Canada: Advocacy groups call on provinces to follow the Justice Department's directive to limit prosecutions for HIV non-disclosure

Published in The Canadian Press on February 4, 2019

Groups want provinces to have consistent policies on limiting HIV prosecutions

VANCOUVER — Advocacy groups are calling on provinces to follow the Justice Department’s directive to stop unjustly prosecuting HIV-positive people for not disclosing their status if there is no chance they could transmit the virus to their sexual partners.

The directive to limit prosecutions involving people who are on HIV treatment was issued in December but applies only to federal Crown attorneys in the three territories.
 
Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said international scientific consensus on HIV transmission was reviewed by the Public Health Agency of Canada and informed the federal decision.
 
Ontario had already amended its policies but in a limited way to no longer prosecute people with a suppressed viral load and Elliott said Alberta has said in a letter to the network it has done the same but without stating that in a policy.

The federal directive goes further in saying people who also use a condom or engage in oral sex should generally not face serious charges such as aggravated sexual assault.

“We’ve written to all provincial attorneys general following the federal directive to say ‘Here’s the federal directive. We reiterate to you what the science is telling us and public-interest reasons for you to appropriately limit the use of criminal law.’ ”

Inconsistent policies mean that HIV-positive people in most provinces may fear being threatened with prosecution by partners who have no basis for a complaint and could even shun treatment based on stigma and discrimination, Elliott said.

In July 2018, scientists from around the world, including Canada, published a consensus statement on HIV transmission in relation to criminal law in the Journal of International AIDS Society. It said correct use of a condom prevents transmission and that possibility is further decreased or eliminated when someone has a viral load that is low or undetectable.

The Canadian HIV/AIDS Legal Network and other organizations are currently pushing Attorney General David Eby to limit HIV prosecution in British Columbia.

“There is not a single circumstance identified in the current BC Prosecution Service policy where they say we will not prosecute even though both Ontario and the feds and Alberta, in a letter, have somehow been able to clearly state that no, we will not prosecute in our jurisdiction someone who has a suppressed viral load.”

Eby was not available for comment.

Dan McLaughlin, spokesman for the prosecution service, said the province is reviewing its policy and has been considering amendments to incorporate the directive of the federal attorney general.

The review will endeavour to ensure B.C.’s policy “addresses both public safety concerns and the issues of fairness and equity in a manner consistent with the law,” he said in a statement.

Elliott, who will be one of the speakers on the issue Tuesday at Simon Fraser University, said about 210 people across the country have been prosecuted for alleged HIV non-disclosure, the second-highest number in the world, after the United States.

Valerie Nicholson of Vancouver has been HIV-positive since 2004 and said her viral load has been negligible since 2008 because of the antiretroviral medication she takes.

Nicholson, who is a member of the Canadian Coalition to Reform HIV Criminalization, said B.C. is “behind the times” with its disclosure policy.

She said she always reveals her status to sexual partners but that information was used against her by a man who informed her a year and a half after their relationship ended that she transmitted the virus to him and he would call police.

“I lived in fear for six months waiting for that knock on the door for the cops to be there,” she said. “I work in this field and if that can do that to me what does it do for someone (else)? Do they stay in an abusive relationship?”

Her big worry was that she had no way to prove she’d had a conversation with the man about her HIV status at the beginning of their relationship, Nicholson said.

Angela Kaida, a Simon Fraser University global health epidemiologist with an interest in the links between HIV and sexual and reproductive health, said the evolving conversation around the virus that is treatable needs to include the latest scientific evidence.

“People can live a normal life expectancy, they can have babies, those babies can be HIV-negative and healthy. People can have sex without a condom and not transmit HIV,” said Kaida, who will also be a featured speaker at the university on Tuesday.

“We have that science but what we haven’t resolved is the stigma, the discrimination and misinformation about HIV. What the evidence tells us that even if we criminalize people it’s not serving a public health goal.”

 

[Update] US: Missourians living with HIV testify in House committee hearing in support of proposals to modernise HIV criminalisation laws

Published in Houston Herald on Feb. 4, 2019

By Alexis Allison

Proposals to reduce criminal HIV exposure penalties encourage prevention

JEFFERSON CITY — LaTrischa Miles doesn’t spit when she runs.

A mother of three, the treatment adherence supervisor at Kansas City Health Center was diagnosed with HIV in 1995. She remembers the day like her birthday, and she remembers it when she’s running.

