Russia: Deporting migrants with HIV from Russia is not only inhumane but also economically unprofitable

State asked to stop expulsion of migrants with HIV

Automated translation via Deepl.com – For original article in Russian, please scroll down.

Representatives of the Regional Expert Group on the Health of Migrants in the EECA region called the current practice of deporting migrants with HIV in Russia not only inhumane but also economically unprofitable. Treatment of neglected cases, when a person hides their status and lives illegally, out of fear of deportation, costs the state more than 200 thousand rubles, the experts estimate. At the same time, if the law allowed them to live and be treated – at their own expense or at the expense of the migrants’ home country, a course of annual therapy would cost about 90 thousand rubles. In 2016, the ECHR already demanded that Russia completely refrain from discriminating against HIV-positive foreigners, but since then, the legislation has not changed.

The Regional Expert Group on the Health of Migrants in the EECA Region (REG) assessed the potential economic benefits of not discriminating against foreigners with HIV-positive status in Russia. The authors of the study concluded that allowing migrants to live and be legally treated in Russia “is not only more beneficial from a humanitarian and epidemiological point of view, but also from an economic one.

A 1995 law prohibits foreign nationals with HIV from entering, staying and residing in Russia. If foreigners who have been tested not anonymously are found to be HIV-positive, Rospotrebnadzor makes a decision on their undesirability to stay in the country. Experts point out that for fear of deportation, many migrant workers hide their disease. They do not take antiretroviral therapy and, in their serious condition, end up in hospitals where they cannot, by law, be denied emergency medical care. The authors calculate that if a patient were to receive the necessary therapy, the cost of treatment would be 83,084 roubles a year, or about 6,924 roubles a month. They note that these costs “with certain legislative amendments” could be paid by the country of origin.

However, if a foreigner with HIV infection does not receive treatment and, as a result, develops complications, inpatient treatment for 21 days and an antiretroviral therapy course will cost 228,572.6 roubles. This treatment option is covered by the budget of the Russian Federation.

The authors draw attention to the high prevalence of HIV infection in Russia, 54.8 people per 100,000 population. In countries from which migrant workers come most frequently, the rate is much lower: 14.2 in Tajikistan, 13.2 in Kyrgyzstan and 7.2 in Azerbaijan. They also cite a recent study by the Russian Ministry of Finance on the impact of HIV on economic and demographic development in Russia. According to the study, the annual loss of society from the uncontrolled spread of HIV infection is about 200 billion roubles. The researchers note that “one of the characteristic features of the current stage of HIV infection in Russia is the expansion of the hidden epidemic among labour migrants who are forced to keep their HIV status secret”.

According to the Central Research Institute of Epidemiology of Rospotrebnadzor, 37,389 HIV-positive foreigners have been identified in Russia since 1985, when the first case of infection was detected, until the end of 2019 (these are those who have been officially tested). In the same time period, the number of HIV-positive Russians has reached 1,420,975. Vadim Pokrovsky, head of the Federal AIDS Center, told Kommersant that given the ratio, the influence of foreigners on the epidemiological situation “is not that great. He said that in the late 1980s, when the infection was indeed found mainly in people arriving from abroad, there was “some sense” in screening them and sending them home. Within a few years, the number of Russians who were infected outnumbered the foreigners, he continued, but the deportations were supported by “hooray patriots,” who believed they were thus “saving Russia from HIV infection. Now, according to Mr. Pokrovsky, the main problem is economic, as treatment is lifelong, expensive and it is unclear at whose expense migrants will receive it.

“In order to implement the proposals in the study, the legislation would need to be amended accordingly. There is no doubt that this will meet with a wave of controversy,” says Mr Pokrovsky.

In 2016, the European Court of Human Rights (ECHR) found Russia guilty of violating the rights of HIV-positive foreigners who were banned from entering and staying in Russia if they had the disease. The year before, following a ruling by the Constitutional Court, it was ruled that if a migrant’s spouse, children or parents are Russian citizens, he or she cannot be expelled. However, the ECHR insisted on a complete rejection of discrimination against HIV-positive persons. The ruling stated that Russia was the only CoE country and one of 16 countries in the world to deport foreigners solely on the basis of their HIV status.

Coordinator of charitable programmes of the Civic Assistance Committee Varvara Tretiak (listed by the Ministry of Justice as a foreign agent) argues that finding a migrant with HIV is almost impossible: people “just go into the shadows”, live and work illegally. The Committee more often has to interact with refugees with HIV-positive status. Ms. Tretiak tells the story of an Uzbek national who sought asylum in Russia after fleeing the country for fear of being prosecuted for homosexuality. He tried to obtain a work permit and underwent a medical examination to do so. However, after being diagnosed with HIV, the “road in the legal field”, according to Varvara Tretiak, was closed to him. As a result, he moved to a third country.

One of the authors of the report, researcher Daniil Kashnitsky of the HSE Institute for Social Policy, told Kommersant that the results of the study will be sent to Rospotrebnadzor, the Ministry of Health and the Interior Ministry. Rospotrebnadzor told Kommersant that legislation on migration policy issues has been “optimized” in recent years. The Ministry also stated that they had not made “any decisions regarding undesirability of stay (residence) of foreign nationals or stateless persons from March 15 until December 15, 2020. The Ministry of Health told Kommersant that the agency “raises big questions about both the methodology and conclusions of the study.

Государство просят отказаться от практики выдворения мигрантов с ВИЧ

Представители Региональной экспертной группы по здоровью мигрантов в регионе ВЕЦА назвали действующую в РФ практику депортации мигрантов с ВИЧ не только негуманной, но экономически невыгодной. Лечение запущенных случаев, когда человек из страха выдворения скрывает статус и живет нелегально, обходится государству более чем в 200 тыс. руб., подсчитали эксперты. При этом если бы закон позволял им жить и лечиться — за свой счет или за счет родной страны мигрантов, курс годовой терапии стоил бы около 90 тыс. руб. В 2016 году ЕСПЧ уже требовал от России полного отказа от дискриминации ВИЧ-инфицированных иностранцев, однако с тех пор законодательство так и не изменилось.

Региональная экспертная группа по здоровью мигрантов в регионе ВЕЦА (РЭГ) оценила потенциальную экономическую пользу от отказа от дискриминации иностранцев с ВИЧ-положительным статусом в России. Авторы исследования пришли к выводу, что позволить мигрантам жить и легально лечиться на территории России «выгоднее не только с гуманитарной и эпидемиологической, но и с экономической точки зрения».

Закон от 1995 года запрещает иностранным гражданам с ВИЧ въезд в Россию, их временное пребывание и проживание. Если у иностранцев, прошедших тестирование не на условиях анонимности, выявлена ВИЧ-инфекция, Роспотребнадзор выносит решение о нежелательности их пребывания на территории страны. Эксперты обращают внимание, что из-за страха депортации многие трудовые мигранты скрывают заболевание. Они не принимают антиретровирусную терапию и в тяжелом состоянии попадают в больницы, где им по закону не могут отказать в экстренной медицинской помощи. Авторы подсчитали, что если пациент будет получать необходимую терапию, стоимость лечения составит 83 084 руб. в год, или примерно 6924 руб. в месяц. Они отмечают, что эти затраты «при внесении определенных поправок в законодательство» могут быть оплачены за счет страны исхода.

