US: [Update] Texas HIV criminalisation bill defeated (link does not reflect this updated news)

The Texas State House is considering SB 779, a bill that would allow any HIV test results to be used in any criminal proceedings against a person with HIV in Texas. This bill is unnecessary – Texas law already allows law enforcement and public safety officials to conduct HIV testing on individuals when appropriate, but there are privacy measures to keep these tests confidential. This bill goes much further – HIV tests could be subpoenaed and used in any criminal proceeding.

HRC opposes this legislation because stigma against people with HIV may bias criminal proceedings, this may unfairly result in enhanced penalties, and of course, because it undermines medical privacy.

From a public health perspective, it is inadvisable and dangerous to create obstacles that might prevent people from seeking or receiving HIV tests. If this bill passes, having a positive HIV test result may be used to enhance penalties or foster bias in criminal proceedings, which creates an incentive for the public to avoid testing. Everyone deserves medical privacy.

SB 779 has already passed the Texas Senate, so this is our last chance to stop this bill from becoming law. Please, if you live in Texas, reach out to your state representative and urge them to oppose SB 779. HRC is also coordinating with state and local advocates to oppose this measure, which compromises the privacy of people living with HIV and public confidence in HIV testing.

US: Alabama lawmaker's proposal to increase 'knowing' HIV/STI transmission to a felony likely to resurface in 2016

People with sexually transmitted diseases who knowingly spread infection to their partners could face prison time, if a bill now in the Legislature becomes law.

Proposed by Rep. Juandalynn Givan, D-Birmingham, the bill would make knowingly transmitting an STD a Class C felony if passed; it’s currently a misdemeanor. Some advocates worry, though, that the bill might have unintended consequences that make it harder to fight the spread of disease.

Givan said her goal was to target those who intentionally put the lives of others at risk. The bill was inspired by calls Givan received following a case involving Montgomery pastor Juan McFarland. “This gentleman knew he had HIV and decided to engage in sexual relationships with multiple women, which could lead to their deaths,” she said.

Some of those women were reluctant to speak out because the charge McFarland could have faced was only a misdemeanor, she said.

“They said ‘I might want to come forward, but there’s not enough strength in the current law. I would have made myself a public spectacle for no reason,’” Givan said the women told her.

AIDS Alabama policy chief Lauren Banks worries that the proposed law could do more harm than good, though.

“By and large this law is not helpful. It stigmatizes HIV or a person with an (sexually transmitted infection) even more,” Banks said. “It would police the bedroom.”

Under current law, those convicted of the misdemeanor offense would face no more than 90 days in jail, Givan said. Offenders might get out on time served.

“That’s absolutely ridiculous,” said Givan.

Banks, who has worked with Givan to modify the bill, worries that the original version does not specify which STDs would be included in the law. Some infections, she noted, can be spread even when using condoms, such as human papilloma virus and herpes.

“So even safe sex could be criminalized,” Banks said.

Banks also said if the bill passes it could cause fewer people to get tested for STDs.

“Other states that have enacted these laws have seen negative fallout because once you know your status, you are culpable. But we want people to know their status. We don’t want people to be afraid of what could happen to them.”

Banks suggested another way to counteract rising STD rates.

“If anything, we should focus on creating sexual health education curricula for our schools that is age-appropriate and medically accurate,” she said. “Let’s be preventative and not punitive.”

Eric Guster, a Birmingham attorney who frequently comments on criminal issues, said the consequences of tougher sentencing should be considered.

“If a person is found guilty, a first-time offender would receive a possible sentence of a year and day to 10 years in prison,” he said.

Guster said he’d want the bill to specify the diseases mentioned. He pointed out several problems with enforcing the law.

“The misdemeanor is rarely used because people don’t want to put their sexual history on display,” he said. “When you’re speaking of STDs, people go to the doctor, get treated and then move on with their lives.”

Also, the burden of proof would be steep.

“The affected person has to prove beyond a reasonable doubt that that partner gave them the disease and that’s the only sexual partner they’ve had who could’ve done it,” he said.

Making knowingly transmitting an STD a felony without creating stiffer penalties for certain types of diseases also raised concerns for Guster.

