US: CDC acknowledgment that Undetectable = Untransmittable is likely to have a huge impact on legal fights over HIV disclosure laws

CDC joins consensus on HIV that ‘Undetectable = Untransmittable’

The historic announcement has significant implications for HIV advocacy efforts.

In a statement acknowledging National Gay Men’s HIV/AIDS Awareness Day Wednesday, the Centers for Disease Control and Prevention (CDC) embraced a scientific consensus with profound impacts. “When [antiretroviral therapy] results in viral suppression, defined as less than 200 copies/ml or undetectable levels, it prevents sexual HIV transmission,” the statement said.

It was the first time the agency acknowledged what several massive studies have consistently found: when an individual’s HIV viral count is undetectable, it is virtually impossible for them to transmit HIV to a sexual partner. “Across three different studies, including thousands of couples and many thousand acts of sex without a condom or pre-exposure prophylaxis (PrEP), no HIV transmissions to an HIV-negative partner were observed when the HIV-positive person was virally suppressed,” the statement continued. “This means that people who take ART daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”

Hundreds of experts and organizations had already signed onto a massive “Undetectable = Untransmittable” (U=U) consensus statement organized by the Prevention Access Campaign. Bruce Richman, executive director of the campaign, responded to the news by telling HIV Plus Magazine, “This is the moment we have been waiting for!”

The implications of the CDC acknowledging that there is “effectively no risk” are massive in terms of both politics and policy. As HIV Plus Magazine notes, nearly half of all HIV-positive people in the U.S. have brought their viral load to an undetectable level through treatment, so it’s significant to recognize that they are not contributing to the epidemic.

As the CDC continues to roll out messaging and information, it will likely not only impact prevention campaigns, but also legal fights over HIV disclosure laws. There are 38 states that have some version of a law that criminalizes perceived or potential exposure or transmission of HIV, and another six where individuals with HIV have been prosecuted under broader statutes. These laws — some even three decades old — rely on antiquated science and punish people with HIV for not disclosing their status to sexual partners even when they pose no risk of transmission.

Though passed with the intention of trying to protect people from HIV, their enforcement actually makes it more difficult to fight the epidemic. Studies have shown that the laws discourage people from getting tested (so as to avoid culpability), which means it’s more likely that people don’t know they’re positive and aren’t in treatment. The laws simultaneously create a false sense of security, such that men who believe their state has such a law are actually slightly more likely to engage in riskier sexual behaviors like condomless sex. Instead of protecting people from HIV, these laws are actually making it far easier for HIV to spread while simultaneously reinforcing stigma against people who are HIV-positive.

The CDC’s embrace of the consensus that “undetectable equals untransmittable” could be an effective buffer for the enforcement of these laws, if not the basis for challenging them directly. In 2014, the Iowa Supreme Court issued a landmark ruling overturning a conviction under that state’s HIV criminalization law specifically because of the science showing that the individual could not have transmitted the virus because of his undetectable viral load. That same year, Iowa also became one of the first states to start to dismantle its HIV criminalization laws, which had previously been some of the harshest in the country.

Overcoming these stigmatizing laws and spreading knowledge about the research on undetectable viral loads is essential to the ongoing fight against HIV. As the CDC statement notes, men who have sex with men are still “severely affected by HIV,” representing two-thirds of all new diagnoses in the United States. Some studies have indicated that more transmissions are happening from people who have been diagnosed but who have not entered treatment. The case could not be stronger that getting them into treatment will, in most cases, halt their transmission of the virus.

Ideally, the CDC will build off this endorsement of the science and do more to advocate for that treatment. Unfortunately, President Trump has proposed massive cuts to the funding that helps supply 11.5 million people worldwide with antiretroviral drugs, and the health care policies he supports also make it harder for people with HIV to afford the care they need. It’s a good sign that the government has caught up with the science, but now it will be essential for officials to fund the policies that science supports.