При этом если иностранец с ВИЧ-инфекцией не получает терапию, вследствие чего у него развиваются осложнения, стационарное лечение длительностью 21 день и курс антиретровирусной терапии обойдутся в 228 572,6 руб. Этот вариант лечения обеспечивается за счет бюджета РФ.

Авторы обращают внимание на высокую распространенность ВИЧ-инфекции в России — 54,8 человека на 100 тыс. населения. В странах, из которых трудовые мигранты приезжают чаще всего, показатель гораздо ниже: 14,2 — в Таджикистане, 13,2 — в Киргизии, 7,2 — в Азербайджане. Кроме того, они ссылаются на недавнее исследование Минфина России о влиянии ВИЧ на экономическое и демографическое развитие РФ. Согласно его данным, ежегодные потери общества от неконтролируемого распространения ВИЧ-инфекции составляют примерно 200 млрд руб. Исследователи отмечают, что «одной из характерных черт современного этапа распространения ВИЧ-инфекции в РФ является расширение масштабов скрытой эпидемии среди трудовых мигрантов, вынужденных держать свой ВИЧ-статус в тайне».

По данным ЦНИИ эпидемиологии Роспотребнадзора, в России с 1985 года, когда был обнаружен первый случай инфекции, до конца 2019 года было выявлено 37 389 ВИЧ-положительных иностранцев (речь о тех, кто прошел обследование официально). За это же время число ВИЧ-инфицированных россиян достигло 1 420 975 человек. Глава федерального центра по борьбе со СПИДом Вадим Покровский сказал “Ъ”, что, учитывая соотношение, влияние иностранцев на эпидемиологическую ситуацию «не такое уж большое». По его словам, в конце 1980-х, когда инфекция действительно обнаруживалась в основном у приезжающих из-за рубежа, в их обследовании и высылке на родину «был какой-то смысл». Уже через несколько лет число россиян—носителей инфекции значительно превышало число иностранцев, продолжает он, однако практика депортации поддерживалась «ура-патриотами», которые считали, что таким образом «спасают Россию от ВИЧ-инфекции». Сейчас, по мнению господина Покровского, основная проблема — экономическая, так как лечение пожизненное, дорогостоящее и непонятно, за чей счет мигранты будут его получать.

“Для того чтобы реализовать те предложения, о которых идет речь в исследовании, нужно внести соответствующие изменения в законодательство. Несомненно, это встретит волну споров»,— говорит господин Покровский.

Отметим, в 2016 году Европейский суд по правам человека (ЕСПЧ) признал Россию виновной в нарушении прав ВИЧ-положительных иностранцев, которым при наличии этого заболевания был запрещен въезд и пребывание в РФ. За год до этого, после соответствующего решения Конституционного суда, вышло постановление, что если у мигранта супруг, дети или родители — граждане РФ, его нельзя выдворять. Однако ЕСПЧ настаивал на полном отказе от дискриминации ВИЧ-инфицированных лиц. В решении говорилось, что Россия является единственной страной СЕ и одной из 16 стран в мире, которая депортирует иностранцев только на основании их ВИЧ-статуса.

Координатор благотворительных программ комитета «Гражданское содействие» (внесен Минюстом в список иноагентов) Варвара Третяк утверждает, что найти мигранта с ВИЧ практически невозможно: люди «просто уходят в тень», живут и работают нелегально. Комитету чаще приходится взаимодействовать с беженцами с ВИЧ-положительным статусом. Госпожа Третяк рассказывает историю гражданина Узбекистана, который, покинув страну из страха уголовного преследования за гомосексуализм, просил убежища в РФ. Он попытался получить патент на работу и для этого прошел медобследование. Однако после выявления ВИЧ «дорога в легальном поле», по словам Варвары Третяк, для него была закрыта. В результате он переехал в третью страну.

Один из авторов доклада, научный сотрудник Института социальной политики ВШЭ Даниил Кашницкий сообщил “Ъ”, что результаты исследования будут направлены в Роспотребнадзор, Минздрав и МВД. В Роспотребнадзоре “Ъ” заявили, что в последние годы законодательство по вопросам миграционной политики «оптимизируется». В ведомстве также заявили, что не принимали «решения о нежелательности пребывания (проживания) в отношении иностранных граждан или лиц без гражданства с 15 марта до 15 декабря 2020 года». В Минздраве “Ъ” сообщили, что в ведомстве «вызывают большие вопросы как методология, так и выводы исследования».

[Update]US: New legislation decriminalising HIV non-disclosure takes effect this week in Virginia

Virginians No Longer Required to Disclose HIV+ Status to Sexual Partners

It is no longer a crime for Virginians to fail to disclose their HIV+ status before engaging in sexual activities with an unknowing partner, after legislation from the General Assembly’s spring session took effect Thursday.

The new law says that it is not a crime to unknowingly transmit the virus, for which there is no cure, unless the person transmitting intended to do so. Under the new law, an accuser must also prove that they contracted the virus.

“Those changes set a new legal bar for accusers that’s nearly impossible to scale,” The Body, an HIV/AIDS resource website said. “The previous law only required proof of intent, putting the burden of proof on the partner living with HIV.”

One of the cosponsors of the legislation that changed the law celebrated on Twitter.

“The HIV Law Modernization bill is now law! This law, which I passed with [state Sen. Mamie Locke] reforms outdated and ineffective 1980s-era laws that criminalize HIV. These laws were ineffective from a public health perspective and stigmatize HIV-positive status,” state Sen. Jennifer McClellan (D-District 9) said.

Virginia, whose General Assembly is controlled by Democrats and took a leftward turn during the spring session, is only the ninth state to implement relaxed HIV+ transmittal laws.

In many states, an accuser only has to prove possible exposure in order for criminal charges to be brought.

But activists are not satisfied with simply raising the bar for prosecution.

They were also hoping that the punishment for crime would be reduced from a felony, to a misdemeanor, and will likely keep fighting until that happens.

“That was one of our hard demands, but after careful consideration of how far we were able to push so many other great wins, we decided to accept it,” activist Dierdre Johnson told The Body.

Published on CBS News on 21/03/2021

Northam acts on final pieces of legislation from special session

RICHMOND, Va. (CBS19 NEWS) — Governor Ralph Northam has finished taking action on legislation that passed during the special session of the General Assembly.

According to a release, he signed several bills, including measures to ensure schools provide safe, in-person learning opportunities, bans firearms at polling locations, extends eviction protections, and provide paid sick leave to home health care workers.
Additionally, Northam proposed several amendments to the state budget.

“Throughout this session, we have focused on responding to the ongoing public health and economic impacts from the COVID-19 pandemic and moving our Commonwealth forward,” he said. “These new laws will increase support for Virginia families and businesses, ensure our children and teachers can safely return to classrooms, advance equity, and tackle systemic racism. I am extremely proud of the meaningful progress we have made to enact legislation as unprecedented as the challenges we are facing.”
Senate Bill 1138, sponsored by Senator Mamie Locke, updates several outdated criminal laws related to people living with HIV and other sexually transmitted infections. The reforms reflect contemporary public health knowledge and help to de-stigmatize these diseases.