“When you have cases where younger people have a disease that is easily transferable, that puts a lot of students at risk for felonies for just doing things teenagers do,” Guster said.

Givan said she has received calls of support from colleagues on both sides of the aisle. She and Banks also discussed possible changes to the bill.

“Juandalynn tried to meet us halfway with amendments such as transmission has to occur, and a disclaimer that if you tell your partner you have HIV, you would be exempt from prosecution if they were infected,” said Banks.

The bill, however, has not moved since the beginning of the legislative session in March, and appears to be running out of time for passage this year.

Givan said she changed the bill late last week and expected it to be the first one “in the hopper to go out for sponsorship next year.”

“I want safeguards in place,” she said. “I think it’s a piece of legislation that is needed. I just want to be sure we do it the right way.”

US: REPEAL HIV Discrimination Act reintroduced by Congresswoman Barbara Lee even as some US states propose new HIV-specific criminal laws

The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.

As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.

Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.

REPEAL HIV Discrimination Act

On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.

The full text of the bill can be found here.

The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee. The first iteration, introduced in 2011, achieved 41 co-sponsors.

As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.

As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.

Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”

If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586

Alabama

On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).

Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status. (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)

In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.

“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.

Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.

Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.

Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.

The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.

Missouri

On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.

It is unclear what caused Rep Fitzwater to introduce the bill. However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.

Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.

The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.

Rhode Island

On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.

In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.

However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.

Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”

All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.

Texas

On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.

Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.

According to the Advocacy Without Borders blog, “SB 779 proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”

The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.

Victorian Government to repeal 19A and address HIV stigma

The Victorian Government has announced it will repeal section 19A of the state’s Crimes Act, which specifically criminalises intentional transmission of HIV and is widely considered to stigmatise people living with HIV. The law is the only one of its kind in Australia, singling out intentional HIV transmission for harsher penalties of up to 25 years imprisonment, while the maximum penalty for manslaughter is 20 years.

HIV organisations have lobbied for the change for some time, arguing that section 19A is stigmatising and unnecessary, because intentional infection with HIV could be considered under existing criminal offences such as “causing serious injury”.

Stigma against people living with HIV is also widely understood to be counterproductive to HIV prevention, and the Joint United Nations Programme on HIV/AIDS and the Global Commission on HIV and the Law and have singled out HIV-specific criminal laws as contributing to HIV stigma.

“People living with HIV are entitled to equality before the law, and this is another step forward in ensuring that,” Victorian Attorney-General Martin Pakula said.

“This is about reducing the stigma and discrimination faced by people living with HIV, and in turn promoting equal protection by the law of all Victorians.”

Equality Minister Martin Foley told the Star Observer he understood the potential for the repeal of 19A to be met with some resistance among gay men, but said it was a perfect example of why this is a necessary reform.

“This is about stigma, and removing stigma in particular within the community, and that’s almost an expression of how stigma creates within the community this self-fulfilling prophecy,” he said.

“I understand the whole notion of protecting members of the LGBTI community from transmission, but it’s not by punitive ‘big sticks’, it’s done through public health positive messaging… inducing fear and pushing people underground has been shown to be counterproductive.

“As so many informed, global experts — let alone community experts have said, this is how you do it, by removing the stigma, by encouraging proper discussion within the community about safe-sex practises, and if the disease is there, appropriate treatment.”

A commitment from the then-Labor Opposition to repeal the law was secured during last year’s AIDS 2014 conference in Melbourne, on the back of a campaign led by Living Positive Victoria and the Victorian AIDS Council.

“Research around the world shows this is the right way to combat HIV,” HIV Legal Working Group chair Paul Kidd said.

“Our organisations strongly believe the Public Health and Wellbeing Act provides the best way to deal with allegations of risky behaviour — keeping the public safe and protecting human rights.”

Doherty Institute director and local co-chair for AIDS 2014 Professor Sharon Lewin said the repeal was important outcome from the conference.

“Reducing HIV transmission is best approached through effective public health policy and community engagement — not through criminalisation and stigma,” she said.

