When you look at the size of the Iowa Code, it’s obvious state officials excel at creating new laws. They are champing at the bit to add more this legislative session. If their goal is really to make Iowa a better place to live, our elected officials should muster as much enthusiasm for repealing problematic statutes.
British Columbia's Emergency Intervention Disclosure Act to allow court-ordered HIV testing of anyone who exposes their "bodily substance" to first responders
The Emergency Intervention Disclosure Act was passed on May 31, 2012 and will come into play March 2, 2013. The new regulation sets out the legal and procedural details that support the act, including adding victims of crime to those who can apply for a testing order.
First responders are pleased that in just a month, they’ll have more peace of mind about being exposed to open wounds and needles on the job. In the past victim’s haven’t had to give a blood sample, but now paramedics and firefighters can get a court order. Before this, first responders would often go months wondering if they had contracted a disease like HIV or Hepatitis.
Nondisclosure prosecutions and population health outcomes: examining HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following nondisclosure prosecution media releases in Ottawa, Canada
This study was designed to examine HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following media releases about a local nondisclosure prosecution in Ottawa, Canada. The authors first reviewed the trends in HIV testing and HIV diagnoses from 2008 through 2011 in Ottawa, Canada. They went on to explore the attitudes and beliefs of local MSM about HIV, HIV prevention, HIV serostatus disclosure, nondisclosure prosecutions, and public health.
Researchers found that, statistically speaking, HIV testing and HIV diagnoses among men who have sex with men did not significantly change after the media releases about a local nondisclosure prosecution. However, qualitatively, a subgroup of 27 men who have sex with men (12 HIV-positive, 15 HIV-negative) expressed their belief that the local public health department openly shares information about people living with HIV with the police. Some HIV-positive participants stated that this perceived association between the local public health department and police services caused them to not access public health department services. The authors conclude that nondisclosure prosecutions do likely undermine HIV prevention efforts.
US: New Study Questions Michigan’s “Health Threat” Law (Press Release)
Michigan health officials are using HIV surveillance technologies to assist in enforcing a “health threat” law that makes it illegal for HIV-positive people to have sex without disclosing their status.
A new University of Michigan study reveals that health officials employ the state’s names reporting database, alongside partner services referrals, for law enforcement purposes. However, this is bad social policy for a variety of reasons, says Trevor Hoppe, the study’s author and a doctoral candidate in sociology and women’s studies.
When clients visit publicly funded health clinics in Michigan to be tested for HIV, they can expect more than just a finger prick or blood draw. Counselors also ask clients extensive questions about their sexual practices and partners. If the client tests positive for HIV or other sexually transmitted diseases, the counselor will provide treatment referrals. They are also legally mandated to ask clients to report the names of sexual partners, which health officials attempt to contact to recommend that they be tested.
Hoppe found that some health officials also ask their clients if any of their partners reported to them that they were HIV-positive. Officials then attempt to cross-reference the reported name against the state’s database of everyone in the state who has been diagnosed as HIV-positive. If an individual reported as a partner is identified by the state as HIV-positive and the client did not report that they disclosed, an investigation would be launched that could have legal ramifications.
At least 24 states have laws making it a misdemeanor or felony for HIV-positive people to have sex without first disclosing their status. In Michigan, failing to disclose is a felony punishable by up to four years in prison—whether or not the person was ever at risk of contracting the disease from their partner.
“The evidence is mounting that these laws are bad public policy and certainly bad public health policy, yet Michigan health officials are helping to enforce them,” Hoppe said.
At the minimum, there is little transparency in how health officials use epidemiological data for law enforcement purposes, he says.
“Health officials in some local jurisdictions are using data they collect for public health purposes to help enforce the law, but they’re not telling their clients how their personal information could be used,” Hoppe said.
From an ethical perspective, the question is whether it is reasonable for health officials to use confidential medical information to enforce the law.
Hoppe interviewed 25 local health officials who manage “health threat” cases from 14 jurisdictions across Michigan. His research also reveals that how local health officials interpret what qualifies as a “health threat” varies. In some cases, local officials suggested that an HIV-positive woman who became pregnant or contracted another STI might be labeled a “health threat.”
