US: Sero Project to present new data on harm of HIV criminalisation to Presidential Advisory Council on HIV/AIDS (PACHA)

Tomorrow, Thursday October 25th, the Sero Project, a human rights organisation comprised of people living with HIV who seek to end inappropriate criminal prosecutions for HIV non-disclosure or for potential or perceived HIV exposure or transmission, will present new data to the Presidential Advisory Council on HIV/AIDS (PACHA) showing the harm of HIV criminalisation.

Preliminary data from the Sero Project’s national criminalisation survey were presented at the International AIDS Conference in Washington, D.C. last July. Among the latest survey findings to be released on Thursday:

● 46 percent of respondents reported that they were not clear about what is required under state laws to protect themselves from prosecution. Another 32 percent were only somewhat clear about the legal requirements.

● 59 percent of young gay, bisexual, and other men who have sex with men (MSM) of color reported that they were not clear about what behaviors related to HIV-positive status put them at risk for arrest, compared to 48 percent of all other men.

● Despite the fact that female respondents were the most likely to indicate complete clarity, only slightly more than 1 in 4 women (26%) said they felt completely clear about what behaviors put them at risk for arrest.

● 49 percent of male respondents, 46 percent of female respondents, and over 57 percent of transgender respondents said that it was “very” or “somewhat” reasonable for people to refuse to take an HIV test for fear of prosecution resulting from a positive test.

● 42 percent of male and female respondents, and 47 percent of transgender respondents, said that it was “very” or “somewhat” reasonable for PLHIV to refuse treatment for fear of prosecution resulting from others discovering their HIV status.

● A full 24 percent of respondents reported knowing at least one person who declined to take an HIV test for fear of prosecution.

● 10 percent of young gay, bisexual, or other MSM living with HIV, and 13 percent of transgender PLHIV, said that they might advise someone to avoid HIV testing because of the possibility of prosecution.

Notes Sero’s executive director, Sean Strub: “We need stronger leadership from PACHA and the federal government to stop the creation of a viral underclass in the law. Most efforts to combat stigma and discrimination are long and arduous and take many years; but by repealing HIV criminalisation statutes, government can take a big step all at once. We need our federal government’s effort to reflect the urgency the criminalisation crisis requires.”

In addition, five survivors of HIV criminalisation prosecutions from around the United States will speak to the panel, as well as the mother and sister of a sixth person prosecuted. “We believe this is the first time any official forum of the federal government has heard directly from a group of people with HIV who have been criminalised,” says Strub. “They are helping to make history and Sero is proud to have brought them to Washington for this important meeting.”

The entire Sero Project press release is republished below.

NEW DATA ON HARM OF HIV CRIMINALIZATION TO BE PRESENTED, SURVIVORS OF CRIMINALIZATION PROSECUTIONS TO SPEAK TO PRESIDENTIAL AIDS COUNCIL

WHAT: On Thursday, October 25, at the Washington Marriott at Metro Center (775 12th St NW), The Sero Project, a human rights organization comprised of people with HIV who seek to end inappropriate criminal prosecutions of people living with HIV (PLHIV) for non-disclosure of their HIV status or for potential or perceived HIV exposure or transmission, will present to the Presidential Advisory Council on HIV/AIDS (PACHA).

Sero will reveal highlights of findings from their survey of over 2,000 people living with HIV (PLHIV) and 800 people from affected communities in the U.S., illustrating how the impact of HIV criminalization drives stigma, discourages HIV testing, disclosure and access to treatment, and disproportionately impacts young people, as well as gay, bisexual and other men who have sex with men (MSM) of color. At the PACHA meeting, Sero will screen HIV Is Not a Crimea short film about the harm criminalization does to PLHIV and HIV prevention.

Five survivors of HIV criminalization prosecutions from around the country (Louisiana, South Carolina, Arkansas, Iowa, and Washington) will speak to the panel, as well as the mother and sister of a sixth person prosecuted. Those charged faced prosecution, incarceration, and/or required sex offender registration for not disclosing their HIV positive status to a partner. None were accused of transmitting HIV.

