Law Enforcement and HIV Policy Groups Release Fact Sheet for Police on HIV Risks “Spit Does Not Transmit” Intended to Reduce Officer Anxiety and Needless “Exposure” Prosecutions (Press Release)

The Center for HIV Law and Policy (CHLP), the National Organization of Black Law Enforcement Executives (NOBLE) and the American Association of Prosecuting Attorneys (AAPA) today released a new fact sheet that they hope will bring law enforcement officers up to speed on the real risks of HIV that they face from possible exposure to the bodily fluids of those they police.

According to these organizations, every year people with HIV are the subject of felony criminal charges ranging from aggravated assault to intentional HIV transmission following police encounters in which defendants are accused of spitting at or biting police, usually in the course of a stop or arrest for a minor incident, such as disorderly conduct. Although the risk of transmission ranges from zero to far less than 1%, and there are no known cases of HIV transmission to a police or corrections officer from such events, spit and bite incidents have resulted in new or enhanced criminal charges and sentences of more than thirty years in prison. The fact sheet, Spit Does Not Transmit, provides current information, complete with citations to published experts, about transmission risks from non-sexual contact with a person’s bodily fluids.

“Accurate information is critical to law enforcement and corrections officers – In our line of work, our lives and the lives of others depend on it. Studies show just how much misinformation about HIV is transmitted among people in every part of the country, and every profession,” said Joseph Akers, Jr. NOBLE Interim Executive Director. “The nature of law enforcement is such that we encounter people from all walks of life with all sorts of problems. We are regularly exposed to risks; that’s the nature of the job. It is important for officer safety that we understand the facts about HIV transmission, and it is also important that an arrest not turn into a more serious set of charges simply because the arrestee has HIV.”

Statistics show that of all the cases brought against people with HIV for so-called exposure offenses, twenty-five percent (25%) arise from incidents in which spitting or biting has been alleged, and almost all of these have been brought by law enforcement or corrections employees. Law reform efforts that would eliminate the ability to prosecute people on the basis of their HIV or other disease status when they act without the intent or real ability to transmit – as is generally always the case with spitting and biting – are under discussion in multiple states, said Rashida Richardson, a staff attorney with CHLP.

“It is a waste of time and money to devote public safety resources to conduct that, while distasteful, poses no risk of harm,” observed David LaBahn, Executive Director of the American Association of Prosecuting Attorneys. “Too many prosecutions are based on outdated notions of what HIV is and how it is transmitted. Information is the antidote, and this is a good place to start.”

[Although focused on the US, this factsheet will be useful anywhere police are inadequately trained on HIV-related risks during occupational exposure, including discarded needles.]

The fact sheet is available below and on The Center for HIV Law and Policy’s website.

Spit Does Not Transmit, The Center for HIV Law and Policy, the National Organization of Black Law Enforceme…

Canada: Police training and guidelines in criminal HIV non-disclosure cases urgently required

The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (HALCO) have submitted a paper to the Ontario Association of Chiefs of Police Diversity Committee, informed by their extensive experience in working on the issue.

The paper includes concrete recommendations for police that could be addressed in a general Best Practice Manual, and recommend the development of specific guidelines in relation to non-disclosure of HIV (and possibly other sexually transmitted infections), in consultation with people living with HIV and the Ontario Working Group on Criminal Law and HIV Exposure (CLHE), as well as other relevant stakeholders.

The submission states

The Ontario Association of Chiefs of Police should engage in a dialogue with representatives of the community, including the Ontario Working Group on Criminal Law and HIV Exposure(CLHE) in order to develop:

training for police about HIV transmission and the realities of living with HIV today; and

guidelines for police handling matters of alleged HIV (and possibly other sexually transmitted infection) non-disclosure.

Indeed, both training and guidance on HIV-related issues are urgently required in the aftermath of last November’s Supreme Court ruling which has created a great deal of confusion regarding the exact circumstances when alleged HIV non-disclosure may be a crime.

As the submission notes

Guidelines can help ensure that complaints are handled in a fair, non-discriminatory and consistent manner across the province; criminal investigations are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV; criminal investigations do not reinforce societal prejudices, preconceptions, and irrational fears regarding HIV, or undermine public health efforts to prevent the spread of HIV; unnecessary investigations are not pursued; and the rights of people living with HIV and complainants are fully respected and preserved.

