When you look at the size of the Iowa Code, it’s obvious state officials excel at creating new laws. They are champing at the bit to add more this legislative session. If their goal is really to make Iowa a better place to live, our elected officials should muster as much enthusiasm for repealing problematic statutes.
Des Moines Democratic Senator Matt McCoy wants to change Iowa's HIV disclosure law
DES MOINES, Iowa (AP) – A Des Moines lawmaker plans to introduce legislation that would reduce penalties for HIV-positive people who have sex without disclosing their health condition. Des Moines Democratic Sen. Matt McCoy says he wants to change the law to reduce penalties and focus on people who purposefully infect others with the virus.Under the current law, HIV-positive people who have sex without disclosing their condition can face up to 25 years in prison if convicted, regardless of whether someone is infected. “That is truly a Draconian punishment,” McCoy said. “Being diagnosed with HIV is no longer the death sentence it once was.”
McCoy wants to change the law so someone convicted of intentional or attempted transmission of the virus could be sentenced to a maximum of five years in prison and face a $750 to $7,500 fine. That would put HIV in the same criminal category as transmitting any other communicable disease, such as Hepatitis C. McCoy also wants to end a requirement that people convicted must be placed on a sex offender registry for life.
The Legislature unanimously approved the current law in 1998. The law was approved, in part, as a reaction to a 1996 case in New York where a man intentionally infected 13 women and girls with HIV. Among those voting for the Iowa law was McCoy, who is openly gay. McCoy said the current law made sense based on what was known about HIV and AIDS, but times have changed. “The fact that I’m gay has a real impact on my sensitivity to this issue,” McCoy said. “Clearly, I’m extremely impacted by the gay community and sensitive to people living with HIV. “I just feel it’s the right thing to do for this group of people that have been so stigmatized.”
The proposed changes to the law would take into account whether an HIV-positive person took steps to prevent transmission of the disease, such as using a condom and taking medication that makes it less likely that a sexual partner would be infected. Medications have dramatically improved over the decades, and with proper treatment HIV-positive people can greatly reduce the amount of virus in their blood and make transmission of the disease unlikely.
Randy Mayer, who heads an Iowa Department of Public Health bureau that oversees HIV, said the best way officials can reduce the spread of HIV is to encourage partners to disclose their HIV status to each other. That’s why he agrees with McCoy that the law should be changed. “The law was originally set up to encourage disclosure, but it’s doing the opposite,” he said. “The law is frequently cited by people we work with as something that creates stigma and distrust of the system. … It’s what’s creating stigma.”
McCoy has previously tried to change the law but his bills have become stuck in committees. This time, he said he has support from health care professionals, HIV/AIDS advocacy groups, law enforcement and the Iowa attorney general’s office. Since the Legislature approved the Iowa law, 25 people have been convicted, though only two of those infected partners with HIV. Of those 25, 12 people remain in prison, four are on parole, one is on probation and a trial for one person is pending.
Tami Haught, who became HIV-positive 19 years ago after being infected by her husband, said she supports McCoy’s proposal. Haught works with Community HIV/Hepatitis Advocates of Iowa, which helped draft McCoy’s bill. Haught’s husband became infected through a blood transfusion in the 1980s and died of AIDS in 1996. They married after he was infected. “It takes two people to talk about protection and disclosure. I never had the discussion with my fiance,” she said. “That’s why I hate this law because it puts the entire burden on the HIV person.”
British Columbia's Emergency Intervention Disclosure Act to allow court-ordered HIV testing of anyone who exposes their "bodily substance" to first responders
The Emergency Intervention Disclosure Act was passed on May 31, 2012 and will come into play March 2, 2013. The new regulation sets out the legal and procedural details that support the act, including adding victims of crime to those who can apply for a testing order.
First responders are pleased that in just a month, they’ll have more peace of mind about being exposed to open wounds and needles on the job. In the past victim’s haven’t had to give a blood sample, but now paramedics and firefighters can get a court order. Before this, first responders would often go months wondering if they had contracted a disease like HIV or Hepatitis.
