Advocates fighting to end HIV criminalisation reach a global TV/web audience on The Stream

Last night, HIV criminalisation advocacy reached a global audience on both TV and the internet with The Stream, on Al Jazeera English.

During the 30 minute programme, HIV criminalisation survivor, and Sero advisory board member, Ken Pinkela appeared with co-hosts Malika Bilal and Omar Baddar in the Washington DC studio to discuss his case and the role HIV stigma played in his unjust prosecution and wrongful conviction.

He was joined via Skype by ARASA’s Executive Director, Michaela Clayton, who discussed the impact of HIV criminalisation on women in southern and eastern Africa.

Anand Grover, Senior Advocate at Supreme Court of India, founder of India’s Lawyers Collective, and a former UN Special Rappporteur on the Right to Health highlighted the many human rights concerns with a punitive approach to HIV prevention.

I was also on programme, highlighting the work of the HIV Justice Network and citing data from our recent report, Advancing HIV Justice 2.

Contributions were also seen from US HIV advocates Shawn Decker and Nina Martinez, and Colorado Senator Pat Steadman who worked with the Colorado Mod Squad to recently completely overhaul HIV criminalisation in Colorado.

Watch the entire programme below or on the The Stream’s website.

US: Second HIV is not a crime training academy creates an important intersectional shift in the US anti-HIV criminalisation movement

The second HIV Is Not a Crime Training Academy, which took place in May at the University of Alabama, Huntsville, brought together more than 300 advocates from 34 US states, as well delegations from Canada and Mexico.

Organised jointly by two of our HIV JUSTICE WORLDWIDE partners, the Sero Project and Positive Women’s Network–USA, the meeting was a unique opportunity for the people most affected by HIV criminalisation to take centre stage and have their voices be heard.

As Mark S King’s blog post highlighted in his blog and video produced the week following the meeting:

The intersections of race, gender, and sexuality were given as much weight as strategy sessions on working with legislators and lawyers, and the program repeatedly drove home the fact that criminalizing behaviors related to specific groups of people is as American as apple pie. Plenary speakers included advocates for women (including transgender women), current and former sex workers, immigration reform and drug legalization advocates, and, most powerfully, people who have been prosecuted under HIV criminalization statutes.

The theme of intersectionality and what it means for HIV criminalisation advocacy was further explored in this thoughtful analysis from Olivia Ford at The Body.com.

At the first HIV Is Not a Crime gathering in Grinnell, Iowa, in 2014, the sessions focused largely on unpacking the process of mounting a legislative campaign. Huntsville attendees also received training on important skills such as using data and collaborating with attorneys. The dominant theme, however, was the mandate to understand and combat HIV criminalization as a component of the system of over-policing and mass incarceration that disproportionately and unjustly impacts black people, queer folks, immigrants, drug users, sex workers, transgender individuals and those living with and without HIV at the intersections of this constellation of experiences.

The meeting was also an opportunity to celebrate the recent modernisation of Colorado’s HIV criminalisation statutes by the Colorado Mod Squad and their political allies, notably Senator Pat Steadman; and to hear from HIV criminalisation survivors and their families about what the HIV criminalisation – and the movement to end it – means for them personally.

The biggest political coup of the meeting was a welcome video from Hilary Clinton who said that if she wins the Presidential election, she will work to “reform outdated, stigmatising” HIV criminalisation laws.

Aside from those highlighted above, a number of other blog posts and articles have been produced since the meeting.  As well as a fantastic Storify compilation by PWN-USA of social media produced during the four days, these include pieces from:

In addition, the HIV Justice Network was there with our video advocacy consultant, Nicholas Feustel of georgetown media, capturing the entire event on video, and we will be releasing a film providing a detailed overview of the entire meeting, as well as lessons learned, in the next few weeks.

Australia: Northern Territory AIDS & Hepatitis Council calls on government to engage in community consultation before debating the proposed amendments to the Police Administration Act that forces HIV, Hepatitis B & C blood testing of offenders

NT Aids and Hepatitis Council says amendments to Police Administration Act could breach civil liberties

NT News

The Northern Territory Government’s controversial push to have the Police Administration Act amended to have forced blood tests on those who spit, bite or exchange blood with officers has come under fire.

The NT’s peak representative body for people with blood-borne diseases, Northern Territory AIDS & Hepatitis Council, said yesterday that the amendments were in breach of civil liberties and human rights.