Published in Think Progress on September 28, 2017

US: Study presented at IAS 2017 analyses HIV convictions under HIV criminalisation laws by race, gender and sexuality

HIV Disclosure Crime Convictions Differ by Race/Gender, Gay/Straight Status in the US

9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris

Mark Mascolini

Black women get convicted under US HIV disclosure laws half as often as white women, white men, or black men, according to results of a five-state analysis [1]. Men who have sex with men (MSM) get convicted at a rate about one-seventh that of men who have sex with women (MSW). The overall conviction rate for the five states is 13 per 10,000 HIV diagnoses. Missouri easily leads other analyzed states in conviction rate, with 98 per 10,000 diagnoses.

Thirty-two US states have laws criminalizing failure to disclose HIV status to a sex partner or exposing a partner to HIV without their consent. Previous research showed that black heterosexual men get convicted disproportionately under a Michigan law. To determine whether gender, race, or sexual preference affects conviction rates in five states, Trevor Hoppe of the University of Albany, SUNY, analyzed trends in Florida, Louisiana, Michigan, Missouri, and Tennessee. Gender analyses were possible only in Michigan, Missouri, and Tennessee.

Consulting state law enforcement and legal records and newspaper reports, Hoppe counted 387 HIV disclosure law convictions in the five states between 1992 and 2015, including 206 convictions in the three states with gender data available. The overall conviction rate for the five states came to 13 per 10,000 HIV diagnoses. That rate was by far highest in Missouri (98 per 10,000 diagnoses), followed by Tennessee (36 per 10,000), Michigan (33 per 10,000), Louisiana (21 per 10,000), and Florida (6 per 10,000).

The analysis showed no substantial conviction differences by gender or race. But when Hoppe considered gender and race simultaneously, he found a much lower conviction rate in black women (11 per 10,000 HIV diagnoses) than in black men (25 per 10,000), white men (24 per 10,000), or white women (22 per 10,000).

A gay/straight analysis found a much lower conviction rate in MSM than in MSW (20 versus 146 per 10,000). This difference held true for white MSM versus white MSW (9 versus 108 per 10,000) and black MSM versus black MSW (8 versus 47 per 10,000).

Hope speculated that the lower conviction rate for black women could mean black men are less likely to report HIV nondisclosure to the police because they do not trust the police or do not think it is a legal matter. In the same way, gay men may not report HIV non-disclosure because they distrust police or want to avoid a legal contest. Alternatively, the low conviction rate in gay men may reflect high HIV prevalence in US gay men and a resulting lack of shock at nondisclosure.

These findings presented at IAS 2017 are part of a larger project that will be published in November 2017 in a book by Trevor Hoppe, Punishing Disease.

Reference

1. Hoppe T. Victim impact: analyzing disparities by race, gender, and sexuality under U.S. HIV exposure and disclosure laws. 1992-2015. 9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris. Abstract MOPEC0719.

For more information see this link.

US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.

The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.

“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”

The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.

In the preamble, they note that:

discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.

Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.

Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.

To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV

For example, question 7 asks “isn’t some progress better than no progress at all?

This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.

With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.

The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.

Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Canada: Two staff members of the Canadian HIV/AIDS Legal Network discuss how the 'Undetectable = Untransmittable' campaign might best be understood to impact HIV criminalisation advocacy

U=U and the overly-broad criminalization of HIV nondisclosure

Published on CATIE’s blog on 06/06/2017

By Nicholas Caivano and Sandra Ka Hon Chu

People living with HIV in Canada have been charged with some of the most serious offences in the Criminal Code, even in cases of consensual sex where there was negligible or no risk of HIV transmission, no actual transmission and no intent to transmit.

The Undetectable=Untransmittable (“U=U”) campaign is based on scientific research, including the ground-breaking PARTNER study, establishing that when a person living with HIV on treatment maintains an undetectable viral load for at least six months, the risk of transmitting the virus through sex is effectively non-existent. As advocates for persons living with HIV await action from federal, provincial and territorial governments to address the overly-broad criminalization of HIV non-disclosure, how might the U=U campaign and the results of the PARTNER study impact ongoing prosecutions under the current state of the law?

Canada has the dubious distinction of being a world “leader,” after Russia and the United States, in prosecuting people living with HIV. In 1998, the Supreme Court of Canada (SCC), in R. v. Cuerrier, decided that people living with HIV have a legal duty to disclose their HIV-positive status to sexual partners before having sex that poses a “significant risk” of HIV transmission.

