UK: Updated guidance on HIV transmission, the law and the work of the clinical team now published

The British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have produced updated guidance on HIV Transmission, the Law and the Work of the Clinical Team.

This guidance is aimed at those working in the field of HIV medicine, especially clinicians, but will also be of use to general practitioners and people living with HIV who want to understand the legal and medical basis for some of their care decisions.

The guidance begins with a clear statement against HIV criminalisation:

BHIVA and BASHH believe that this use of the law is unhelpful and potentially harmful to public health and support UNAIDS recommendations to limit the use of criminal law and the Oslo declaration view that a “non-punitive, non-criminal HIV prevention approach” is preferable.

Covering the law in England & Wales as well as Scotland, the document aims to provide information and guidance on managing issues related to sexual transmission of HIV based on current scientific evidence. It applies generic ethical and professional principles but with a greater emphasis on providing a confidential environment in which extremely sensitive matters can be frankly and fully discussed. This enables appropriate care of people with HIV and benefits public health by encouraging individuals to access testing and treatment. Within this framework this document sets out the roles and responsibilities of health care professionals when caring for individuals living with HIV.

Consistent with the recent BHIVA and the Expert Advisory Group on AIDS (EAGA) position statement on the use of antiretroviral therapy to reduce HIV transmission, the guidance notes:

In most situations the appropriate use of antiretroviral treatment is at least as effective as condoms in preventing sexual transmission of HIV. This is accepted by the [Crown Prosecution Service of England and Wales] and [Scottish Crown Office and Procurator Fiscal Service] so it is likely that evidence showing that the defendant was taking effective antiretroviral treatment at the time of the alleged transmission may be used to demonstrate that they were not reckless.

The guidance also clearly states that healthcare professionals “must be mindful of their duty not to work beyond their expertise in legal matters. For people with HIV, advice must include the routes of HIV transmission and how to prevent transmission, with information about safer sexual practices, the use of condoms and suppression of viral load. Advice must be given in a non-judgmental way.”

It also discusses issues of confidentiality, noting that “it is important when considering breaching confidentiality to weigh up all potential harms as there may be situations where disclosure of HIV status to protect a sexual partner results in considerable harm to an individual e.g. domestic violence. In situations where a health care professional believes that an HIV positive individual continues to put sexual contacts at risk their duties and subsequent action depend upon the type of contact.” See Figure 1 below.

The guidance also clearly states that “no information should be released to the police unless patient consent has been verified or there is a court order in place, except in very limited circumstances defined by the [General Medical Council].”

Importantly, it also notes that only individuals can make complainants to the police “and health care workers should remain impartial during discussions with patients.”

Finally, it provides clear advice to both help prevent transmission of HIV to sexual partners and to avoid prosecution for ‘reckless’ HIV transmission. Accordingly, people with HIV should do at least one of the following:

Use a male or female condom fitted correctly along with water-based lubricant. Individuals doing this are unlikely to be seen as reckless for legal purposes. In the event of a condom split, it is advisable to disclose HIV status in order to support the partner’s decision whether or not to obtain post-exposure prophylaxis (PEPSE), which should be taken within 72 hours. The need for PEPSE will depend upon the type of sexual activity and the HIV viral load. An assessment of the risk should be undertaken by a clinician according to the BASHH PEPSE guidelines. Disclosure in these situations would suggest that the person with HIV was not reckless.

Adhere to effective (suppressed viral load) antiretroviral medication. There is growing evidence of extremely low/minimal risk of transmission when plasma HIV is fully suppressed with the use of antiretroviral medication. In some situations an undetectable viral load can afford protection equivalent to or greater than that of condoms. A person with HIV is unlikely to be seen as reckless when relying on a suppressed viral load instead of condom use if they have been counselled accordingly by an HIV clinician or similar medical authority. It is recommended that this discussion is documented in the patient’s medical records.

In addition people with HIV should be advised that disclosure of HIV positive status to a partner before sex is important to support informed agreement around risk and safer sex behaviours. To avoid successful prosecution an individual who is not taking effective antiretroviral medication and does not use a condom must disclose their HIV status to sexual partners before sex takes place.

The entire guidance is reproduced below.

HIV Transmission, the Law and the Work of the Clinical Team, January 2013. Matthew Phillips, Mary Poulton et al.

President's Advisory Council on AIDS (PACHA) approves resolution calling for federal action against HIV criminalization

by Catherine Hanssens Executive Director, CHLP The President’s Advisory Council on AIDS today voted to approve a resolution calling for federal action against HIV criminalization. The resolution includes the following recommendations: 1.