“These systems were not intended for legal surveillance, yet data collected by them are susceptible to being used for criminal proceedings,” Hoppe said.
Whether this practice should be continued must be discussed among policymakers, advocates and stakeholders, including those in the HIV-positive and –negative community, he said.
The findings appear in the February issue of the journal Social Problems.
Social Problems – Controlling Sex in the Name of Public Health (2013)
UN Commission on the Status of Women Accepts Statement on HIV Criminalization and Women
The 57th Session of the UN Commission on the Status of Women accepted for publication a Statement calling for the repeal of all laws criminalizing HIV transmission, exposure to HIV, or failure to disclose HIV status.
Galletly CL, Lazzarini Z. Charges for Criminal Exposure to HIV and Aggravated Prostitution Filed in the Nashville, Tennessee Prosecutorial Region 2000-2010.
Charges for Criminal Exposure to HIV and Aggravat… [AIDS Behav. 2013] – PubMed – NCBI
This paper examines comprehensive data on arrests for HIV-specific crimes within a single jurisdiction, the Nashville Tennessee prosecutorial region, over 11 years. There were 25 arrests for HIV exposure and 27 for aggravated prostitution. Eleven of the arrests for HIV exposure involved nonsexual behaviors; none alleged transmission. Sixteen of the arrests for HIV exposure involved sexual behavior; three alleged transmission. Aggravated prostitution cases (i.e. prostitution while knowing one has HIV) often involved solicitation of oral sex; none alleged transmission. Maximum sentences for HIV-specific crimes ranged from 5 to 8 years. We conclude that enforcement of US HIV-specific laws is underestimated. Fifty-two arrests over 11 years were recorded in one jurisdiction. Over half of the arrests involved behaviors posing minimal or no HIV transmission risk. Despite concerns about malicious, intentional HIV transmission, no cases alleged malice or intention.
Journalist alleges some Zimbabweans are "deliberately infected by their partners who go on an HIV-spreading spree"
A divorced Harare woman last year celebrated when she met a man she thought would be her lifetime partner. REPORT BY JENNIFER DUBE Sheila*, – who worked as a mine security guard at the time – was even happier when the man, an official with a government health department, soon moved in with her.
A Spectacle of Stigma: A First-hand Account of a Canadian Criminal HIV Exposure Trial, by Carl W. Rush
Carl W Rush’s powerful essay on the trial of Noel Bowland and Steven Boone who were found guilty on two counts each of aggravated sexual assault in December 2012 for allegedly not disclosing that they were HIV-positive before having a foursome in a hotel room is published in full below with his permission.
It begins thus:
I recently attended the criminal HIV exposure trial of two young men in Kitchener, Ontario. Each was found guilty of two counts of Aggravated Sexual Assault for exposing (but not infecting) two other men to HIV. They are now liable for a Life Sentence.
Prior to the trial, I had been following HIV exposure trials in Canada and reading the courts’ decisions. To me, many of the guilty verdicts just did not seem to fit the evidence presented in the trial or in some cases did not even seem to follow the law. How does non-violent, consensual sex between adults become a crime? I had been wondering if I was missing something; I wondered what it was that I was blind to. Was I being unreasonable? Did I not properly understand the law or the legal procedures? Was I blind to my own ignorance or bias? When I found out that another HIV exposure trial was scheduled right in my own neighbourhood, I knew that I had to go. I had to see what was happening for myself.
His conclusion, that “Canadian HIV exposure trials are both a symptom and a perpetuation of the stigmatization of Canadians with HIV,” definitely resonates with those of us working to end such unjust prosecutions.
Full Disclosure: Idaho's HIV Disclosure Laws Causing Their Own Issues
On March 10, 2009, an Idaho grand jury charged Kerry Stephen Thomas with seven felony counts of violating Idaho Code Section 39-608 by “transferring or attempting to transfer any of his bodily fluid, to-wit: semen and/or saliva by genital to genital and/or oral to genital contact, without disclosing his infection of the human immunodeficiency virus (HIV).”
Norway: National Association of People Living with HIV responds to Norwegian Law Commission report
Yesterday was the deadline for written responses to the Norwegian Law Commission report which shocked and disappointed HIV and human rights advocates in Norway and around the world on its release last October.