In 2012, in R. v. Mabior, the SCC ruled that people living with HIV have a legal duty to disclose before having sex that poses a “realistic possibility of HIV transmission,” which the Crown must prove. Commenting specifically in the context of a case involving penile-vaginal sex, the Court stated that “as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used.”

In Canada, people who face criminal charges related to HIV non-disclosure are typically charged with aggravated sexual assault, a criminal offence usually reserved for the most violent rape, on the theory that the absence of disclosure renders a partner’s consent to sex invalid. Despite the requirement of a “realistic possibility” of transmission, charges are being brought, even when people living with HIV engage in conduct that, based on medical evidence, poses a negligible possibility of transmission.

As U=U makes clear, the available information about HIV transmission has changed dramatically since the SCC’s decision in 1998. The results of the PARTNER study add to the mounting pile of evidence available to assist courts in making sure the law is consistent with science and with human rights.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

Nicholas Caivano is a lawyer and Policy Analyst at the Canadian HIV/AIDS Legal Network, where he works on human rights issues related to access to harm reduction services and access to medicines, and leads the work on law reform possibilities for HIV criminalization in Canada.

Sandra Ka Hon Chu is the Director of Research and Advocacy at the Canadian HIV/AIDS Legal Network, where she works on HIV-related human rights issues concerning prisons, harm reduction, sex work, women, and immigration.

Norway: Activists concerned about latest proposals to change Norway's HIV law

Critical to changes in section 237 of the Criminal Code

Reidar Engesbak, April 26, 2017

(Google translation from http://blikk.no, original post below)

The government last week presented a proposal – Prop. 120 L (2016–2017) – for penalties on transmission of infection and endangered spread of infection.

The Ministry of Justice’s submitted to the Storting a proposal for amendments to section 237 of the Criminal Code, which mainly follows the recommendations of the statutory committee that were appointed on the basis of criticism of the current criminal law regulation.

The law committee resulted in the NOU “About Love and Cooling Tower – Criminal Justice in Major Infectious Diseases.”

“I am pleased that we now propose a regulatory framework that addresses the medical development,” said Per-Willy Amundsen, Deputy Minister of Justice, in a press release.

The proposal entails, among other things, clarification that criminal liability is not imposed when appropriate contingency measures have been observed. This includes, among other things, successful medical treatment of HIV infection. Emphasis has been placed on the fact that the knowledge base on the treatment of HIV infection has changed in recent years and that the infection risk from well-treated HIV-positive individuals must be considered minimal.

The government also proposes a change in the Criminal Procedure Act, which allows the police to routinely investigate the infectious status of persons suspected of rape or other serious sexual assault.

“The proposal means that we can be clarified faster than today if the victims have been exposed to a risk of infection. It is important for the government to strengthen the offender’s position in criminal matters, and this change will contribute to that, “Amundsen said in the press release.

Contrary to UNAIDS ‘recommendations

The user organization New Plus – Hivpositives National Association is not so excited. The proposals, according to New Plus’s view, involve a number of things that will worsen the legal situation of those living with HIV.

“What is positive with the bill is that it is suggested that you can not prosecute people who have been negligent and that it is now necessary to commit gross negligence in order to be prosecuted,” said Kim Fangen, Managing Director of New Plus.

New Plus nevertheless believes that the boundary is still unclear. “It is still not the case that actual transmission of infection will be required in order to be punished. Consequently, the provision will still violate UNAIDS ‘recommendations, which state that punishment can only be used where there is a person who is aware that he or she has HIV or with the knowledge and willingness to infect another and infection is actually transmitted.

A little impractical

The proposition is for people to be treated for successful treatment to be exempted from punishment. It’s a suggestion New Plus applaudes. “However, the proposal implies that one can only be exempted from punishment after successful treatment and has been with his partner for prior infection prevention guidance from healthcare professionals, as well as the consent of the partner after this. This scheme applies today only to persons living in marriage or marriage-like relationships. The Ministry therefore wishes to extend the personal circle that will be covered in principle, it will apply to all,” said Fangen to Blikk Nett.

