US: Advocacy underway in Alabama to fight newly proposed bill to change 'knowingly' transmitting an STI from a misdemeanor to a felony

HIV/AIDS advocacy groups are preparing for a fight against a piece of legislation that would heighten the penalty for knowingly exposing a sexually transmitted disease to another in Alabama. Research shows stigmatizing and criminalizing HIV doesn’t reduce the transmission rate, and it actually discourages people from getting tested, Kathie Hiers, executive director of AIDS Alabama, said.

Rep. Juandalynn Givan’s bill is vague and makes is possible for spreaders of any sexually transmitted disease to be charged with a felony, she said.

“The way the bill is written if anyone puts anyone at any risk for any STDs or HIV it can be a felony,” Hiers said in an interview with AL.com. “Now, you can interpret that as any woman who has HPV could be guilty.”

She said 85 percent of women have HPV, a sexually transmitted disease, and many don’t even know it.

Givan, D-Birmingham, said she stands behind her proposed legislation.

“This piece of legislation simply imposes greater penalties for those who maliciously with the intent to recklessly by some type of malice or reckless disregard for the life and the health of another human being intentionally goes out and infects another person,” she said.

Givan said the intent of the bill isn’t to keep anyone from being tested for HIV.

She said Alabama law already defines a sexually transmitted disease, but she would be open to amendments to her bill.

The lawmaker decided to propose the legislation, heightening the penalties under current law from a Class C misdemeanor to a Class C felony, after hearing about a Montgomery pastor confessing his HIV-positive status to his congregation and admitting he engaged in sex with unknowing women.

A Class C felony carries a prison sentence of one to 10 years. A Class C misdemeanor carries a maximum prison sentence of three months.

Givan thinks current law is too lenient, and people who are intentionally infected are too embarrassed and afraid to come forward to law enforcement.

Alabama is one of only 16 states in the nation where it is a misdemeanor offense to knowingly expose another person to a sexually transmitted disease, she said.

Juan McFarland, the former pastor of Shiloh Missionary Baptist Church in Montgomery, admitted during a sermon in September 2014 to being HIV-positive since 2003 and having sex with multiple women who weren’t aware of his status.

Montgomery police haven’t charged McFarland with any crime, but McFarland lost his job.

“It is pretty severe if you have been infected with HIV for a period of time and are having sexual intercourse with multiple women,” Givan said in a previous interview with AL.com. “You can only imagine that someone may have become infected.”

The Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) released statements against the criminalization of HIV.

“We oppose legal statutes that undermine public health by criminalizing transmission of HIV, viral hepatitis, tuberculosis and other infectious diseases,” the groups stated in a press release. “Studies have documented that these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.”

Resources should be put behind evidence-based prevention methods not towards the criminalization, the groups said.

Hiers said everyone should take personal responsibility for protecting themselves against STDS, and criminalizing diseases doesn’t help.

“I think it lulls people into a false sense of security because if you make it all the responsibility of the HIV-positive person or the person who has the sexually transmitted infection then people may not practice universal precautions,” she said.

In this day and age, Hiers said everyone having sex needs to assume the other person has a sexually transmitted disease until they reach the point they are in a monogamous relationship and have been tested.

The Sero Project, a group working to end the criminalization of HIV, is expected to get involved and lead a grassroots effort against Givan’s bill if the lawmaker doesn’t table it herself.

Since research has proven that criminalizing HIV doesn’t reduce transmission, Sean Strub, the executive director of the group, said several states are considering decriminalizing it. Iowa became the first state to do so last year.

“So it is truly ironic that while much of the rest of the country is looking at changing these statutes, to slow the epidemic, a legislator in Alabama wants to make the statute more punitive, which will most likely make the epidemic in Alabama worse,” he said. “I’m sure that’s the opposite of what the legislator intends, but it is the likely outcome, which is tragic. Stopping this bill is, from Sero’s perspective, the single most compelling HIV prevention priority in Alabama right now.”

Zimbabwe: HIV-specific criminal law criticised for making women with HIV more vulnerable

Women in the country have condemned the law criminalising the willful transmission of HIV claiming that women always feel the brunt of the law. Criminalisation of willful or deliberate transmission has become controversial in a county. Willful transmission is defined in the Zimbabwean law as the failure to disclose one’s status or to take precautions for preventing the transmission of HIV/ AIDS.