Guidance around confidentiality issues are needed now more than ever. Last month, Toronto police issued a press release stating they were looking for a gay man “who failed to notify his partner that he is HIV positive.” The following day, they withdrew the alert “after police probed the case, [because] investigators found that no criminal offence was committed.” Unusually in this case, however, no name or photo was released.

Specific recommendations from HALCO and the Legal Network on this issue state:

Police should consider the negative impacts of publicly disclosing a person’s HIV-positive status given the high level of stigma experienced by people living with HIV. Police must ensure that the privacy of HIV status and other medical information is respected to the greatest extent possible (applies to accused and complainants). Media releases including the name, picture and/or health information of an accused are extremely prejudicial for people living with HIV and should only be published in exceptional circumstances and under strict conditions. Police should be mindful that even where HIV is not specified on a police and/or media release, members of the general public and/or people associated with the accused may easily understand that the accused is HIV-positive because of general awareness of HIV non-disclosure prosecutions in Canada. Detailed guidance should be developed to assist police in making decisions to publish a police and/or a media release, and to assist police with the content of such releases. Guidance should be developed to assist police in communicating to the media and the public about cases involving HIV non-disclosure.

The campaign for police training and guidelines in Ontario runs in parallel with a similar campaign for prosecutorial guidelines. A recent article in Lawyers Weekly highlights how advocates have been pushing for such guidelines for several years, and are hopeful that some movement may now take place

That hope springs from two sources. First, Canadian provinces would not be the first to put such guidelines in place. England, Wales and Scotland already have related prosecutorial requirements. Second, Ontario’s justice ministry had previously indicated a willingness to do this before the recent SCC decisions were handed down.

The full submission can be read below or downloaded here.

The criminalization of HIV non-disclosure: Recommendations for police

Germany: National AIDS Council releases powerful policy statement on HIV criminalisation

The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.

A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)

HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.

The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.

Against this background, the National AIDS Council emphasises: A criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.
Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”

The full text of the statement (in German) can be found here.

US: New toolkit for lawyers defending HIV-related prosecutions now available

A new toolkit from the Center for HIV Law and Policy / Positive Justice Project, released earlier this month, provides a wealth of information for lawyers representing people living with HIV who are facing criminal prosecution based on HIV status.

The toolkit includes charts, articles, guidances, case law, legal analysis, scientific data and empirical citations, as well as quick-reference resources and links to longer reference materials.

The toolkit includes the following resources :

HIV Criminalization Fact Sheet
Guidance for a Legal Advocate Representing an HIV-Positive Client in a Criminal Exposure Case
Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure
Case Law Index
Legal Drafting Resources (featuring sample amicus briefs)
Secondary Resources
Sample Medical Expert Affidavit on HIV Transmission
Chart: Comparative Sentencing on HIV Criminalization in the United States
Chart: HIV, STIs and Relative Risks in the United States
Chart: HIV and Chronic Disease in the United States

Although created primarily as a resource for lawyers, other advocates, as well as people living with HIV in the United States, are likely to find the toolkit useful.

Download ‘Ending and Defending Against HIV Criminalization: A Manual For Advocates Volume 2: A Legal Toolkit: Resources for Attorneys Handling HIV-Related Prosecutions’ from the Center for HIV Law and Policy here.

UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics

Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV.

The report’s lead author, Dr Catherine Dodds, from Sigma Research at the London School of Hygiene & Tropical Medicine, said: “Although HIV health and social care professionals expressed diverse views about their potential role in such cases, they gave a clear sense that criminal prosecutions for the transmission of HIV would not improve public health. Instead, it was most common to hear descriptions of such cases leading to increased stigma, reduced trust between service users and providers, and traumatic consequences for those involved in such cases.”