New Plus believes the scheme is impractical. “We can hardly see for ourselves that you want to bring a man for two weeks to the GP to get such consent. It will soon become most relevant for those who have been together for so long that one will nevertheless be covered by today’s wording about marital-like relationships. In any event, this means that an obligation to inform sexual partners is forced for persons who are nevertheless not infectious. People who are on successful treatment will not be able to transfer infection to others, says Fangen, and refers to statements by Professor Jens Lundgren at Rigshospitalet in Denmark.

“When you know at the same time how little knowledge exists in the society about HIV, this means that you can quickly find yourself in a very vulnerable situation to those you want to have sex with, without even jeopardizing the other.

Increased penalty frame

The Ministry of Justice’s proposal also wishes to raise the penalty frame for gross negligence from 3 to 6 years through a new provision in the Act. “This is very serious because it sends a signal about the severity of these actions and could make it even more stigmatizing to live with HIV,” Kim Fangen points out.

“We know that most infections occur when the person who has the virus does not even know that they are infected. These penalties will continue to hit people who have, in their ignorance, exposed others to infectious persons and people who can not actually infect anyone, but because they have not been open about status and conducted infectious guidance can be punished nevertheless. This is believed to mean that fewer will be open about HIV status and that people living with HIV will feel further stigmatized, “said Kim Fangen to Blikk Nett.

“We therefore see no reason to cheer over this and will continue the fight to completely decriminalize HIV.

Kritisk til endringer i Straffeloven § 237

Regjeringen la forrige uke fram et forslag til straffebestemmelser om smitteoverføring og allmennfarlig smittespredning.

Justisdepartementets proposisjon (Prop.120L) til Stortinget et forslag til endringer i Straffelovens paragraf 237, som i hovedsak følger opp anbefalingene til lovutvalget som ble oppnevnt på bakgrunn av kritikk mot den gjeldende strafferettslige reguleringen.

Lovutvalget resulterte i NOU-en «Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer.»

– Jeg er fornøyd med at vi nå foreslår et regelverk som tar opp i seg den medisinske utviklingen, sa justis- og beredskapsminister Per-Willy Amundsen (FrP) i en pressemelding.

Forslaget innebærer blant annet en klargjøring av at straffeansvar ikke pådras når forsvarlige smitteverntiltak er iakttatt. Dette omfatter blant annet vellykket medisinsk behandling av hivsmitte. Det er lagt vekt på at kunnskapsgrunnlaget om behandling av hivsmitte har endret seg de siste årene, og at smitterisikoen fra velbehandlede hivpositive personer må anses som minimal.

Regjeringen foreslår også en endring i straffeprosessloven som åpner for at politiet rutinemessig kan undersøke smittestatusen til personer som er mistenkt for voldtekt eller andre alvorlige seksuelle overgrep.

– Forslaget innebærer at vi raskere enn i dag kan få avklart om fornærmede har blitt utsatt for smittefare. Det er viktig for regjeringen å styrke fornærmedes stilling i straffesaker, og denne endringen vil bidra til det, sa Amundsen i pressemeldingen.

Strider mot UNAIDS’ anbefalinger

Brukerorganisasjonen Nye Pluss – Hivpositives landsforening er ikke så begeistret. Forslagene innebærer etter Nye Pluss sitt syn en rekke ting som vil forverre den juridiske situasjonen for de som lever med hiv.

– Det som er positivt med proposisjonen, er at det foreslås at man ikke kan straffeforfølge personer som bare har vært uaktsomme, og at det skal nå kreves grov uaktsomhet for å kunne straffeforfølges, sier Kim Fangen, daglig leder i Nye Pluss.

Nye Pluss mener likevel at grensegangen fortsatt er uklar.

– Det er fortsatt ikke slik at faktisk smitteoverføring vil kreves for at man skal kunne straffes. Følgelig vil bestemmelsen fortsatt stride mot UNAIDS’ anbefalinger, som statuerer at straff bare kan brukes der det er snakk om at en person enten er klar over at hen har hiv, eller med viten og vilje går inn for å smitte en annen og smitte faktisk overføres.

Lite praktisk

Proposisjonen går inn for at personer på vellykket behandling skal fritas fra straff. Det er et forslag Nye Pluss applauderer.

