US: Indiana Law Review critically examines how the state's HIV non-disclosure law is overly broad and problematic

Criminalization of HIV: Spread of the Viral Underclass

by Tyler J. Smith

J.D., 2015, Indiana University Robert H. McKinney School of Law

H-I-V. Arguably, no three letters in American society have generated more fear of a “viral underclass” [1] than those associated with the Human Immunodeficiency Virus (“HIV”). In many states, including Indiana, simply having HIV is a crime with potentially severe consequences. The criminalization of HIV is founded on a fear of something many people do not fully understand and the stigma of “HIV’s association with an ‘outlaw’ sexuality, anal intercourse, gay men, people of color, and people who use drugs.” [2] Indeed, convictions under these statutes rarely have anything to do with actual HIV transmission or risk of transmission. [3] Over thirty states currently have HIV specific criminal statutes “based on perceived exposure to HIV, rather than actual transmission of HIV to another.” [4]

The Infectious Diseases Society of America (IDSA) and HIV Medical Association (HIVMA) assert that “[c]riminalization is not an effective strategy for reducing transmission of infectious disease and in fact may paradoxically increase infectious disease transmission.” [5] Studies further indicate 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.” [6] More people have been convicted under these laws in the United States and Canada than all other countries in the world combined. [7]

Numerous examples illustrate the unfounded fear and stigma that fuel egregious convictions and unjust sentences of HIV positive people. An HIV positive man in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor. [8] Another HIV positive man in Texas is currently serving thirty-five years for spitting at a police officer. [9] A man in Iowa with an undetectable viral load received a twenty-five year sentence after a one-time sexual encounter in which he wore a condom. [10] His sentence was suspended, but he was placed on probation for five years and had to register as a sex-offender for ten years. [11]

Many states rightfully criminalize reckless, knowing, or intentional behaviors that actually put others at significant risk. However, some states have other criminal statutes that are overbroad, or criminalize simply having HIV and engaging in conduct that scientifically poses no risk of transmission. Such statutes clearly exhibit a complete lack of scientific understanding of how HIV is transmitted and because of their overbroad nature, give prosecutors “significant discretion in determining whether and how to prosecute individuals arrested or reported for HIV exposure.” [12] The actual risk of transmission depends on the amount of the virus in a person’s blood. [13] The risk-per-exposure for various sex acts, without factoring in how condoms or medical treatment reduce the risk even further, ranges from zero to eighty-two in 100,000. [14] Intravenous drug use risk-per-exposure ranges from sixty-three to 240 in 100,000. [15] Despite the relatively low risk, “courts rarely look at what a person did to further reduce the risk of transmission.” [16] Simply having HIV is a considered a crime.

With overwhelming bi-partisan support, criminalization of HIV became federal in 1990 with the Ryan White Comprehensive AIDS Resources Emergency Act. [17] The Act’s namesake, Ryan White, a thirteen-year old boy from Russiaville, Indiana, contracted the disease in 1984 following a blood transfusion. [18] This act created The Ryan White HIV/AIDS Program; the “most comprehensive Federal program that provides services exclusively to people living with HIV.” [19] It serves more than 500,000 people that do not have adequate health care coverage to manage their treatment. [20]

Congress exercised its power to control funding by requiring states to “protect against intentional transmission” to receive federal funding for the new program. [21] Section 2647 of the Act provided in part that “[t]he Secretary may not grant . . . to a State unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any HIV infected individual” who intended to transmit HIV through donation of bodily fluid, engaging in sexual activity intending to transmit HIV, or shared needles intending to transmit HIV. [22] This provision was repealed in 2000; however, the seeds for states to go above and beyond were already sown. Some states went further than what the federal law required by defining intentional transmission as non-disclosure of their positive status to a sexual partner. [23]

Although thirty-plus states criminalize HIV under HIV-specific criminal statutes or STD criminal statutes that specifically encompass HIV, [24] zero states have criminalized the transmission or the failure to disclose the positive status of other sexually transmitted diseases, such as the Human Papillomavirus (“HPV”). [25] According to the Centers for Disease Control and Prevention (“CDC”), 33,000 new cases of cancer are reported each year with about 26,900 of these cancers caused by HPV. [26] Nearly all cases of cervical cancer are caused by HPV [27] and 4074 women died of cervical cancer in 2012. [28] In 2013, an estimated 9278 women received a new diagnosis of HIV. [29] In 2012, among women who previously received a diagnosis of AIDS, an estimated 3561 women died. [30] Thus, more women were diagnosed with cancer caused by HPV than women who were diagnosed with HIV and more women died of cancer caused by HPV than women who died of AIDS. [31] Yet HPV has not been criminalized in any state. [32]