“The repeal of section 19A is a very welcome announcement and an important enduring legacy from AIDS 2014 to see an end to stigma and discrimination for all people living with HIV.”

Victorian AIDS Council chief executive Simon Ruth called on the Coalition to support the repeal.

“Now that this legislation has been introduced, we hope it is met with the same bipartisan support we have seen in the Victorian response to HIV/AIDS historically,” he said.

“Repealing 19A will allow us to combat the stigma experienced by PLHIV and to continue our work in HIV prevention — a vital step forward if we’re to see a future with no new HIV notifications in Victoria.”

The then-Coalition government indicated support for “removing discrimination” associated with section 19A of the Crimes Act during AIDS 2014.

US: Missouri proposal to add spitting whilst HIV-positive to criminal law likely defeated following strong pushback

On Tuesday, the Missouri House Committee on Civil and Criminal Proceedings held a hearing on HB 1181, a bill that would criminalize individuals knowingly infected with HIV who spit at another person. Contact with saliva has never been shown to result in HIV transmission.

HRC Senior Legislative Counsel Alison Gill testified in opposition to this harmful bill.

“According to the Presidential Commission on the HIV Epidemic, criminal sanctions for HIV transmission must be carefully drawn, directed only towards behavior which is scientifically established as a mode of transmission, and should be employed only when all other public health and civil actions fail to produce responsible behavior,” she testified. “H.B. 1181 fails to meet this standard because it criminalizes behavior with a low or negligible risk of HIV transmission, which may result in stigmatization and negative health outcomes among people with HIV and the LGBT community in Missouri.”

HRC urges the Missouri lawmakers to oppose this unnecessary and harmful bill.

Czech Republic: Health Ministry proposes law to make HIV testing mandatory for key populations

The Czech Health Ministry is pushing a proposed amendment to the law on public health which would make HIV testing compulsory for some people in high risk groups. While the ministry argues that this is to curb the spread of the disease and ensure early treatment, human rights advocates say it would mean a serious breach of human rights.

HIV testing in the Czech Republic is conducted anonymously and is free of charge. In its prevention programmes the Czech AIDS Help Society highlights the importance of getting tested in order to enable early treatment of the disease and protect others in the event of a positive outcome. Still many people who engage in what is seen as high-risk behaviour do not want to undergo testing. The Czech Health Ministry now wants to change that and force people who are considered to be at high risk to undergo testing or face a tall fine.

The proposed amendment to the law has already passed without opposition through the health committee of the Chamber of Deputies and is due to go into a third reading in the lower house. However it has stirred controversy among human rights advocates, and is strongly opposed both by the Czech AIDS Help Society and the government’s committee for the rights of sexual minorities.

Robert Hejzák, photo: Czech Television Robert Hejzák from the Czech AIDS Help Society says repression is not the way to go –even in the interest of protecting public health.

“Human rights are universal and we do not accept the argument that in the case of HIV they should be violated in the interest of public health. Moreover HIV positive people are not a direct threat to the public – this is not ebola, it is not tuberculosis or even the flu.”

The country’s chief hygiene officer Vladimír Valenta refuses to hear this argument saying that the health authorities have a duty to protect the public from an epidemic.

“We are talking about individuals who are at the centre of a high-risk environment and there is a higher probability of infection. From an epidemiological point of view HIV is no different from other diseases that put the population at risk. There is a danger off the virus spreading and this danger merits the same kind of protective measures as in other potential epidemics.”

Vladimír Valenta, photo: Filip Jandourek At present the Czech Republic (with over 10 million inhabitants) has over 2,000 people registered HIV positive, and over 200 people have died of AIDS. Each year brings on average around 230 new cases. Under the present legislation testing is only compulsory for pregnant women in order to enable heightened protection of the unborn child. If the newly-proposed amendment passes through both chambers of Parliament and is signed into law by the president pretty much anyone considered high risk could be forced to undergo a test for HIV. How this would prevent them from spreading the disease further or even encourage them to act responsibly with regard to their own health is not clear and the answer to those questions may be decisive in whether lawmakers allow this particular amendment to pass through a third and final reading in the lower house.