They are calling for the government today to stop and consult.

Community member Sam Bowden said less invasive options than drawing blood against someone’s will needed to be investigated.

“It is possible to develop sound public health policy based on the available evidence, that protects the health and well being of police officers and their families, and which upholds the human rights of HIV key affected populations – but governments have to consult the community to get the balance right,” she said.

Other concerns for the group were the facts that it could unfairly target homeless and indigenous people as well as further create a stigma around those living with blood-borne diseases.

A public education stall run by NTAHC will be out the front of parliament tomorrow from 9am to 4pm.

A petition to call on the Government to consult with the community before debating the amendment in parliament can be found at change.org

Originally published in NT News

Australia: Zaburoni v Queen legal analysis

This analysis is by David Buchanan SC, Barrister at Forbes Chambers, Sydney. It was originally published in LGBT Law Notes and is republished here with his permission.

In a case that should reduce the extent of overcharging in HIV criminal cases, the High Court of Australia (Australia’s apex court) has emphasised the importance of distinguishing between reckless behaviour and behaviour involving intention to transmit HIV.

In Zaburoni v The Queen [2016] HCA 12, a man was sentenced to nine and a half years in prison for unlawfully transmitting a serious diseases with intent to do so.  The evidence was that Zaburoni frequently had unprotected sex with his girlfriend, knowing that he had HIV, and that he lied to her, and later to investigating police, about his status.  However, the offence required proof of actual intention.  The High Court held that, if the evidence had established Zaburoni’s awareness of the probability that his conduct would result in his girlfriend contracting HIV, it would have been open to the jury to infer that Zaburoni meant to bring about that result.  However, the evidence did not rise to that level.

The Court distinguished between intention, on the one hand, and desire or motive, noting that a person can intend a result without desiring it.  Thus a person can have the infection of their sex partner as a purpose of their conduct whilst regretting that consequence.  The plurality observed “(t)he complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable.  Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant.   It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal.”

Zaburoni had tested positive to HIV and been told he must use condoms for sex.  The evidence was that he understood that advice.  But when he took up a relationship with a woman he told her he had been tested for HIV and was not HIV positive.  He had unprotected intercourse with her, telling her that he found condomless sex more pleasurable.  The complainant suffered seroconversion illness.  Zaburoni told her his brother had died from AIDS.  When the woman asked Zaburoni whether he had HIV, he said he did not.

The relationship later broke down.  About a year afterwards, the woman was diagnosed with HIV/AIDS and when she tackled Zaburoni about it, he admitted he was infected and said he found out after they had broken up.  She asked why he had failed to tell her of his condition.  He replied that he had not wanted to make her unhappy and that he thought that she was having a good time.  He said that he had been told by the doctors that he had had HIV for two years.  A friend of the complainant asked Zaburoni why he had not told the complainant and he responded that “I didn’t want to ruin her life”.

Later, in both a conversation with the complainant monitored by police and in interviews with police, Zaburoni lied about when he knew he was infected and the extent of his unprotected sex with the complainant.  Later Zaburoni, who had migrated to Australia many years previously, admitted having submitted a blood sample from an uninfected friend in order to satisfy Immigration authorities that he did not have HIV.

Although there was evidence that, given the length of the relationship (21 months), the risk of the complainant contracting HIV were about 14 per cent, there was no evidence that Zaburoni knew what the statistical likelihood was of the transmission of HIV as the result of unprotected heterosexual sex.  The plurality said “To the extent that the inference of intent depends upon foresight of the risk of the sexual transmission of HIV, it is the appellant’s understanding, whether informed or otherwise, that is material.  There was ample evidence from which to find that the appellant was aware of the risk of transmitting HIV to the complainant through unprotected sexual intercourse.  Apart from the medical advice that the appellant was given by several doctors in 1998 after he learned of his HIV positive status, his lies to the complainant about that status before their sexual relationship commenced, and during the course of it, point to his awareness of the risk of sexual transmission.  So, too, do his lies to the police about the number of times they engaged in unprotected sexual intercourse.”