UN Commission on the Status of Women Accepts Statement on HIV Criminalization and Women
The 57th Session of the UN Commission on the Status of Women accepted for publication a Statement calling for the repeal of all laws criminalizing HIV transmission, exposure to HIV, or failure to disclose HIV status.
Washington state plans to amend HIV-specific statute to cover all serious communicable diseases
A Washington state law that criminalizes intentionally infecting other persons with HIV without their consent may be expanded to include any disease that is dangerous or deadly.
New Code for Crown Prosecutors suggests adverse impact on complainant's health may make a prosecution less likely
28/01/2013 The Director of Public Prosecutions, Keir Starmer, QC, has today published a new edition of the Code for Crown Prosecutors, the overarching document that guides prosecutors and police in deciding whether or not to charge a suspect. The publication follows a three month public consultation on a shorter, streamlined version of the Code.
Arizona Democrat plans new law to criminalise "intentional exposure" to HIV and other STIs via sex, needles or blood donation
PHOENIX – A House Democrat wants to make it a felony to intentionally expose others to HIV and other sexually transmitted diseases such as gonorrhea, chlamydia or syphilis. “If you know you’re infectious, you should not be spreading that around no matter what the motivation is,” said Rep. Lela Alston, D-Phoenix.
Switzerland: New Law on Epidemics delayed due to referendum, change in HIV law still likely
The road to law reform can be long and rocky, especially in a direct democracy like Switzerland. The proposed changes (for the better) to a law that has been used to prosecute people with HIV for potential exposure even when their partner consented to unprotected sex, and/or when there was no risk, first agreed upon last March will now be put to a popular vote.
The revised Law on Epidemics will only criminalise the intentional spread of a communicable disease.
Last week, the initiative committee for a referendum on the new Law on Epidemics brought to the Federal Chancellery over 80,000 signatures from Swiss citizens unhappy with the law.
According to my sources in Switzerland, the public debate has not been about the change in the law relating to prosecutions for HIV exposure or transmission. In fact, the majority of political parties, the government, all the health institutions, and all the Cantons favour the new law.
Rather, the referendum demand was a result of strong opinions over those parts of the law dealing with mandatory vaccinations and sex education in schools.
The date for the referendum is not yet clear, although it is possible that it will take place before the end of 2013. Last November, the same group behind this referendum forced a similar vote on the new law on animal medicine and lost by a large majority (68%), which is encouraging.
Another encouraging sign is that earlier this month, the German-language Tages Anzeiger (Daily Gazette) published a broadly positive article explaining the changes in the law that relate to HIV. I have (unofficially) translated the into English, and it is reproduced below.
The federal government plans to decriminalise the transmission of AIDS
Claudia Blumer, Daily Gazette, 01/11/2013
Switzerland treats HIV-positive people who infect a sexual partner especially harshly. Following international criticism, it will change the criminal code.
Today someone who negligently, willfully or maliciously infects someone with the AIDS virus is punished by up to five years in prison. In the future only transmission of the virus with “malice aforethought” will punishable. The terms “willfully” and “negligently” have been deleted from the revised Law on Epidemics, which includes an amendment to Article 231 of the the Criminal Code. The law was supposed to come into force in early 2013. Due to the referendum, voters are now expected to decide in June.
Parliament adopted the Law on Epidemics in the autumn of 2012. The change in the criminal code was a resul of long debate in the lower houses. Senator Urs Schwaller (CDP) explains why he agreed to change the provision only to “malice aforethought”: “The offender, in this case, would have acted with intent to harm. If they had merely been negligent, this could be prosecuted under general criminal statutes for personal injury. ”
A relaxation of the criminal law also makes sense for preventive-medical reasons, notes Ticino MP Dr Ignazio Cassis (FDP). According to current scientific knowledge prosecuting HIV-positive people is counter-productive because it stigmatises the disease and those affected by it. This may result in greater harm to public health if we do not dare speak openly about the disease. “The general sense of justice collides at this point with the pragmatic preventive medical approach,” says Cassis.
36 convictions since 1990
The Swiss law on HIV transmission has become more restrictive over the past 20 years. At the beginning of the 90s, Article 231 – which covers the spread of disease – was used for the first time in connection with AIDS. Since then, according to Aids-Hilfe Switzerland, there have been 36 guilty verdicts based on actual or attempted transmission of HIV through sexual contact. A federal court ruling from 2008 states that an HIV-positive person can be punished even if they knew nothing of their infection.