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 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.
Since then, Professor Matthew Weait has published Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease on his blog highlighting some of problems with the arguments used in the report.
We have also published an interview with Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections, which presented an alternative vision.
Today, we publish the English translation of the written response by Nye Pluss, the Norwegian national association of people living with HIV.
The organisation found that, overall, the report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.
The HIV Justice Network fully supports their arguments and conclusions and hopes that Norways parliamentarians follow the lead of Labour’s Håkon Haugli and The Conservative Party’s Bent Høie who came out against any specific law last July.
Below is the English translation of the Nye Pluss response, shortened and paraphrased in some areas, but with their full agreement and permission. The original Norwegian version can be read here.
Nye Pluss’s board has read and discussed the Norwegian report. Our perspective is that, as people living with HIV, all aspects of Norwegian HIV policies, including any special penal provision, must have the net result of fewer new infections. Our primary perspective is therefore one of public health.
We have found that, overall, this report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Below, we elaborate our views on these three objections.
Norway’s international responsibility in the fight against HIV
The fight against HIV and AIDS is one of the biggest challenges we face in the world: two million die every year due to AIDS-related illnesses. Around 35 million people live with HIV globally. Nearly three million are newly infected with HIV each year. Norwegian authorities have a responsibility to contribute to the international HIV response. We therefore believe that the discussion on penalising HIV exposure or transmission in Norway must be seen in relation to the international challenges we face. This report does not live up to those challenges.
At page 184 the report states:
“UNAIDS ‘work is global, but is mainly aimed at countries where the prevalence of HIV and AIDS is high. UNAIDS has no European office, such as WHO and recommendations etc. have a global objectives and are hardly suitable for Scandinavian or European conditions. The committee’s review will be largely based on our cultural context, which can be very different from the global.”
It therefore concludes that UNAIDS’ work and recommendations specifically relating to criminal laws are not relevant for Norway, while Norwegian authorities support UNAIDS efforts globally. This is, in our opinion, a somewhat arrogant and culturally discriminatory attitude to the situation in other countries. Although Norwegian law is only applicable in Norway, we expect that Norwegian laws at home should also follow, and are not contrary to, the beliefs and policies that we export to other countries in the world.
“Treatment as prevention” – a medical breakthrough in the fight against HIV
A medical breakthrough took place when the first effective HIV medicines appeared in 1996. In countries where there was good access to these medicines, the number of AIDS-related deaths fell quickly and drastically. Treatment as prevention is, perhaps, just as big a breakthrough – we now know that effective HIV medication prevents new HIV infections. New research shows that the risk of infection is reduced by 96%, more than any other prevention method.
[Several paragraphs discuss international policy relating to ‘treatment as prevention’….]
Nye Pluss notes with surprise that the report only once refers to “treatment as prevention” and even then in a way that gives the impression that the authors of this section have not acquired up-to-date knowledge of the issue. It is regrettable that such an important resource which claims to provide a basis for Parliament to examine Norwegian HIV policy in a holistic context – not least relating to the criminal law – treats such an important part of international HIV policy so superficially. We believe that it is a serious academic failure not to discuss the effects of punitive sanctions on earlier testing and treatment.
Criminal law regulation of serious infectious diseases – an obstacle in the fight against HIV
HIV criminalisation has been a growing problem in many countries around the world in recent years. Criminalisation helps to maintain stigma and prevent openness about HIV, and is thus an unwanted obstacle in HIV treatment and prevention. In addition, HIV criminalisation in many countries works to suppress women and minority groups that are particularly vulnerable to HIV.
Nye Pluss believes that the criminalisation of HIV exposure and transmission has been a barrier to effective HIV prevention in Norway. In some groups, annual HIV figures have tripled over the last ten years, compared with the previous decade.
A future, efficient Norwegian HIV policy will depend on effective and efficient testing, counselling, contact tracing and treatment, such as a “treatment as prevention” strategy. Effective testing of affected populations, effective tracing of possible infected sexual partners and effective treatment is, along with condoms and awareness, cornerstones of reducing new infections in Norway.