“Running is not a pretty sport. You see a lot of things when you’re running. You smell a lot of things when you’re running,” Miles said. “A lot of runners get dry mouth, and they spit, a lot. But I dare not. Because if I spit … I may get arrested at the finish line.”

Current Missouri law makes it a felony for a person knowingly infected with the human immunodeficiency virus to “recklessly” expose someone else without their knowledge or consent — whether or not the person meant to do so, and whether or not the victim contracted HIV. The law lists sex, needle-sharing and biting as methods of transfer.

It’s not clear whether spitting during a half-marathon violates the law, but that uncertainty is part of the problem. “As a person living with HIV,” Miles said, “I’ve lived in the shadow of these criminal laws.”

But for the second year in a row, Reps. Tracy McCreery, D-St. Louis, and Holly Rehder, R-Sikeston, have filed separate but similar bills to modernize what some call the “criminal HIV exposure” law.

Each proposal would apply penalties currently reserved for exposing someone to HIV to other “communicable diseases,” such as hepatitis C or HPV, and minimize the punishment for those convicted. The proposals also update the law’s language to reflect current understanding about how HIV is transmitted.

Miles and a slew of public health advocates, students and Missourians living with HIV testified in a House committee hearing Monday in support of the proposals. The witnesses emphasized the need for a revised bill that would reduce stigma, encourage people to know their status and reflect modern science.

“So much has changed. HIV is no longer a death sentence. It’s a chronic disease. It’s a human disease,” Miles said. “Persons living with HIV that once took 16 pills a day … now have the option to take one pill a day.”

Lawmakers passed the original bill in the late ‘80s, an era when the rampant spread of AIDS through sex made lovers into killers, and the law ensured they would be punished accordingly. Mere exposure can lead to a class B felony conviction. If the victim contracts HIV, the charge bumps up to a class A felony, punishable by up to 30 years or life in prison. It’s the same consequence in Missouri for murder.

Both proposals would consider whether the person with a communicable disease intended to transmit it to someone else, and the consequences would be less severe. Rehder’s bill makes knowingly exposing another person to a communicable disease a class C felony; if transmission occurs, the charge becomes a class B felony.

“For comparison’s sake, if you’re driving while intoxicated and hurt someone but don’t kill them in Missouri, it’s a class C felony,” Rehder said. “If you’re driving while intoxicated and in an act of criminal negligence you cause the death of someone, then it’s a class B felony, so that makes it more consistent.”

McCreery’s bill offers a less severe punishment, diminishing the consequences for exposing another person to a communicable disease to a class B misdemeanor — or a class A misdemeanor if the victim contracts the disease.

The severity of the current law also serves as a disincentive for people to know their HIV status, Rehder said. If a person doesn’t know they have HIV, they can’t be convicted of exposing the virus to another person.

And, Rehder said, people who are unaware of their positive status are responsible for 90 percent of HIV transfer — and that ignorance is a public health issue.

“The bottom line is, we want people to get tested and know their status and get treatment,” she said.

Another strategy the proposals encourage is prevention. Under the current law, condom use — which the Centers for Disease Control and Prevention recommends as a preventative strategy — is not a defense. The new proposals note that using science-based, preventive measures (including condoms) could serve as evidence that the person with the disease did not intend to expose or transmit it.

The proposals offer a few more updates based on the scientific advancements that have happened in the last 30 years. For one, they’ve removed “biting” from the list as a way to transfer HIV. In fact, transmitting HIV via biting is extremely rare — so rare that the CDC notes it’s only happened when the bite led to “severe trauma with extensive tissue damage and the presence of blood.”

McCreery’s bill removes the current law’s enhanced punishments for HIV-positive sex workers; Rehder’s does not address it. McCreery’s bill also eliminates punishments for a person with HIV or hepatitis who endangers a correctional or mental health employee.

The current law lists exposure to feces, urine or saliva as a means for transmission. Rehder’s version no longer specifically penalizes HIV or hepatitis and applies only in the case of exposure to “bodily fluids … scientifically shown to be a known means of transmission of a serious infectious or communicable disease.”

Rehder acknowledged that neither proposal is perfect, and the final product may lie somewhere between the two.

“We’re working closely together to present Missouri-specific options to update Missouri’s antiquated HIV laws,” McCreery said in an interview after the hearing. “We wanted to send a strong message to Missourians that this is a nonpartisan issue.”

 

Published in Fox2Now on December 1, 2018

Lawmakers, health officials push Missouri HIV law rewrite

JEFFERSON CITY, Mo. – Some Missouri legislators and public health professionals are calling for a rewrite of the state’s HIV laws, which they say are outdated and medically inaccurate.