The plurality concluded that “(a) rational inference open on the evidence is that the appellant engaged in regular unprotected sexual intercourse with the complainant because it enhanced his sexual pleasure and he was reckless of the risk of transmitting HIV to her.   The existence of that inference lessens the force of reasoning to a conclusion that the appellant intended to transmit the disease from the fact of frequent unprotected sexual intercourse.   Apart from frequent unprotected sexual intercourse, there is no evidence to support the inference that the appellant had that intention.  And the evidence fell well short of proving that the appellant believed that it was virtually certain that he would pass on HIV by regular unprotected sexual intercourse.”   In particular, none of the lies proved that Zaburoni knew that it was virtually certain that he would infect his partner with HIV if he had unprotected sex with her.

Whilst Zaburoni’s conduct was described as a form of “callous deception”, what this meant (as another judge put it) was that the evidence left open “a reasonable hypothesis that the appellant, not knowing the degree of risk, was extremely reckless and also callous.  As appalling as his selfish recklessness was, it cannot be equated with a subjective, actual intent to transmit the HIV virus.  In the absence of evidence of malice or knowledge of the degree of risk, a subjective intent to inflict the HIV virus was not proven beyond reasonable doubt.”

The conviction for intentionally transmitting a serious disease was quashed and a verdict of guilty of unlawfully doing grievous bodily harm substituted.

The full High Court decision can be accessed here.

A number of news reports and other analyses of the Zaburoni case can be found here.

Sweden: Civil societies organisations call for guidelines to prosecutors in cases of HIV-criminalisation

“Major Uncertainty about HIV in Courts – The Prosecutor must act”

Open letter to the Prosecutor General Anders Perklev:

The organizations Hiv-Sweden, RFSL and RFSU call for guidelines for prosecutors for prosecutions against people living with HIV who are at risk of transmitting the virus via sexual contacts.

Signatory organizations promote the development of HIV in Sweden, how people living with HIV perceive their situation, the way in which case law looks and the medical successes in the field. Since 2013, the knowledge base “Infectiousness in Treated HIV Infection” has been developed by the Public Health Authority and the Reference Group for AntiViral Therapy (RAV), which shows that there is a negligible risk of HIV transmission during well-treated treatment.

Since 2016, there is also a document written by medical experts in which the disability rate in HIV is reduced from 40-60% to 0-10%.

These documents should have a major impact on the prosecution of persons, for whom crimes are prosecuted, how damages for a possible transfer should be measured and how seriously the chronic disease HIV should be considered.

RFSU, RFSL and Hiv-Sweden can say that there is great uncertainty in courts and justice in general how to handle the progress made in the medical field regarding HIV. There is no precedent since the knowledge base came and, as the Prosecutor is aware, no trial was given in the Supreme Court for Case B 2152-13, the Court of Appeal over Skåne and Blekinge, in which a person living with HIV and had a so-called well-treated treatment was released from criminal liability.

Signatory organizations welcome the Court of Appeal’s judgment, which clearly takes into account medical success, contagiousness and other facts in the case. Unfortunately, the Supreme Court (in connection with the grant of a review) did not refer to the decision NJA 2004 p. 176, which means that the judgment of the Court of First Instance can not be regarded as prejudicial.

Signatory organizations find it deeply unfortunate that the Supreme Court did not test the case partly referring to precedents no longer based on current knowledge. This means that the legal situation is unchanged and unclear, which creates legal uncertainty for people living with HIV.

Regrettably, we can say that the courts have begun to take care of the medical successes that have been made since 2004, and in the days a new intelligence judgment in which a man living with HIV and standing on a well-treated treatment is released from criminal liability (see Day’s Juridics 2016- 05-31 ). We hope that Objective B 212-15 from Uppsala District Court will proceed in the judicial system and create a new practice in this area.

The judgment states that the risk of HIV transmission to unprotected intercourse is so small in case of well-being treatment that one can not reasonably expect the effect of transfer and thus does not fulfill the objective crimes for the development of danger to another.

Even though the profession assesses the risk of HIV transmission to be neglected in well-preserved HIV even in unprotected intercourse, prosecutors continue to famble as to which acts will lead to prosecutions and which crimes are prosecuted. For example, some prosecutors choose to prosecute people living with HIV, with well-treated treatment, without the intention of transmitting HIV and there was no transfer for attempted abuse, which is neither reasonable nor correct.

RFSU, RFSL and HIV-Sweden want guidelines from the RA to the prosecutor who takes into account the major medical achievements and the knowledge base available to create a fairness in how the judicial system manages this already vulnerable group of people living in our society HIV.