Portions of Indiana’s criminal code do make sense. Someone who recklessly, knowingly, or intentionally donates or sells semen or blood that contains HIV could rightfully face felony charges. [33] However, other statutory provisions in the criminal code are overbroad and punish scientifically unfounded conduct. For example, a person without HIV can be charged with a Class C Misdemeanor for “battery” by placing bodily fluid or waste on another person in a rude, insolent, or angry manner. [34] A person without HIV can be charged with “malicious mischief,” a Class B Misdemeanor, for placing bodily fluid or fecal waste with the intent that another person will involuntarily touch it. [35] If a person is HIV positive, both of these offenses become Level 6 Felonies for exposing to others any bodily fluid, including those scientifically proven to not transmit HIV. [36] Battery is a Level 5 Felony if the bodily fluid or waste is placed on a public safety officer, but only if the accused is HIV positive. [37] If the accused is not HIV positive, then committing battery on a public safety officer remains a Level 6 Felony. [38] Therefore, simply having HIV statutorily increases the penalty for these offenses.

Despite laws to the contrary, the CDC clearly states that “[c]ontact with saliva, tears, or sweat has never been shown to result in transmission of HIV.” [39] Very low quantities of HIV have been found in the saliva and tears of some AIDS patients. [40] However, “finding a small amount of HIV in a body fluid does not necessarily mean that HIV can be transmitted by that body fluid.” [41] HIV has not been found in the sweat of HIV-infected patients. [42] Indiana prosecutors have discretion to prosecute HIV positive persons criminally for a variety of offenses related to their HIV positive status regardless of intent to transmit or actual transmission and regardless of whether transmission is even scientifically possible.

Indiana law also criminalizes simply having what it defines a “dangerous communicable disease.” [43] Carriers of HIV, AIDS, and Hepatitis B have a duty to “warn or cause to be warned by a third party a person at risk” of the carrier’s disease status and the need to seek healthcare. [44] HIV positive persons must disclose their status to past, present, and future sexual or needle-sharing partners or face criminal penalty. [45] The burden of proof shifts to the accused to show he or she in fact disclosed his or her positive status to those past, present, or potential partners. [46] A person who “recklessly” violates the statutory provision commits a Class B Misdemeanor. [47] A person who “knowingly or intentionally” fails to comply with the statutory provision commits a Level 6 Felony. [48] Each day a violation of the duty statute continues is considered a separate offense. [49] In Indiana, a Class B Misdemeanor carries a penalty of imprisonment for a fixed term of not more than 180 days and a fine of not more than $1000, [50] and a Level 6 Felony carries a penalty of imprisonment for a fixed term between six months and three years, and a fine of not more than $10,000. [51] Neither the intent to transmit nor the actual transmission of HIV is required to be prosecuted under this statute. [52]

The “duty to warn” statutes make sense on their face, but no evidence exists to suggest these statutes fulfill their intent. Criminal consequences for a failure to disclose are intended by lawmakers to increase testing, encourage those who are positive to disclose, and thus decrease the number HIV infected persons. However, evidence and logic suggest the opposite is true. [53] People at risk are afraid to know their status in fear of being prosecuted.

Because public health is a significant state interest, one would think that state legislators would pass laws based on science and logic, not on fear of what or whom they do not understand. HIV is not easily transmitted, yet nearly seventy percent of states criminally target conduct unlikely to result in harm and increase criminal penalties for simply having HIV. [54] The first step in solving a problem is acknowledging there is one. States, including Indiana, must look beyond their own fear to see the “viral underclass” they have statutorily created. Having HIV or any disease should not be a crime.

[1] Sean Strub, Prosecuting HIV: Take the Test – And Risk Arrest?, Positively Aware (May/June 2012), http://www.positivelyaware.com/archives/2012/12_03/prosecutingHIV.shtml [https://perma.cc/3ZK7-RTYF].