The St. Louis Post-Dispatch reports that Republican Rep. Holly Rehder and Democratic Rep. Tracy McCreery proposed bills in the last legislative session to reduce the state’s penalties for exposing someone to HIV. They plan to present the same bills in the 2019 session.

Missouri’s roughly 30-year-old law states that an HIV-positive individual could be convicted of a felony if he or she exposes a partner to the disease without the partner’s knowledge or consent. The law gives a minimum 10-year sentence for transmitting HIV and minimum five-year sentence for knowingly exposing someone to HIV.

Advocates say such laws result in questionable prosecutions and negative public health outcomes.

 

US: Oklahoma State House representative files bill that would amend the law criminalising the transmission of STIs

Legislation would change STD criminal statutes

OKLAHOMA CITY – An Oklahoma lawmaker filed a bill that would amend the state’s criminal statutes regarding sexually transmitted diseases. Specifically, the bill would increase the number of behaviors considered criminal but reclassify all of the crimes as misdemeanors.

Oklahoma already has a law that criminalizes the knowing and deceptive transmission of infections, such as syphilis, smallpox and HIV. If a person keeps the diagnosis a secret from a partner and gives the partner the disease, the resident could face a felony.

Newly elected Rep. Andy Fugate, D-Oklahoma City, filed the measure that would add a slew of diseases to the list and expound on the kind of behavior considered criminal, but it would drop the maximum penalty.

House Bill 1858 would add about half a dozen diseases to the state statute on STDs. That includes some household names, such as genital herpes and chlamydia. However, it also includes several diseases that aren’t common in the United States or other developed countries, such as chancroid and granuloma inguinale.

Under current law, residents are culpable if they are infected and intentionally or recklessly spread their infections. Fugate’s bill would change that standard. The proposal would affect residents who know they are infected and either intentionally spread it or engage in conduct that poses a substantial risk of transmission while the other person is unaware the resident is infected.

The bill creates an exemption for residents who are undergoing treatment and have displayed good faith in complying with their physician’s prescribed regimen. It also exempts residents who are following behaviors recommended by a public health official, such as using condoms.

Current law makes these crimes a felony and punishable by at least two but up to five years in state prison. The new law would drop that to a misdemeanor, which could carry a sentence of up to one year in county jail or a fine of $1,000.

Fugate did not respond to requests for comment.

The Oklahoma State Department of Health reported in August that the state saw 31,779 cases of chlamydia, gonorrhea and syphilis diagnosed in 2017, an increase from 29,716 reported in 2016. The most significant increase was found in the number of syphilis cases, with an increase of 36.5 percent in one year. Reports indicate an increase of nearly 20 percent in the number of gonorrhea cases.

The United Health Foundation released America’s Health Rankings in December, in which it ranked Oklahoma 47th in overall health. The same data showed that Oklahoma’s rate of chlamydia far outpaced the nation’s. Oklahomans were diagnosed at a rate of 548.4 per 100,000, whereas nationally the rate was 497.3 per 100,000. Oklahoma came in at 38th in terms of chlamydia diagnoses. Alaska came in at 50th with 771.6 cases per 100,000.

Nicole McAfee is the Smart Justice Campaign manager for the American Civil Liberties Union of Oklahoma. She said Oklahomans on each side of the aisle are working to reform the criminal justice system, and that will require approaching issues like this one differently.

“What we ultimately need to do is decarcerate our prisons and jails,” her written statement says in part. “That requires thinking twice about our immediate reaction to use carceral punishment as a response to a public health crisis.”

Canada: The Women’s Legal Education and Action Fund (LEAF) publishes a position paper proposing a feminist approach to law reform on HIV non-disclosure

The Women’s Legal Education and Action Fund (LEAF) has written a position paper proposing a feminist approach to law reform on HIV non-disclosure.

LEAF supports the federal government’s recent prosecutorial directive intended to reduce the over-criminalization of those living with HIV/AIDS. Canadian law currently criminalizes HIV non-disclosure where a person who is HIV-positive exposes their sexual partner to a significant risk of serious bodily harm—which in law includes a realistic possibility of HIV transmission. Most cases are prosecuted as aggravated sexual assaults, which is punishable by a maximum life sentence. As of December 2018, the Attorney General of Canada will not prosecute charges of HIV non-disclosure if a person living with HIV has maintained a suppressed viral load, used condoms, or engaged only in oral sex.