Virginia General Assembly passes bill to modernize HIV laws

Published by NBC12 on February 20, 2021

RICHMOND, Va. — The General Assembly passed a bill this week that lawmakers say will modernize Virginia’s current HIV laws.

Senate Bill 1138, introduced by Sens. Mamie Locke, D-Hampton, and Jennifer McClellan, D-Richmond, also removes a law that prohibits the donation of blood and organs by people with HIV and other sexually transmitted diseases. A 21-17 vote along party lines pushed the bill out of the Senate earlier this month. The House of Delegates passed the bill Friday in a 56-44 vote.

The bill repeals a law that makes it a felony for HIV-positive people to sell or donate blood, body fluids, organs and tissues. Donors must be in compliance with the HIV Organ Policy Equity Act. This state legislation does not apply to national organizations such as the American Red Cross. The organization implements FDA guidelines that require men who have sex with men to defer from sexual intercourse for three months before donating blood.

The measure also removes HIV, AIDS, syphilis and hepatitis B from the list of infectious biological substances under the current infected sexual battery law, opting to use the language “sexually transmitted infection.” The crime is punishable by a Class 6 felony, which carries a punishment of no more than five years in prison or a $2,500 fine. In 2019 and 2020, three offenders were convicted of such crimes, according to data provided in the impact statement by the Virginia Criminal Sentencing Commission. The Senate voted to lower the penalty from a Class 6 felony to a Class 1 misdemeanor.

Opponents of the bill spoke against reducing the penalty for such crimes. The House vote Friday included an amendment to keep the Class 6 felony punishment.

The bill adds language that HIV will not be included in the current statute as an infectious biological substance. It is a Class 5 felony to cause malicious injury by means of an infectious biological substance. The offense is punishable by five to 30 years in prison.

McClellan said current HIV laws put in place during the 1980s AIDS epidemic have proven ineffective from a public health perspective. She said they are counterproductive and were implemented years ago to receive federal funding.

February 6, 2021

Citing stigma and fear, Virginia Senate votes to reform HIV criminalization law

Deirdre Johnson first learned she had HIV when she was six months pregnant. She was shocked to learn that in Virginia, it was a crime for her to have consensual sex with someone without disclosing she had the virus.

“Virginia’s HIV criminalization law is rooted in stigma and discrimination,” Johnson said. “It targets people living with HIV and paints them — and people like me — as vectors of disease to be feared and criminalized.”

Johnson, who lives in Petersburg, takes medications so that she now is at no risk of transmitting the virus. Her son was born HIV-negative. She co-founded Ending Criminalization of HIV and Overincarceration in Virginia, and advocates for changing the state’s HIV criminalization laws.

Good news from Equality Virginia:

Senate Bill 1138 to Modernize and Repeal Discriminatory HIV Laws in Virginia Receives Senate Judiciary Committee Approval

Current laws disproportionately impact Black, Indigenous, Latinx communities and other people of color

RICHMOND, Va. (Jan. 28, 2021) – The Virginia Senate Judiciary Committee approved Senate Bill 1138 on Wednesday, a bill sponsored by State Senators Mamie Locke (D-Hampton) and Jennifer McClellan (D-Richmond) that would amend and repeal current HIV statutes that disproportionately impact people of color.

SB 1138 would create several updates to the Virginia Code limiting the scope of the law to prevent criminalization and eliminating additional punishments for people living with HIV when charged with a crime.

HIV criminalization refers to the use of laws and policies to target and punish people based on their HIV positive status. Virginia is one of 37 states with laws criminalizing the alleged potential exposure, non-disclosure, or potential transmission of HIV.

“These outdated, dangerous, and discriminatory laws disproportionately impact Black, Indigenous, Latinx and other persons of color,” said Vee Lamneck, executive director of Equality Virginia. “To ensure an equitable state for Black and Brown individuals and to promote public health, it’s essential lawmakers pass SB 1138.”

The HIV epidemic remains a significant public health issue across the country and in Virginia. According to the Virginia Department of Heath’s most recent data, approximately 25,000 people live with HIV in the commonwealth. Data highlights that communities of color, LGBTQ+ individuals, people who use drugs, and sex workers are most likely to be impacted by HIV.

Despite only making up 19.5% of the state’s population, Black people represent 58% of persons living with HIV in Virginia. The rate of Black males living with HIV is 5.5 times higher than white males and the rate of Black females living with HIV is 15.1 times that of white females.

Meanwhile, the rate of Hispanic/Latino males living with HIV is 2.2 times higher than white males and the rate of Hispanic/Latina females living with HIV is 4.1 times that of white females.

Current state laws, some of which were originally enacted in the 1980s, do not reflect modern public health and scientific best practices, and disproportionately harm communities of color.

“Virginia’s current HIV laws are rooted in fear and racial biases,” said Deirdre Johnson, co-founder of ECHO VA coalition. “Criminalization increases stigma and harms marginalized communities. Data shows that these laws target and harm women of color, women who do sex work, and transgender women.”

Studies in other states highlight how HIV laws are enforced based on race and gender. A study by The Williams Institute at UCLA School of Law of Georgia’s criminal justice system reported that Black men and women are significantly more likely to be arrested for HIV-related offenses than their white peers, and Black men are nearly twice as likely to be convicted than white men.

“It’s critical we pass SB 1183 as we continue the important work to make a more equitable justice system for all Virginians,” said Senator Locke. “HIV criminalization undermines public health and helps fuel the HIV epidemic in our state. I am committed to working with my General Assembly colleagues to ensure current laws are repealed and modernized to reflect modern science and public health strategies.”

“Living with HIV should not be a crime,” added Senator McClellan. “We know current laws deter testing and create additional barriers for vulnerable populations. HIV criminalization is a critical public health issue that lawmakers can help solve by passing SB 1138.”

Last November, HIV advocacy groups ECHO-VA and the Positive Women’s Network-USA testified about current HIV laws to Virginia’s Commission to Examine Racial Inequity in Virginia Law, a council charged with identifying and making recommendations to address laws that were intended to or could have the effect of promotion or enabling racial discrimination or inequities. The Commission was highly receptive to the testimony and agreed to include a review of the state’s HIV criminalization statute with a recommendation to establish a task force to examine the statute’s impact on racial and ethnic minorities in its 2020 report to the Governor.

“HIV isn’t a death sentence and it should never be a prison sentence,” said Kamaria Laffrey, with the Sero Project. “We know current laws are disproportionately enforced against Black individuals and disenfranchised communities. Passing SB 1138 is essential to stopping the inappropriate and unjust criminal prosecutions of people living with HIV.”

“We know the current laws are not effective from a public health perspective,” said Breanna Diaz with Positive Women’s Network-USA. “These discriminatory policies discourage people from seeking HIV testing and treatment. They create mistrust of, and alienation from, public health institutions and put people living with HIV at heightened risk of violence from intimate partners.”

US: Ohio HIV laws are antiquated, unscientific and harmful

Ohio groups push to change HIV notification laws

Some health and advocacy groups say Ohio has woefully antiquated and unjust HIV laws that harshly penalize safe sexual behaviors, increase stigma and discourage at-risk people from getting tested and treatment.