The number of convictions in relation to the number of HIV-positive people is higher in Switzerland than in most other European countries. In this country, sometimes even people living with HIV have been punished even if the unprotected sexual intercourse took place with the partner’s full knowledge and consent to the risk of infection, or when no one was infected, or if the HIV-positive person was rendered uninfectious by antiretroviral therapy. The reason for the legal interest is because Article 231 is about “public health”: it does not protect individual interests, but those of the community. The consent of the partner therefore doesn’t protect the HIV-positive person from prosecution. Neighbouring European countries apply laws relating to personal injury or death, resulting in fewer convictions. But many countries are in the process of revising their criminal provisions, says Marcel Niggli, professor of criminal law at the University of Freiburg. The trend is towards decriminalisation.
Laws easing “overdue”
The Swiss law on HIV transmission has been repeatedly criticized by international organisations. However, Switzerland has not been put under political pressure, says Ignazio Cassis. Yet he has heard informal criticism from abroad, for example, at international AIDS conferences. He has been exposed to, among other things, calls from UNAIDS, an agency of the United Nations, for the decriminalization of HIV transmission. In a position paper it calls on governments not to create HIV-specific laws. Switzerland has also been criticized by the UN Human Rights Council. As part of the Universal Periodic Review it criticized Switzerland in an October 2012 report, for punishing HIV-positive people regardless of the specific situation. This is contrary to the prevention strategies. The criminalization of HIV transmission is ineffective and causes only the stigmatization of those affected.
The amendment was not informed by the Federal Health Office, or by a long-standing demand by the Federal Commission for Sexual Health and Aids-Hilfe Switzerland Switzerland. Federal Commission for Sexual Health President Pietro Vernazza has said that the decriminalization of unprotected sex for people with HIV has been overdue since the late Nineties, especially if they were successfully treated with antiretroviral therapy: “Studies have proven the effectiveness of the therapy. During treatment, an HIV-positive is not contagious.”
Norway: National Association of People Living with HIV responds to Norwegian Law Commission report
Yesterday was the deadline for written responses to the Norwegian Law Commission report which shocked and disappointed HIV and human rights advocates in Norway and around the world on its release last October.
After spending almost two years examining every aspect of the use of the criminal law to punish and regulate people with communicable diseases (with a specific focus on HIV) the Commission recommended that Norway continues to essentially criminalise all unprotected sex by people living with HIV regardless of the actual risk of HIV exposure and regardless of whether or not there was intent to harm. The only defence written into the new draft law is for the HIV-negative partner to give full and informed consent to unprotected sex that is witnessed by a healthcare professional.
Since then, Professor Matthew Weait has published Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease on his blog highlighting some of problems with the arguments used in the report.
We have also published an interview with Kim Fangen, the only member of the Commission to vote against the use of a specific law to control and punish people with HIV and other sexually transmitted infections, which presented an alternative vision.
Today, we publish the English translation of the written response by Nye Pluss, the Norwegian national association of people living with HIV.
The organisation found that, overall, the report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.
The HIV Justice Network fully supports their arguments and conclusions and hopes that Norways parliamentarians follow the lead of Labour’s Håkon Haugli and The Conservative Party’s Bent Høie who came out against any specific law last July.
Below is the English translation of the Nye Pluss response, shortened and paraphrased in some areas, but with their full agreement and permission. The original Norwegian version can be read here.
Nye Pluss’s board has read and discussed the Norwegian report. Our perspective is that, as people living with HIV, all aspects of Norwegian HIV policies, including any special penal provision, must have the net result of fewer new infections. Our primary perspective is therefore one of public health.
We have found that, overall, this report has three key weaknesses:
• It does not take into account the formidable global challenges related to HIV and AIDS and is not consistent with the international responsibilities that Norway has to follow-up recommendations that have come from a variety of organisations, including UNAIDS.