[2] Sean Strub, Body Counts: A Memoir of Activism, Sex, and Survival 393 (2014).

[3] Id.

[4] H.R. Res. 1586, 114th Cong. (2015) (Introduced in Congress on March 24, 2015, this bill seeks to modernize laws and eliminate discrimination with respect to people living with HIV/AIDS).

[5] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015), http://www.hivma.org/uploadedFiles/HIVMA/Policy_and_Advocacy/HIVMA-IDSA-Communicable%20Disease%20Criminalization%20Statement%20Final.pdf [https://perma.cc/G7AQ-WAN4].

[6] Id.

[7] Glob. Network of People Living With HIV, The Global Criminalisation Scan Report 2010 12 (2010), available at http://www.gnpplus.net/assets/wbb_file_updown/2045/Global%20Criminalisation%20Scan%20Report.pdf [https://perma.cc/X4CM-A44R] (reporting more than 300 people have been convicted under these laws in the United States and more than sixty in Canada).

[8] The Ctr. for HIV Law & Policy, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions (May 2015), available at http://hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions [https://perma.cc/3E24-YVGZ].

[9] Id.; see also German Lopez, An HIV-Positive Man in Texas is Serving 35 Years in Prison for Spitting on a Cop, Vox (Feb. 19, 2015, 4:10 PM), http://www.vox.com/2015/2/19/8071687/hiv-criminalization [https://perma.cc/PP5Q-HLY5].

[10] The Ctr. for HIV Law & Policy, supra note 8; see also Diana Anderson-Minshall, Amazing HIV+ Gay Men: Nick Rhoades, Plus (Sep. 11, 2014 4:00 AM), http://www.hivplusmag.com/people/2014/09/11/amazing-hiv-gay-men-nick-rhoades [https://perma.cc/8NJX-L7EX].

[11] Id.

[12] The Ctr. for HIV Law & Policy, Ending & Defending Against HIV Criminalization: A Manual for Advocates 9 (2015), available at http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/HIV%20Crim%20Manual%20%28updated%205.4.15%29.pdf [https://perma.cc/S5D2-RHNU].

[13] See generally The Ctr. for HIV Law & Policy, Why Are We Putting People in Jail for Having HIV? (Nov. 2015), http://www.hivlawandpolicy.org/resources/why-are-we-putting-people-jail-having-hiv-a-grassroots-guide-hiv-criminalization-facts [https://perma.cc/DTF8-V7J9].

[14] Id.

[15] Id.

[16] Id.

[17] Pub. L. No. 101-381, 104 Stat. 576 (1990) (Congress reauthorized this act in 1996, 2000, 2006, 2009, and 2013).

[18] Who Was Ryan White?, Dep’t. Health & Hum. Servs., http://hab.hrsa.gov/abouthab/ryanwhite.html [https://perma.cc/7P2W-VKE5] (last visited Mar. 4, 2016).

[19] Ryan White CARE Act Celebrates 25th Anniversary, Dep’t. Health & Hum. Servs. (Aug. 18, 2015), http://www.hhs.gov/about/news/2015/08/18/ryan-white-care-act-celebrates-25th-anniversary.html [https://perma.cc/HQD4-4EQD].

[20] Id.

[21] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 § 2647.

[22] Id.

[23] See Mich. Comp. Laws 333.5210 (2015).

[24] The Ctr. for HIV Law & Policy, supra note 12, at 292.

[25] Strub, supra note 2, at 393.

[26] HPV and Cancer, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/hpv/statistics/cases.htm [https://perma.cc/TQY8-YQRM] (last updated June 23, 2014).

[27] Which Cancers Are Caused by HPV, Nat’l Cancer Inst., http://www.cancer.gov/about-cancer/causes-prevention/risk/infectious-agents/hpv-fact-sheet#q2 [https://perma.cc/M7K8-N7PT] (last reviewed Feb. 19, 2015).

[28] Cervical Cancer Statistics, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/cancer/cervical/statistics/#2 [https://perma.cc/HV3Y-DNMZ] (last visited Dec. 9, 2015).