Ohio law requires people who know they tested positive for HIV to notify sexual partners of this prior to engaging in sexual conduct.

Failure to disclose this information can lead to felonious assault charges. Last month, a Dayton man, X, was indicted for allegedly engaging in sexual conduct without telling the other party he has HIV.

But the case has drawn the attention of organizations and advocates who say the state’s HIV laws are unscientific and harmful and don’t recognize that many Ohioans with HIV are not infectious.

“The laws stigmatize people living with HIV, punishing them for engaging in safe behavior, and the fear of prosecution makes it harder to get life-saving medical and mental health care,” said Kim Welter, director of finance and policy with Equality Ohio.

A spokesperson for the Montgomery County Prosecutor’s Office said he could not comment on the case since it is pending.

Last month, X, 50, was indicted for felonious assault and possessing criminal tools in Montgomery County Common Pleas Court.

Dayton police say X unlawfully failed to disclose he tested positive for HIV before engaging in sexual conduct. Police say he may have had sexual encounters with other people without properly notifying them first.

Ohio is one of about 31 states that have laws criminalizing HIV exposure, according to the CDC.

The Buckeye State and about 20 other states require people with HIV who are aware of their status to disclose it to sexual partners, the agency said.

But the CDC says many state HIV laws are outdated and criminalize behaviors that cannot transmit HIV, and they also can discourage HIV testing, increase stigma and exacerbate disparities.

People with HIV who take HIV medicine called antiretroviral therapy can reduce the amount of HIV in their blood (called the viral load) to undetectable levels, the CDC says.

The agency says there is effectively no risk of transmitting HIV when someone has an undetectable viral load.

People at risk of being exposed to HIV also can use pre-exposure prophylaxis medication (called PrEP), which if taken every day is 99% effective at preventing people from getting HIV from sex, the CDC says.

Ohio needs to modernize its HIV laws to reduce stigma and truly be grounded in science, because HIV is not a death sentence or a crime ― it is a manageable condition and should be treated that way, said Zach McCune, public policy and civic engagement manager with Equitas Health, a nonprofit that serves the health care needs of LGBTQ+ people in more than a dozen Midwest cities, including Dayton.

Ohio’s HIV-related criminal laws were passed more than 20 years ago and even then they were rooted in fear, ignorance, stigma and bias toward people living with HIV, McCune said.

McCune said Equitas Health has spent more than a year working with other advocacy groups and people living with HIV to help draft legislation to change Ohio’s HIV laws.

The Ohio Health Modernization Movement is leading the effort to change state law. The movement is a coalition of partners including Equality Ohio, Equitas Health, AIDS Healthcare Foundation and others.

McCune said their main goal is to reduce the criminal penalty for failing to notify of positive HIV status from a felony to a misdemeanor.

The proposed legislation also would make failing to disclose HIV status a crime only if the virus is actually transmitted and if there was deliberate intent to cause harm, McCune said.

“We’re hopeful we can introduce this legislation this year,” he said.

Some other states, like California, have taken steps to reduce criminal penalties for knowingly exposing sexual partners to HIV.

[Update]US: Georgia Senate overwhelmingly approved a bill to modernise the state’s HIV laws

Georgia Senate passes bill to modernize state’s HIV laws

The Georgia Senate overwhelmingly approved a bill to modernize the state’s HIV laws on Monday. The bipartisan show of support impressed HIV activists fighting for years to reform state laws that criminalize HIV.

Senate Bill 164 won approval with a 50-2 vote. The bill from Sen. Chuck Hufstetler, a Republican from Rome, passed on Crossover Day – the deadline to keep the measure alive for the remainder of the legislative session.

“We are extremely pleased that this bill passed the Senate with such a strong bipartisan majority vote,” said Jeff Graham, executive director of Georgia Equality. “Frankly, it’s even stronger bipartisan support than we saw when the same legislation passed the House last year.”

The two no votes came from Republicans – Sens. Matt Brass of Newnan and Greg Dolezal of Cumming.

The bill now moves to the state House, which could refer it to the Health & Human Services Committee. Last year, that committee unanimously approved similar legislation, and the House later approved it by a 124-40 vote.

Hufstetler’s measure would require prosecutors to show a person charged with exposing someone to HIV through sex had an “intent to transmit HIV” and posed a “significant risk of transmission” based on current science.

State law also criminalizes spitting at or using bodily fluids on law enforcement or corrections officers by a person living with HIV, an offense that can carry up to 20 years in prison. Hufstetler’s bill removes criminal penalties for people living with HIV who share needles, donate blood or spit at or use bodily fluids on police and corrections officers.

The proposal also changes state law to refer to people “living with HIV” instead of “an HIV-infected person.”

The legislation keeps intentional HIV exposure as a felony, but it lowers the maximum prison sentence from 10 years to five.

Supporters of the bill hope to convince House lawmakers to reduce the penalty to a misdemeanor. Last year, House Bill 719 downgraded the crime to a misdemeanor, but it was reverted back to a felony by the time the full House voted on it.

“It is our hope that we can have some conversations about bringing it back down to a misdemeanor and not felony charges,” Graham said.

Graham is hopeful that the House will pass the legislation this session, delivering revisions to the state’s HIV criminalization laws that activists have been championing for nearly a decade.

“The legislature understands that the criminal statutes around HIV in Georgia do need to be modernized and updated to reflect the current science of how HIV is and is not transmitted. It is a critical step around broader criminal justice reform,” he said.

“It has had strong bipartisan support in both chambers, and I certainly hope that we can see movement on the bill during the remainder of the session,” Graham added.

12/03/2021 Published on WABE

Georgia House Passes HIV Criminal Justice Reform

The Georgia House voted to approve HIV criminal justice reforms Thursday. It still needs approval by the state Senate to become law.

Republican Rep. Deborah Silcox shepherded the bill through.

“It is my sincere hope that this bill will reduce the number of cases in Georgia and that one day soon, we can eliminate HIV in Georgia and in our country,” she said on the House floor.

Nearly 30 per 100,000 residents in Georgia were HIV positive in 2018, the second-highest rate in the country.

Currently, people can go to prison for up to 10 years for not disclosing that they have HIV in situations like sharing a needle, donating blood, or having sex. The new proposal would punish people with up to five years behind bars only if the intent to infect someone could be proven.

Democratic Rep. Sam Park co-sponsored the bill.

“HB 719 updates our lives to reflect best public health practices for preventing and treating HIV, which will save tens of thousands of lives in Georgia,” he said.

According to the Williams Institute at the UCLA School of Law, there were 571 arrests in Georgia under these laws between 1988 and 2017.

“It is time to end the fear and stigma. Too many Georgians do not get tested because they are still scared,” Park said. “It is time we do our part to help our fellow Georgians get the testing, treatment and prevention they need.”

“As we face a new pandemic, it is my sincere hope that we will continue to stand united to protect the lives of Georgians,” he added, in reference to the coronavirus pandemic.

As Republican Rep. Sharon Cooper pointed out when the bill passed out of committee last month, science about the virus has changed a lot since the laws were written in the 1980s.