Women’s rights are also engaged by this area of law. Women are often complainants in these cases—nearly 20% of women with HIV report having acquired the virus through sexually coercive experiences. And HIV non-disclosure prosecutions have led to an increase in women, particularly marginalized women, being convicted of aggravated sexual assault. Almost 80% of women living with HIV are Indigenous or racialized, and they already face serious over-criminalization.  Prosecuting HIV non-disclosure as a sexual offence has distorted concepts about sex and consent that are foundational to women’s equality – in an attempt to fit HIV non-disclosure into sexual assault law, courts have narrowed the scope of sexual activity that requires consent in law and risked introducing discriminatory myths and stereotypes into the criminal trial.

This is why LEAF is recommending further reforms that will ensure meaningful protections for women’s equality rights—especially for marginalized women. Most importantly, HIV non-disclosure should not be treated as a sexual offence. This would protect the equality-enhancing purpose of sexual assault law by affirming a concept of consent that is rooted in sexual autonomy. Where HIV non-disclosure results in actual transmission of the virus, prosecution may be appropriate under non-sexual Criminal Code offences. This would reduce the punitive over-criminalization of people living with HIV, while protecting women who contract HIV from partners who take no care to prevent transmission. There are no Canadian cases where an accused responsibly used a condom or had an undetectable viral load and the virus was nonetheless transmitted. Finally, prosecutorial guidelines should ensure that HIV positive women who are victims of violence, coercion or sexual assault are not prosecuted for their failure to disclose their HIV status when that failure is a result of the violence or threats of violence committed against them.

“In addition to raising significant concerns for the equality and dignity of those living with HIV, the law of HIV non-disclosure also impacts women’s equality rights,” says Karen Segal, LEAF Counsel. “LEAF seeks to ensure that women’s equality is specifically attended to in any future law reform initiatives, so that women are protected from sexual violence and from punitive over-criminalization, and so that the right to bodily and sexual autonomy remains the foundational concept in the law of sexual offences.”

  • Read LEAF’s position paper here

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.  

For media inquiries, please contact:

Karen Segal, Counsel             

Women’s Legal Education and Action Fund                                      

416.595.7170 x2003                                                                         

k.segal@leaf.ca

US: New legislation updates Michigan's HIV disclosure law, reflecting advances in HIV science

Source Michigan Coalition for HIV Health and Safety – Press release January 9, 2019

MICHIGAN MAKES STRIDES IN MODERNIZING HIV DISCLOSURE LAW

 January 8, 2019 — LANSING, MI. After five years of work by the Michigan Coalition for HIV Health and Safety with the Michigan Department of Health and Human Services (MDHHS), advocates living with HIV and other national and local partners, Michigan’s HIV disclosure law has been modernized.

The new legislation, HB 6020 and HB 6021, was introduced by State House Representative Jon Hoadley (D-Kalamazoo) and was supported by the Republican majorities in the House and Senate.  After passing both chambers, the bill was presented to Governor Snyder who signed the bill December 27, 2018.

 Previously, a person living with HIV (PLHIV) could face a felony up to 4 years in prison for not disclosing their HIV status prior to any type of sexual penetration. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.

The amended law removes those living with HIV who are on treatment and virally suppressed-posing no risk of transmitting HIV-from being subject to prosecution. It also narrows the scope of sexual activities subject to prosecution, from “any type of sexual penetration to only “vaginal and anal sex.” Oral sex, which poses no or negligible risk of transmission regardless of whether the person with HIV is on treatment or virally suppressed, is no longer subject to prosecution.

For PLHIV who are not on treatment and not virally suppressed, it remains a felony if they do not disclose and do transmit HIV sexually. If they do not disclose and do not transmit, the penalty has been reduced to a misdemeanor in the amended statute. Any person with a “specific intent” to infect another person also remains subject to prosecution.

“The Michigan Coalition for HIV Health and Safety (The Coalition)  salutes and applauds Rep. Hoadley’s effort in progressing a decades old law and thanks our partners in the coalition, the Sero Project for their guidance and MDHHS for leading the effort,” states Kelly Doyle, Executive Director of CARES (Community AIDS Resource and Education Services of Southwest Michigan). “Rep. Hoadley has worked with coalition partners to seek advice and leadership from PLWH and those who provide care for PLWH throughout the state.”

 “I’m encouraged that the legislature understands the advances in HIV science and look forward to continuing efforts that support PLWH,” states Pat Clark, advocate living with HIV.