• It does not take into account the medical advances that have taken place in the HIV field over the past few years., in particular that HIV treatment is, in fact, now prevention, and that testing and treatment (“treatment as prevention”) is one of the most important preventive measures to combat the global HIV epidemic.
• It does not acknowledge that HIV criminalisation will help to prevent effective contact tracing and counselling, and thus influence the HIV response in the wrong direction. A desire for the use of punishment is, therefore, at the expense of public health.
Below, we elaborate our views on these three objections.
Norway’s international responsibility in the fight against HIV
The fight against HIV and AIDS is one of the biggest challenges we face in the world: two million die every year due to AIDS-related illnesses. Around 35 million people live with HIV globally. Nearly three million are newly infected with HIV each year. Norwegian authorities have a responsibility to contribute to the international HIV response. We therefore believe that the discussion on penalising HIV exposure or transmission in Norway must be seen in relation to the international challenges we face. This report does not live up to those challenges.
At page 184 the report states:
“UNAIDS ‘work is global, but is mainly aimed at countries where the prevalence of HIV and AIDS is high. UNAIDS has no European office, such as WHO and recommendations etc. have a global objectives and are hardly suitable for Scandinavian or European conditions. The committee’s review will be largely based on our cultural context, which can be very different from the global.”
It therefore concludes that UNAIDS’ work and recommendations specifically relating to criminal laws are not relevant for Norway, while Norwegian authorities support UNAIDS efforts globally. This is, in our opinion, a somewhat arrogant and culturally discriminatory attitude to the situation in other countries. Although Norwegian law is only applicable in Norway, we expect that Norwegian laws at home should also follow, and are not contrary to, the beliefs and policies that we export to other countries in the world.
“Treatment as prevention” – a medical breakthrough in the fight against HIV
A medical breakthrough took place when the first effective HIV medicines appeared in 1996. In countries where there was good access to these medicines, the number of AIDS-related deaths fell quickly and drastically. Treatment as prevention is, perhaps, just as big a breakthrough – we now know that effective HIV medication prevents new HIV infections. New research shows that the risk of infection is reduced by 96%, more than any other prevention method.
[Several paragraphs discuss international policy relating to ‘treatment as prevention’….]
Nye Pluss notes with surprise that the report only once refers to “treatment as prevention” and even then in a way that gives the impression that the authors of this section have not acquired up-to-date knowledge of the issue. It is regrettable that such an important resource which claims to provide a basis for Parliament to examine Norwegian HIV policy in a holistic context – not least relating to the criminal law – treats such an important part of international HIV policy so superficially. We believe that it is a serious academic failure not to discuss the effects of punitive sanctions on earlier testing and treatment.
Criminal law regulation of serious infectious diseases – an obstacle in the fight against HIV
HIV criminalisation has been a growing problem in many countries around the world in recent years. Criminalisation helps to maintain stigma and prevent openness about HIV, and is thus an unwanted obstacle in HIV treatment and prevention. In addition, HIV criminalisation in many countries works to suppress women and minority groups that are particularly vulnerable to HIV.
Nye Pluss believes that the criminalisation of HIV exposure and transmission has been a barrier to effective HIV prevention in Norway. In some groups, annual HIV figures have tripled over the last ten years, compared with the previous decade.
A future, efficient Norwegian HIV policy will depend on effective and efficient testing, counselling, contact tracing and treatment, such as a “treatment as prevention” strategy. Effective testing of affected populations, effective tracing of possible infected sexual partners and effective treatment is, along with condoms and awareness, cornerstones of reducing new infections in Norway.
For those of us living with HIV, it is important that a future Norwegian strategy is successful, so that fewer people acquire HIV in Norway….One such major obstacle to achieve reduced infection figures is the criminalisation of HIV through a special provision in the Criminal Code, as advocated by the majority of the committee behind the report.
In the pharmaceutical industry….the manufacturer must show that the drug’s harmful effects do not exceed its positive effects… Surely it is possible that an HIV law will negatively impact vulnerable groups of people with HIV who have immigrated from countries with non-democratic regimes, who are more likely to go underground if there are threats of punitive sanctions, so that testing, disclosure, contact tracing, treatment and counselling is not available to them? Nye Pluss consider it obvious that there exists such a legitimate doubt and that this is precisely one of the reasons that some MPs have requested a separate investigation of the criminal law as it relates to HIV. “It is therefore surprising that the majority of the commission’s members argue, without any scientific evidence, that there would be no negative impact to an HIV law.”