Study co-investigator, Matthew Weait, Professor of Law and Policy at Birkbeck, Univerisity of London, said: “This important and innovative research demonstrates both the problems that HIV criminalisation creates for clinical and social care providers and the need for solutions at both national and regional level. Care providers working in HIV and sexual health are concerned primarily with the health and wellbeing of their service users – which is of course as it should be; but there is also evidence that criminalisation is compromising their work. Increased awareness and understanding of, and inter-organisational communication about, legal issues is critical, and Keeping Confidence makes practical recommendations as to how that work might be taken forward for the benefit of prevention and support.”

Roger Pebody from aidsmap.com does an excellent job of summarising the study and its findings in this news report:

The study explored how criminal prosecutions for HIV transmission in England and Wales are handled by those who deliver clinical, psychosocial and community support for people with HIV. The report paints a picture of professionals grappling with the difficulties of communicating complex legal information in an appropriate way for each individual. They must weigh up competing concerns and responsibilities, including their own patient’s health and wellbeing, the health of unidentified sexual partners and the legal liability of their own organisation.

Read more at aidsmap.com

The report was launched in central London yesterday at a one-day meeting attended by around 70 HIV service providers, representatives of most of the UK’s community-based HIV organisations, and people living with HIV.

Following presentations of the report’s main findings, a panel consisting of a health adviser, and representatives of community-based organisaton and a people living with HIV discussed the implications for them.

Ceri Evans, Senior Health Adviser at the West London Centre for Sexual Health, Chelsea and Westminster Hospital, highlighted that there may not be a ‘best time’ to inform a newly diagnosed individual of their new legal obligations. Athough she agreed that the post-testing counselling session may not be ideal, she noted that since the criminal law potentially covers all sexually transmissable infections, including genital herpes, and there is usually only a single oppportunity to provide counselling following a new herpes diagnosis, that information about the law might need to be provided to some patients sooner rather than later.

Of note, the report’s fieldwork, involving 75 providers of HIV health and social care services in England and Wales, was undertaken in the latter half of 2012. Since then, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have released an updated position statement on HIV Transmission, the Law and the Work of the Clinical Team which provides clinicians with information and guidance on managing many of the issues highglighted as problematic in the research. Lead author, Dr Mary Poulton, Consultant and Clinical Lad, Sexual Health and HIV, Kings College Hospital, London, outlined the main recommendations and provided case studies that illustrated how the decision-guiding algorithm regarding third-party disclosure might be particularly useful.

The rest of the meeting focused around discussing the report’s recommendations, which were as follows.

National recommendations

1. HIV service professionals will benefit from a single website or webpage that collates practical and accessible information about criminal prosecutions for the sexual transmission of HIV. It will need to be updated as new resources become available, and older ones are revised. New resources should be published as required in order to keep pace with clinical and scientific developments in the treatment of HIV that may impact on legal decision-making. The online resource can also identify the best sources of expert criminal legal advice where those are available.

2. A nation-wide programme of continuous professional development in the criminal law should be available to those who provide clinical and non-clinical HIV services. Topics covered should include: straightforward legal definitions and defence arguments, how and when to raise discussions about legal responsibilities, professional liability, communication skills development through the use of scenarios, and existing policy and practice models.

3. Key contacts with an interest in criminal prosecutions should be identified in each clinical and non-clinical HIV service organisation.This process should feed into the development of an updated list for the explicit use of disseminating information about information and training discussed in recommendations 1 and 2 above.The key contacts will also be utilised as the main organisational contact for the development and dissemination of resources to inform people with HIV about the law in this area.

Local recommendations

4. Existing professional guidance and associated documents should be discussed and adapted for local use. This will translate differently in specific settings, and it may lead to the development of local criminalisation policies or protocols, or values statements in some workplaces. At a minimum, such activities should strive for internal consistency on advice, facilitation and support.

5. Opportunities should be created for clinics and community-based organisations to exchange best practice as it relates to criminal prosecution for HIV transmission and to discuss where they agree and disagree on a conceptual level about the ethics of responsibility and public health in HIV prevention.

6. Alongside the development of local criminalisation protocols, all organisations will need to review their confidentiality policies, ensuring that they are accessible to service users, and compatible with internal agreements about criminalisation.

Whilst there was broad consenus regarding many of the recommendations, implementation will depend on various stakeholders collaborating, as well as sufficient funding.