Speaking during a TweetT@ble discussion held by the Netherlands Embassy and 263Chat, Martha Tholanah the Director of International Community of Women living with HIV Zimbabwe said the legislation is unlawful.

“HIV/AIDS has always carried the face of a woman and women always carry burden the HIV pandemic. The criminalisation of willful transmission also has a woman face which is unlawful as women always end up being victims of the provision,” said Tholanah.

She also said, “Women are always accused of bringing the HIV virus into marriages and the justice system has not done enough to protect women who end up being imprisoned for 20 years.”

While it is difficult to detect who infected the other in a relationship women have always been labeled as the culprits.

Cases of willful transmission are on the rise mainly based on HIV positive people who have had sex with the primary intent of transmitting the virus to their partner.

Several cases have been brought before the courts where individuals claim to have deliberately infected with HIV by their partners with many occasions pointing the woman as the one who infected the men.

Tamara Jonsson, the Program Officer of UNAIDS Zimbabwe said, “the provisions of the criminal law are problematic especially the criminalisation of non disclosure.

“Criminalisation of non disclosure has negative implications on women as it does not guarantee safety after disclosure.”

She went on to say that stories told always climax with the younger women eventually being summoned to the courts for allegedly infecting the male counterpart.

Tinashe Mudawarara a lawyer with ZLHR, said the law is overbroad and it’s the provision are wide, dangerous, and unlawful and thereby infringing on the right to protection of the law.

Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.

Germany: Aachen Court re-evaluates key ‘mens rea’ requirement in German law, rules HIV transmission without disclosure is negligent injury, not intentional harm

Last week, for the first time a German court ruled that HIV transmission without prior disclosure was negligent injury, rather than intentional harm.

The District Court of Aachen sentenced a 43 year-old man to one year and nine months on probation for having condomless sex with his former female partner without disclosing his HIV-positive status. The woman is now also HIV-positive. The maximum sentence for negligent bodily injury is three years in prison and a fine.

With this judgment the Court has created legal history – the first ruling since 1988 to change the way HIV non-disclosure cases are considered by German courts. Until now, the Federal Court, as well as lower courts, had always considered that HIV non-disclosure prior to sex without a condom meant that the defendant “considered acceptable” that their partner would acquire HIV.  This concept, of dolus eventualis, is much closer to the common law definition of ‘recklessness’ than to malicious intent.

Leading HIV and human rights lawyer Jacob Hösl, who attended the hearing in an advisory capacity, told Deutsche AIDS-Hilfe: “The Federal Court has always said that the examination of pre-meditation requires a case-specific overall examination, which can vary greatly depending on the individual circumstances. The lower courts, however, have always assumed intent by default. For the first time this court sees it differently. ”

Hösl praised the fact that the court studied intensively the medical facts and personal circumstances of the accused. “The man did not want his partner infected – for him she was the love of his life,” he noted.

The presiding judge, Hans-Günter Goergen, began his oral verdict, stating: “We have learned a lot about HIV in this trial.” According to press reports, he noted that the defendant had concealed his HIV-positive status because he was afraid his partner would leave him, but that he had no desire for her to become HIV-positive.

The judge also accepted that the defendant had tried to protect his partner (by using condoms most of the time, and withdrawing before ejaculating), but failed due to the circumstances (she started taking contraceptive pills and desired condomless sex) and because of his fear of losing his partner. He noted that the defendant’s former wife had divorced him in 2007 after he had tested HIV-positive. Accordingly, the judge saw no evidence that the defendant acted with intent.

The Court also found the defendant not guilty with respect to three other charges relating to HIV non-disclosure and potential HIV exposure involving two women when the defendant’s viral load was undetectable.

A medical expert told the Court that during the relationship with the complainant that is now HIV-positive, the risk of transmission was low, as he had a low (but not undetectable) viral load. Dr. Heribert Knechten, a witness for the defence, who was also the defendant’s doctor, noted that in 2014, before commencing treatment, his patient’s viral load was stable at 85,000 copies per milliliter, which translated into the risk of HIV transmission during vaginal intercourse to be between 0.05 to 0.15 percent. He also testified that after the defendant’s viral load reached undetectable at the end of 2014 that he was very unlikely to be infectious.

