Public television stations across the United States aired Perpetuating Stigma, an episode from the award-winning documentary series In The Life, in February 2012. This special report investigates the injustices that arise when a person’s HIV status becomes a crime, with a focus on how women have been stigmatized and prosecuted under these laws.
Perpetuating Stigma features HIV positive women whose personal stories challenge the theory behind HIV criminalization laws and expose the reality of their impact.
“In The Life’s decision to continue coverage of HIV criminalization, specifically with a report on women, is motivated by the lack of a fair media perspective on this issue,” stated Michelle Kristel, executive director of In The Life Media.
This short film is part of Sero’s ongoing documentation of the experiences of people with HIV who have been prosecuted for “HIV crimes”. To see a growing collection of individual interviews please visit Sero’s video page.
Film by Sean Strub/Sero • Edited by Leo Herrera/HomoChic
Sweden: Campaign to change draconian, punitive policies for PLHIV aiming for Government review
In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms – the impact of treatment on viral load and infectiousness is not yet considered to be part of the safer sex armamentarium.)
But in Sweden you’re damned if you do (disclose) and damned if you don’t because Sweden is one of several countries in western Europe – including Austria, Finland, Norway, and Switzerland – where people with HIV can be (and are) prosecuted for having consensual unprotected sex even when there was prior disclosure of HIV-positive status and agreement of the risk by the HIV-negative partner. Sweden uses the general criminal law for these prosecutions of which there have been at least 40 – out of an HIV population of around 5,000.
And if you think the Swedes aren’t being overly harsh, then watch the harrowing documentary, ‘How Could She?’ about a young woman, Lillemore, who was in such denial that she did not tell anyone that she was HIV-positive (including the doctors who delivered her two children). Even though both children were born HIV-free, and no-one was harmed by her non-disclosure, following the break-up of her marriage, her ex-husband reported her to the authorities and she was sentenced to 2 1/2 years in prison.
Fortunately, most of these countries with overly-draconian policies towards people with HIV are well advanced in the process of examining (and hopefully, changing for the better) such laws and policies.
Switzerland is currently revising its Law on Epidemics, to be enacted later this year, and, according to my sources, the latest version appears to be mostly consistent with UNAIDS’ recommendations.
In 2010, Austria’s Ministry of Justice conceded that an undetectable viral load is considered a valid defence, even if they say individual judges can ignore their recommendation, although much more could still be done to remove the legal onus for HIV prevention on people with HIV.
And Finland has established an expert group on HIV/AIDS within the Finnish National Institute for Health and Welfare with the aim to ensure legislative reform, and address laws and polices that reinforce stigma and discrimination.
But Sweden – which has the most HIV-related prosecutions per capita of people with HIV in Europe (and probably the world) and that’s not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act – is lagging behind, and continues to enforce its ‘human rights-unfriendly’ policies.
A recent conference held just before World AIDS Day put together by the campaign and attended by police, prosecutors and politicians highlighted the many human rights concerns over Sweden’s current laws and policies. I was honoured to be one of only two non-Swedes to speak at the meeting (which was held mainly in Swedish – so a big thank you to Elizabeth, my personal “whisper” translator) – you can see the agenda and download a copy of my presentation here.
Download Google translated version of full article here
The meeting and associated campaign received a lot of press coverage, including the front page of the biggest circulation morning paper in Sweden on World AIDS Day.
At the meeting, HIV Sweden, RFSL and RFSU launched an important new manifesto, ‘HIV, Crime and Punishment‘ that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:
A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
A renewed, clear focus of Sweden’s National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education.
Let’s hope that Sweden’s policymakers take heed. After all, how can a country which supports UNAIDS’ global efforts, and is perceived to be a global champion for human rights around the world treat people with HIV in its own country as second class citizens?
Don’t think Sweden is that bad? Check out the 2005 case of Enhorn v Sweden at the European Court of Human Rights which found that Sweden had unlawfully isolated a man with HIV for a total of seven years, a violation of Article 5 § 1 of the Convention, ‘right to liberty and security of person’.