Sero’s survey was conducted under the direction of principal investigator Laurel Sprague, with the oversight of the institutional review board (IRB) at Eastern Michigan University. Sprague is the regional coordinator for the North American chapter of the Global Network of People with HIV and Sero’s research director, and has herself lived with HIV for more than 20 years.

Sero’s survey shows a profoundly disabling legal environment for people with HIV in the U.S., with many PLHIV uncertain about what is required of them in terms of disclosure and uncertain what behaviors put them at risk of arrest. Many PLHIV and members of affected communities believe that fear of prosecution makes it reasonable for people to refuse to get tested for HIV, disclose their status or access treatment. Nearly a quarter report knowing one or more people who told them that they did not want to get tested for fear of being criminalized.

Among the survey findings to be released on Thursday:

●   46 percent of respondents reported that they were not clear about what is required under state laws to protect themselves from prosecution. Another 32 percent were only somewhat clear about the legal requirements.

●   59 percent of young gay, bisexual, and other men who have sex with men (MSM) of color reported that they were not clear about what behaviors related to HIV-positive status put them at risk for arrest, compared to 48 percent of all other men.

●   Despite the fact that female respondents were the most likely to indicate complete clarity, only slightly more than 1 in 4 women (26%) said they felt completely clear about what behaviors put them at risk for arrest.

●   49 percent of male respondents, 46 percent of female respondents, and over 57 percent of transgender respondents said that it was “very” or “somewhat” reasonable for people to refuse to take an HIV test for fear of prosecution resulting from a positive test.

●   42 percent of male and female respondents, and 47 percent of transgender respondents, said that it was “very” or “somewhat” reasonable for PLHIV to refuse treatment for fear of prosecution resulting from others discovering their HIV status.

●   A full 24 percent of respondents reported knowing at least one person who declined to take an HIV test for fear of prosecution.

●   10 percent of young gay, bisexual, or other MSM living with HIV, and 13 percent of transgender PLHIV, said that they might advise someone to avoid HIV testing because of the possibility of prosecution.

Sean Strub, Sero’s executive director, said: “We need stronger leadership from PACHA and the federal government to stop the creation of a viral underclass in the law. Most efforts to combat stigma and discrimination are long and arduous and take many years; but by repealing HIV criminalization statutes, government can take a big step all at once. We need our federal government’s effort to reflect the urgency the criminalization crisis requires.”

Continued Strub: “We believe this is the first time any official forum of the federal government has heard directly from a group of people with HIV who have been criminalized. They are helping to make history and Sero is proud to have brought them to Washington for this important meeting.”

Said Monique Moree, Sero Advisory Board member, director of Monique’s Hope for Cure Outreach Service in Holly Hill, SC, and a criminalization survivor: “Criminalization is wrong and it hurts women. A lot of women can’t disclose because it invites violence, or because it jeopardizes their housing, employment, family situation or custody of their children. I told my boyfriend he had to use a condom; that’s how I said I had HIV. But I got prosecuted anyway.

“Even though the charges were eventually dropped, they made me feel like a criminal even though I knew I wasn’t. We are treated like monsters instead of human beings. If someone maliciously and intentionally harms someone else, then there should be consequences, but those circumstances are rare and to put everyone with HIV who can’t prove they disclosed in the same category is wrong. HIV criminalization needs to change.”

Said Laurel Sprague, Sero’s Research Director: “There is a clear mismatch between the intention to reduce HIV transmission and deaths and the laws that criminalize HIV non-disclosure or exposure. Instead of working to create a social and legal environment within which people can safely disclose, the laws make people living with HIV deeply vulnerable to violations by the legal system and by partners or former partners. The laws send a message that people living with HIV cannot be trusted to make the right decisions about disclosure on their own and that legal coercion is required. Yet the responses given by people living with HIV to describe their motivations for disclosing their status to a partner indicate that they choose to disclose for fundamentally moral reasons, not because of the existence of the law.”