– Forslaget innebærer dog at man bare kan fritas fra straff om man er på vellykket behandling og har vært med sin partner til forutgående smittevernveiledning hos helsepersonell, samt fått samtykke fra partneren etter dette. Denne ordningen gjelder i dag bare for personer som lever i ekteskap eller ekteskapslignende forhold. Departementet ønsker dermed å utvide personkretsen som vil omfattes til at den i prinsippet vil gjelde alle, sier Fangen til Blikk Nett.

Nye Pluss mener ordningen er lite praktisk.

– Vi kan vanskelig se for oss at man vil ta med seg en man har datet i to uker til fastlegen for å få et slikt samtykke. Det blir fort mest aktuelt for de som har vært sammen såpass lenge at man uansett vil dekkes av dagens ordlyd om ekteskapslignende forhold. Uansett betyr dette at man tvinger frem en informasjonsplikt overfor seksualpartnere for personer som uansett ikke er smittefarlige. Personer som er på vellykket behandling vil ikke være i stand til å overføre smitte til andre, sier Fangen og viser til uttalelser fra professor Jens Lundgren ved Rigshospitalet i Danmark.

– Når man samtidig vet hvor lite kunnskap som finnes i samfunnet om hiv, gjør dette at man fort setter seg i en veldig sårbar situasjon overfor de man vil ha sex med, uten at man selv utgjør noen fare for den andre.

Økt strafferamme

Justisdepartementets proposisjon ønsker i tillegg å heve strafferammen for grov uaktsomhet fra 3 til 6 år gjennom en ny bestemmelse i loven.

– Dette er svært alvorlig fordi det sender et signal om alvorlighetsgraden av disse handlingene og vil kunne gjøre det ytterligere stigmatiserende å leve med hiv, påpeker Kim Fangen.

– Vi vet at de fleste smitteoverføringer skjer der personen som har viruset ikke selv vet at hen er smittet. Disse straffebestemmelsene vil forsette å ramme personer som i sin uvitenhet har utsatt andre for smittefare og personer som i realiteten ikke kan smitte noen, men som fordi de ikke har vært åpne om status og gjennomført smitteveiledning vil kunne straffeforfølges likevel. Dette tror vi vil medføre at færre vil være åpne om hivstatus og at personer som lever med hiv vil føle seg ytterligere stigmatisert, sier Kim Fangen til Blikk Nett.

– Vi ser dermed ingen grunn til å juble over dette og vil fortsette kampen for å avkriminalisere hiv fullstendig.

US: New study shows that laws criminalising HIV exposure do not cut down on HIV transmission

Criminalizing HIV Transmission doesn’t cut down on new diagnoses

Penalizing people who don’t disclose their status is bad policy, a new study finds.

More than 30 years since the first criminal laws were enacted in the United States to try to prevent the spread of the human immunodeficiency virus, a new study suggests that the regulations have failed to slow transmission of the deadly virus.

The laws impose criminal penalties on people who know they have HIV and engage in behaviors such as sexual activity or needle sharing that might transmit the virus to others, without disclosing their infection status.

“There has been much discussion about whether criminal-exposure laws affect HIV-risk behaviors or transmission,” senior author Dr. Jonathan Mermin said in an email. “In this analysis, we found no association between HIV diagnosis rates and laws that criminalize HIV exposure.”

Working with data collected in 33 states from 2001-2010, Mermin and colleagues at the U.S. Centers for Disease Control and Prevention (CDC) in Atlanta tracked diagnoses of HIV, the virus that causes the acquired immunodeficiency syndrome (AIDS). They also analyzed AIDS diagnosis rates in all 50 states from 1994-2010.

By the end of 2010, 30 states had passed criminal-exposure laws. But the new study, published in the journal AIDS, found no association between criminal-exposure laws and HIV or AIDS diagnosis rates.

The researchers did find two factors associated with higher HIV and AIDS diagnosis rates: lack of education and living in urban areas.

Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project at the UCLA School of Law, said the study “underscores the fact that we understand the social and structural drivers of the epidemic, and that criminalization is not a particularly useful tool in addressing HIV transmission.”

