court to order a defendant convicted for a violation of soliciting or engaging in prostitution for the first time to complete instruction in the causes and consequences of acquired immunodeficiency syndrome (AIDS) and to submit to testing for AIDS. Existing law requires such a defendant, as a condition of either probation or participating in a drug diversion program, to participate in an AIDS education program, as specified.
This bill would repeal those provisions.
(4) The bill would also make other conforming changes.
(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Here is a copy of the Press Release introducing the Bill on Feb 6

Senator Wiener and Assemblymember Gloria Announce Bill to Modernize Discriminatory HIV Criminalization Laws
Equality California, Positive Women’s Network – USA, ACLU and others join in support of bill to reform outdated laws enacted during a time of fear and ignorance to make them more consistent with laws involving other serious communicable diseases
February 6, 2017

 

Today, Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego) introduced a bill to modernize laws that criminalize and stigmatize people living with HIV. Assemblymember David Chiu (D-San Francisco) is also a co-author of the bill. Senate Bill 239 would amend California’s HIV criminalization laws, enacted in the 1980s and ‘90s at a time of fear and ignorance about HIV and its transmission, to make them consistent with laws involving other serious communicable diseases.

The bill is cosponsored by the ACLU of California, APLA Health, Black AIDS Institute, Equality California, Lambda Legal and Positive Women’s Network – USA. The organizations are part of Californians for HIV Criminalization Reform (CHCR), a broad coalition of people living with HIV, HIV and health service providers, civil rights organizations and public health professionals dedicated to ending the criminalization of HIV in California. San Francisco Supervisor Jeff Sheehy also attended the announcement.

“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Senator Wiener. “They need to be repealed. During the 1980s — the same period when some proposed quarantining people with HIV — California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”

SB 239 updates California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It also brings California statutes up to date with the current understanding of HIV prevention, treatment and transmission. Specifically, it eliminates several HIV-specific criminal laws that impose harsh and draconian penalties, including for activities that do not risk exposure or transmission of HIV. It would make HIV subject to the laws that apply to other serious communicable diseases, thereby removing discrimination and stigma for people living with HIV, and maintaining public health.

“It’s time for California to reevaluate the way it thinks about HIV and to reduce the stigma associated with the disease,” said Assemblymember Gloria. “Current state law related to those living with HIV is unfair because it is based on the fear and ignorance of a bygone era. With this legislation, California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence.”

“As a former prosecutor, I know firsthand the need to get outdated and unscientific laws based on homophobia and fear off the books,” said Assemblymember Chiu. “These laws criminalize and stigmatize people with HIV, and they must be updated.”

Legislators passed a number of laws three decades ago, at the height of the HIV epidemic, that criminalized behaviors of people living with HIV or added HIV-related penalties to existing crimes. These laws were based on fear and on the limited medical understanding of the time.  When most of these laws were passed, there were no effective treatments for HIV and discrimination against people living with HIV was rampant.

In the decades since, societal and medical understanding of HIV has greatly improved. Effective treatments dramatically lengthen and improve the quality of life for people living with HIV—treatments that also nearly eliminate the possibility of transmission. In addition, similar treatments are available to HIV-negative people to nearly eliminate risk of infection. Laws criminalizing people with HIV do nothing to further public health and, in fact, stigmatize them, discouraging testing or obtaining necessary medical care.  The laws also reduce the likelihood of disclosure of a positive HIV status to sexual partners.

“These laws are disproportionately used against women and people of color, and fuel stigma, violence and discrimination,” said Naina Khanna, executive director of the Positive Women’s Network – USA.  “Despite their claims to protect vulnerable communities, these laws actually cause further harm, both to people living with HIV and the broader public.”

HIV criminalization disproportionately affects women and people of color. Forty-three percent of those criminalized under California’s HIV-specific criminal laws are women, despite comprising only 13 percent of people living with HIV in the state. Blacks and Latinos make up two-thirds of people who came into contact with the criminal justice system based on their HIV status, despite comprising only about half of people living with HIV/AIDS in California.