WHEN/WHERE

October 25, 2012

9:30 to 5:00 pm

Late morning (TBD): Screening of HIV is Not a Crime late morning

3:30 PM: HIV criminalization survivors to speak

Meeting of the Presidential Advisory Council on HIV/AIDS (PACHA)

Washington Marriott

775 12th Street NW

Washington, DC 20005

WHO:

Sean Strub, Executive Director and founder of Sero. Strub is a writer and long-time activist who has lived with HIV for more than 30 years. He founded POZ Magazine, co-chairs the North American regional affiliate of the Global Network of People Living with HIV (GNP+/NA) and co-founded and is a member of the Positive Justice Project. He has been engaged in HIV-related stigma, discrimination, criminalization and empowerment issues since the earliest days of the epidemic.

Laurel Sprague, Research Director of Sero. Laurel Sprague is Sero’s Research Director and works with grassroots and community-based organizations to conduct qualitative and quantitative program evaluation to support participatory, community-based research projects. She has provided technical assistance to local, national, and global organizations and to networks of people living with HIV throughout the US and Canada, as well as in Sub-Saharan Africa, Central and Eastern Europe, and Central Asia. She teaches in the Department of Political Science at Eastern Michigan University and is a PhD candidate at Wayne State University in Detroit, Michigan. Her research focuses on the resiliency and capability of HIV-positive people, particularly when faced with HIV stigma and discrimination, criminalization, human rights abuses. She is the Regional Coordinator for GNP+NA and has lived with HIV for 20+ years.

In addition, the presentation will feature testimony from the following individuals, all of whom have been prosecuted as a result of HIV criminalization, despite not being accused of transmitting HIV:

●   Nick Rhoades, an Iowan, used a condom, had an undetectable viral load and was convicted on a non-disclosure charge and sentenced to 25 years in prison. Advocates helped get the judge to reconsider the sentence and he was released after a year, but is subject to lifetime sex offender registration. Lambda Legal Defense is representing him in an appeal to the Iowa Supreme Court.

●   Robert Suttle served six months in a Louisiana prison and is required to register as a sex offender for 15 years. He was in a contentious relationship; after it ended, the former partner pressed charges against Robert for not initially disclosing his HIV-positive status. Robert is the assistant director of the Sero Project and has worked as an HIV prevention outreach worker, focused on African American MSM.

●   Monique Moree, of South Carolina, was in the Army and pregnant when she found out she was positive. When the Army found out she had a relationship with another soldier, they prosecuted her, despite the other soldier reporting that she told him to use a condom. She faced up to 12 years; although the charges were dropped, Monique had to leave the Army.

●   Edward Casto, of Washington State, was born with HIV and was recently released from prison after serving a year and nine-months on an HIV-related charge.

●   Mark Hunter and his brother, Michael, were born with hemophilia and acquired HIV as children from blood products. Michael died of AIDS in the early 90s; Mark was prosecuted after he and his fiancee broke up. He served 2 1/2 years in an Arkansas prison. He is represented at the PACHA meeting by his mother, Hazel, and his sister, Faith.

●   Donald Bogardus was charged with non-disclosure in Iowa and is presently on a pre-trial release program. He faces up 25 years in prison and lifetime sex offender registration.

About The Sero Project

Sero is a not-for-profit human rights organization comprised of people with HIV who promote the empowerment of people with HIV, combat HIV-related stigma, discrimination and criminalization and advocate for sound public health and HIV prevention policies based on science and epidemiology rather than ignorance and fear.