“These laws are harmful,” said Miyashita, who was not involved with the study, in an email. “They embody the continued fear and stigma associated with HIV and serve to perpetuate a lack of awareness and understanding about existing biomedical interventions.”

More than 1.2 million people in the U.S. have been diagnosed with HIV, according to the CDC. About a third of them take antiretroviral therapy, which can virtually eliminate the possibility of transmitting the virus to others.

Few HIV criminalization laws consider whether an HIV-positive person took measures to reduce the risk of transmitting the virus, the authors write.

A 2013 report in ProPublica pointed out that people have been prosecuted for nondisclosure of HIV infection even when they were using condoms or taking antiviral drugs that made transmission very unlikely (http://bit.ly/1ZBdlfN).

HIV criminal-exposure laws have engendered debate about their effectiveness since 1986, when states first enacted them, the authors write. The laws were intended to encourage people who tested positive for HIV to disclose the fact to potential sex partners and to discourage behaviors that could expose others.

Some feared the laws could have the reverse effect and increase transmission by discouraging testing; if people don’t know they have the virus, they can’t be prosecuted under these laws.

Since 2010, an estimated 40,000 people a year in the U.S. have been diagnosed with HIV.

HIV disproportionately infects blacks, African-Americans, gay Hispanics and Hispanics who inject drugs, previous studies have shown. The new analysis too found that minority populations had higher HIV and AIDS diagnosis rates.

Amira Hasenbush, who has studied HIV criminalization laws in California, said in an email that her research has shown that the laws disproportionately target women and people of color. Hasenbush, a fellow at The Williams Institute at the UCLA School of Law, was not involved with the new study.

“Enforcement data show that HIV criminalization is yet another example of the criminalization of the poor, criminalization of people of color and criminalization of otherwise marginalized populations,” Miyashita said. “We know HIV impacts these communities greatly, and it’s time we realize criminalization is not the solution to addressing the epidemic.”

Miyashita called for review, if not repeal, of all HIV criminalization laws.

“Criminalization is not the solution to this problem,” she said. “These data prove that.”

Published in the Huffpost on May 1, 2017

UK: Whole genome sequencing shows potential as public health tool, but not yet able to definitively prove direction (or timing) in criminal cases

Potential for phylogenetic analysis to show direction of HIV transmission

24 April 2017. Simon Collins, HIV i-Base

Tentative results presented in a poster at BHIVA 2017 suggest that a new approach to phylogenetic testing might have the potential to show the direction of HIV infection between two individuals.

While the results are exciting from a scientific perspective, if the approach proves to be robust, this will raise many ethical and legal questions.

Until now, phylogenetic analysis, where sections of two viruses are compared for similarity, has been able to show similarity but crucially not direct infection (a third person could be involved) or direction of infection. Phylogenetic analysis is most useful for showing when transmissions are definitely not linked, when the two strains are unrelated. When linkage is shown, direction of infection cannot be inferred nor the possibility that both infections originated from intermediary partners.

The current study, presented as a poster by Kate El Bouzidi and colleagues from Brighton and Sussex University Hospitals Trust, used whole genome sequencing (WGS) to look at genetic diversity at each of the >9000 individual nucleotide sites in two linked viruses, with heterogeneous samples being interpreted as being the source virus for the sample which had homogeneity at the same nucleotide site.

WGS performed on 170 samples from a UK MSM cohort identified five linked pairs and these were compared to four control pairs where linkage was already established and direction inferred from clinical notes.

The direction of travel was able to be inferred using WGS for 3/4 control pairs, with the single indeterminate result linked to a sample that was taken so long after transmission took place that natural divergence was too great to determine direction.

WGS-inferred direction was consistent with clinical data for 2/5 case pairs. The lack of a signal in two further case pairs with indeterminate was able to be interpreted as not supportive direct transmission, but missing intermediary partners from whom samples were not available.

Finally, the case where WGS-inferred transmission did not match clinical route, was when the sample from the source partner was taken during primary infection (when HIV is likely to be homogenous at most points) several years before likely transmission to the second partner (whose sample was only taken during chronic infection (when heterogeneity is more likely).