[29] HIV Among Women, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/hiv/group/gender/women/ [https://perma.cc/9ED7-5ZJ6] (last reviewed Nov. 9, 2015).

[30] Id.

[31] Strub, supra note 2, at 393.

[32] Id.

[33] Ind. Code § 16-41-14-17 (2015).

[34] Id. § 35-42-2-1(b), (e), (g).

[35] Id. § 35-45-16-2(a)-(f).

[36] Id. § 35-42-2-1(b), (e), (g); id. 35-45-16-2(a)-(f).

[37] Ind. Code § 35-42-2-1(g).

[38] Id. § 35-42-2-1(d)(2).

[39] HIV and Its Transmission, Ctrs. for Disease Control & Prevention (July 1999), http://hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/CDC%2C%20HIV%20and%20its%20transmission.pdf [https://perma.cc/T2PQ-LPXC].

[40] Id.

[41] Id.

[42] Id.

[43] Ind. Code § 16-41-7-1.

[44] Id.

[45] Id.

[46] Id.

[47] Id. § 16-41-7-5.

[48] Id. § 35-45-21-3.

[49] Id.

[50] Id. § 35-50-3-3.

[51] Id. § 35-50-2-7(b).

[52] Id. § 16-41-7-1.

[53] HIV Medical Ass’n, supra note 5.

[54] The CTR. for HIV Law & Policy, supra note 12, at 292.

US: Republican Senator highlights Florida’s “archaic” HIV-specific criminal law, advocates for law reform in 2017

Last Thursday, March 10th Senator Rene Garcia introduced an amendment in the Florida Senate to an amendment of a bill he was co-sponsoring (SB 314) to highlight the damage done to the HIV response by the state’s overly broad HIV criminalisation law.

Senator Garcia, a Republican, withdrew the amendment following his three minute intervention, but noted that he intends to work with the Senate in the next legislative session, 2017, in order to reform Florida’s overly broad HIV non-disclosure law.

In order words, the amendment was presented strategically in order to give the issue of HIV criminalisation some exposure to his colleagues.

Tami Haught of the Sero Project, who is working closely with colleagues in Florida to modernise the law, noted:

“We are delighted that Senator Garcia is taking leadership on this issue and look forward to an ongoing dialogue. Sero and our Florida partners will be soliciting comments and a legal review of what Senator Garcia has proposed as well as continuing to organize statewide to build support for change. We have a lot of work to do between now and next year’s legislative session.”

Watch Senator Garcia speak about why it is crucial to reform Florida’s HIV criminalisation law below.

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review.

The Public Health Act is a key piece of NSW legislation which impacts the lived experience of people living with HIV. For many years, Positive Life has advocated for a number of key changes to the Act to reflect the current reality of HIV as a chronic manageable health condition, to better support efforts to end HIV transmission and to acknowledge prevention of HIV transmission is a shared responsibility regardless of sero-status. With charges under the Crimes Act laid against a man relating to the alleged infection of another man in January, now unrelated accusations against a sex worker extradited to Western Australia, Positive Life will again advocate for change to the Public Health Act as part of a required review of the legislation.

Despite an update in 2010, Positive Life argues some sections of the Public Health Act need change, and even removal from the Act to protect the interests of people living with HIV, reduce stigma and discrimination and enhance HIV prevention and testing in the broader community. A key example is the removal of Section 79, known as the ‘disclosure provision’.

Section 79 requires anyone who knows they have a sexually transmissible infection (STI) including HIV to inform a person before they have sex, and for that person to voluntarily accept the risk of acquiring that infection. In NSW, if you are HIV-positive and don’t disclose your status before sex you are guilty of an offence under the Act. The requirement to disclose your HIV status before sex hasn’t changed from the 1991 version of the Act, except for the inclusion of a ‘reasonable precautions’ provision.

This provision provides a defence to prosecution if ‘reasonable precautions’ have been taken during sex to prevent transmission. However, the definition of ‘reasonable precautions’ remains unclear and this amendment falls short of the current reality of HIV. Removing Section 79 will provide a more comprehensive approach to the rights and responsibilities of the community regardless of sero-status.

With today’s HIV treatments, if a HIV-positive person is on treatments and has an ‘undetectable viral load’, the chances of condomless sex resulting in HIV infection are extremely low. However under the current Section 79, without change to the law or a court deciding that an undetectable viral load is a ‘reasonable precaution’, a person with HIV could still be committing an offence under the Act for not disclosing their status before sex.