“It is time for us to remove part of the stigma that keeps people that are HIV positive from getting treatment or even go to be identified, which then puts the rest of our population at risk for further infections,” she said.

“The law as it currently stands is really a holdover from a time when there was a lot of fear, a lot of stigma, and the science was really incomplete,” said Jeff Graham, executive director of Georgia Equality in a previous interview.

“With the tools we have today to prevent HIV transmission, there’s no reason that our law should be as punitive and stigmatizing as the current law is.”

He said the change “goes a long way to fighting HIV in Georgia.”

Graham explained that two major health breakthroughs have changed things, specifically: access to pre-exposure prophylaxis (or PrEP) that helps prevent HIV infection and the idea — promoted by the CDC — that with treatment it’s possible to prevent an HIV-positive person from transmitting the virus.

Graham said the new bill would provide those living with HIV a “strong defense” if charged with the crime.

“Right now, the burden has just been on the person living with HIV that they did disclose their HIV status,” he said. “And how do you effectively do that? How do you prove what happened in a conversation?”

“The current law is dangerous,” said HIV-positive activist Nina Martinez at the committee meeting. “People assume it’s safe to disclose when people have been harmed or even killed for disclosing. Just because people don’t want to disclose, it’s not criminal intent.”

Additionally, existing law allows punishment for up to 20 years in prison if someone living with HIV assaults a peace or correctional officer “using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces.” That section has been removed in the proposed reform, which also fits with modern science, Graham said.

“The science is very clear: people do not contract HIV through those sorts of bodily fluids [like saliva, urine or feces]. It really is blood-to-blood contact. Through sexual intercourse,” he said. “Those are the only ways that people are become infected with HIV. The science is really solid about that.

“It’s really important the laws don’t reflect simple untruths.”

State Lawmakers Move Forward With HIV Criminal Justice Reform Proposal

A panel of Georgia state lawmakers unanimously approved proposed reforms to laws that punish those living with HIV for failing to disclose their diagnosis.

Currently, people can go to prison for up to 10 years for not disclosing that they have HIV in situations like sharing a needle, donating blood, or having unprotected sex. The new proposal would punish people with up to one year behind bars only if the intent to infect someone could be proven.

According to the Williams Institute at the UCLA School of Law, there were 571 arrests in Georgia under these laws between 1988 and 2017.

As Republican Rep. Sharon Cooper pointed out, science about the virus has changed a lot since the laws were written in the 1980s.

“With the tools we have today to prevent HIV transmission, there’s no reason that our law should be as punitive and stigmatizing as the current law is.”

He said the change “goes a long way to fighting HIV in Georgia.”

Nearly 30% of adults in Georgia were HIV positive in 2018, the second-highest rate in the country.

Graham said the new bill would provide those living with HIV a “strong defense” if charged with the crime.

“The current law is dangerous,” said HIV-positive activist Nina Martinez at the committee meeting on Tuesday. “People assume it’s safe to disclose when people have been harmed or even killed for disclosing. Just because people don’t want to disclose, it’s not criminal intent.”

“It’s really important the laws don’t reflect simple untruths.”

The bill now moves to the rules committee, which decides whether to move it to the full chamber.

US: Advocates face significant challenges in their efforts to update HIV criminalisation laws, but progress is being made

Three States See Movement to Modernize HIV Crime Laws

March 8, 2021 • By Trenton Straube

Virginia’s governor is likely to sign a bill to update HIV crime laws, but AIDS advocates claim it doesn’t go far enough.

State legislators in Virginia passed a bill that will update HIV crime laws, including those involving disclosure and HIV testing. Although the bill improves on outdated laws and is needed to address racial disparities in the state, many AIDS advocates argue that the measure does not go far enough in protecting those living with HIV. Governor Ralph Northam, a Democrat, is likely to sign the bill into law before the March 31 deadline, reports NBCNews.com.

The bill will update various laws affecting people living with HIV and certain sexually transmitted infections (STIs). For example, the bill will:

Make it optional rather than mandatory for people convicted of crimes such as prostitution to be tested for HIV.
Strike down a ban that makes it a federal crime for people living with HIV and STIs to donate or sell their blood, tissue or organs.
Update a statute involving failure to disclose before sex. Previously, as The Washington Post reports, under a 1997 law in Virginia, a person with HIV, syphilis or hepatitis who does not disclose before sex can be charged with a Class 6 felony and can be sentenced to up to five years in prison, regardless of whether transmission occurred. The new bill requires proof of transmission.

Lawmakers in the Virginia Senate had introduced a bill that lowered the penalty of HIV transmission—referred to as “infected sexual battery”—from a felony to a misdemeanor. After pushback from some legislators during the reconciliation process between the House and Senate, the final bill kept the felony charge (though it does require proof of transmission).

Vee Lamneck, the executive director of the LGBTQ advocacy group Equality Virginia, told the Post that the organization wouldn’t support a bill that makes transmission a felony.

“The threat of a felony penalty is actually enough to deter people from getting tested and knowing their status,” Lamneck said. “We see this as a huge public health issue.”

According to the findings of a recent report commissioned by the Virginia governor, in 2015, African Americans were more than seven times as likely to be living with HIV than their white counterparts in the state, and Latinos were more than twice as likely than white non-Latino Virginias. As the Post notes, this means that Virginia’s outdated HIV laws disproportionately affect these minority populations.

Many of the HIV-related laws across the nation were put on the books in the early days of the AIDS epidemic, when the virus was considered a death sentence and fear and stigma prevailed. Today, HIV is treatable. Most people with HIV who take daily meds are expected to live a near normal life span. What’s more, those who maintain an undetectable viral load are not able to transmit HIV through sex, a fact referred to as Undetectable Equals Untransmittable, or U=U.

Laws need to be updated to take into consideration modern science. Recently, in Illinois, as WICS/WRSP reports, state lawmakers introduced a bill to modernize laws related to HIV transmission. And according to Project Q Atlanta, Republican Senator Chuck Hufstetler is leading the charge in that state to update disclosure and transmission laws. In December, POZ reported on similar efforts by advocates in Nevada.

HIV advocates in many states face significant challenges in their efforts to update HIV criminalization laws, but it can be done. For one example, read the POZ article “California Governor Signs Bill Modernizing HIV Crime Laws,” which details the fact that as of January 2018 it has been a misdemeanor, instead of a felony, to knowingly transmit HIV or expose a partner to the virus without disclosing.

For a basic understanding of HIV crime laws, see “Criminalization 101”; for a collection of POZ articles on this topic, click on the tag #Criminalization. To learn more about the HIV laws in your state, visit The Center for HIV Law and Policy.

US: Repeal Act would modernise laws that criminalise people living with HIV based on perceived “risk”

Congressional HIV/AIDS Caucus introduces bill to stop criminalizing people with HIV

Bill would provide incentives to states to repeal laws that impose criminal penalties for alleged HIV exposure.

The co-chairs of the Congressional HIV/AIDS Caucus have introduced a bill to modernize laws regarding HIV and eliminate discrimination against people living with the virus by repealing state laws that criminalize them based on the perceived “risk” they pose to others.