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“Stor osäkerhet om HIV hos domstolar och rättsväsende – riksåklagaren måste agera“

Öppet brev till riksåklagaren Anders Perklev:

Organisationerna Hiv-Sverige, RFSL och RFSU efterlyser riktlinjer för åklagare avseende åtal mot personer som lever med hiv och som riskerar att överföra viruset via sexuella kontakter.

Undertecknande organisationer följer utvecklingen noga avseende hiv i Sverige, hur personer som lever med hiv uppfattar sin situation, hur rättspraxis ser ut och de medicinska framgångar som görs på området. Sedan år 2013 finns kunskapsunderlaget “Smittsamhet vid behandlad hivinfektion” framtaget av Folkhälsomyndigheten och Referensgruppen för AntiViral terapi (RAV), i vilket det framgår att det föreligger försumbar risk för överföring av hiv vid välinställd behandling.

Sedan år 2016 finns det även ett dokument skrivet av medicinska experter i vilket invaliditetsgraden vid hiv sänks från tidigare 40-60 % ned till 0-10 %.

Dessa dokument borde få stor inverkan på när personer åtalas, för vilka brott personer åtalas, hur skadestånd vid en eventuell överföring bör mätas och hur allvarlig den kroniska sjukdomen hiv skall betraktas vara.

RFSU, RFSL och Hiv-Sverige kan konstatera att det råder stor osäkerhet i domstolar och rättsväsendet i övrigt hur de ska hantera de framsteg som görs på det medicinska området gällande hiv. Det saknas prejudikat sedan kunskapsunderlaget kom, och som riksåklagaren väl känner till gavs inte prövningstillstånd i högsta domstolen för mål B 2152-13, Hovrätten över Skåne och Blekinge, i vilket en person som lever med hiv och hade en så kallad välinställd behandling friades från straffansvar.

Undertecknande organisationer välkomnar hovrättens dom, som tydligt tar hänsyn till medicinska framgångar, smittsamhetsdokumentet och fakta i övrigt i målet. Dessvärre hänvisade Högsta domstolen (i samband med att prövningstillstånd inte gavs) till avgörandet NJA 2004 s. 176 vilket innebär att hovrättens dom inte kan anses vara prejudicerande.

Undertecknande organisationer finner det djupt olyckligt att Högsta domstolen dels inte prövade målet dels hänvisade till prejudikat som inte längre baserar sig på aktuell kunskap. Detta innebär att rättsläget är oförändrat och otydligt, vilket skapar en rättsosäkerhet för personer som lever med hiv.

Glädjande nog kan vi konstatera att domstolarna ändock har börjat ta till sig av de medicinska framgångar som gjorts sedan 2004 och i dagarna kom en ny underrättsdom i vilken en man som lever med hiv och står på välinställd behandling frias från straffansvar (se Dagens Juridik 2016-05-31) . Vi hoppas att mål B 212-15 från Uppsala tingsrätt skall gå vidare inom rättsväsendet och skapa en ny praxis på området.

I domen konstateras att risken för överföring av hiv vid oskyddade samlag är så pass liten vid välinställd behandling att man inte rimligen kan förvänta sig effekten att överföring sker, och att det därmed inte uppfyller de objektiva brottsförutsättningarna för framkallande av fara för annan.

Trots att professionen bedömer risken för överföring av hiv vara försumbar vid välinställd hiv även vid oskyddade samlag fortsätter åklagare att famla när det gäller vilka gärningar som skall leda till åtal och vilka brott som åtalas för. Vissa åklagare väljer till exempel att åtala personer som lever med hiv, med välinställd behandling, utan uppsåt att överföra hiv och där ingen överföring skett för försök till misshandel vilket varken är rimligt eller korrekt.

RFSU, RFSL och Hiv-Sverige önskar riktlinjer från RÅ till landets åklagare som tar hänsyn till de stora medicinska framgångar som gjorts och det kunskapsunderlag som finns, för att skapa en rimlighet i hur rättsväsendet hanterar denna redan utsatta grupp personer i vårt samhälle som lever med hiv.

US: National Association of Criminal Defense Lawyers pass resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual

On May 21, 2016, at the spring meeting of the National Association of Criminal Defense Lawyers (NACDL), the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more.

As set forth in NACDL’s resolution, “the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization.”