Under Section 79, criminalising HIV discourages testing and encourages anonymous sex. Put simply, if you don’t know you have HIV you cannot be found guilty of an offence under the Act for not disclosing your status. Equally, anonymous sex reduces your chances of being identified for prosecution. In an era where more than 90% of people with HIV are on treatment and have an undetectable viral load, people who are infected with HIV but unaware of their status are more of a risk for transmission than people on treatment with a suppressed viral load.

Fear of prosecution inhibits honesty with sexual partners and medical providers, so Section 79 may actually increase the transmission of HIV and other STIs, rather than decrease it. An honest and open relationship with our doctor is crucial to maintain good health regardless of our sero-status. For example, contracting an STI such as gonorrhoea is a risk for anyone who is sexually active, and if the symptoms are hidden, we don’t know we’ve picked up an STI. If we can’t speak openly about the sex we have, it’s likely we won’t be tested for STIs and instead transmit any unknown infection to others.

Under Section 79, forced disclosure of our status as a person with HIV can encourage HIV-related stigma and discrimination, both real and perceived. Disclosure of our status as a person with HIV can, in rare circumstances, lead to violence. More often forced disclosure leads to rejection, loss of control over who knows of our status, discrimination on the basis of our status, or the premature ending of relationships.

Section 79 as it stands does not account for PrEP. Today, many HIV-negative people are already importing pre-exposure prophylaxis or ‘PrEP’, and following the announcement on World AIDS Day last year of an expanded trial of the HIV-prevention medication, many more will be taking PrEP as the trial is rolled out in coming months. A benefit of PrEP is it encourages HIV-negative people to take control of their own health and reduce their own risk of acquiring HIV. Reducing HIV transmission is a shared responsibility and Positive Life believes this principle should be reflected in the Public Health Act.

With the coming review of the Public Health Act, Positive Life will share more about other changes we believe should be made to the Act to reflect the modern reality of HIV as an ongoing manageable health condition. In the meantime, if you have questions or comments about our proposed changes to HIV disclosure requirements in the Act, please make contact on 1800 245 677 (freecall) or by email.

Originally published on Gay News Network

Switzerland: Two (alleged) HIV transmission convictions this month despite many positive changes in law

On January 1st 2016, Switzerland’s Epidemics Act 2013 finally came into effect, which

repeals and replaces the old Epidemics Act and in doing so, changes Article 231 of the Swiss Penal Code, which in the past has been used to prosecute people living with HIV for transmission and exposure, including cases where this was unintentional. The changes mean that a prosecution can only take place if the motive of the accused is to infect with a dangerous disease. Therefore, there should be no further cases for negligence or cases where the motive was not malicious (i.e. normal sexual relationships).

Despite this, and a 2013 Swiss Federal Supreme Court ruling that HIV transmission may no longer be automatically considered a serious assault under article 122 of the Swiss Criminal Code, and could be prosecuted as a common assault under under article 123, there have been two HIV transmission prosecutions using article 122 in the past two weeks.

Alleged transmission via oral sex with disputed disclosure: Aarau District Court, Aargau

On February 1st, a Liberian man, 48, was convicted of (allegedly) transmitting HIV to his ex partner despite both parties testifying to consistent condom usage during vaginal sex. The complainant, a woman in her 50s, remained with the man four years after her diagnosis, and only made the complaint after he left her and married another woman, with whom he now has three children.

According to a news report in the Aargauer Zeitung, the court appeared to believe that she acquired HIV from the man via oral sex, which both sides testified was the only time they had sex without condoms.  Whilst he testified he had disclosed early in the relationship, she claims he only disclosed following her diagnosis.

He was found guilty under article 122, and was given a year suspended sentence. He was also ordered to pay compensation to the complainant of CHF 30,000 (approx. €27,000).

Alleged transmission via vaginal sex with a very low viral load, without disclosure: Geneva Criminal Court, Geneva.

On February 10th, a Turkish man, 50, was convicted of (allegedly) passing HIV to his ex partner despite having a low viral load.