 “The previous law needed immediate attention and updating from its inception 30 years ago,” said Curtis Lipscomb of LGBT Detroit.  “As a partner of The Coalition, modernizing Michigan’s HIV disclosure law significantly impacts our state’s residents who are affected by HIV and AIDS.  Although the new law doesn’t wave the magic wand to solves all immediate concerns, we have made progress that makes Michigan safer and smarter.”

 The new law reflects the significant advances in HIV science, particularly concerning how viral suppression impacts transmission risks. Viral load tests measure the amount of HIV in the blood of a person living with HIV; effective HIV treatment can suppress the level to below the limits of detectability by contemporary technology. When the viral load cannot be detected, the person with HIV is not at risk of transmitting HIV to their sexual partners.

 “My hope is that The Whitmer Administration invests in educating Michiganders living with HIV about the modernized law and the importance for getting tested for HIV,” Lipscomb adds.  “The work of The Coalition will continue to modernize and improve this bill to include PrEP and condom usage as well as work towards eliminating racial disparities in HIV healthcare.

 Contact Kelly Doyle for further information at (269) 806-3970.

 ###

 The Michigan Coalition for HIV Health and Safety, founded in 2013, works to modernize Michigan’s HIV response to increase the health outcomes and safety of all Michiganders. The Coalition includes more than 30 Michigan non-profit organizations.

 CARES was founded in 1985 and supports 10 counties in Michigan. Its mission is to maximize the quality of life for people living with HIV and to minimize the transmission.

 LGBT Detroit, founded in 1994, commits to furthering its mission, increasing the prominence and visibility of Detroit’s LGBT culture, and building a strong, healthy and vibrant community, with a focus on youth and young adult development, sexual orientation and gender identity education and advocacy, and emotional and physical well-being.

Tajikistan: Amendments to criminal code introduces criminal liability for beauty salons, hairdressers and other services & strengthened penalties in cases of alleged HIV transmission

Rahmon introduced criminal liability for hairdressers to HIV infection (Google translation from Russian)

In Tajikistan, the liability of doctors, beauty salons, hairdressers and other service enterprises for HIV infection has been strengthened. The President of the Republic, Emomali Rakhmon, has signed amendments to the Criminal and Administrative Codes made and supported by the Parliament, the Khovar agency reports .

Responsibility, according to the law, is provided for those employees who “due to non-compliance with sanitary and hygienic, sanitary and anti-epidemic rules and regulations have become the cause of the HIV / AIDS virus.” The punishment is also tightened for those who are engaged in the import and production of low-quality or counterfeit medicines that do not meet established standards, or sells expired medicines.

Other amendments made to the Criminal Code strengthened the responsibility for intentional infection with the HIV / AIDS virus and human trafficking. For how long the penalties are tightened, it is not reported, it says only that “the full text of the adopted laws will be published in the official press of the country in the coming days.”

The first, which became known to the media, the case of accountability in Tajikistan of a person guilty of mass infection of the disease, occurred in August 2018. A court in the Sharuz district of the Khatlon region sentenced a local woman who engaged in prostitution and thus infected 10 men with HIV, to one year’s imprisonment.

Later began “sanitary” raids on hairdressing and dental clinics. In the Khatlon region, several barber shops, beauty salons and dental clinics were closed, and in the Sughd region, dozens of dental offices and beauty salons closed for violation of sanitary and hygienic standards.

This happened after September 1 at the State Medical University Rakhmon criticized the activities of private dental clinics, expressed concern about the growth of infectious diseases, instructing the Ministry of Health and other specialized departments to “take action”, and also proposed criminal liability for dentists and hairdressers customers are infected with any kind of infection.

Source: Fergana News, January 3, 2019

———————————–

Рахмон ввел ответственность для парикмахеров за заражение ВИЧ

В Таджикистане усилена ответственность врачей, работников салонов красоты, парикмахерских и других предприятий сферы обслуживания за заражение ВИЧ. Президент республики Эмомали Рахмон подписал внесенные и поддержанные парламентом поправки в Уголовный и административный кодексы, сообщает агентство «Ховар».

Ответственность, говорится в законе, предусмотрена для тех сотрудников, которые «из-за несоблюдения санитарно-гигиенических, санитарно-противоэпидемических правил и норм стали причиной заражения вирусом ВИЧ/СПИД». Наказание ужесточено также для тех, кто занимается ввозом и производством низкокачественных или поддельных медикаментов, не отвечающих установленным стандартам, или продает просроченные лекарства.