“Laws such as these are textbook examples of flawed criminal justice policy,” said NACDL President E.G. “Gerry” Morris. “Furthermore, as a public health matter, these laws operate as an impediment to what should be the shared goal here – ending the epidemic. NACDL stands with the HIV/AIDS-affected community and others in unambiguously declaring that HIV is not a crime. It should not be treated as such. Rather than irrationally deploying the criminal law to stigmatize and punish the more than 1.2 million people in the United States living with HIV, we need to work together to advance policies that encourage, rather than deter people from learning of their HIV status and seeking life-saving treatment.”

NACDL’s May 21, 2016 resolution is below.

In addition, audio from a May 5, 2016 teleconference co-sponsored by NACDL, the Center for HIV Law and Policy, and the American Bar Association AIDS Committee – When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws – is available here.

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning HIV Criminalization

Las Vegas, Nevada

May 21, 2016

Introduction

Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more. The focus of these laws on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit HIV, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization. In sum, these laws do not comport with well-established American criminal law principles concerning intent, harm, and proportionality.

The bulk of HIV criminalization laws were enacted prior to the availability of effective antiretroviral therapy for HIV, which not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV never develops AIDS, but also has been shown in studies to dramatically reduce the risk of transmission by those carrying the virus. An obvious prerequisite to securing appropriate treatment is getting tested to determine if one is carrying the HIV virus. Being aware of one’s HIV status is also a necessary, and all too often sufficient, threshold fact making one vulnerable to prosecution under these laws. That, however, creates a powerful disincentive to getting tested for the virus. According to the President’s Advisory Council on AIDS, “Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”

For additional background information, attached are (i) the President’s Advisory Council on HIV/AIDS (PACHA) Resolution on Ending Federal and State HIV-Specific Criminal Law, Prosecutions, and Civil Commitments (PDF), (ii) the U.S. Department of Justice, Civil Rights Division, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF), and (iii) the Positive Justice Project1 Guiding Principles for Eliminating Disease-Specific Criminal Laws (PDF).

Resolution

WHEREAS, there are more than 1.2 million people in the United States living with HIV, and an estimated 156,000 of those people are unaware of their infection, according to the Centers for Disease Control and Prevention (CDC); and

WHEREAS, the United States has led the world in HIV prosecutions; and

WHEREAS, the National Association of Criminal Defense Lawyers (NACDL) has long been concerned with the trend in the criminal law away from the moral anchor of adequate mens rea, or criminal intent, requirements; and

WHEREAS, the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization; and

WHEREAS, punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV; and

WHEREAS, such laws constitute bad public health policy, erecting disincentives to getting tested for HIV when modern and effective antiretroviral therapy for HIV not only can extend significantly the lifespan of those with HIV, increasing the probability that a person with HIV remains healthy and never develops AIDS, but also can dramatically reduce the risk of transmission by those carrying the virus; and

WHEREAS, according to the CDC and the Civil Rights Division of the Department of Justice, “most of these laws do not account for actual scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken” and “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures”; and

WHEREAS, HIV criminalization was bad criminal justice policy prior to the advent of modern and effective antiretroviral therapy, and remains so today; and

WHEREAS, NACDL’s core mission includes working to ensure justice and due process for persons accused of a crime as well as promoting the proper and fair administration of criminal justice; therefore

BE IT RESOLVED that NACDL hereby opposes all laws that base criminal liability and/or penalty enhancements on one’s HIV status rather than on the intent to harm another individual. Accordingly, NACDL supports the repeal of such criminal laws as fundamentally unfair and unjust. Recognizing that outright repeal can result in the abusive use of existing statutes, NACDL also supports modernization of these criminal laws to incorporate strong principles of intent and proportional punishment.

Footnote

1 The Positive Justice Project is a national coalition of organizations and individuals working to end HIV criminalization in the United States. It is a project of The Center for HIV Law and Policy, a national legal and policy resource and strategy center working to reduce the impact of HIV on marginalized communities and to secure the human rights of people affected by HIV. Organizational members of the Positive Justice Project Steering Committee include the Center for HIV Law and Policy, the National Alliance of State & Territorial AIDS Directors, the National Black Leadership Commission on AIDS, and the National LGBTQ Task Force.