Regular readers may be familiar with the case of Nick Rhoades from Iowa, who was arrested, prosecuted and sentenced to 25 years in prison because he didn’t disclose he was HIV-positive during a one-night stand with another man, despite using condoms and having an undetectable viral load. Following intervention from human rights groups and HIV advocates, Nick’s 25 year sentence was eventually suspended, but he remains on parole and on the sex offenders list.
Nick is one of three courageous individuals who appear in the trailer for POZ Magazine founder, Sean Strub’s, ongoing documentary project ‘HIV is not a crime‘. Sean’s film will shed light on laws and prosecutions which treat people living with HIV as second-class citizens (Sean’s term is “viral underclass”) and which are informed by stigma, not science.
Sean and I share a common understanding that, especially in the United States, but not exclusively so, HIV criminalisation is having a serious negative impact on both human rights and public health. The high number of cases in the United States is primarily because many states are still enforcing outdated HIV-specific laws many of which were drafted earlier in the AIDS epidemic when HIV-related life expectancy was poor. Reflecting moral panic and poor understanding of HIV transmission risks, their impact is still very much felt today, as Sean’s film will show.
Sean’s documentary project could not have come at a more crucial moment, as efforts are underway on a federal level in the United States (and also on a state level including in Iowa) to modernise (or, ideally, totally repeal) these draconian laws. By focusing on the impact these laws have had on people who are often erroneously characterised by such laws – and the media – as vectors of the HIV epidemic, and even sometimes as “monsters”, and showing their vulnerability and humanity, Sean’s film should help explain in very personal and human terms why these laws are wrong and why they should be repealed.
Sean is looking for funding to complete the documentary (funders, please note!) and he also tells me in an email
I’m looking for additional people to interview, including those who have been prosecuted or are facing prosecution, as well as accusers, people who filed charges or considered filed charges and others. To date I have only interviewed Americans, but I am looking for people with criminalization experiences in other countries as well.
Next week, Sean and I (along with Nick and fellow documentary interviewee, Robert Suttle) will be attending the UNAIDS Programme Coordinating Board’s thematic on HIV and enabling legal environments in Geneva and then will be briefly in London on Friday 16th. If you have a story to tell and will be in Geneva or London next week (or indeed if you are living anywhere else in the world, bearing in mind that Sean is based in the United States) please contact Sean or leave a comment below (I moderate all comments before they are published and so this is simply a way to get in touch with me – I will forward messages to Sean).
US: Positive Justice Project Members Endorse REPEAL HIV Discrimination Act
New York, September 23, 2011 – Members of the Positive Justice Project, a national coalition dedicated to ending the targeting of people with HIV for unreasonable criminal prosecution, voiced their support for the REPEAL HIV Discrimination Act that Congresswoman Barbara Lee (D-CA) introduced today.
The bill calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.
The proposed bill is being met with widespread support. Ronald Johnson, Vice President for Policy and Advocacy at AIDS United (a Positive Justice Project member) says, “AIDS United supports the REPEAL HIV Discrimination Act. It’s long past time for a review of these criminal and civil commitment laws and we welcome Representative Barbara Lee’s efforts to help local and state officials understand and make needed reforms.”
Thirty-four states and two U.S. territories now have laws that make exposure or non-disclosure of HIV a crime. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration even in the absence of intent to transmit HIV or actual transmission. Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV.
For example, a man with HIV in Iowa received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted; although the sentence was eventually suspended, he still was required to register as a sex offender and is barred from unsupervised contact with children. People also have been convicted for acts that cannot transmit HIV, such as a man with HIV in Texas who currently is serving 35 years for spitting at a police officer.