According to a report on 20 Minutes and further information from another journalist in the courtroom, the court heard that the man was diagnosed with an almost undetectable viral load: his doctor told him he would not need treatment for many years, and that his risk of transmission was 1-in-a-1000.

His doctor told him to inform his partner, but he testified that he did not because he was afraid she would leave him and he did not believe he could infect her.

Although the Swiss Federal Court has previously accepted that a person with an undetectable viral load could not expose someone to HIV,  in this case the man was not on treatment (a key criterion of the Swiss Statement) and it was also alleged that he had infected the complainant.

He was found guilty under article 122, and given two years’ suspended sentence. He was also ordered to pay compensation to the complainant, a woman in her forties, of CHF 40,000 (approx. €36,000).

A second charge under, originally article 231, was not retained because the judge found that the element of malicious intent required since the change of law in January, was absent.

Discussion

Despite significant law reform in Switzerland, potentially unjust prosecutions continue to occur.  However, the penalties are less severe than previously found in a 2009 study of all Swiss prosecutions.

Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’.

However, in neither case was there any mention of the court relying on expert witnesses or scientific evidence – notably the use of phylogenetic analysis to help ascertain if the transmissions were linked or unlinked – which would have been appropriate given the unusual nature of both alleged transmissions.

Switzerland has one of the world’s highest percentages of diagnosed people on treatment with an undetectable viral load, close to the UNAIDS 90-90-90 target of 73% of all people living with HIV virally suppressed by 2020.

This highlights that even at this level of national HIV treatment success, a significant minority of people with HIV will be diagnosed but not uninfectious, especially disenfranchised individuals such as migrants, and therefore vulnerable to prosecution.

It is likely both men’s risk of prosecution was already higher than usual because their partners were (probably) Swiss-born older women who did not consider themselves at risk of HIV.

Both cases therefore highlight that physicians and other health care workers need to ensure that all of their patients fully understand the risks of HIV transmission when not on treatment – even with a low viral load and/or during oral sex – and potential prosecution when disclosure does not happen, or cannot be proven.

US: A panel of health experts blasts HIV criminalisation laws as a failure that keep people from getting tested and ignore the current state of science

A panel of health experts blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

And the laws – in place in Georgia and states across the South – or prosecuting people for HIV exposure using other criminal statues – which happens in Texas and four other states – also ignore that partners in consensual sex acts share responsibility for their sexual health, according to Scott Schoettes, a senior attorney and HIV Project Director at Lambda Legal.

“The story is about the AIDS monster out there trying to infect everyone and that is not the case,” Schoettes said (top photo). “Sexual health is a shared responsibility. It creates a sense of false security for the person who is negative – ‘There is this law in place and I can sit back and wait for someone to tell me.'”

He said the laws keep people with HIV from getting tested and few, if any, of the laws require prosecutors to show that an HIV-positive person had any intent to infect a sex partner. Nevermind, he adds, that it’s difficult to prove that someone did disclose their HIV status before sex and once convicted, some state laws call for them to be labeled as sex offenders.

“It becomes a he said, he said and the person with HIV, when you get into that courtroom, is naturally at a disadvantage. A lot of people think that when you have HIV, you have done something wrong. We are still fighting that misperception,” Schoettes said. “When you have a jury that is deciding the fate of someone, they are disconnected from the culture of the folks that they may be actually adjudicating.”

And that can mean steep sentences for people convicted under HIV criminalization laws. In July, Michael Johnson – a black, gay, HIV-positive college wrestler in Missouri – was sentenced to 30 years in prison for infecting a sex partner and putting four others at risk, though prosecutors didn’t show in court that Johnson was the man who infected him. In South Carolina, former gay Atlanta man Tyler Orr faces two counts of exposing another person to HIV and up to 20 years in prison – though he says he did disclose his HIV status to his sex partner.

Schoettes’ comments came during a panel discussion during the 2015 National HIV Prevention Conference in downtown Atlanta earlier this month. He was joined by Randy Mayer, chief of the HIV, STD and Hepatitis Bureau of the Iowa Department of Public Health; Tami Haught, an activist who led efforts in Iowa to reform its HIV criminalization law; David Knight, a trial attorney with the Civil Rights Division of the U.S. Department of Justice; and Terrance Moore, deputy executive director with the National Alliance of State & Territorial AIDS Directors.