This study is funded by both BHIVA and Public Health England as part of the COMPARE-HIV Study (Comparison of Molecular & Phylogenetic Approaches to Reconstruct an Epidemic of HIV), based at Brighton and Sussex University Hospitals NHS Trust.

Comment

The results are preliminary and clearly the timing of samples is likely to be important when interpreting the results from this approach.

WGS may improve our understanding of transmission networks at a population level but it cannot be used to confirm direct transmission at an individual level and sequence data should always be interpreted cautiously in conjunction with clinical information.

However, if the methodology is supported in larger analyses, the results will raise important ethical and legal concerns, especially in countries where HIV transmission is still criminalised.

Reference:

El Bouzidi K et al. Insights into the dynamics of HIV-1 transmission using whole genome deep sequencing. 23rd BHIVA, 4-7 April 2017, Liverpool. Poster abstract P31.

NZ: The prosecution of people living with HIV for HIV non-disclosure is at odds with medical advances

Living with HIV is no death sentence

Jane Bruning was 33 when she was told she would die.

The Auckland woman was living in Tanzania when her former partner died suddenly, almost immediately after being told he was HIV positive.

Subsequent tests revealed Bruning, mother to a young son, also had HIV.

It was the 1980s, and the news wasn’t good.

“In those days it just wasn’t considered something heterosexual people got,” says Bruning.

“It was a shock…In Tanzania there was no information about HIV. They only had one national radio station, and one newspaper newspaper and they were both in Swahili. There was very little information — HIV was perceived as a gay man’s thing that happened in San Francisco.

“It was very, very scary because there was absolutely no infrastructure or support. I was told I had three years to live and to sleep well, eat well, and don’t have sex.”

Bruning said the ensuing period was “surreal”.

Jane Bruning, national coordinator for Positive Women, says New Zealand is at a crossroads when it comes to how we approach HIV.

She relocated to New Zealand so her family could take care of her son when she was gone.

For years she waited to die.

Then, antiretroviral treatment drastically changed the lives of people living with HIV for the better.

With daily medication Bruning realised she would live to meet her grandchildren after all.

Nonetheless, everything was different.

“I don’t know that it’s been a normal life and I’m not sure I would say it’s been 100 per cent healthy because of the side effects from the medication. I knew I wasn’t going to die, but I wasn’t quite sure how to live.”

Bruning, now 59, is one of a small percentage of heterosexual women in New Zealand living with HIV.

It hasn’t been an easy road.

From a medical perspective she is healthy albeit some side effects from her daily medication including peripheral neuropathy, lipoatrophy and lipodystrophy, however, life hasn’t been the same since.

She hasn’t had a partner in 20 years, which is a personal choice. “I thought I was coming home to die so I didn’t see any point in getting into a relationship”.

As the national coordinator of Positive Women, a support agency for women living with HIV and their families, she has come across cases of people being treated like lepers despite medication reducing their risk of transmission.

Earlier this month prosecutors at the Auckland District Court accused Mikio Filitonga of burying his head in the sand when it came to his own HIV diagnosis.

He was found guilty of causing grievous bodily harm to his former partner by infecting him with HIV, and of committing a criminal nuisance by having unprotected sex with him knowing he had HIV and not disclosing it.

Evidence heard at trial established Filitonga was evasive with medical authorities, shunned treatment, and didn’t tell his partner of his diagnosis.

He is one of around a dozen people who have been charged with offences relating to the infliction of HIV since Kenyan musician Peter Mwai became the first person to be prosecuted in 1994.

Unlike some countries or US states where law has been specially crafted for the offence, prosecutors in New Zealand utilise existing legislation to prosecute those whose recklessness leads to injury.

But given people living with HIV can have long, healthy lives—can injury be proven?

Filitonga’s defence lawyer Ross Burns applied to have the charges formally dismissed by the Judge, arguing that the definition of grievous bodily harm hadn’t been met because the complainant was taking medication that made him asymptomatic—technically injury free.

Judge Mary-Beth Sharp rejected the application, saying HIV was an “indisputably serious” illness.

“It is incurable, chronic, and can cause death. With respect, that says it all,” she says.