For those of us living with HIV, it is important that a future Norwegian strategy is successful, so that fewer people acquire HIV in Norway….One such major obstacle to achieve reduced infection figures is the criminalisation of HIV through a special provision in the Criminal Code, as advocated by the majority of the committee behind the report.
In the pharmaceutical industry….the manufacturer must show that the drug’s harmful effects do not exceed its positive effects… Surely it is possible that an HIV law will negatively impact vulnerable groups of people with HIV who have immigrated from countries with non-democratic regimes, who are more likely to go underground if there are threats of punitive sanctions, so that testing, disclosure, contact tracing, treatment and counselling is not available to them? Nye Pluss consider it obvious that there exists such a legitimate doubt and that this is precisely one of the reasons that some MPs have requested a separate investigation of the criminal law as it relates to HIV. “It is therefore surprising that the majority of the commission’s members argue, without any scientific evidence, that there would be no negative impact to an HIV law.”
Moreover, many members of the committee suggest that “decriminalization could be perceived as a signal that infecting others or exposing others to infection, is no longer a serious matter”(page 248). This is an unscientific, tautological statement based on the completely undocumented assumption that because HIV exposure and transmission is criminalised in Norway it has worked as a prevention tool, and that decriminalising it would lead to more infections, despite a lack of any evidence supporting this.
Nye Pluss believes the committee majority here are completely wrong, and we can refer to international research studies that support this.
[A summary of studies from Canada (O’Byrne, 2012), the US (Sero, 2012), Scotland (Bird and Leigh-Brown, 2001), and England (Whitlock, Warwick et al, 2010) showing a negative impact of HIV criminalisation follows.]
Nye Pluss finds it surprising that the majority of the Committee does not seem to be familiar with the research that has been done in recent years which shows that HIV criminalisation has unique negative impacts on willingness to test, to disclose to sexual partners, and in the creation of uncertainty amongst health care workers and counsellors. This somewhat surprising rejection of the existence of such research and thus a lack of discussion of such readily available research, weakens, in Nye Pluss’s perception, a range of the majority’s conclusions on the importance of the criminal law’s impact on public health: not to discuss the importance of documented research in this area is a serious mistake and results in the majority’s conclusions on public health failing in crucial ways.
Another key point of the debate around a penalty provision for people with HIV is the growth we have seen in HIV figures among particularly vulnerable groups, such as men who have sex with men, over the last ten years…The extremely serious issue that is raised is whether the relatively large number of prosecutions over the past decade has affected HIV testing behaviour, thus increasing the number of untreated individuals, resulting in more new infections.
It is a serious public health issue when there is a tripling of HIV infection among men who have sex with men for the last ten years in Norway. We are in absolutely no doubt that public health has not benefitted from the use of the Penal Code, and are of the opinion that the studies and analyses conducted to date, and as mentioned above, show with great clarity that the increased number of criminal trials over the last decade have impacted Norwegian society and public health in an extremely negative way. Nye Pluss cannot see that the Criminal Code’s provisions against HIV, which the majority recommend, will result in fewer HIV cases.
Nye Pluss believes that the latest scientific advances pertaining to HIV treatment and prevention will do perfectly well by themselves without assistance from the criminal law, including those few cases where restrictive measures for infection control law would be needed against an individual.
Conclusions
Nye Pluss believes that the Committee’s recommendations to maintain the criminal regulation of HIV exposure and transmission and other general dangerous diseases, would undermine Norway’s international responsibility to participate in a common front to combat HIV in the world.
We must recognise that since 100% safe sex is not possible it would be impractical to allow the courts to put a specific limit on what is punishable in a world where sex is a universal activity for the continuation of humanity … To punish a select few who have not mastered ‘safer sex’ – defined narrowly as condom use – is neither a fair or an effective tool in this fight, but rather the opposite.
No matter where you draw the line regarding what is, or is not, a criminal offense, a specific penal code criminalising HIV exposure and transmission will prevent effective prevention, early testing, contact tracing, treatment and counselling, and will put a spoke in the wheels of the “treatment as prevention” strategy that promises to be the breakthrough in the fight against HIV. That the criminal law should be both an obstacle to international responsibility and to effective measures for domestic public health in this area is unacceptable for society.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.