Moreover, many members of the committee suggest that “decriminalization could be perceived as a signal that infecting others or exposing others to infection, is no longer a serious matter”(page 248). This is an unscientific, tautological statement based on the completely undocumented assumption that because HIV exposure and transmission is criminalised in Norway it has worked as a prevention tool, and that decriminalising it would lead to more infections, despite a lack of any evidence supporting this.
Nye Pluss believes the committee majority here are completely wrong, and we can refer to international research studies that support this.
[A summary of studies from Canada (O’Byrne, 2012), the US (Sero, 2012), Scotland (Bird and Leigh-Brown, 2001), and England (Whitlock, Warwick et al, 2010) showing a negative impact of HIV criminalisation follows.]
Nye Pluss finds it surprising that the majority of the Committee does not seem to be familiar with the research that has been done in recent years which shows that HIV criminalisation has unique negative impacts on willingness to test, to disclose to sexual partners, and in the creation of uncertainty amongst health care workers and counsellors. This somewhat surprising rejection of the existence of such research and thus a lack of discussion of such readily available research, weakens, in Nye Pluss’s perception, a range of the majority’s conclusions on the importance of the criminal law’s impact on public health: not to discuss the importance of documented research in this area is a serious mistake and results in the majority’s conclusions on public health failing in crucial ways.
Another key point of the debate around a penalty provision for people with HIV is the growth we have seen in HIV figures among particularly vulnerable groups, such as men who have sex with men, over the last ten years…The extremely serious issue that is raised is whether the relatively large number of prosecutions over the past decade has affected HIV testing behaviour, thus increasing the number of untreated individuals, resulting in more new infections.
It is a serious public health issue when there is a tripling of HIV infection among men who have sex with men for the last ten years in Norway. We are in absolutely no doubt that public health has not benefitted from the use of the Penal Code, and are of the opinion that the studies and analyses conducted to date, and as mentioned above, show with great clarity that the increased number of criminal trials over the last decade have impacted Norwegian society and public health in an extremely negative way. Nye Pluss cannot see that the Criminal Code’s provisions against HIV, which the majority recommend, will result in fewer HIV cases.
Nye Pluss believes that the latest scientific advances pertaining to HIV treatment and prevention will do perfectly well by themselves without assistance from the criminal law, including those few cases where restrictive measures for infection control law would be needed against an individual.
Conclusions
Nye Pluss believes that the Committee’s recommendations to maintain the criminal regulation of HIV exposure and transmission and other general dangerous diseases, would undermine Norway’s international responsibility to participate in a common front to combat HIV in the world.
We must recognise that since 100% safe sex is not possible it would be impractical to allow the courts to put a specific limit on what is punishable in a world where sex is a universal activity for the continuation of humanity … To punish a select few who have not mastered ‘safer sex’ – defined narrowly as condom use – is neither a fair or an effective tool in this fight, but rather the opposite.
No matter where you draw the line regarding what is, or is not, a criminal offense, a specific penal code criminalising HIV exposure and transmission will prevent effective prevention, early testing, contact tracing, treatment and counselling, and will put a spoke in the wheels of the “treatment as prevention” strategy that promises to be the breakthrough in the fight against HIV. That the criminal law should be both an obstacle to international responsibility and to effective measures for domestic public health in this area is unacceptable for society.
Nye Pluss recommends that the Government and Parliament reject the choice of the majority’s conclusions in this area and remove the particular provisions of the Criminal Code.
Guangdong Province to bar HIV-positive teachers despite China's non-discrimination law
People diagnosed HIV-positive are to be barred from becoming teachers in Guangdong Province, according to a draft regulation issued by the provincial education department on Sunday. The draft stipulates that people who are HIV-positive, and those who have other infectious diseases like hepatitis and venereal diseases, cannot be certified as a teacher, which would contravene national laws that state employers can not discriminate against HIV/AIDS carriers, an activist told the Global Times Monday.