“These laws impose felony penalties and harsh prison sentences on people who have engaged in activities that do not risk transmission and do not endanger public health in any way,” said Rick Zbur, executive director of Equality California. “Modernizing them would reduce discrimination and stigma for people living with HIV. Ending stigma is at the core of ending HIV. Treatment of HIV has entered the 21st century – it’s time for California’s laws to reflect that, as well.”

“Living with HIV should not be a crime in California,” said Supervisor Jeff Sheehy, who is the first HIV positive member of the San Francisco Board of Supervisors and a leader in San Francisco’s Getting to Zero coalition to end all new HIV infections. “That’s why I support Senator Wiener’s legislation.”

In addition to the organizations sponsoring the bill, it is currently supported by CHCR members which include the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund (MALDEF), the Free Speech Coalition, Sex Workers Outreach Project (SWOP) and Erotic Service Providers Legal, Education, and Research Project (ESPLERP).

Published on East County Today on March 10th, 2017

US: Article (including quotes from Sero's Sean Strub) highlights how movement against HIV criminalisation is growing stronger in 2017

HIV Criminalization Is Detrimental to Public Health. It’s Time for the Law to Catch Up. By Matt Baume. Outward: Expanding the LGBTQ Conversation on Slate.com

It was in the summer of 2015 that then-23-year-old Michael Johnson was sentenced to thirty 30 years in prison for transmitting HIV. Since 1988, his home state of Missouri has imposed harsh penalties for what prosecutors call “reckless infection,” and it’s hardly alone: Most states have, at some time, prosecuted people for transmitting the virus. But those prosecutions may soon come to an end.

Laws that establish HIV-specific crimes date back to the dark years of the epidemic: “Everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users,” wrote William F. Buckley Jr. in the New York Times in 1986, “and on the buttocks, to prevent the victimization of other homosexuals.” At the time, hysteria over AIDS produced a national wave of stigmatizing laws—laws that have now been shown to have worsened the epidemic.

“If people are so concerned with HIV transmission, then perhaps the Missouri legislature and Governor Nixon should start by repealing this law,” wrote Kenyon Farrow, the U.S. and global health policy director for the Treatment Action Group, in response to Michael Johnson’s prosecution.

Though it may seem appropriate to discourage HIV transmission, laws that create HIV-specific crimes “are unjust and harmful to public health around the world,” according to the Infectious Diseases Society of America. Rather than discouraging transmission, the laws actually discourage patients from seeking testing and care, which in turn leads to more transmissions. Numerous other public health experts and political leaders have called for an end to HIV prosecutions, including the American Medical Association, the National Association of County and City Health Officials, the U.S Conference of Mayors, and the Obama administration’s Department of Justice.

But reform comes slowly, and advocates for repeal have found themselves toiling for years to overturn the harmful statutes. Now, at last, a coordinated nationwide effort is taking shape, and 2017 is likely to see significant advances in the decriminalization of HIV.

“There’s two big shifts over the last five or six years,” said Sean Strub, executive director of the Sero Project, a group that advocates for repeal. “One, the people in the LGBT community … have an understanding of what HIV criminalization is. It’s a general awareness of the phenomenon in the communities most directly affected.” He estimates that his organization has had over a thousand speaking engagements in the last half-decade.

“Second: The issue is increasingly seen in public health terms,” he said. “To be fair, there wasn’t a lot of hard evidence [until recently]. We now know that 25 percent of people with HIV in the U.S. know one or more individuals who are afraid to get tested for HIV for fear of getting criminalized.” That statistic is based on a Sero Project survey of over 2,000 people, designed to determine how the partners of people with HIV access health care. Their findings indicate that criminalization has a public health impact beyond people who already have HIV.

Organizations like Sero Project have learned some valuable lessons over the last few years about harm reduction, and they’re now leveraging those best-practices in communities and legislatures around the country. Those strategies include coordinated educational efforts that simultaneously hit multiple communities: Faith, LGBTQ, public health, and legal. In addition, advocates are establishing local coalitions so that legislative pressure comes from constituents, rather than national groups. And they’re engaging with individual prosecutions around the country.