Другими изменениями, внесенными в УК, усилена ответственность за умышленное заражение вирусом ВИЧ/СПИД и торговлю людьми. На какие сроки ужесточены наказания, не сообщается, говорится только, что «полный текст принятых законов в ближайшие дни будет опубликован в официальной прессе страны».

Первый, ставший известным СМИ, случай привлечения к ответственности в Таджикистане лица, виновного в массовом заражении болезнью, произошел в августе 2018 года. Суд Шаартузского района Хатлонской области приговорил местную жительницу, занимавшуюся проституцией и заразившую таким образом ВИЧ-инфекцией 10 мужчин, к одному году лишения свободы.

Позже начались «санитарные» рейды на парикмахерские и стоматологические клиники. В Хатлонской области были закрыты несколько парикмахерских, салонов красоты и стоматологических клиник, а в Согдийской области за нарушение санитарно-гигиенических норм закрыли десятки стоматологических кабинетов и салонов красоты.

Это произошло после того, как 1 сентября в Государственном медуниверситете Рахмон раскритиковал деятельность частных стоматологических клиник, выразил обеспокоенность ростом инфекционных заболеваний, поручив Минздраву и другим профильным ведомствам «принять меры», а также предложил ввести уголовную ответственность для стоматологов и парикмахеров, если по их вине клиенты заражаются какой-либо инфекцией.

US: A summary of HIV-specific bills aimed at updating Michigan’s existing laws currently moving through Senate

Senate HIV Bills Package Explained

By | December 19th, 2018|Michigan, News

A package of bills is moving through the Michigan Senate that could change the way Michigan health officials monitor and address the HIV epidemic. Introduced last May in the Michigan House of Representatives, the eight-bill package contains HIV-specific bills that are aimed at updating Michigan’s existing laws that contain outdated language regarding issues like the spread of HIV, the role of local health departments in the virus’ treatment and criminal punishment for those who do not inform their sexual partner of their HIV-positive status.

Criminalization and Spread of HIV

Two bills within the package, 6020 and 6021, have come under extra scrutiny by some HIV advocacy organization around Michigan since they were amended from their original form to pass through the House. They were proposed by Democratic State Rep. Jon Hoadley of Kalamazoo who intended to “modernize our outdated HIV criminalization statute” by reducing the sentence for non-disclosure of one’s HIV status to a sexual partner from a felony to a misdemeanor, and to provide a change “to the sentencing guidelines” that currently exist.

“But the legislative process is never a linear line and there were still concerns that folks had around disclosure, around folks who are intentionally trying to transmit HIV without discussions and a number of other issues,” Hoadley said. “So, working in a bipartisan way to get as much as we could in the 99th legislative session, Dr. Canfield and I worked together with other stakeholders to put together a version of a bill that was able to then move.”

In a Dec. 11 Senate health policy committee, Republican State Rep. Edward Canfield said that the emphasis of the bill’s changes are on promoting treatment for HIV.

“I believe that what we’ve come up with in this package as it’s presented to you today really does bring the state of this health condition forward and helps people realize that getting treated is the best pathway,” he said. “… So it not only helps people live lives, but it protects our public health as well.”

The two bills now rest in the Senate, waiting on a decision before the lame duck session is over. Should they not come up for a vote, the bills will die and will need to be proposed again in the 100th legislative session in 2019. Hoadley said that despite the amendments the bills will provide two main benefits.

“The first is that we strike the very outdated definition that was used in the current law that criminalized behaviors, some of which can literally not transmit HIV. So, we’re really limiting the type of behaviors to vaginal and anal intercourse,” Hoadley said. “Second, we create a tiered system. So, if someone knows their status, does not disclose, acts with reckless disregard, and transmits HIV, that is treated at current felony level still. But, if they don’t transmit then that would potentially be a misdemeanor if all the other criteria are met.”

To illustrate his point, Hoadley said that currently there were 19 cases prosecuted under the current law that were considered felonies even though no transmission of the virus occurred.

“So, if this had been in the law, 19 people would have spent fewer of their years in prison,” he said.

Hoadley added that he feels the new bill will make current HIV transmission cases fairer because they will provide an extra level of defense for those who have been able to take medication and suppress their viral load — or literally reducing the function of the virus to undetectable levels within their system. People who have been medically suppressed for six months are “by definition not acting with reckless disregard, so they are not eligible for prosecution under the law.”

“So, for the first time in Michigan, as we work to continue making the criminal justice system fairer — there’s still a lot more to do there — people have a shield from accusations that they didn’t disclose or whatever the case may be, they have an affirmative defense,” Hoadley said. “That part is really groundbreaking as well.”