Sudan: Draft law providing rights and protections for people living with HIV also comes with responsibilities, including criminalising 'intentional' transmission and non-disclosue to 'prospective spouses'

April 2, 2015 (KHARTOUM) – Sudan is in the process of drafting a law to protect the rights of those living with HIV/AIDS and ensure that they receive medical and psychological care. The bill, which is being drafted by legal experts, people living with HIV/AIDS, physicians and officials, will also criminalise the intentional transmission of the disease.

Sudan’s ministry of health revealed last December that there are 79,000 cases of AIDS in the country.

The draft law would state that people living with HIV/AIDS enjoy all the rights guaranteed by the constitution and international conventions ratified by Sudan.

It prohibits any form of discrimination based on HIV status that would lead to the degradation of their dignity or erosion of their rights or exploitation.

Furthermore, the draft bill gives the patients the right to housing, access to goods and services and prohibits subjecting any citizen to HIV check as a condition for employment or dismissing employees who contract the virus unless it is proven through a medical report that they are incapable of performing their job functions.

Even then, they will have the right to request being transferred to another job.

The law granted HIV/AIDS patients the right to request open-ended sick leave with full pay in case of health-related complications and to receive social security.

For children living with the virus, they would have the right of access to health care and medical counseling and cannot be dismissed or transferred from their schools.

The law also guarantees confidentiality of their information and ensures that it cannot be published in the media without the patient’s consent.

Court trials can be held in a closed setting if one of the parties involved has HIV/AIDS, the law says. It also dictates that HIV screening would be voluntary and confidential. It would also allow infected moms to retain custody of their children.

But the law also obliges patients to take the necessary steps including seeking medical help to prevent transmission of the virus to others. Failing to do so would be punishable by law.

Should an infected individual decide to marry they should notify their prospective spouse and comply with instructions that prevent transmitting the virus.

US: Advocacy underway in Alabama to fight newly proposed bill to change 'knowingly' transmitting an STI from a misdemeanor to a felony

HIV/AIDS advocacy groups are preparing for a fight against a piece of legislation that would heighten the penalty for knowingly exposing a sexually transmitted disease to another in Alabama. Research shows stigmatizing and criminalizing HIV doesn’t reduce the transmission rate, and it actually discourages people from getting tested, Kathie Hiers, executive director of AIDS Alabama, said.

Rep. Juandalynn Givan’s bill is vague and makes is possible for spreaders of any sexually transmitted disease to be charged with a felony, she said.

“The way the bill is written if anyone puts anyone at any risk for any STDs or HIV it can be a felony,” Hiers said in an interview with AL.com. “Now, you can interpret that as any woman who has HPV could be guilty.”

She said 85 percent of women have HPV, a sexually transmitted disease, and many don’t even know it.

Givan, D-Birmingham, said she stands behind her proposed legislation.

“This piece of legislation simply imposes greater penalties for those who maliciously with the intent to recklessly by some type of malice or reckless disregard for the life and the health of another human being intentionally goes out and infects another person,” she said.

Givan said the intent of the bill isn’t to keep anyone from being tested for HIV.

She said Alabama law already defines a sexually transmitted disease, but she would be open to amendments to her bill.

The lawmaker decided to propose the legislation, heightening the penalties under current law from a Class C misdemeanor to a Class C felony, after hearing about a Montgomery pastor confessing his HIV-positive status to his congregation and admitting he engaged in sex with unknowing women.

A Class C felony carries a prison sentence of one to 10 years. A Class C misdemeanor carries a maximum prison sentence of three months.

Givan thinks current law is too lenient, and people who are intentionally infected are too embarrassed and afraid to come forward to law enforcement.

Alabama is one of only 16 states in the nation where it is a misdemeanor offense to knowingly expose another person to a sexually transmitted disease, she said.

Juan McFarland, the former pastor of Shiloh Missionary Baptist Church in Montgomery, admitted during a sermon in September 2014 to being HIV-positive since 2003 and having sex with multiple women who weren’t aware of his status.

Montgomery police haven’t charged McFarland with any crime, but McFarland lost his job.