The REPEAL Act, introduced by Congresswomen Barbara Lee (D-Calif.) and Jenniffer González Colón (R-Puerto Rico), comes as the public’s understanding of HIV and how it is transmitted — with the threat of transmission nearly eliminated if a person regularly takes antiretroviral drugs to maintain an “undetectable” viral load — has changed since the virus was first discovered almost 40 years ago.

Currently, 32 states and two U.S. territories have criminal statutes or laws based on perceived exposure to HIV, not taking into account the manageability of the health condition, or the reduced death rate that comes from compliance with antiretroviral medication.

Punishments for exposing another person to the virus, even if the chance of transmission is extremely low, include decades-long sentences and may even require HIV-positive individuals to register as “sex offenders.”

“Nearly 1.2 million people are living with HIV in the United States today,” Lee said in a statement. “Yet, our laws and policies continue to criminalize HIV/AIDS and discourage testing for those most at risk by legitimizing stigma and discrimination. It is past time that we repeal these harmful and discriminatory laws and instead focus our efforts on promoting public health equity and public awareness. We cannot achieve our shared goal of an AIDS-free generation while these laws are on the books.”

For years, activists have complained about such laws, arguing that imposing criminal penalties for alleged HIV exposure discourage people, particularly poorer and less medically-literate people, from getting tested and seeking treatment, thereby posing a higher risk of transmission than a person who knows they are HIV-positive and is in treatment.

They also note that such statutes are often used to target individuals living with HIV and push them to the margins, even when the alleged behavior poses no risk of HIV. For example, a protester against police brutality who is HIV-positive and is merely alleged to have spit at an officer (even though saliva is not one of the four bodily fluids that facilitate transmission of HIV) could be prosecuted in an attempt to silence their criticisms of the criminal justice system.

The REPEAL Act would create incentives and support for states to reform their existing laws that criminalize people with HIV or mandate felony charges for behavior that is otherwise legal or that poses no measurable risk of HIV transmission. The bill also directs the Departments of Justice and Health and Human Services to review federal and state laws (including military policies) that criminalize people living with HIV and release guidance and best practice recommendations for states, and track the progress of laws to repeal outdated laws imposing penalties for alleged HIV exposure.

“Over the past year, Puerto Rico has reported 11,272 cases of HIV; an average of 2 new cases daily,” González Colón said in a statement. “As lawmakers, we not only have to create awareness surrounding HIV/AIDS but we also have an opportunity to advance legislation and allocate resources that will help individuals lead better lives. The REPEAL Act eliminates outdated and harmful consequences of dangerous and stigmatizing state laws that criminalize people living with HIV.”

NMAC, the national organization focused on combating health disparities for minorities as they pertain to the HIV epidemic, is backing the REPEAL Act, and praised the co-chairs for introducing the bill.

“The REPEAL Act will advance efforts to finally modernize laws surrounding those living with HIV/AIDS and, if enacted, will afford those Americans the right to privacy,” Paul Kawata, the executive director for NMAC, said in a statement. “We know that disclosure laws are rooted in an old model aimed towards punishing HIV-positive Americans. Those same laws create tremendous barriers for Americans living with HIV, including those serving in our Armed Forces. More importantly, these laws deter self-reliance health practices, which we know is the most effective way of stopping the spread of HIV.”

“This legislation is critically important and long overdue,” Joe Huang-Racalto, NMAC’s director of government relations and public policy, added. “No other medical diagnosis has a criminal element associated with it. Singling out HIV and prosecuting Americans living with HIV is morally wrong and terribly misguided. As we move towards ending the epidemic by 2030, we must continue to eliminate punitive laws and the stigma associated with HIV/AIDS — an important step in that process is to pass the REPEAL Act.”

US: Bill introduced in Illinois to reform HIV criminalisation law

Advocates and Legislators Introduce Bill to Decriminalize HIV in Illinois

Legislation was introduced in Springfield today to end criminal penalties against people living with HIV (PLWH), which serve only to stigmatize and discriminate against PLWH. Current Illinois law makes legal behavior – like consensual sex – illegal, and adds harsh penalties for ordinarily minor crimes such as sharing injection-drug equipment. Under current law, PLWH face the threat of arrest, prosecution, and incarceration even if they do not transmit HIV to another person.

“The truth is HIV criminalization does not improve safety or public health in Illinois – instead, it often has the opposite effect. Not a single study throughout the country shows HIV criminalization has reduced HIV transmission in any jurisdiction where it exists. We have also seen through the decades how HIV criminalization laws disproportionately impact women and the Black community. It is time to repeal this destructive law,” said State Senator Robert Peters, Senate legislative sponsor.

“A person living with HIV/AIDS already encounters difficult health disparities. However, the damage that Illinois’ HIV criminalization law has on people living with HIV is even more than the lifelong impact of the criminal justice system, especially for people of color and the LGBTQ+ community. It is harm that happens every day, slowly, to our community’s mental and emotional health by being singled out and stigmatized,” said Christian F. Castro, steering committee member of the Illinois HIV Action Alliance (IHAA).

“As a national network of women and people of trans experience living with HIV, Positive Women’s Network – USA is thrilled at this opportunity to end the discriminatory and unjust HIV criminalization law in Illinois. HIV criminalization laws are often justified as somehow protecting women; in reality, they are too commonly used by abusive partners to control and coerce women and trans folks living with HIV. They have done nothing to reduce HIV transmission over the past 45 years but they have done much to promote stigma and cause suffering to people living with HIV, their families and their communities,” said Breanna Diaz, Policy Director, Positive Women’s Network – USA.

“The Illinois Public Health Association (IPHA) recognizes that these outdated, dangerous and discriminatory laws disproportionately impact Black, Indigenous, Latinx and other persons of color. To ensure an equitable state for Black and Brown individuals and to promote science-based and proven HIV public health strategies of testing, prevention and engagement in care, it’s essential lawmakers repeal Illinois’ HIV criminalization law. Illinois’ HIV criminalization law is rooted in fear and racial biases, and we certainly know that criminalization increases stigma and harms in marginalized communities,” said Chris Wade, Illinois Public Health Association.

Senate Bill 655 would amend the Criminal Code of 2012, repeal the statute creating the offense of criminal transmission of HIV, and make conforming changes in the AIDS Confidentiality Act, the Illinois Sexually Transmissible Disease Control Act, the Illinois Vehicle Code, the Criminal Code of 2012, and the Unified Code of Corrections.

Advocacy organizations who have joined the Illinois HIV Action Alliance coalition and have signed on to support SB 655 include: ACLU of Illinois, African-American Lesbian Professionals Having A Say (A.L.P.H.A.S.), AIDS Foundation Chicago, Angii’s Angel’s, Brothers Health Collective, Calor, Central Illinois Friends, Chicago House and Social Services, Chicago Recovery Alliance, Community Renewal Society (CRS), Equality Illinois, Howard Brown Health, Illinois Public Health Association, Lambda Legal, Legal Council for Health Justice, Peoria Proud, Prairie Pride Coalition, Pride Action Tank (a project of AFC), QC PRIDE, INC., Rush University System for Health, Sinai Infectious Disease Center, Sex Workers Outreach Program (SWOP), The Sero Project, TPAN, Transformative Justice Law Project, and Women Connection (a project of AFC).