6020 and 6021’s Critics

But as groundbreaking as that defense is, it is only viable for those who can afford care to suppress their HIV. Critics of the bill’s changes like former BTL contributor Todd Heywood who is the chair of the Ingham Community Health Center board, testified against the legislation as an HIV expert. He said that this unfairly discriminates against people of color without access to treatment centers.

“There is already a racial disparity as it relates to the prosecution of people living with HIV. … Black men who have sex with women represented just 16 percent of the cases of people living with HIV (outside of Wayne County). They represented 36 percent of the prosecutions,” Heywood said. “We know in the state of Michigan and nationally that people of color have less access to medical care and have higher viral loads already. The way the current legislation is written will exacerbate this prosecution and create a deeper racial disparity that is unfair to people of color without addressing any of the other underlying issues.”

When asked about these racial disparities, Hoadley said he understands there is still much work to be done, but said he feels that this is a better alternative to the existing law on the books, citing it as “terrible about what it criminalizes.”

“I think we have to always be looking at race-based discrepancies in both our health system and our criminal justice system. One of the reasons I think the bill addresses a part of that is by eliminating many of the unscientific ways that someone could have gotten charged with these crimes previously, regardless of someone’s intent or not; everybody’s a little bit safer,” Hoadley said. “When we talk about discrepancies in the criminal justice system, this bill will, across the board, limit the number of folks who could even enter into eligibility of the law and also creates tiers. And part of that balancing act is that the current law captures so many more folks who could not even to some degree transmit HIV.”

In his testimony, Heywood also provided a numerical representation of the additional cost of maintaining a prisoner who has HIV using his own medication.

“Four bottles of one month’s worth of HIV drugs for me and I will tell you that that adds up to be between $62,000 and $67,000 a year to keep me alive,” Heywood said. “And we as taxpayers will then have to bear that burden when we put somebody in prison. That information is not in your fiscal analysis and I think that that needs to be taken into account. It is fiscally irresponsible when we have other options and ways to address this.”

Heywood’s reference to “other ways” refers to Michigan’s section of the public health code that addresses people infected with diseases that are “health threat[s] to others.” That statute does not criminalize those with contagious diseases, but rather puts them into immediate emergency treatment. His testimony suggested an amendment that would link the new bills to existing legislation.

“We could tie ‘health threat to others’ to this legislation which would then require that a person go through the probate process to address their HIV and the psychosocial issues that are involved in likely transmission behavior before they go through a criminal process,” Heywood said.

Hoadley said that he recognized the existing faults of the bill, but sees the currently rewritten legislation as a jumping off point to a more inclusive law.

“I think we have to continue to tackle places where we see discrepancies in health care,” he said. “For me, this shows why this project is a step in the right direction but not a finishing line.”

Privacy Concerns

Also included in the bills was a move to require women in their third trimester of pregnancy to get tested for HIV, Hepatitis B and syphilis. As written, the legislation would not allow a woman to opt out of such testing which essentially creates a system of mandatory testing. Currently, lawmakers are floating amendments that would allow a woman to opt out from the testing verbally. A second bill on testing would have mandated HIV testing consent be included in other general medical consents, and that a person not wishing to take an HIV test opt out in writing which presents a barrier to that process. Lawmakers are working on an amendment to allow people to verbally opt out of HIV testing.

Additional legislation would eliminate the 90-day record retention rule related to HIV partner services. The new legislation would allow the state to maintain those records indefinitely. Something they already do, in violation of Michigan law.

“Currently under Michigan law, the partner notification information that is solicited after somebody is diagnosed with HIV is only supposed to be kept for 90 days. What the state has not said publicly is that since 2003 they have been collecting that data,” Heywood said. “They currently have a database containing over 500,000 names and information of people at risk for HIV, living with HIV or tested for HIV. In addition to that, they shifted about three years ago to a federal database owned by the CDC not in the state of Michigan that all of that information is being stored on, in violation of Michigan law. ”

Lawmakers are working on an amendment which will allow the data to be maintained no longer that 365 calendar days.

An amendment related to partner services is also being considered which will prohibit local and state health officials from contacting a person identified as a sexual or needle-sharing partner of a person living with HIV, or the persons living with HIV when they have declined partner services.

“The problem with this is that there is nothing to stop me when I have a partner notification conversation with a health department official from saying — and I apologize Sen. Shirkey for identifying you — Sen. Shirkey and I shot needles of methamphetamine up and now Sen. Shirkey’s name is in a federal database as a methamphetamine user,” Heywood said. “Whether it is true or not, the senator would have no knowledge of that and no option to remove that from the database. That is deeply problematic.”