Sero’s HIV criminalization work includes research, raising awareness and outreach to people with HIV who have been criminalized to create a network of advocates to speak first-hand about the effects of criminalization on their lives. Sero seeks to build a grassroots movement to mobilize the advocacy necessary to end HIV criminalization and promote a human rights-based approach to end the HIV epidemic. Sero is a member of the Positive Justice Project, a national collaboration of activists, professionals and policy leaders combating HIV criminalization, and the HIV Justice Network, a global network of anti-criminalization advocates.

Sero is supported by the Elton John AIDS Foundation, Broadway Cares/Equity Fights AIDS, the H. van Ameringen Foundation and the Global Forum on MSM & HIV.

For more information, see www.seroproject.com.

Video: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

This international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission took place at the Rotes Rathaus in Berlin on 20th September 2012. HIV advocates, law and human rights experts and other concerned stakeholders – including parliamentarians, prosecutors, clinicians and representatives of UNAIDS and UNDP – shared information regarding the current legal situation in Europe and Central Asia and explored ways to ensure a more appropriate, rational, fair and just response.

Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.

Europe is second only to North America as the region with the most convictions. In recent years, some countries such as Denmark, Norway and Switzerland have started to revise their legislation. “These are encouraging signs“, says Edwin Bernard, project leader of the seminar, co-ordinator of the international HIV Justice Network and a member of the European AIDS Treatment Group. “In contrast, we are very concerned about developments in countries like Romania, which recently enacted an HIV-specific criminal law, or in Belgium, where new legal precedents were created allowing prosecutions for the first time. We are also hearing news about absurd and problematic trials for perceived HIV exposure in Austria. The conference was designed to help advocates move forward in these particularly repressive countries.”

Professor Matthew Weait presents his initial analysis of advocacy against HIV criminalisation in Scandinavian and Nordic countries

The conference took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.

Watch the video on the HIV Justice Network Vimeo site here.
Download the agenda here.
Download the concept note here.
The meeting report is available here.

Guilty of illness: Milford man, a convicted sex offender, seeks to educate: HIV is not a crime

When sex offender Robert Suttle moved to town, police went door to door to warn Milford business owners and residents. His crime? See full article text Suttle, who is HIV-positive, had sex with his partner. Though consensual, it was an act that landed him in a hard-labor prison, branded him a sex offender and changed his life.

Canadian HIV/AIDS Legal Network's Alison Symington's powerful op-ed in Toronto's biggest daily

On Oct. 5, the Supreme Court of Canada released its decisions in two cases dealing with the tricky issues of criminal liability for HIV nondisclosure. The court ruled that people living with HIV have a legal duty to tell their sexual partners about their HIV infection except in a narrow set of circumstances – where the risk that HIV would be transmitted approaches zero.

Julio Montaner speaks out against Supreme Court ruling in final paragraph

At first blush, Bradford McIntyre and Deni Daviau appear to have an ordinary love story. The Vancouver couple met online, dated for a year, were married in church and have been happily married for 11 years.

Norway: Long awaited Law Commission report disappoints

The long-awaited report from the Norwegian Law Commission, released last Friday, has shocked and disappointed HIV and human rights advocates in Norway and around the world.

After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission has recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm. The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.

As highlighted in this news story from NAM, low or undetectable viral load will provide no defence to “exposure” charges (although the Commission has recommended that it may be a mitigating fact during sentencing). However, in contrast to the recent Supreme Court of Canada ruling, condoms alone will continue to suffice as a defence.

Given the importance of this report – and its many internal inconsistencies that result in a recommendation for a new law that will actually make it easier to prosecute people with HIV for low- (or no-) risk sex, such as the current oral sex prosecution of Louis Gay – I will be writing a series of stories examining different aspects. In the coming days, there will detailed analysis of the Commissions’ report from Professor Matthew Weait as well as an interview with the dissenting Commission member, Kim Fangen.