Manuel Izdebski, Deutsche AIDS-Hilfe board member said in a press release:

“This verdict is a step of great value: the first time that a court recognizes that you cannot automatically assume intent in HIV transmission cases; it is almost always due to fear – as it was in this case – that people do not disclose. Accordingly, this must be taken into account. Criminal law is not an appropriate way to measure this. The decision of the District Court in Aachen is a pioneering step towards a legal system that no longer penalises HIV transmission as a criminal offence.”

The written judgement is expected soon. However, today, the prosecution has appealed the ruling, so this judgement may not be final.

Infectious Disease Society of America (IDSA) and HIV Medicine Association (HIVMA) Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases (2015)

This statement was issued by the Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) on the urgent need to repeal or modernize HIV-specific criminalization statutes and laws criminalizing transmission or exposure to sexually transmitted infections and other communicable diseases.

US: Positive Justice Project releases a set of principles to guide modernisation of state criminal laws

Today, in the wake of recent court decisions rejecting several applications of the criminal law to people with HIV, the Positive Justice Project (PJP) , a national coalition challenging HIV criminal law policies in the United States, released a set of principles to guide the modernization of state HIV criminal laws across the country.

“Ending criminal prosecutions based on HIV or other health conditions is a vitally important part of a sound, public health approach to ending the epidemic,” said Kim Miller of the HIV Medicine Association (HIVMA). “Treating a medical condition as evidence of a crime is at direct odds with public health campaigns to get as many people as possible tested and, if HIV positive, into treatment,” added Ms. Miller. “That is the best way to protect everyone, since treatment keeps people healthy while reducing already low transmission risks to near-zero.”

Currently, 32 states have criminal laws that punish people living with HIV for conduct that would be legal if they did not get tested and did not know their HIV status. Conviction under these laws can result in decades-long prison sentences despite very low transmission risks and dramatic improvements in treatment that have transformed what it means to live with HIV.

Carole Treston of the Association of Nurses in AIDS Care (ANAC) confirmed, “On treatment people living with HIV can expect to live long and healthy lives. It’s time for the law to catch up with the science on the real risks and realities of HIV in the twenty-first century.”

The Guiding Principles for Eliminating Disease-Specific Criminal Laws call for modernization of existing laws that exclude HIV and other infectious diseases from long-established interpretations of criminal felony laws requiring proof of intent to harm accompanied by conduct likely to cause death or severe injury for a conviction. At present, most states require only evidence that a person has been diagnosed with HIV and has engaged in some form of contact with a third party for a felony conviction and, in some cases, life-long sex offender registration.

In 2014, the U.S. Department of Justice issued the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors; and in 2013 the Presidential Advisory Council on HIV/AIDS (PACHA) issued a Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments. A growing number of political, legal, public health and advocacy organizations also have called for the modernization of HIV laws.

“Both HIV and the prison system have a disproportionate reach into communities of color,” stated C. Virginia Fields, Director of the National Black Leadership Commission on AIDS. “Laws that make an HIV test the basis for a felony prosecution are a double burden for those at greatest risk of both HIV and entanglement in the criminal justice system. We need to end this yesterday, and we need to do it right. These principles are a great step in the right direction.

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Conference Dates and Location:
February 23-26, 2015 | Seattle, Washington
Abstract Number:
129

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Primary Author:

Jeffrey Crowley1

1 O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States

Abstract Body:

Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.

Session Number:
S-5
Session Title:
Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law
Presenting Author:
Crowley, Jeffrey
Presenter Institution:
Georgetown University

US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law

State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford

Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.

Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.

A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.

ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.

It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.

Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.

The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.

Criminal Law Not Effective Against HIV

THE CONFESSIONS of the 40-year-old man who went on a “deliberate spree to infect as many other people as possible” in 2002 (The Namibian, 14 January 2015) sparked a series of media reports in the past few weeks, which featured calls from the public for the enactment of an HIV-specific crime of intentional transmission of HIV.

The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing spread of HIV, coupled by what is perceived to be a failure of existing HIV prevention efforts.