This year will see particularly intense focus in midwestern and southern states: Mississippi, Tennessee, Georgia, the Carolinas, Ohio, and Indiana will see intensive outreach efforts. California is making great strides, with a bill announced earlier this month to modernize the state’s laws. That effort has included a detailed study of prosecutions, with an analysis of demographic data that could become a model for modernization in other states.

Customized approaches are key to the approach in each state. In Florida, for example, advocates have reached out to members of the criminal justice system, from police officers all the way up to judges. Iowa’s decriminalization effort included a collaboration between hepatitis and HIV groups.

Another important evolution is how closely reform advocates are working with advocates for other forms of social change. “Whether it’s trans activists or drug policy people or sex work activists or Black Lives Matter or penal system reform, HIV decriminalization seems to be a nexus for those efforts,” said Strub. “It’s so closely tied to the criminalization of bodies. … Five or six years ago, other organizations were not involved in this work.”

At the national level, advocates are sponsoring a Congressional lobbying campaign in March. Top priorities include reforms to Army policy, as well as the creation of incentives for states to modernize their laws. (An old provision in the Ryan White CARE Act, a 1990 law that provided funding for HIV programs, prompted many states to impose criminalization in the first place.) The Repeal HIV Discrimination Act, sponsored by Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL), would provide a framework for state-by-state repeal—and although it’s languished since 2013, it will see a renewed push next month.

Among the states to watch: Missouri, home of Michael Johnson. The state is in the midst of an organizing effort that Strub estimates could take two or three years. Johnson’s conviction was recently overturned due to prosecutorial misconduct, and he’s been remanded for a retrial likely to happen sometime this year. That’s encouraging news, though Missouri Court of Appeals refused to rule on the constitutionality of the law under which Johnson was convicted.

As a result, Johnson and many others like him will remain tangled in a maze of trials, legislation, and lobbying efforts, trapped by misguided laws that impose preventable harm—for now.

Canada: Powerful first person testimony from Chad Clarke, an HIV criminalisation survivor and now passionate advocate

From behind bars to the front lines of anti-criminalization advocacy

Bob Leahy talks to Ontario’s Chad Clarke about how Chad’s time in prison for non-disclosure of HIV status on an aggravated sexual assault charge turned him into a passionate advocate against HIV criminalization.  

Chad Clarke, 45. lives in Dresden, a rural community in south-west Ontario (pop 2,500). He contracted HIV in 2004 but was not diagnosed until 2008. In February 2017 his story was featured in Toronto’s NOW magazine.

Said the article by writer Rob Easton “On February 12, 2009 he turned himself in on an aggravated sexual assault charge brought by his former common-law partner. A judge found Clarke failed to disclose his HIV status. He didn’t see the light until he walked out of prison more than two years later in June 2011, but his resurrection as an HIV activist could not have happened without the experience of prison, which led to his resolve to fight so no one would have go through what he did.”

Bob Leahy recently spoke at length with Chad to find out more. Here is Chad’s story.

++++++++++

It was on February 12 of 2009 that I received a phone call at work. I was building a house that day. It went “hello is that Chad Clarke? This is officer so-and-so and we have been looking for you.” I said “what is this regarding?” They asked me if I knew a particular person. We were in a common law relationship for two-and-a half years and we had separated on bad terms. I had got a phone call after we broke up accusing me of giving her HIV. At the time I did not know I was HIV-positive. When she had first contacted me and started harassing me on the phone I just said “do what you have to do.” I was contacted by Public Health who told me I needed to go get tested. I brought my then current partner with me and we went to the Byng (HIV) Clinic in Windsor. She came back negative. I was HIV-positive.  I had no clue about HIV, about longevity, about treatment. I was on meds for about six months before the police contacted me.

Anyway the police said “there is a Canada-wide warrant out for your arrest.” They said the outstanding warrant was for an aggravated sexual assault charge. At that time my knees buckled. I got into my car and sat there and one cigarette led to five. Then I got a phone call and a female (police) voice said “Mr. Clarke, what are your plans?” I said “let me go home and say goodbye to my family. I will turn myself in to address this.” Then I threw the phone out of the window. I freaked out. I was paranoid.