“The Repeal HIV Discrimination Act relies on science and public health, rather than punishment, as the lead response to HIV exposure and transmission incidents. It embodies the courage and leadership needed to replace expensive, pointless and punitive reactions to the complex challenge of HIV with approaches that can truly reduce transmission and stigma,” remarked Catherine Hanssens, Executive Director of the Center for HIV Law and Policy and a founder of the Positive Justice Project
Representative Lee’s bill requires designated officials to develop a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases. The bill also will provide financial support to states that undertake education, reform and implementation efforts. A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the measures the REPEAL HIV Discrimination Act takes to address them.
“The REPEAL HIV Discrimination Act will serve a critical role in educating Members of Congress and the public about the harmful and discriminatory practice of criminalizing HIV. Such state laws often originated during times when fear and ignorance over HIV transmission were widespread, and serve to stigmatize those who are living with HIV. Our criminal laws should not be rooted in outdated myths. Rep. Lee is to be commended for her tireless leadership on behalf of those who are living with HIV/AIDS,” said Laura W. Murphy, director of the ACLU Washington Legislative Office.
Scott Schoettes, HIV Project Director at Lambda Legal summarized the support of many. “Lambda Legal wholeheartedly supports the ‘REPEAL HIV Discrimination Act.’ It is high time the nation’s HIV criminalization laws were reformed to reflect the modern reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.”
Other PJP member statements in support of the REPEAL HIV Discrimination Act:
“The HIV Prevention Justice Alliance expresses our strong commitment to HIV decriminalization and ongoing support for Representative Barbara Lee’s Repeal HIV Discrimination Bill. We have seen how the criminalization of HIV has increased instead of reduced HIV stigma and panic. We have also seen how the criminalization of HIV further targets communities – black, Latino/a, queer, transgender, low income, sex worker, homeless, drug user – which are already disproportionately impacted by HIV/AIDS and mass incarceration. We applaud Congresswoman Lee’s courageous effort to support resiliency and dignity of HIV positive people and loved ones and affirm her continued support for prevention justice and decriminalization.”
—Che Gossett, Steering Committee Member, HIV Prevention Justice Alliance
“This is definitive legislation in the national fight to end HIV discrimination and for survivors of criminalization.”
—Robert Suttle, Member of Louisiana AIDS Advocacy Network (LAAN)
“A Brave New Day is in full support of Rep. Barbara Lee’s Anti-Criminalization bill.”
—Robin Webb, Executive Director of A Brave New Day
“We feel strongly that many such statutes violate human rights, are constitutionally vague, are irrational, and violate the laws of science in that they attempt to characterize known scientifically proven facts about transmission as irrelevant to the issue of potential damage and danger. We feel that people’s ‘fear’ if irrational cannot provide a basis for a criminal statute or prosecution under same and that a statute cannot be both legal and illogical.”
—David Scondras, Founder/CEO, Search For A Cure
For a list of organizations supporting the REPEAL HIV Discrimination Act, click here.
This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.
New report explores implications of tests to estimate timing of HIV infection for criminal prosecutions
The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection.
About RITA and its potential use in criminal law context
RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.
As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.
No test can conclusively state when an individual acquired HIV
“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”
According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission.
“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” saidMsDeborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”
As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.
Better understanding of HIV science in the context of criminal law
The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.
The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.
The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.
UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health.”
I’m honoured to be working as a consultant on this project, and although I can’t currently reveal any more details than in the UNAIDS article (full text below), suffice to say it is hoped that this project will make a huge difference to the way that lawmakers, law enforcement and the criminal courts treat people with HIV accused of non-disclosure, alleged exposure and non-intentional transmission.
The UNAIDS article begins by noting some positive developments previously highlighted on my blog, including Denmark’s suspension of its HIV-specific law. It’s not too late to sign on to the civil society letter asking the Danish Government to not to simply rework the law, but to abolish it altogether by avoiding singling out HIV. So far, well over 100 NGOs from around the world have signed the letter.
The article also mentions recent developments in Norway. In fact, the UNAIDS project is funded by the Government of Norway, which has set up its own independent commission to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people who are alleged to have exposed others, to, and/or transmitted, HIV. It will present its findings by October 2012.