You can read the language for Senate Bill 655 here.

WATCH! From Moment to Movement: HIV Justice Live! Ep 3 – Oslo Declaration 9th Anniversary

From Moment to Movement: HIV Justice Live! celebrates the Oslo Declaration on HIV Criminalisation

The 3rd episode of HIV Justice Live! aired on Wednesday, February 17, to celebrate nine years since the publication of the historic Oslo Declaration on HIV Criminalisation. Hosted by HIV Justice Network’s Edwin J Bernard, the show featured some of the advocates who were behind the Oslo Declaration.

Kim Fangen, co-organiser of the side-meeting that finalised the Oslo Declaration, and who was the only person openly living with HIV on the Norwegian Law Commission, revealed that the Declaration was initially conceived as an advocacy tool to influence policy discussions in Norway as well as neighbouring Nordic countries.

Patrick Eba, now UNAIDS Country Director in the Central African Republic, explained that the reason the meeting took place in Oslo was because the Norwegian Government had supported UNAIDS to produce detailed guidance on how countries should deal with the overly broad use of the criminal law to HIV non-disclosure, exposure and transmission, by examining scientific, medical and legal issues.

Former ARASA ED, Michaela Clayton, now a member of HJN’s Supervisory Board, said the Oslo Declaration was the first time there was a coming together of activists from both the global north and south around HIV criminalisation. She noted that although there had been some work done regionally and in-country, this was the first global solidarity statement around HIV criminalisation.

Ralf Jürgens, now Senior Coordinator of Human Rights at The Global Fund, who attended the Oslo meeting in an advisory capacity, spoke about his relief and delight that the work that he and others had done as part of the ‘first-wave’ of advocacy against HIV criminalisation was now being undertaken by the HIV Justice Network. Jürgens currently oversees the innovative Global Fund initiative, Breaking Down Barriers, which supports 20 countries to remove human rights-related barriers to health services for HIV, TB malaria, and COVID-19. He said the Global Fund has invested resources to fight laws and policies and discrimination overall and ensure access to justice. He added that the HIV Justice Worldwide movement now plays an “incredibly important” part in this work by providing global leadership and a wide range of advocacy resources.

There was a surprise appearance by Susan Timberlake, who was UNAIDS’ Senior Human Rights Advisor when the Oslo meetings took place. She recognised the Oslo Declaration as the moment that the global movement around HIV criminalisation began. Susan recalled the main meeting fell on Valentine’s Day and participants made posters with “make love, not criminal laws” messaging.

Our regular Mind the Gap segment featured Ellie Ballan, a member of our Global Advisory Panel, who is based in Lebanon. He was interviewed by Julian Hows, HJN’s Partnerships and Governance Co-ordinator.

The Oslo Declaration, has so far, garnered over 1750 signatories from more than 115 countries and been translated into nine different languages, the most recent being Latvian and Turkish. It was also the template for the Mexican Declaration in 2017. Pozitif Dayanışma, an HIV organisation based in Turkey recently translated the Declaration into Turkish, as well as producing an accompanying info-graphic and social media pack.

Further, the Oslo Declaration has been referred to as key guidance on HIV criminalisation from global organisations such as UNAIDS, Amnesty International, and PEPFAR/USAID, cited in several peer-reviewed journals and used as a strategic planning and advocacy tool all over the world. The Declaration has also been featured in high-profile media, such as the New York Times, the Huffington Post, and POZ magazine.

US: Bipartisan effort to modernize Georgia’s HIV laws

Republican lawmaker wants to modernize Georgia’s HIV laws

A Republican state lawmaker leads a bipartisan effort to modernize the state’s HIV laws, which critics say aren’t rooted in science and stigmatize people living with HIV.

Sen. Chuck Hufstetler, a Republican from Rome, introduced Senate Bill 164 on Feb. 11. The measure would require prosecutors to show a person charged with exposing someone to HIV through sex had an “intent to transmit HIV” and posed a “significant risk of transmission” based on current science.

Current Georgia law makes it a crime for people living with HIV to have sex or donate blood without disclosing their status, regardless of whether they intend to transmit HIV or pose any risk. It’s a felony punishable by up to 10 years in prison. State law also criminalizes spitting at or using bodily fluids on law enforcement or corrections officers by a person living with HIV, an offense that can carry up to 20 years in prison.

Hufstetler’s bill removes criminal penalties for people living with HIV who share needles, donate blood or spit at or use bodily fluids on police and corrections officers. The proposal also changes state law to refer to people “living with HIV” instead of “an HIV infected person.”

HIV advocates and LGBTQ activists applaud the bill. They began working to change the state’s HIV criminalization laws as early as 2013.

“It is absolutely encouraging,” said Eric Paulk, deputy director of Georgia Equality. “It shows that the years of advocating around this issue are starting to pay off. Folks under the Gold Dome are understanding that these laws are born out of an era and time when evidence-based knowledge about HIV risk and transmission and treatment therapy were extremely limited. This is a huge move in the right direction.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure, whether or not the specific act actually exposed the sex partner to HIV. The legislation keeps intentional HIV exposure as a felony, but it lowers the maximum prison sentence from 10 years to five.

“Of the potential seven charges that someone living with HIV could face under the current statute, this would eliminate five of them,” Paulk said. “There will be a shift in the concept of exposure to intent to transmit, which would allow for significant improvement over what we currently have.”

Last year, a House committee approved similar HIV modernization legislation. That measure – House Bill 719 from Rep. Deborah Silcox, a Sandy Springs Republican – failed to advance during a legislative session disrupted by the coronavirus pandemic.

Paulk said the continued bipartisan support for efforts to decriminalize HIV is encouraging.

“Folks are understanding that these laws are bad and harmful and that they don’t do the things they are intended to do, which is lower the number of transmissions that are happening,” he said.

Hufstetler’s bill was assigned to the Senate Judiciary Committee. Co-sponsors include Sen. Kay Kilpatrick, a Republican from Marietta, and Sens. Nan Orrock and Gloria Butler, both Democrats from Atlanta.

In 2019, Kilpatrick was the Senate sponsor of legislation creating a syringe services program to allow people who inject drugs to exchange used needles for clean ones. Such programs reduce the spread of HIV and hepatitis C, according to the Centers for Disease Control & Prevention. Gov. Brian Kemp signed that measure – House Bill 217 – into law.

US: Virginia’s bill to reform the state’s infected sexual battery law will also broaden its scope to include all STIs

Lawmakers weigh how far to go in changing a decades-old law criminalizing HIV

Thirty years ago, HIV was largely considered to be a death sentence.

At a time when the disease was little-understood, even within the health care community, Virginia joined dozens of states in passing laws that criminalized “infected sexual battery” — making it a felony for someone living with HIV, syphilis or Hepatitis B to engage in sexual activity “with the intent to transmit the infection to another person.”

Sen. Jennifer McClellan, D-Richmond, said Virginia, like many states, was driven by the federal government. In 1990, national lawmakers passed the Ryan White CARE Act, which established federal funding for HIV services and treatment. But to receive the funding, states were required to create a legal mechanism to prosecute people who knowingly exposed others to HIV.