The Register's Editorial: It's time to rethink Iowa's HIV sex law

When you look at the size of the Iowa Code, it’s obvious state officials excel at creating new laws. They are champing at the bit to add more this legislative session. If their goal is really to make Iowa a better place to live, our elected officials should muster as much enthusiasm for repealing problematic statutes.

Des Moines Democratic Senator Matt McCoy wants to change Iowa's HIV disclosure law

DES MOINES, Iowa (AP) – A Des Moines lawmaker plans to introduce legislation that would reduce penalties for HIV-positive people who have sex without disclosing their health condition. Des Moines Democratic Sen. Matt McCoy says he wants to change the law to reduce penalties and focus on people who purposefully infect others with the virus.Under the current law, HIV-positive people who have sex without disclosing their condition can face up to 25 years in prison if convicted, regardless of whether someone is infected. “That is truly a Draconian punishment,” McCoy said. “Being diagnosed with HIV is no longer the death sentence it once was.”

McCoy wants to change the law so someone convicted of intentional or attempted transmission of the virus could be sentenced to a maximum of five years in prison and face a $750 to $7,500 fine. That would put HIV in the same criminal category as transmitting any other communicable disease, such as Hepatitis C. McCoy also wants to end a requirement that people convicted must be placed on a sex offender registry for life.

The Legislature unanimously approved the current law in 1998. The law was approved, in part, as a reaction to a 1996 case in New York where a man intentionally infected 13 women and girls with HIV. Among those voting for the Iowa law was McCoy, who is openly gay. McCoy said the current law made sense based on what was known about HIV and AIDS, but times have changed. “The fact that I’m gay has a real impact on my sensitivity to this issue,” McCoy said. “Clearly, I’m extremely impacted by the gay community and sensitive to people living with HIV. “I just feel it’s the right thing to do for this group of people that have been so stigmatized.”

The proposed changes to the law would take into account whether an HIV-positive person took steps to prevent transmission of the disease, such as using a condom and taking medication that makes it less likely that a sexual partner would be infected. Medications have dramatically improved over the decades, and with proper treatment HIV-positive people can greatly reduce the amount of virus in their blood and make transmission of the disease unlikely.

Randy Mayer, who heads an Iowa Department of Public Health bureau that oversees HIV, said the best way officials can reduce the spread of HIV is to encourage partners to disclose their HIV status to each other. That’s why he agrees with McCoy that the law should be changed. “The law was originally set up to encourage disclosure, but it’s doing the opposite,” he said. “The law is frequently cited by people we work with as something that creates stigma and distrust of the system. … It’s what’s creating stigma.”

McCoy has previously tried to change the law but his bills have become stuck in committees. This time, he said he has support from health care professionals, HIV/AIDS advocacy groups, law enforcement and the Iowa attorney general’s office. Since the Legislature approved the Iowa law, 25 people have been convicted, though only two of those infected partners with HIV. Of those 25, 12 people remain in prison, four are on parole, one is on probation and a trial for one person is pending.

Tami Haught, who became HIV-positive 19 years ago after being infected by her husband, said she supports McCoy’s proposal. Haught works with Community HIV/Hepatitis Advocates of Iowa, which helped draft McCoy’s bill. Haught’s husband became infected through a blood transfusion in the 1980s and died of AIDS in 1996. They married after he was infected. “It takes two people to talk about protection and disclosure. I never had the discussion with my fiance,” she said. “That’s why I hate this law because it puts the entire burden on the HIV person.”

US: New Study Questions Michigan’s “Health Threat” Law (Press Release)

Michigan health officials are using HIV surveillance technologies to assist in enforcing a “health threat” law that makes it illegal for HIV-positive people to have sex without disclosing their status.

A new University of Michigan study reveals that health officials employ the state’s names reporting database, alongside partner services referrals, for law enforcement purposes. However, this is bad social policy for a variety of reasons, says Trevor Hoppe, the study’s author and a doctoral candidate in sociology and women’s studies.

When clients visit publicly funded health clinics in Michigan to be tested for HIV, they can expect more than just a finger prick or blood draw. Counselors also ask clients extensive questions about their sexual practices and partners. If the client tests positive for HIV or other sexually transmitted diseases, the counselor will provide treatment referrals. They are also legally mandated to ask clients to report the names of sexual partners, which health officials attempt to contact to recommend that they be tested.

Hoppe found that some health officials also ask their clients if any of their partners reported to them that they were HIV-positive. Officials then attempt to cross-reference the reported name against the state’s database of everyone in the state who has been diagnosed as HIV-positive. If an individual reported as a partner is identified by the state as HIV-positive and the client did not report that they disclosed, an investigation would be launched that could have legal ramifications.