No one suggests that a person who, knowing he has HIV, sets out intending to infect another, and achieves his aim, ought to escape prosecution. In these cases, as infrequent as they may be, the victims and their society seek justice because harm was caused with clear intention.

There is, however, no need to enact a new HIV-specific law to address this situation. We have existing common law crimes that can be applied. Where we seek to apply these, we must ensure that the use of criminal law in relation to HIV should be guided by the current best available scientific and medical evidence.

Two key scientific and medical developments in the past five years call for a reconsideration of the application of criminal law in the context of HIV. The first is that we know that effective HIV treatment has significantly reduced AIDS-related deaths and has transformed HIV infection from a condition that inevitably resulted in early death to a chronic manageable condition.

In Namibia the treatment programme has been a flagship of the response, achieving 2010 Universal Access target 2009, and has since continued to register remarkable achievements. By March 2014, an estimated coverage of over 81% of eligible adults and 54% of eligible children were on anti-retroviral therapy (ART).

Secondly we now know that effective HIV treatment significantly reduces the risk of HIV transmission from people living with HIV to their sexual partners.

Since HIV is now a chronic treatable health condition, it is thus no longer appropriate for criminal prosecution for HIV transmission to involve charges of murder, attempted murder or assault with intent to cause grievous bodily harm.

Based on current evidence, the harm of HIV infection should not be treated differently from that of other serious sexually transmitted infections like hepatitis B or C. Transmission of these infections is, however, seldom if ever subject to criminal prosecution.

In addition, the effectiveness of criminal law as a tool for reducing the spread of HIV is questionable. Criminal law is traditionally used to incapacitate, rehabilitate or deter offenders.

Why then should we treat HIV differently?

In order to slow the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex or engaging in other risk behaviours, which no criminal law could possibly do.

Indeed, imprisoning a person with HIV does not prevent the transmission of HIV. HIV risk behaviours are prevalent in prisons, yet correctional services authorities continue to reject the introduction of evidence-informed prevention measures such as condoms and fail to address sexual violence in prisons.

There is little evidence to suggest that criminal penalties for conduct that transmits HIV will “rehabilitate” a person such that they avoid future conduct that carries the risk of HIV transmission. Most cases of HIV transmission are related to sexual activity – human behaviour that is complex and very difficult to change through the blunt tool of criminal penalties.

There is no scientific data to support the claim that criminal prosecution, or the threat thereof, has any appreciable effect in encouraging disclosure to sexual partners by people living with HIV or deterring conduct that poses a risk of transmission.

What nearly 30 years of addressing AIDS has taught us is that key to preventing the spread of HIV is the reduction of stigma and discrimination on the basis of HIV status, real or perceived, the fear of which deters many people from seeking HIV testing and knowing their status as an entry point to accessing HIV treatment and other related services.

Applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

Instead of focusing our attention on passing more criminal laws that provide for an HIV-specific crime, we should rather be putting our energies into creating an enabling legal environment in which the social and legal constructs that place some people more at risk of HIV infection than others are addressed. In particular we should ensure that the laws in place protect women’s equal rights and that their right to be free from violence are enforced.

We should promote access to comprehensive, age-appropriate sex education and sexual and reproductive health services and other evidence-based strategies designed to reduce HIV risks. We should adopt a comprehensive anti-discrimination law that protects people against discrimination on the basis of real or perceived HIV status or on the basis of sexual orientation and gender identity and we should repeal laws that criminalise or further marginalise vulnerable groups such as sex workers, people who use drugs, and men who have sex with men, which create barriers to access to effective HIV prevention and treatment services by these groups.

Our response must be based on the best scientific and medical evidence rather than misguided fears and stigma.

• Michaela Clayton is a human rights lawyer who has worked on HIV and human rights in Namibia and internationally since 1989. She is Director of the AIDS and Rights Alliance for Southern Africa, based in Windhoek and serves as the co-chair of the UNAIDS Reference Group on HIV and Human Rights as well as co-chair of the Human Rights Reference Group of the Global Fund to Fight AIDS, Tuberculosis and Malaria. – See more at: http://www.namibian.com.na/indexx.php?id=23584&page_type=story_detail#sthash.kMTUAWlM.dpuf