‘It’s not a slam dunk’

Knight said the HIV criminalization laws don’t reflect the current state of science and risk surrounding HIV and pointed to a document released earlier this year by the Justice Department calling on states to reform their HIV criminalization laws.

“Two things that we really want to think about is that intentional transmission is atypical and uncommon, and HIV stigma hampers prevention,” Knight said.

The Justice Department document calls on states to tighten their HIV criminalization laws to scrap HIV-specific criminal penalties with two exceptions – when an HIV-positive person commits a sex crime where there is risk of transmission and when there is clear evidence that an HIV-positive person intended to infect another person and engaged in risky behaviors to do so.

But changing HIV criminalization laws in the three-dozen states that have them is a tough haul, Mayer (second photo) and Haught said. They built coalitions across groups and enlisted public health experts to help revise the law in Iowa, a measure passed in 1998 that carried harsh penalties and 25-year prison terms that were often doled out to those convicted.

“In my experience, almost everyone got the 25 years even though that was the maximum,” Mayer said. “It’s not a slam dunk. It’s not an easy sell. Many people, even people living with HIV find themselves on both sides of this issue.”

Iowa lawmakers revised the state’s HIV criminalization law in 2014 to treat HIV like other communicable diseases such as hepatitis and tuberculosis. The law also requires that prosecutors prove intent to transmit, Mayer said.

“We had to bring in the different coalitions and bring in partners. Lawmakers don’t care what is fair and what is right. But they will listen to the public health side of the law,” Haught said. “Iowa’s law was significantly modernized and everyone is better for it.”

The panelists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, they should be pushed to treatment options. The Centers for Disease Control & Prevention has said getting HIV-positive people tested and connected to care and treatment is key to controlling the disease. Undiagnosed HIV infections fuel the HIV epidemic, Eugene McCray, director of CDC’s Division of HIV/AIDS Prevention, said during the Atlanta conference.

“Getting people into care is a better way to reduce transmission than these laws,” Mayer said.

Originally published in Project Q

New IAPAC guidelines to achieving 90-90-90 targets recommend ending HIV criminalisation

New guidelines from the International Association of Providers of AIDS Care (IAPAC) are the first to highlight that HIV criminalisation is a critical barrier to optimising the HIV care continuum.

Currently only half of people living with HIV globally are aware of their status. Of the remaining 50% many are not yet engaged in care, receiving antiretroviral therapy (ART) in a timely manner or – the ultimate goal of HIV treatment and prevention – achieving sustained viral suppression.

These new guidelines are the first to include HIV criminalisation as one of eight key critical barriers that prevent people living with HIV from enjoying both the therapeutic and preventive effects of ART.

Screenshot 2015-11-06 11.49.50In many settings, optimizing the HIV care environment may be the most important action to ensure that there are meaningful increases in the number of people who are tested for HIV, linked to care, started on ART if diagnosed to be HIV positive, and assisted to achieve and maintain long-term viral suppression. Overcoming the legal, social, environmental, and structural barriers that limit access to the full range of services across the HIV care continuum requires multistakeholder engagement, diversified and inclusive strategies, and innovative approaches. Addressing laws that criminalize the conduct of key populations and supporting interventions that reduce HIV-related stigma and discrimination are also critically important. People living with HIV also require support through peer counseling, education, and navigation mechanisms, and their self-management skills reinforced by strengthening HIV literacy across the continuum of care.

The full HIV criminalisation recommendation (Recommendation 2) is below.

  • Recommendation 2: Laws that criminalize the conduct of PLHIV based on perceived exposure to HIV, and without any evidence of intent to do harm, are not recommended and should be repealed where they have been enacted. (A IV)

Numerous countries have enacted laws that criminalize behaviors associated with HIV exposure, many of which pose a low or negligible HIV transmission risk. No differences in behavior have been noted between settings that enact such laws and those that do not. Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted before the preventive benefit of ART or antiretroviral (ARV)-based preexposure prophylaxis (PrEP) was fully characterized. Most PLHIV who know their status take steps to prevent transmitting HIV to others.HIV-specific laws thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.

IAPAC Guidelines for Optimizing the HIV Care Continuum for Adults and Adolescents