At least 24 states have laws making it a misdemeanor or felony for HIV-positive people to have sex without first disclosing their status. In Michigan, failing to disclose is a felony punishable by up to four years in prison—whether or not the person was ever at risk of contracting the disease from their partner.

“The evidence is mounting that these laws are bad public policy and certainly bad public health policy, yet Michigan health officials are helping to enforce them,” Hoppe said.

At the minimum, there is little transparency in how health officials use epidemiological data for law enforcement purposes, he says.

“Health officials in some local jurisdictions are using data they collect for public health purposes to help enforce the law, but they’re not telling their clients how their personal information could be used,” Hoppe said.

From an ethical perspective, the question is whether it is reasonable for health officials to use confidential medical information to enforce the law.

Hoppe interviewed 25 local health officials who manage “health threat” cases from 14 jurisdictions across Michigan. His research also reveals that how local health officials interpret what qualifies as a “health threat” varies. In some cases, local officials suggested that an HIV-positive woman who became pregnant or contracted another STI might be labeled a “health threat.”

“These systems were not intended for legal surveillance, yet data collected by them are susceptible to being used for criminal proceedings,” Hoppe said.

Whether this practice should be continued must be discussed among policymakers, advocates and stakeholders, including those in the HIV-positive and –negative community, he said.

The findings appear in the February issue of the journal Social Problems.

Social Problems – Controlling Sex in the Name of Public Health (2013)

UN Commission on the Status of Women Accepts Statement on HIV Criminalization and Women

The 57th Session of the UN Commission on the Status of Women accepted for publication a Statement calling for the repeal of all laws criminalizing HIV transmission, exposure to HIV, or failure to disclose HIV status.

Influential blogger, Andrew Sullivan, highlights US anti-criminalisation advocacy in his Daily Beast column

In a recent interview, Lee Thompson (aka “Uncle Poodle” from Here Comes Honey Boo Boo) claimed that he brought charges against his ex-boyfriend for infecting him with HIV, resulting in a five-year sentence. Todd Heywood casts doubt on Thompson’s story.

A Spectacle of Stigma: A First-hand Account of a Canadian Criminal HIV Exposure Trial, by Carl W. Rush

Carl W Rush’s powerful essay on the trial of Noel Bowland and Steven Boone who were found guilty on two counts each of aggravated sexual assault in December 2012 for allegedly not disclosing that they were HIV-positive before having a foursome in a hotel room is published in full below with his permission.

It begins thus:

I recently attended the criminal HIV exposure trial of two young men in Kitchener, Ontario. Each was found guilty of two counts of Aggravated Sexual Assault for exposing (but not infecting) two other men to HIV. They are now liable for a Life Sentence.

Prior to the trial, I had been following HIV exposure trials in Canada and reading the courts’ decisions. To me, many of the guilty verdicts just did not seem to fit the evidence presented in the trial or in some cases did not even seem to follow the law. How does non-violent, consensual sex between adults become a crime? I had been wondering if I was missing something; I wondered what it was that I was blind to. Was I being unreasonable? Did I not properly understand the law or the legal procedures? Was I blind to my own ignorance or bias? When I found out that another HIV exposure trial was scheduled right in my own neighbourhood, I knew that I had to go. I had to see what was happening for myself.

His conclusion, that “Canadian HIV exposure trials are both a symptom and a perpetuation of the stigmatization of Canadians with HIV,” definitely resonates with those of us working to end such unjust prosecutions.

Switzerland: New Law on Epidemics delayed due to referendum, change in HIV law still likely

The road to law reform can be long and rocky, especially in a direct democracy like Switzerland. The proposed changes (for the better) to a law that has been used to prosecute people with HIV for potential exposure even when their partner consented to unprotected sex, and/or when there was no risk, first agreed upon last March will now be put to a popular vote.

The revised Law on Epidemics will only criminalise the intentional spread of a communicable disease.

Last week, the initiative committee for a referendum on the new Law on Epidemics brought to the Federal Chancellery over 80,000 signatures from Swiss citizens unhappy with the law.

According to my sources in Switzerland, the public debate has not been about the change in the law relating to prosecutions for HIV exposure or transmission. In fact, the majority of political parties, the government, all the health institutions, and all the Cantons favour the new law.

Rather, the referendum demand was a result of strong opinions over those parts of the law dealing with mandatory vaccinations and sex education in schools.