 

 

US: Colorado legislature votes to overhaul HIV criminalisation laws and now awaits governor's signature

This month, people living with HIV in Colorado scored a major legislative victory when the state legislature voted to pass Senate Bill (SB) 146. The bill repeals two HIV criminalization statutes, reforms another and standardizes and modernizes statutory language addressing sexually transmitted infections (STIs) including HIV. SB 146. It now awaits Governor John Hickenlooper’s signature.

Unlike many other states, Colorado has no law criminalizing the non-disclosure of HIV. However, if a person living with HIV is convicted of sexual assault, he or she can be given a sentence enhancement, meaning that a prison sentence can be increased up to three times the maximum sentence. The statute does not limit application of the enhancement to cases in which the assault led to HIV transmission; the fact that the assailant has HIV is enough to trigger it.

Colorado also has two statutes criminalizing sex workers living with HIV. One requires HIV testing for persons accused of sex work. If they test positive, prosecutors are allowed to access their health records to see whether they had previously been diagnosed with HIV. The second statute allows a felony charge ofprostitution with knowledge of being infected with AIDS.

These laws were rarely applied. “Even though the law had been on the books for years, there were very few prosecutions and even fewer convictions,” said Colorado Senator Pat Steadman, who sponsored SB 146, during his keynote address at the second HIV is Not a Crime conference last week in Huntsville, Alabama. In his research, he had found only a few cases where people had been charged with sexual assault with HIV; those had ended with plea bargains, meaning that the conviction and enhanced sentence had never been imposed.

Prostitution with knowledge of being infected with AIDS was used even less frequently. Steadman found only six cases in which people had been prosecuted under that statute. Those six include multiple prosecutions of one sex worker. The last prosecution resulted in a conviction and a lengthy prison sentence. But, Steadman pointed out, sex work is an example of a consensual, commercial transaction in which both parties are aware of the risk of STIs, and it shouldn’t be subject to criminalization. “It’s not really causing harm to others,” he noted.

Steadman credits the Colorado Mod Squad (“mod” is short for “modernization”), a de-criminalization taskforce led by the Positive Women’s Network-USA Colorado, with the impetus for the bill. The Mod Squad approached Senator Steadman asked if he’d consider sponsoring a bill repealing HIV criminalization. Steadman, who had a long history of working on HIV and public health issues, agreed. But, he told TheBody.com, “They did the initial research; they got the grassroots community support and brought in the medical experts.”

In March, Steadman introduced SB 146. The bill repeals the statutes on mandated testing for those arrested for sex work and the separate felony charge for prostitution with knowledge of being infected with HIV. While SB 146 does not eliminate the sentencing enhancement for sexual assault with HIV, it amends the law so that HIV transmission is a necessary trigger. “Now, with prophylaxis, the risk of transmission is greatly reduced, and so the likelihood of the law being used in the future is very low,” Steadman told TheBody.com.

Kari Hartel and Barb Cardell are both part of the Colorado Mod Squad. They noted that the impetus for the modernization bill came at the first HIV is Not a Crime conference in Grinnell, Iowa, in 2014. Iowa had just repealed its HIV criminalization law and, Hartel recalled, conference organizers challenged the audience, “Who’s next?”

“Barb’s hand shot up,” Hartel remembered.

Cardell said that when they set out to repeal the state’s criminalization statutes, they were often told, “That’s impossible.” But they persevered — and made sure that people living with HIV were involved to whatever extent they could be. “We’d ask them to read a part of the bill,” she remembered. “Or we’d ask them to read the whole bill.” Thirty-five people living with HIV participated in shaping the bill in some way. Some of the Mod Squad’s core members, such as John Tenorio and Deric Stowell, drove for hours — sometimes in snowstorms — from rural Colorado to Boulder to work on the bill.

At times, ensuring a wide range of participation made the process take longer. For instance, Hartel works with youth, but seeking their input involved more than simply asking them to read the bill and provide feedback. “A lot of the young people want the 30-second overview and how it will affect their lives,” she told TheBody.com.

When their questions couldn’t be answered, Mod Squad members brought their concerns to other meetings with policy advocates and public health officials, then brought the answers back to youth at a follow-up meeting. But all of the Mod Squad members agreed that meaningful participation of people living with HIV was crucial to the process. “This was a movement spearheaded by people with HIV,” said Hartel.