Virginia passed its own statute in 1997, making infected sexual battery a Class 6 felony and nondisclosure — or having sex with someone without revealing your status — a Class 1 misdemeanor. Twenty-four years later, McClellan has joined with Sen. Mamie Locke, D-Hampton, in an effort to modernize the law.

Finding consensus with other legislators, though, has been a challenge.Their bill to reform the state’s infected sexual battery law passed the Senate late on Friday in a 21-17 vote, with Republicans voting unanimously against the bill. But to gain support among Democrats, McClellan also had to offer a late floor amendment that revised the code section rather than fully repealing it.

“It’s clear to us that a lot of members of the Senate aren’t comfortable completely eliminating that crime,” she said in an interview on Friday morning. The substitute reduces the potential charge for infected sexual battery from a Class 6 felony to a Class 1 misdemeanor. At the same time, it also broadens the scope of the law, removing its specific focus on HIV, syphilis, and Hepatitis B.

The legislation would now make it a potential misdemeanor if a Virginian diagnosed with any sexually transmitted infection “engages in sexual behavior that poses a substantial risk of transmission” with the intent of transmitting the disease. And unlike the current code, it would require actual transmission of the disease in order to prosecute.

Expanding the law to include all STIs might seem counterintuitive for a bill aimed at decriminalizing HIV. But the intent of the substitute was to raise the burden of prosecution, making it less likely that the law will be used, said Breanna Diaz, the policy director for the Positive Women’s Network, anational advocacy group for women and transgender people living with HIV. The group is lobbying to repeal or modernize HIV criminalization laws in more than 30 states. Diaz, who drafted the substitute, said it’s similar to a 2017 bill passed in California.

Currently, Virginia code only criminalizes transmission of HIV and two other previously life-threatening infections — a focus that advocates say only furthers the stigma for Virginians diagnosed with the virus. But it also requires little burden of proof for people who press charges.

Virginia’s infected sexual battery statute doesn’t require that the disease was actually transmitted. It also criminalizes sexual activity regardless of whether a person living with HIV used protection, such as condoms, or medication that made their risk of transmitting the virus virtually nonexistent.

“What it really does is criminalize just knowing your status and engaging in sexual activity even if it poses low-to-no risk of infection,” Diaz said. The substitute bill would introduce several measures to raise the burden of prosecution.

First, anyone charged under the statute would need to have been diagnosed with an STI prior to sexual contact (some common infections such as chlamydia and gonorrhea don’t always cause symptoms and can be transmitted unknowingly). It would also require that the person engaged in activity that posed “a substantial risk of transmission,” such as having sex without protection.

Most importantly, there would have to be proof that the infection was actually transmitted to a partner.

“It is our core belief that criminalization will never be the answer to public health,” Diaz said. “But we wanted to build in elements that would raise the burden of prosecution. And we’re hoping with the prosecutorial burden being so high now, this statute will not be used too often.”

Infected sexual battery charges are already relatively rare. In the 2019 and 2020 fiscal years, only three Virginians were convicted of a felony under the law, according to data from the Virginia Criminal Sentencing Commission. Another seven were convicted of a misdemeanor for not disclosing their status (McClellan’s substitute would completely repeal that section of the code).

And while the original intent was to completely repeal Virginia’s infected sexual battery law, McClellan described the amended bill as a compromise that would make it easier to pass the General Assembly. Throughout the committee process, there was clear bipartisan hesitancy to eliminate a law that makes it a crime to intentionally infect someone with HIV.

“I can’t for the life of me figure out why we would want to repeal that,” said Sen. Mark Obenshain, R-Rockingham, during a hearing last month.

“The science has dramatically improved the diagnosis for HIV and it makes sense for us to look at changes in the law,” added Sen. Creigh Deeds, D-Bath. “But I agree with Sen. Obenshain — if someone intentionally infects someone else, there ought to be some criminal penalty.”

Like many of the criminal justice initiatives moving through the state’s General Assembly, inequity is another major argument against the bill. In Virginia, 56.7 percent of people living with HIV are Black, according to data from Emory University (Black Virginians make up just 19.1 percent of the state’s population overall). Black and Latino men are 5.5 and 2.2 times more likely, respectively, to be living with an HIV diagnosis than White men, while Black and Latino women are 15.1 and 4.1 times more likely to be living with a diagnosis than their White counterparts.

The disease also has a disproportionate impact on the LGBTQ community. As a result, advocates say HIV criminalization laws, in Virginia and across the country, are most frequently applied against already marginalized groups with existing mistrust of the health care system.

“Folks charged under these laws are already over-criminalized, over-policed and over-surveilled,” Diaz said. And with few barriers to pressing charges under Virginia’s current statute, proving “intent” to transmit the disease — or a claim of nondisclosure — can be difficult to demonstrate in court.

But stories about the charges often end up in the news, which can out people living with HIV even if they’re not founded. Deirdre Johnson and Cedric Pulliam, co-founders of the decriminalization advocacy group ECHO Virginia, said one of their members chose to plead guilty after a partner accused him of nondisclosure after an argument.

“Next thing you know, the police are knocking at his door and he’s getting arrested,” Johnson said. The member had never been involved with the criminal justice system and took a plea deal. As a result, he lost his social work license and still has to disclose felony charges on job applications.

For advocates, it’s a prime example of how the potential repercussions of the law — and the stigma — make it less likely that people will seek out help for HIV.

“When people are afraid they’ll be putting a target on their back for criminal prosecution, they don’t get tested and they don’t get treated,” McClellan said.

The bill would also repeal a section of state code that requires Virginians convicted of prostitution or intravenous drug use to be tested for HIV, instead making it an option. And it would repeal the state’s current ban against patients with HIV donating organs, with notice and consent, in certain circumstances — putting Virginia in line with federal guidance.

But even the amended bill didn’t convince some senators that it’s time to repeal the law. Sen. Siobhan Dunnavant, R-Henrico — a practicing OB-GYN — said during a floor debate that diagnosing women with HIV and other sexually transmitted infections was “one of the hardest conversations” she ever had to have.

“And I wish I could support this bill, but I cannot diminish in any way the consequences for a woman who has been intentionally infected,” she said before the vote. The Virginia Association of Chiefs of Police also opposes the legislation.

“We haven’t followed this bill that closely, and don’t understand why it was introduced,” Executive Director Dana Schrad wrote in an email on Tuesday. “We have had cases in which a person knowingly and intentionally infected someone else through a sexual assault.”

Both Johnson and Pulliam, though, said it would make prosecuting the law much more difficult by requiring that anyone charged with the crime had actually transmitted the virus. For Johnson, a woman living with HIV, it also acknowledges the advances in treatment since 1997.

With current therapies, patients are now capable of leading long, healthy lives. Antiretroviral drugs can also reduce a patient’s viral load to the point where it’s undetectable — leaving “effectively no risk” of transmitting the virus to an HIV-negative sexual partner, according to the National Institute of Allergy and Infectious Diseases.

“There is zero risk of me transmitting HIV to anyone,” she said. “We just really wanted our laws to be in alignment with science.”