The date for the referendum is not yet clear, although it is possible that it will take place before the end of 2013. Last November, the same group behind this referendum forced a similar vote on the new law on animal medicine and lost by a large majority (68%), which is encouraging.

Another encouraging sign is that earlier this month, the German-language Tages Anzeiger (Daily Gazette) published a broadly positive article explaining the changes in the law that relate to HIV. I have (unofficially) translated the into English, and it is reproduced below.

The federal government plans to decriminalise the transmission of AIDS

Claudia Blumer, Daily Gazette, 01/11/2013

Switzerland treats HIV-positive people who infect a sexual partner especially harshly. Following international criticism, it will change the criminal code.

Today someone who negligently, willfully or maliciously infects someone with the AIDS virus is punished by up to five years in prison. In the future only transmission of the virus with “malice aforethought” will punishable. The terms “willfully” and “negligently” have been deleted from the revised Law on Epidemics, which includes an amendment to Article 231 of the the Criminal Code. The law was supposed to come into force in early 2013. Due to the referendum, voters are now expected to decide in June.

Parliament adopted the Law on Epidemics in the autumn of 2012. The change in the criminal code was a resul of long debate in the lower houses. Senator Urs Schwaller (CDP) explains why he agreed to change the provision only to “malice aforethought”: “The offender, in this case, would have acted with intent to harm. If they had merely been negligent, this could be prosecuted under general criminal statutes for personal injury. ”

A relaxation of the criminal law also makes sense for preventive-medical reasons, notes Ticino MP Dr Ignazio Cassis (FDP). According to current scientific knowledge prosecuting HIV-positive people is counter-productive because it stigmatises the disease and those affected by it. This may result in greater harm to public health if we do not dare speak openly about the disease. “The general sense of justice collides at this point with the pragmatic preventive medical approach,” says Cassis.

36 convictions since 1990

The Swiss law on HIV transmission has become more restrictive over the past 20 years. At the beginning of the 90s, Article 231 – which covers the spread of disease – was used for the first time in connection with AIDS. Since then, according to Aids-Hilfe Switzerland, there have been 36 guilty verdicts based on actual or attempted transmission of HIV through sexual contact. A federal court ruling from 2008 states that an HIV-positive person can be punished even if they knew nothing of their infection.

The number of convictions in relation to the number of HIV-positive people is higher in Switzerland than in most other European countries. In this country, sometimes even people living with HIV have been punished even if the unprotected sexual intercourse took place with the partner’s full knowledge and consent to the risk of infection, or when no one was infected, or if the HIV-positive person was rendered uninfectious by antiretroviral therapy. The reason for the legal interest is because Article 231 is about “public health”: it does not protect individual interests, but those of the community. The consent of the partner therefore doesn’t protect the HIV-positive person from prosecution. Neighbouring European countries apply laws relating to personal injury or death, resulting in fewer convictions. But many countries are in the process of revising their criminal provisions, says Marcel Niggli, professor of criminal law at the University of Freiburg. The trend is towards decriminalisation.

Laws easing “overdue”

The Swiss law on HIV transmission has been repeatedly criticized by international organisations. However, Switzerland has not been put under political pressure, says Ignazio Cassis. Yet he has heard informal criticism from abroad, for example, at international AIDS conferences. He has been exposed to, among other things, calls from UNAIDS, an agency of the United Nations, for the decriminalization of HIV transmission. In a position paper it calls on governments not to create HIV-specific laws. Switzerland has also been criticized by the UN Human Rights Council. As part of the Universal Periodic Review it criticized Switzerland in an October 2012 report, for punishing HIV-positive people regardless of the specific situation. This is contrary to the prevention strategies. The criminalization of HIV transmission is ineffective and causes only the stigmatization of those affected.

The amendment was not informed by the Federal Health Office, or by a long-standing demand by the Federal Commission for Sexual Health and Aids-Hilfe Switzerland Switzerland. Federal Commission for Sexual Health President Pietro Vernazza has said that the decriminalization of unprotected sex for people with HIV has been overdue since the late Nineties, especially if they were successfully treated with antiretroviral therapy: “Studies have proven the effectiveness of the therapy. During treatment, an HIV-positive is not contagious.”

Full Disclosure: Idaho's HIV Disclosure Laws Causing Their Own Issues

On March 10, 2009, an Idaho grand jury charged Kerry Stephen Thomas with seven felony counts of violating Idaho Code Section 39-608 by “transferring or attempting to transfer any of his bodily fluid, to-wit: semen and/or saliva by genital to genital and/or oral to genital contact, without disclosing his infection of the human immunodeficiency virus (HIV).”