Health and Care Services Minister, Jonas Gahr Støre, is presented with the report from Law Commission chair, Professor Aslak Syse on Friday 19th October 2012. (Source: Norwegian Ministry of Health and Care Services)

Background

Since the first prosecution in 1995, Norway has been using a 110 year-old law to prosecute potential or perceived HIV exposure or HIV transmission, which has the the primary aim of protecting public health.

With the exception of one prosecution each for hepatitis B and hepatitis C transmission, the law has only been used in relation to HIV, and so consequently, paragraph 155 of the Norwegian Penal Code is usually referred to as ‘the HIV paragraph’. There is no consent nor ‘safer sex’ defence in this law, which essentially criminalises all sex by people with HIV.

A new penal code was adopted in 2005 that added a consent defence for “spouses” or other couples living together on a steady basis – and the discussion text further noted that condom use should also be a defence. However, this has not been enacted due to its being roundly criticised by many HIV and human rights groups in Norway and beyond – including by South African Constitutional Court Justice, Edwin Cameron – as being overly draconian and hypocritical given Norway’s role as an arbiter and defender of international human rights.

Consequently, in December 2010, the Norwegian Government appointed a law commission on penal code and communicable diseases to assess whether or not a criminal law was necessary, and if so, what should be criminalised. The Commission consisted of 12 members, including medical and legal practitioners, scientists and academics with backgrounds in sexuality, ethics and human rights, as well as one HIV activist, Kim Fangen.

Kim spoke about the work of Commission – and its potential impact – at the recent international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission that took place in Berlin. The meeting was co-organised by the European AIDS-Treatment Group (EATG), Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe.

At the meeting, Kim noted: “It surprised the Commission and many others that people are still being prosecuted under this paragraph [155] when another paragraph was adopted…in 2005. The usual practice in Norway [and elsewhere] is to take into consideration the revised and adopted paragraph even if it’s not yet in force.”

The Commission met twelve times for up to three days at a time, and consulted with national and international experts on HIV and the law along with government representatives, health organisations, and people living with HIV. Some Commission members also participated in the UNAIDS expert meeting on HIV and the criminal law in Geneva, in August/September 2011, as well as the the high level international consultation on HIV and the criminal law held in Oslo in February 2012, which coincided with the Oslo Declaration meeting where two Commission members were present.

In other words, the Commission had every possible opportunity to come up with a report that would result in Norway leading the world in terms of a rational, proportionate, ethical and just response that balances public health with human rights. Instead – with the exception of Kim Fangen – they opted for the most conservative outcome possible, that appears to ignore much of the legal and scientific expertise presented to it, in favour of a law that they believe will act as a deterrent to risky sex and normalise the long-standing Norwegian traditional of promoting monogamous sexual relationships for procreation.

The report

The Norwegian Committee report, entitled ‘Of love and cooling towers’ (to reflect the report’s lesser focus on environmental health issues as well as on HIV and other communicable diseases) can be viewed or download here. Click here to read the substantial English summary online.

As expected, the report is long and detailed, and covers many aspects of regulating issues that have an impact on the public health. A substantial English-language summary is available. I have reproduced a summary (of summaries) of the Commission’s recommendations as they relate to HIV (and ostensibly other sexually transmitted infections) below.

The members of the Commission have divided opinions on whether the person-to-person transmission of infection should be covered by a special penal provision as is the case at present (section 155 of the 1902 Penal Code). One member proposes that this penal provision be repealed and that no new provision be added to the 2005 Penal Code, and that the provision already adopted in the 2005 Penal Code not enter into force.

The 11 other members find it clearly most appropriate to have a separate penal provision on direct and indirect person-to-person transmission of serious communicable diseases, including through sexual intercourse. This is proposed in the draft of section 237 on transmission of infection in the 2005 Penal Code. A separate provision of this nature makes it possible to introduce, in the text of the statute, impunity in cases where responsible behaviour has been displayed in terms of communicable disease control, and to establish rules for when consent will exempt a person from criminal liability. It is proposed that the threat of criminal prosecution should target the act of transmitting a communicable disease that causes significant harm to body or health, as well as blameworthy conduct that results in exposure of another person to the risk of being infected with such a disease.