As well as highlighting some very positive recent developments in the United States – the National AIDS Strategy’s calls for HIV-specific criminal statutes that “are consistent with current knowledge of HIV transmission and support public health approaches” and the recent endorsement of these calls by the National Alliance of State and Territorial AIDS Directors (NASTAD) – it also focuses on three countries in Africa.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV.
I’d like to add a few more countries to the “positive development” list.
We believe that the use of criminal law in cases of HIV non-disclosure must be compatible with broader scientific, medical, public health, and community efforts to prevent the spread of HIV and to provide care treatment and support to people living with HIV. While criminal prosecutions may be warranted in some circumstances, we view the current expansive use of criminal law with concern.
We therefore call on Ontario’s Attorney General to immediately undertake a process to develop guidelines for criminal prosecutors in cases involving allegations of non-disclosure of HIV status.
Guidelines are needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner. The guidelines must ensure that decisions to investigate and prosecute such cases are informed by a complete and accurate understanding of current medical and scientific research about HIV and take into account the social contexts of living with HIV.
We call on Ontario’s Attorney General to ensure that people living with HIV, communities affected by HIV, legal, public health and scientific experts, health care providers, and AIDS service organizations are meaningfully involved in the process to develop such guidelines.
As well as providing an extensive and detailed overview regarding the current (and past) use of criminal and public health laws in its eight states and territories, it also provides the latest data on number, scope and demographics of prosecutions in Australia.
There have been 31 prosecutions related to HIV exposure or transmission in Australia over almost twenty years. Of those, a number have been dropped pre-trial, and in four cases the accused has pleaded guilty. All those charged were male, except for one of two sex workers (against whom charges were dropped pretrial in 1991). In cases where the gender of the victim(s) is/are known, 16 have involved the accused having sex with female persons (one of those cases involves assault against minors) and 10 involved the accused having sex with men. This suggests that heterosexual men, who constitute only about 15% of people diagnosed with HIV, are over-represented among the small number of people charged with offences relating to HIV transmission. Further, men of African origin are over-represented among those prosecuted (7 of 30), given the small size of the African-Australian community.
It then systematically examines, in great detail, the impact of such prosections in Australia.
These include:
HIV-related prosecutions negate public health mutual responsibility messages
HIV-related prosecutions fail to fully consider the intersection of risk and harm
HIV-related prosecutions ignore the reality that failure to disclose HIVstatus is not extraordinary
HIV-related prosecutions reduce trust in healthcare practitioners
HIV-related prosecutions increase stigma against people living with HIV
HIV-related prosecutions are unacceptably arbitrary
HIV-related prosecutions do not decrease HIV transmission risks
HIV-related prosecutions that result in custodial sentences increase the population of HIV-positive people in custodial settings
It notes, however, that
There is a narrow category of circumstances in which prosecutions may be warranted, involving deliberate and malicious conduct, where a person with knowledge of their HIVstatus engages in deceptive conduct that leads to HIV being transmitted to a sexual partner. A strong, cohesive HIV response need not preclude HIV-related prosecutions per se. Further work is required by those working in the areas of HIV and of criminal law:
To consider what circumstances of HIV transmission should be defined as criminal;
To define what measures need to be put in place to ensure that prosecutions are a last resort option and that public health management options have been considered; and
To ensure those understandings are part of an ongoing dialogue that informs the development of an appropriate criminal law and public health response.
That’s exactly the kind of policy outcome that UNAIDS is hoping for.
In the meantime, AFAO suggests some possible strategies towards policy reform. Their recommendations make an excellent advocacy roadmap for anyone working to end the inappropriate use of the criminal law.
Their suggestions include:
Enable detailed discussion and policy development
Develop mechanisms to learn more about individual cases
Prioritise research on the intersection of public health and criminal law mechanism, including addressing over-representation of African-born accused
Work with police, justice agencies, state-based agencies and public health officials
Improve judges’ understanding of HIV and work with expert witnesses
Work with correctional authorities
Work with media
I truly hope that the recent gains by advocates in Australia, Canada, Denmark, Guinea, Norway, Togo, Senegal and the United States is the beginning of the end of the overly broad use of the criminal law to inappropriately regulate, control, criminalise and stigmatise people with HIV in the name of justice or public health.