I drove with my uncle to Newmarket to turn myself in first thing in the morning. My understanding was that I would be released on my own recognizance. When I approached the desk officer at the police station and said my name and why I was there  they proceeded to put handcuffs on me. They told me I was now going for a bail hearing in Barrie.

We arrived at the Barrie courthouse and I went before the judge. It was duty counsel that represented me there. I didn’t have time to call a lawyer and besides I thought I was going home. But I was denied bail at the first bail hearing. I was very confused, no idea what was next or how this would unfold.

I was remanded into custody in the Penetanguishene jail. You have to go 90 days before you can go for another bail hearing. I got there about 9 oclock in the evening and they informed me I was going in to protective custody. It was because of my HIV status and because they didn’t want to put the general population at risk. And for my own safety because there might have been some backlash against me. I saw the nurse that night and I said to her “I’m HIV-positive and I’m on Atripla and I really need that medication.” She said “no problem, we will get it to you”. Then the jail goes into a Level 2 weapons lockdown because I’m high profile and they wanted to make sure there were no weapons and nobody was going to come after me. We were locked down for two weeks and in that time I did not receive my antiretroviral pills.

In April 2009 I went back to court for a second bail hearing and I had a plan that I was going to get out and fight it from the street. My family had pooled some money together and were willing to bail me out. But they bought up some things from my past and lo and behold I was denied bail once again. After that I got put in touch with a really good lawyer and he wanted to play the circuit, to get a good judge to hear the pre-trial. He didn’t inform me that there was a HALCO or a PASAN or any of that. That lasted for 13 months and when it was time to go to court I asked him “how much time am I looking at?” He said 10 to 15 years.

I had a daughter and son just going into their teens. I thought I was never going to see them again. I thought “somebody was going to stab me because they don’t like the fact that I’m HIV.” Finally it was whittled down and I asked my lawyer “if I plead guilty how much time would I get?” My lawyer told me four years was the best he could get me. At least it would give me a date to work on where I could see my loved ones.

So I pleaded guilty at the preliminary hearing to something I totally disagreed with. My hands were tied. There was nothing I could do.

So I was moved to a different unit of the range awaiting sentencing. I was befriended a lifer and he asked me if I had ever heard of PASAN? I made the call and got in contact with Mooky (Cherian) and Claudia Medina. Claudia showed me that there were people out there that cared. She sent me cards and tried to keep my spirits up and focused. Mooky said “I wished you had contacted us sooner, we could maybe have got you out sooner. It was unfortunate you pleaded guilty.” I said “that was what I was instructed to do.”

To be honest I didn’t have any problems with the inmates. I told them what I had and started educating them about Hep C. I had their backing. 100% of the inmates said “I shouldn’t even have been there. This is wrong.”

So we are at the 26-month mark and I had had no blood work done. I wanted Ensure to keep my weight on and the general doctor I would see – no HIV specialist  – refused to give it to me. But I had a good rapport with the Byng  Clinic and I called in every day and at one point I was taken to Sunnybrook Hospital to see Dr. Raclis about a bacterial infection I had. She put me in a separate room and proceeded to ream out the two guards about my health care. That was the only time I got to see any kind of HIV specialist.

At one time back at the jail I was pulled off my laundry job and I asked “why is that?” The guard said “we are concerned that you are going to spread your AIDS to other inmates because you are touching their clothes”. By this time Mooky had brought me up to speed about how HIV was contracted and I said “number one, I have no open wounds, number two HIV dies in the air within seconds and number three I’m wearing protective gloves – and I think you are an ignorant bastard.” So they proceeded to put me back on the range.