Of these 11 members, a minority of two is in favour of a penalty only being applicable when infection is transmitted. The other nine members are of the opinion that the act of exposing another person to the risk of infection should also be punishable when the behaviour in question is blameworthy («on repeated occasions or through reckless behaviour») from the perspective of communicable disease control. This is also warranted for evidentiary reasons.

It is proposed that the threat of criminal sanctions for direct and indirect person-to-person transmission of infection should only apply to intentional and grossly negligent acts, contrary to section 155 of the 1902 Penal Code and section 237 of the 2005 Penal Code, which also cover simple negligence. The draft statute states that no penalty is applicable when proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed. Nor is a penalty applicable in the case of transmission of infection in connection with sexual activity when the person who has been infected or exposed to the risk of infection has given prior consent in the presence of health care personnel in connection with infection control counselling.

The special comments to the draft statute point out that the prosecuting authority should show restraint in cases of infection transmitted from mother to child, in connection with the use of shared injection equipment among drug users, in connection with sex work and between two infected persons, particularly when both of them are aware of their own and their partner’s infection status.

The proposal entails a certain decriminalisation and reduced criminalisation in relation to the current section 155, and a clarification of when penalties are not applicable. It is proposed that the penalty level be reduced somewhat. The current maximum penalty (six years’ imprisonment) is only to be maintained for aggravated transmission of infection, which will primarily apply in cases where the transmission of infection has caused loss of life, the infection was transmitted to two or more persons, or transmitted as a result of “particularly reckless behaviour”.

What next?

The report’s recommendations are just that – recommendations – and the final outcome may be very different. The process will take a further 18 months, and won’t be finalised until 2014.

In the coming months, the Ministry of Health and Care Services will, together with the Ministry of Justice and Public Security, thoroughly examine the report and recommendations which is classified as an ONR – Official Norwegian Report.

They will then produce an open hearing letter which will allow for further comment.

All the comments and any additional recommendations will then be taken into consideration before the two Ministries send their final recommendation to the Norwegian Parliament.

It is entirely possible that the Government may ignore these recommendations completely.

The Google-translated headline of the Norwegian-language Aftenposten story of July 24 2012 highlighting that two promiment MPs do not want any law that would criminalise potential or perceived HIV exposure or transmission.

In July, two prominent and influential MPs, Håkon Haugli (Labour) and Bent Høie (Conservative) came out in favour of no replacement for Paragraph 155.

If both parties support their positions, there would be a firm majority in Parliament to ignore the Commission’s recommendation and, instead, to repeal article 155 (and its 2005 replacements) and pass no new law at all.

As the experience of its Nordic neighbour, Denmark, has shown, the sky does not fall in – risky sex and new infections do not increase – when there is no law governing the behaviour of people with HIV, because, as numerous studies have found, the vast majority of people living with HIV are responsible; their behaviour is not influenced by criminal law; and most new infections emanate from undiagnosed HIV.

An Anti-HIV Criminalization Protest Outside the Hofstra University 2012 Presidential Debate

by Gavin Myers HIV is not a crime, enough with all this jail! HIV is NOT a crime! ACT UP! Decriminalize! Healthcare…Treatment is a human right! FIGHT! FIGHT! FIGHT! These were the impassioned refrains of several dozen HIV activists who protested HIV criminalization outside the 2012 Presidential Debate at Hofstra University in Long Island Tuesday night.

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Poz People F*cked By Canadian Supreme Court And They Didn't Use A Condom

Poz People F*cked By Canadian Supreme Court And They Didn’t Use A Condom Posted 10/18/2012 9:00:00 AM By Alex GarnerEditor-at-Large Don’t be fooled by the recent ruling by the Canadian Supreme Court regarding HIV criminalization. It was not a win for social justice. It was a step backwards.