The full UNAIDS article is below. I’ll update you on the project’s progress just as soon as I can.
Countries questioning laws that criminalize HIV transmission and exposure
26 April 2011
On 17 February 2011, Denmark’s Minister of Justice announced the suspension of Article 252 of the Danish Criminal Code. This law is reportedly the only HIV-specific criminal law provision in Western Europe and has been used to prosecute some 18 individuals.
A working group has been established by the Danish government to consider whether the law should be revised or abolished based on the best available scientific evidence relating to HIV and its transmission.
This development in Denmark is not an exception. Last year, a similar official committee was created in Norway to inform the ongoing revision of Section 155 of the Penal Code, which criminalises the wilful or negligent infection or exposure to communicable disease that is hazardous to public health—a law that has only been used to prosecute people transmitting HIV.
In the United States, the country with the highest total number of reported prosecutions for HIV transmission or exposure, the National AIDS Strategy adopted in July 2010 also raised concerns about HIV-specific laws that criminalize HIV transmission or exposure. Some 34 states and 2 territories in the US have such laws. They have resulted in high prison sentences for HIV-positive people being convicted of “exposing” someone to HIV after spitting on or biting them, two forms of behaviour that carry virtually no risk of transmission.
In February 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD), the organization representing public health officials that administer state and territorial HIV programmes, expressed concerns about the “corrosive impact” of overly-broad laws criminalizing HIV transmission and exposure. The AIDS Directors called for the repeal of laws that are not “grounded in public health science” as such laws discourage people from getting tested for HIV and accessing treatment.
Positive developments have also been reported in Africa. In the past year, at least three countries—Guinea, Togo and Senegal—have revised their existing HIV-related legislation or adopted new legislation that restrict the use of the criminal law to exceptional cases of intentional transmission of HIV. Best available scientific evidence to inform the criminal law
These developments indicate that governments are also calling for a better understanding of risk, harm and proof in relation to HIV transmission, particularly in light of scientific and medical evidence that the infectiousness of people receiving anti-retroviral treatment can be significantly reduced.
To assist countries in the just application of criminal law in the context of HIV, UNAIDS has initiated a project to further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission or exposure is appropriately circumscribed by the latest and most relevant scientific evidence and legal principles so as to guarantee justice and protection of public health. The project, with support from the Government of Norway, will focus on high income countries where the highest number of prosecutions for HIV infection or exposure has been reported.
The initiative will consist of two expert meetings to review scientific, medical, legal and human rights issues related to the criminalization of HIV transmission or exposure. An international consultation on the criminalization of HIV transmission and exposure in high income countries will also be organized.
The project will further elaborate on the principles set forth in the Policy brief on the criminalization of HIV transmission issued by UNAIDS and UNDP in 2008. Its findings will be submitted to the UNDP-led Global Commission on HIV and the Law, which was launched by UNDP and UNAIDS in June 2010.
As with any law reform related to HIV, UNAIDS urges governments to engage in reform initiatives which ensure the involvement of all those affected by such laws, including people living with HIV.
US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws
NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.
Its motto is: ‘Bridging Science, Policy, and Public Health’.
The message of their statement is simple: repeal these laws because
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.
In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will
advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Further, NASTAD encourages its members to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement. Read his report at the Michigan Messenger here.
NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES
The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.
As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.
HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:
A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;
A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.
In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:
Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Approved by NASTAD’s Executive Committee: February 2011
More than 30 US states have laws criminalizing HIV exposure, transmission or non-disclosure of an individual’s HIV status. IN THE LIFE looks at the stigma and misinformation embedded in laws meant to curb the spread of the disease and the human cost among those who are HIV positive. Includes footage from the New York launch of the Positive Justice Project.
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