I had been sentenced to a 48-month prison term and in total I served 39 months in Penetanguishene. It’s maximum security. Just before you are released you are supposed to see a social worker to see if you are going to go on Ontario Works or ODSB, but I didn’t have a social worker approach me. I was getting scared. I had been in there a long time. How was my life going to change now that I’m out? So I got hold of the chaplain and I asked him if they could find an AIDS Service Organization (ASO) for me in Chatham because I was going to move back there, where my parents are. So I made a call to AIDS Support Chatham-Kent. I had two weeks left in my sentence so I got set up with my ASO and also made an appointment to see my doctor at the Byng Clinic.

When I was released on June 3, 2011 I went to live with my youngest brother. I was on a 250 acre farm in a rural area, out near Dresden where I am at now. I stayed there for six months, trying to readapt, trying to give myself a new identity. The Chad Clarke before I had gone to jail was no longer there. I was a different person. I felt isolated. I wanted to go back to Toronto.

In Toronto I was introduced to the Ontario AIDS Network and their PLDI (positive leadership) program and did their Level One training. Then after about eighteen months  I moved back to the Chatham area and started volunteering with AIDS Support Chatham-Kent and started doing harm reduction work – they have a needle exchange program there. I was interested in that and felt this was my calling – and I haven’t stopped. I get a chance to engage with my community – I don’t call them “druggies” or “junkies”, I call them intravenous drug users. They have an identity. I don’t judge them. I share my story.

I was there until 2014 and something was telling me I needed to do something different. I went back to Toronto and enrolled in a George Brown sheet-metal program for a year. Then I decided to enroll at Ryerson University in a psychology, mental health and addictions program – I used to be an addict myself when I lived on the streets of Toronto. I was addicted to cocaine for many years and I needed others to see that I changed and if one person gets it I’ve done my job.

I got introduced to ACT and Toronto PWA Foundation and was helping with their therapeutic care department. Then I decided I wanted to go to B.C and see what harm reduction really is – and tell my story. I found out about the Jim Pattison Centre in Surrey, B.C. – they deal in positive living – and a place called Positive Haven; it’s no longer around and it provided produce for all the local food banks

At that time my daughter was pregnant and I wanted to come back home so I did and reconnected with the AIDS Committee of Windsor and their satellite centre, AIDS Support Chatham-Kent and started volunteering again, doing more in-depth harm reduction. I was there five days a week until last September.

Then I got involved with CPPN. I saw a posting from Christian (Hui) one day and I said “hey, there is finally a national organization in Canada for people living with HIV!” I wrote my story for Christian and he connected me with Alex McLelland; at that time Alex was doing research on people who had been charged under HIV criminalization laws. Alex came down from Montreal to my home and I shared my story.  And we talked about the need for some kind of coalition. To me it’s wrong to be charged, it’s a human rights violation for being charged because you have an incurable disease in your body.

So he said that he would put me in contact with Richard Elliot (Canadian HIV/AIDS Legal Network). It was October 20 of this past year our group started the Canadian Coalition to Reform HIV Criminalization. I’m on the steering committee. We have kept in contact constantly as we got more members, from B.C., from the east coast, even defence lawyers.

I had the honour in February to sit down with two representatives from the federal Department of Justice and we read them testimony of other people who were presently or had been incarcerated for non-disclosure charges. It was very emotional.

So I thought “I’ve been there. I will be your voice while you are inside. I’ve gone through it.” I shared my story and one of the things I demanded was that Corrections Canada staff take an AIDS 101 program to address the ignorance around how they treat inmates. I also demanded that not just the Toronto police but police across Canada take AIDS 101 and it has to be renewed annually to stay up with the science. The coalition want  to have a moratorium on non-disclosure prosecutions and we talked about the need for prosecutorial guidelines around non-disclosure cases. We are having a follow-up think tank in May to come up with a brief about that. I think we are going to have prosecutorial guidelines. For the first time in a long time I have some faith in the federal government around this.

Why do I do the work I do? I would hate to see any fellow brothers and sisters with HIV walk in the shoes I had to walk in. If I can educate with my story about what needs to be changed . . . Change needs to happen. I’m doing the work I am supposed to be doing. This is where I need to be.

I’m proud to share my story. I’m not ashamed of who I am.