“The criminal law is a clumsy and ineffective tool for protecting public health,” became the sound bite as Steadman began garnering support for the bill. In doing so, he realized the extent of misinformation and ignorance about HIV transmission and criminalization laws. The campaign also provided him the opportunity to educate people, including those in law enforcement, about HIV transmission and its many myths. He downloaded a flier that says, “Spit doesn’t transmit,” and he passed copies out, primarily to police officers. Many, he recalled, were surprised to learn that saliva does not transmit HIV. “They pretended they knew, but they were also taken aback. They’d ask, ‘But what about dentists?'” Shaking his head, he reflected, “There hasn’t been a real effort for society to educate itself.”

Two months after the bill was introduced, members of the Mod Squad were present when the state legislature voted on the bill. As each section was approved, Reverend Tammy Garrett-Williams remembered exclaiming, “It’s passing, it’s passing!”

“It’s not passed yet,” Hartel recalled telling her. But the legislature passed the bill and it now awaits the governor’s signature. He has until June 10th to sign it into law. Steadman is confident that he will do so.

Nine members of the Colorado Mod Squad celebrated their victory at last week’s second HIV is Not a Crime conference. Conference organisers ordered two giant cakes to applaud their success. “It takes me back to Martin Luther King’s ‘I Have a Dream,'” reflected Reverend Tammy Garrett-Williams, another Mod Squad member. “He had a dream, but I have a mission.”

Originally published in The Body

U.S.: Clinton Promises She’ll Reform HIV Criminalization Laws in her opening presentation at 2nd HIV is Not a Crime conference

Tonight, speaking via a pre-recorded video to attendees of the HIV is Not a Crime Training Academy, Hilary Clinton says if she wins the Presidential election, she will work to reform outdated, stigmatizing HIV criminalization laws. Clinton thanked attendees for their work, saying that efforts like HIV is Not a Crime “lift us all up.”

Saying we have “come a long way” since the early days of the AIDS epidemic, Clinton acknowledged, “We still have long way to go.” She spoke about how HIV disproportionately impacts “communities of color, transgender people, gay and bisexual men and young people, around the world.”

Prior to Clinton’s speech, attendees had the pleasure of hearing from Kerry Thomas, talking via phone from an Idaho correctional center, where he’s serving a 30-year sentence. Thomas said he carries a photo with him from the first HIV is Not a Crime conference, held two years ago. Positive and thankful, Thomas nevertheless affirmed that the state court has dismissed his case, but promised “we’re appealing down the road.” Thomas shared his appreciation for outside support and thanked prison officials for allowing him to participate in events like this and serve on the Sero Project Board.

Bryan Jones (who, like Thomas was featured in our special on HIV in prison) described being open about his HIV status in prison as “somewhat suicidal,” and asked if things were different for Thomas.

Thomas replied that it hadn’t always been easy, but he’d recently become more vocal about his status, because, “At some point, someone has to say ‘That’s enough!’ and take on these things.”

Naina Khanna, Positive Women’s Network’s executive director, follwed Thomas, remarking how important his involvement was because, “We should be taking leadership from the people most impacted by these laws.”

PWN sponsored a post-welcome documentary screening of Consent, in which eight women examine the problems inherent in using sexual assault law to prosecute alleged non-disclosure. Khanna’s seemed to hint at that topic when she noted,

“Some of these laws have been put on the books to protect women” She added that sometimes, “women have been complicit in criminalization,” which is one reason the Positive Women’s Network is determined to be involved in HIV-decriminalization.

Khanna then spoke passionately about America being “a country built on back of people brought here forcibly,” arguing, “Our economy is based on people being policed and criminalized,” and that people with HIV weren’t the only targets: but also trans folks, immigrants, people of color and other marginalized groups.

Following Clinton’s televised speech, a panel formed on stage consisting of people who have been prosecuted and parents of several men currently imprisoned under HIV criminalization laws.

The most compelling was a young black man from Oklahoma who told of being arrested and charged with a felony for allegedly sneezing on someone.  When placed into custody, he claims the police put a bag over his head, and — allegedly because he responded, “What the fuck?” — he was charged with disorderly conduct.

Most of his charges have since been dropped, but he goes to court July 1st on the disorderly charge. Since being arrested, he said he has received death threats and has had to move several times. He told the audience that he had gone jogging for the first time in years without being worried he might be harassed.

His voice breaking, he added, “I appreciate you not looking at me like I’m dirty.”