Of note, currently only Australia has a website on HIV and the law aimed specifically at HIV healthcare professionals. The Australian Association of HIV Medicine (ASHM) online Guide to Australian HIV Laws and Policies for Healthcare Professionals covers civil, criminal and public health law, and also includes reference to national guidance on the Management of People with HIV who Place Others at Risk.

The entire day was filmed by the HIV Justice Network and video of the main presentations and final disussion outcomes will be available soon.

HIV PJA Campaign Boosts Awareness and Endorsements of the PJP Consensus Statement on HIV Criminalization

The HIV Prevention Justice Alliance (HIV PJA), a Positive Justice Project organization, ran a successful outreach campaign to increase endorserment of the Positive Justice Project Consensus Statement on HIV Criminalization in the United States. The Consensus Statement now has nearly 500 individual and organizational endorsements.

US: President’s AIDS council calls on feds to help states repeal HIV criminalisation laws

Advisory group says these statutes are ‘unjust’ and fuel the epidemic

BY TODD HEYWOOD, AMERICAN INDEPENDENT

The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution last week that calls for an end to federal and state HIV-specific criminal laws and prosecutions.

While the resolution is only advisory, it recommends that the departments of Justice and Health and Human Services issue guidance and offer incentives to state attorneys general and state health departments to eliminate HIV-specific laws. The advisory group also asks these federal agencies to develop guidelines for how to approach HIV within criminal and civil justice systems that are “consistent with the treatment of similar health and safety risks.”

As the resolution notes, 32 states and two territories have laws criminalizing people living with HIV.

In explaining the reason to repeal these laws, the resolution reads:

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons. 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. 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.

PACHA is also requesting that state and federal authorities review the cases of persons convicted under such laws and overturn convictions if deemed appropriate. The group is calling on the Centers for Disease Control and Prevention to “issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.”

“Today’s announcement is an important advancement in our collective effort to modernize unjust and discriminatory HIV criminalization laws,” said Rep. Barbara Lee (D-Calif.), co-chair of the Congressional HIV/AIDS Caucus in a statement last week. Lee introduced the REPEAL HIV Discrimination Act in 2011, which never passed, and served on the United Nations’ Global Commission on HIV and the Law.

“I join the President’s Advisory Council on AIDS in calling on the Department of Justice and the Centers of Disease Control and Prevention to issue clear guidance to states and public health departments on the counterproductive effects of HIV criminalization policies; we must end this clear discrimination against people living with HIV,” Lee continued. “Criminalization laws breed fear, discrimination, distrust and hatred, and we must end them.”

The White House declined to comment on the resolution, but the National HIV/AIDS Strategy adopted by the Obama administration in July 2010 does call for state legislatures to “consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.”

Policymakers at the state level also welcomed the resolution. Randy Mayer, chief of the Bureau of HIV, STD, and Hepatitis for the Iowa Department of Public Health, said the resolution was a new tool in advocates’ fight to repeal Iowa’s HIV-specific law.

“This resolution came at an excellent time for Iowa,” Mayer said in an email to The American Independent.

State activists and public health officials, including Mayer, have laid out a strategy to repeal the state’s law.

“The advocates in Iowa have also aligned their efforts with a public health perspective, so the resolution was a reinforcement of their justification,” Mayer said. “I think the more public health entities that weigh in on this discussion the better.”

But while policymakers praise the resolution, activists urge cautious optimism.

Sean Strub, executive director of the anti-HIV-criminalization organization Sero Project, said the resolution was appreciated, but the “real test will be in whether federal agencies and the administration responds with the necessary urgency.”

Catherine Hanssens, executive director of the Center for HIV Law and Policy, which runs the Positive Justice Project, echoed Strub’s sentiment, noting that while the resolution is important, PACHA “has no power to order anyone to do anything.”

“[HHS] Secretary [Kathleen] Sebelius and President Obama both have the discretion to ignore the resolution’s recommendations.”

Regardless, Hanssens said the resolution is an important milestone in the battle to repeal HIV criminal laws in the U.S.

“The work of advocates who pushed for passage of the resolution is not over,” she said. “But we have passed a major marker on the road to reform, and justice, for many people and communities affected by HIV.”

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.