“It is pretty severe if you have been infected with HIV for a period of time and are having sexual intercourse with multiple women,” Givan said in a previous interview with AL.com. “You can only imagine that someone may have become infected.”

The Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) released statements against the criminalization of HIV.

“We oppose legal statutes that undermine public health by criminalizing transmission of HIV, viral hepatitis, tuberculosis and other infectious diseases,” the groups stated in a press release. “Studies have documented that these laws discourage individuals from being screened and treated for conditions when early diagnosis and treatment of infected individuals is one of the most effective methods to control the disease.”

Resources should be put behind evidence-based prevention methods not towards the criminalization, the groups said.

Hiers said everyone should take personal responsibility for protecting themselves against STDS, and criminalizing diseases doesn’t help.

“I think it lulls people into a false sense of security because if you make it all the responsibility of the HIV-positive person or the person who has the sexually transmitted infection then people may not practice universal precautions,” she said.

In this day and age, Hiers said everyone having sex needs to assume the other person has a sexually transmitted disease until they reach the point they are in a monogamous relationship and have been tested.

The Sero Project, a group working to end the criminalization of HIV, is expected to get involved and lead a grassroots effort against Givan’s bill if the lawmaker doesn’t table it herself.

Since research has proven that criminalizing HIV doesn’t reduce transmission, Sean Strub, the executive director of the group, said several states are considering decriminalizing it. Iowa became the first state to do so last year.

“So it is truly ironic that while much of the rest of the country is looking at changing these statutes, to slow the epidemic, a legislator in Alabama wants to make the statute more punitive, which will most likely make the epidemic in Alabama worse,” he said. “I’m sure that’s the opposite of what the legislator intends, but it is the likely outcome, which is tragic. Stopping this bill is, from Sero’s perspective, the single most compelling HIV prevention priority in Alabama right now.”

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos.

The amendement, draft Bill No. 198, 2015, would add to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – individuals who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

The bill has considerable support thanks to an outbreak of moral panic that began with an article in the daily newspaper, O Estado de S. Paulo, published on February 22nd, that uncovered the gay ‘barebacking’ subculture and further suggested that some men were deliberately passing on HIV to unsuspecting partners.

Two days later, it was reported in a blog of the weekly magazine, Veja, that police were now looking into the allegations.

According to [Secretary of Justice and Defence and Citizenship, Aloysius Toledo Caesar], [Secretary of Public Security, Alexandre de Moraes] has guided teams of the Department of Civil Police Intelligence (Dipol) to act covertly to identify the groups. Chat rooms will be analyzed, websites, blogs and even clubs and sex saunas. “We agreed to encourage all actions that may prevent persons continue to criminally transmit the virus,” said Toledo. “When the transmission is done intentionally, our understanding of the law is that the legal concept is configured to be like an assassination attempt, a more serious penalty,” he added. Under Article 130 of the Penal Code, the penalty for transmitting the virus without the partner’s consent is up to 4 years in prison.

On February 27th, the Brazilian country office of UNAIDS issued a press release expressing concern about the “impact [of these media reports] on increasing stigma and prejudice related to HIV and people living with the virus.” It went to explain that condoms, treatment, PEP and PrEP are all effective HIV prevention tools, and concluded:

UNAIDS also highlights that there is no evidence that the use of criminal laws for HIV is an effective tool to prevent and response to the epidemic. On the other hand, there are strong indications that the fear of being arrested or imprisoned may discourage people to test for HIV or to stay on therapy.

The moral panic became a full blown media frenzy on March 15 (and again on March 22) when the top-rated Sunday news TV programme, Fantástico, on TV Globo, aired a sensationalised two-part investigation into the ‘barebacking’ phenomeon, repeating the same allegations. The reports (in Portuguese) can be viewed here and here.

In reaction to this, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health issued a strong statement of its own on March 21, and three Brazilian civil society organizations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) – also issued press releases or statements noting that these reports stigmatise gay men living with HIV; that the idea of deliberately infecting someone is primarily a fantasy; and that in the extremely rare case of malcious, intentional transmisison the current general law is sufficient.