Originally published in hivplusmag.com

Hillary Clinton’s full message to HINAC2 on ending HIV criminalization (2016)

A video recorded by presidential candidate Hillary Clinton specifically for the HIV is Not a Crime II – Training Academy.

HIV JUSTICE WORLDWIDE partners, SERO Project and PWN-USA, bring together advocates from U.S. & 4 countries to 2nd National HIV Is Not a Crime Training Academy at University of Alabama-Huntsville

Advocates from 34 states & 4 other countries convene at University of Alabama-Huntsville to strategize Addressing Discriminatory HIV Laws at 2nd National HIV Is Not a Crime Training Academy.

Even as a bill repealing Colorado’s HIV criminalization laws awaits the governor’s pen, much work remains to be done to bring laws up to date with current science in at least 33 states.

Eleven states have laws on the books that can send people living with HIV to prison for behaviors (such as biting and spitting) that carry virtually no risk of transmitting HIV. Forty-four states have prosecuted people living with HIV for perceived exposure or transmission; most states permit prosecution even when no transmission has occurred, and actual risk is negligible.

In Texas, a man living with HIV is currently serving a 35-year sentence for spitting. In Idaho, Kerry Thomas is serving 30 years for allegedly not disclosing his HIV status to a partner – despite the fact that he took measures to prevent transmission, including using a condom and taking medications to maintain an undetectable viral load. Kerry Thomas’ accuser never acquired HIV. Yet his appeal was recently denied, demonstrating that current science continues not to matter to the courts.

“These laws make disclosure harder. Because we so fear the punishment, we just keep things bottled up inside,” says Monique Howell-Moree, who was prosecuted under a US military non-disclosure law and would have faced 8-12 years if convicted. “I didn’t know the best way to disclose … Had I had the support and knowledge that I have now back then, I would most definitely have done things differently.”

In her HIV/AIDS platform and in a recent meeting with activists, U.S. presidential candidate Hillary Clinton called for “reform[ing] outdated and stigmatizing HIV criminalization laws.” Sen. Bernie Sanders’ campaign has said the candidate is also “absolutely opposed” to these laws, according to the Washington Blade. The confluence of outdated laws, unjust prosecutions and profound disparities is bringing advocates and activists from 34 states and 4 countries together for the second national convening dedicated exclusively to strategizing to fight back in the name of human rights and public health.

WHAT: HIV Is Not a Crime II National Training Academy

WHERE: University of Alabama, Huntsville

WHEN: May 17-20, 2016

The Training Academy is co-organized by SERO Project and Positive Women’s Network-USA, two national networks of people living with HIV. It comes on the heels of a major victory in Colorado, where through the dedicated efforts of a group known as the “CO Mod Squad” (“mod” refers to “modernization” of the law), led by Positive Women’s Network-USA (PWN-USA) Colorado, a bill was passed last week that updates laws to take account of current science and eliminates HIV criminalization language.

“With people living with HIV leading the way and our allies supporting us, we were able to do something many thought we couldn’t,” said Barb Cardell, co-chair of PWN-USA Colorado and one of the leaders of the successful efforts. “The law now focuses on proven methods of protecting public health — like education and counseling — while discarding the language of criminalization, which actually discourages testing, treatment and disclosure.”

“This law represents real progress for Coloradans, regardless of their HIV status,” she added. At the Training Academy this week, Cardell will share some highlights and lessons learned from the CO Mod Squad’s experience.

Keynote speakers at the Training Academy include Mary Fisher, who stunned the audience at the 1992 Republican National Convention with a speech about her experience as a woman living with HIV; Joel Goldman, longtime advocate and managing director of the Elizabeth Taylor AIDS Foundation; and Colorado state senator Pat Steadman, the senate sponsor of the bill just passed repealing HIV criminalization in his state. Session topics will explore best practices for changing policy, and will consider the intersections of HIV criminalization with issues ranging from institutional racism to transphobia, criminalization of sex work, mental illness and substance use, and overpolicing of marginalized communities.

“The goals of the Training Academy go beyond giving advocates the tools and know-how they need to change policy, to deepening our collective understanding of the impact of these laws and why they are enforced the way they are,” said Naina Khanna, executive director of PWN-USA. “We hope participants will leave better prepared to effect change by thinking differently, forging new partnerships and ensuring communities most heavily impacted by criminalization are in leadership in this movement.”