The lame-duck session is scheduled to end this week, Thursday. More updates about this legislation will come out as it moves through the Senate.

Published on December 19, 2018 in Pride Source

Belarus: Welcoming important developments in the fight against unjust HIV criminalisation

HIV JUSTICE WORLDWIDE along with our partners at The Eurasian Women’s Network on AIDS and Global Network of People Living with HIV (GNP+) welcome this week’s announcement of an amendment to Article 157 of the Criminal Code of the Republic of Belarus, which finally allows consent following disclosure to sexual partner as a defence. Whilst recognizing there is still a long way to go to remove all unjust criminal laws against people living with HIV in Belarus, we congratulate our partners and colleagues in Belarus People PLUS for this achievement!

Today, Parliamentarians of the House of Representatives of the National Assembly of the Republic of Belarus adopted in the second reading three bills, one of which was the law “On introducing amendments to some codes of the Republic of Belarus”. Among other changes, an amendment was adopted to article 157 of the Criminal Code of the Republic of Belarus (one of the most draconian HIV-specific criminal laws in the world), which now allows that people who have warned their partners will no longer be held criminally responsible for potential or perceived HIV exposure or transmission.

Read Yana’s story on GNP+’s website

Until today, Article 157 states that people living with HIV are totally criminally liable for potential or perceived HIV exposure or transmission, even if the so-called injured party had no complaints against their partner, knew about the risks and consented. Prosecutions took place because infectious disease doctors informed police and many people were convicted (read Yana’s story here)

In 2017, 130 criminal cases were initiated under Article 157 of the Criminal Code of the Republic of Belarus, with another 48 in the first half of 2018. Now, it will be possible to revisit those cases.

Anatoly Leshenok, representative of the NGO, People Plus states: “The adopted changes are only the first step in achieving our goal of decriminalising HIV transmission. According to information received from the department for drafting bills, other, more fundamental changes to Article 157 of the Criminal Code of Belarus have not been approved. It is necessary to continue to work with these State structures and with public opinion in order to form a more tolerant attitude towards HIV-positive people. But those changes that have been adopted today –  that’s a success for our team! ”

Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus
Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus

After approval by the Council of the Republic and the President, the amendments will make it possible to revisit previous sentences of the courts, and improve lives of people that were broken previously, as well it provide opportunity now and in the future for people living with HIV in serodiscordant partnerships to plan their lives without worrying if they are criminals every time they have sex.

 

Jamaica: Legislation to criminalise wilful or reckless HIV transmission recommended by parliamentary committee

Committee recommends criminal offense for wilful transmission of STIs

KINGSTON − A Joint Select Committee of Parliament has recommended that amendments be made to the Offences Against the Person Act (OAPA), to make it a criminal offence for individuals who wilfully and knowingly transmit sexually transmitted infections (STIs), including HIV.

This is contained in the report of the Joint Select Committee appointed to complete the review of the Sexual Offences Act, the Offences Against the Person Act, the Domestic Violence Act and the Child Care and Protection Act.

The report, that was recently tabled in the House of Representatives by Justice Minister Delroy Chuck, said the Committee acknowledged that there was a deficiency in the law in relation to the deliberate or intentional spreading of HIV and other sexually transmitted diseases.

“We noted that this type of offence existed in other jurisdictions, such as Canada (grievous sexual assault under the Canadian Criminal Code) and the United Kingdom (grievous bodily harm under the United Kingdom (UK) Offences Against the Person Act), and referenced case law, such as Guerrier, 1998 and Mabior, 2014 from Canada,” the report noted.

“We also made reference to the George Flowers case involving a Jamaican who had infected a number of women with HIV while living in Canada, and fled to Jamaica, resulting in an extradition request being made to the Jamaican authorities for him to return to Canada to face charges. [The] Committee agreed that the Act should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner with any sexual transmissible disease that can inflict serious bodily harm to that partner,” the document adds.

In the meantime, while reviewing a suggestion that a new offence of stalking should be created in the OAPA, the Committee discovered that there was in fact no general, substantive offence of stalking in either the OAPA or the Sexual Offences Act (SOA).

“We felt that this omission should be addressed and, therefore, decided to insert a new, substantive offence of stalking in the OAPA, which should be formulated using the provision in the UK Protection from Harassment Act, 1997 as a guide,” the report said.

The Offences Against the Person Act was last amended in 2010. (CMC)

Published in Nation News