This isn’t the first time that there has been a media frenzy and moral panic around criminal HIV transmission. Two high profile cases in 2009 led to a strong statement from the Ministry of Health against the use of the criminal law unless transmisison was intentional.

According to the Global Criminalisation Scan, a number of laws can be used to prosecute alleged HIV non-disclosure, exposure or transmission, and there have been at least five prosecutions since the first recorded criminal case in 1995.

Follow the progress of bill PL 198/2015 here.

Update: On May 19th, former President Fernando Henrique Cardoso, who chaired the Global Commission on HIV and the Law, published a clear statement against the law on his Facebook page.

Screenshot 2015-06-01 12.15.07

US: Texas Senator Joan Huffman introduces four new HIV-related laws, including vague and overly broad HIV-specific criminal statute, SB 779

Three bills in the Texas statehouse would use HIV status as a weapon, one would lessen stigma.

Januari Leo, who works with Legacy Community Health Service, is the state’s go-to girl when it comes to following bills in the Texas Legislature related to HIV/AIDS. So when she calls a bill harmful, she’s likely not exaggerating.

Leo this week identified four bills introduced during this legislative session that would directly impact those living with HIV. Sen. Joan Huffman, R-Houston, filed SB 779, which would use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

SB 1705, also filed by Huffman and its companion HB 2395 by Rep. Rick Miller, R-Sugar Land, would allow a court to test a juvenile for HIV following a crime.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem.”

Texas is among five states that have no law criminalizing HIV, but there have been cases prosecuted in Texas based on exposure or transmission.

Currently 37 states have some form of criminal law related to exposure and/or transmission of HIV on the books, according to the LGBT Movement Advancement Project.

According to the Center for HIV Law and Policy, both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. They are joined by numerous medical organizations.

According to the Centers for Disease Control, states enacted HIV-specific criminal exposure laws during the early uncertain days of the AIDS crisis.

That legislation criminalized HIV-positive people who know their status and intentionally expose it to others.

In order to qualify for funding under the passage of the Ryan White Comprehensive Act in 1990, states were required verify that their HIV criminalization laws were sufficient enough to prosecute criminals.

Sen. Rodney Ellis, D-Houston, has introduced legislation making HIV tests a routine part of medical testing, but giving individuals the

choice to opt out.

“There’s already legislation making it a crime to intentionally spread HIV,” Leo said of the Ryan White Act requirements. “But these aren’t those bills. These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Though the bills’ language narrowly identifies cases when the law could be applied, you can’t forget the bigger picture.

“We’re trying to get to zero cases of HIV through so many resources, including PReP, preventive testing and education,” Leo said. But the bills’ authors may not realize there is also an unintentional outcome: stigmatization, which could cause less testing and awareness of one’s HIV status.

Enter SB 194 by Sen. Rodney Ellis, D-Houston, which makes HIV testing a routine part of medical tests while letting the patient opt out.

“It creates a standard. Currently you have to ask for a test. Making people aware and voluntary eliminates stigma,” Leo said of Ellis’ bill. It has now been introduced for a fourth time.

Another bill that’s seen its fair share of legislative sessions is HB 65 by Rep. Ruth Jones McClendon, D-San Antonio. The bill would create a pilot needle-exchange program in a handful of Texas counties, including Dallas, to help prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases.

The bill, unfortunately, was used as ammunition against its Republican sponsors, including former Sen. Bob Deuell, who was ousted by candidates backed by far right groups like Texas Right to Life and Empower Texans.

Like many advocates, Leo said she is playing defense during the 84th legislative session, where killing a bad bill is better than passing any good bills at all.

……………

HIV Legislation

• SB 1705 by Sen. Joan Huffman and HB 2395 by Rep. Rick Miller would allow a court to test a juvenile for HIV following a crime if the criminal suspect is suspected to have HIV.

• SB 779 by Sen. Huffman would allow a court to use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

• SB 194 by Sen. Rodney Ellis makes HIV testing a routine part of medical tests while letting the patient opt out.

• HB 65 by Rep. Ruth McClendon would create a pilot needle exchange program in certain Texas counties.