After the trial the New Zealand Aids Foundation criticised the prosecution, saying court action should only be taken where malicious intent to infect others is established.

The Sunday Star-Times asked: Should people still be prosecuted for inflicting a manageable illness when many others, such as measles, can cause the same damage but aren’t pursued through the courts.

“I do think HIV is a big deal. I wouldn’t want anyone to contract it. I wouldn’t wish it on anybody,” says Bruning.

“In saying that, with the medication making viral loads undetectable, I think we’re coming to a real crossroads. Do you need to wear condoms? Do you need to disclose your status? Clinically, there is no reason why someone should have to wear a condom or disclose. Morally, you have a whole different story.”

Long time infectious diseases physician Dr Graham Mills says it’s an “interesting paradox”, and its silly to compare HIV to measles or other highly infectious diseases that don’t become the subject of criminal prosecutions.

Society’s continued efforts to reduce transmission rates, including the prosecution of reckless persons who pass it on to others, are at odds with the fact medical advances can render HIV virtually undetectable, he says.

Mills works with a 190 HIV patients under the Waikato District Health Board umbrella and gave expert evidence in the Filitonga trial.

He wouldn’t comment on the case but admitted that he became fascinated with specialising in infectious diseases during his time as a medical student at Otago University when a mysterious illness known only as GRID (gay related immuno deficiency which later became known as HIV) became known in the United States.

Since then he has seen patients die, but many also live normal lives.

“Ask yourself, why do I want to reduce HIV? One, because it forces people to be on medication and treatment for the rest of their life.

“Two, it’s expensive. It costs about $10,000 a year for pharmaceutical and out patient costs. Most people don’t pay that much in tax per year.

“Three, it’s an ongoing epidemic, and there are people that lose in any epidemic. The people that lose out are the people that have barriers to health care.

“We’re not criminalising HIV. We never have. We have existing laws to hold people to account because someone has complained, because they believe they have come to serious harm, and therefore we’re giving them the framework with which to lay a complaint.”

Auckland University law professor Julia Tolmie says case law evolved at a time when HIV was “an inevitable death sentence”.

“That has certainly shifted now. Nonetheless the illness would still fall within the definition of grievous bodily harm, which just means ‘really seriously hurt’ or ‘really serious bodily injury’. Something can be ‘bodily injury’ even if treatment is available to cure or manage it,” she says.

The “real issue” for the courts is whether a person’s HIV positive status has been disclosed to consenting partners.

“I think there is an argument that you could apply the same legal principles to, for example, herpes, which is arguably grievous bodily harm, but may not be considered to be dangerous to life.

“I do not know about the infection process for measles but I imagine one of the difficult issues there would be establishing that a person purposefully risked infecting others—people may well be contagious before they know that they have the illness.

“Of course, there is also the need to have a complainant before criminal charges will be laid. People may well not think of informing the police where someone has deliberately risked infecting them with measles or other illnesses.”

Susan – not her real name – disagrees. Her former partner Darryl Kilpatrick was jailed briefly after he had unprotected sex with her without disclosing his HIV status.

She underwent years of testing before receiving confirmation she hadn’t been infected, but she developed post traumatic stress disorder (PTSD), and attempted suicide.

Susan firmly believes people who inflict HIV on others should be charged with a sexual offence, describing her own experience as akin to being raped.

“The effects are identical to rape and sexual violation. The breach of trust, the health issues—it’s an absolute threat to life and future sexual relationships”.

“It’s been a long, lonely journey and I have to say it’s never ending. It’s been very hard,” says Susan.

She said people “minimised and rationalised” her situation because she hadn’t been infected, and she became frustrated with the lack of support.

“I rang the Wellington sex abuse helpline and the woman on the phone said to me, ‘I don’t know how to help you’. I just screamed at her saying, ‘can’t you see I’ve been sexually violated?'”

Susan later successfully pursued ACC through the High Court in order to get payments for her PTSD, after the agency initially said it didn’t recognise her injury.

The NZAF said prosecutions had the “significant potential” to undermine previous successes in breaking down stigma and discrimination, and reducing HIV incidence rates.

Director Jason Myers said it weakened public health messages of shared responsibility for sexual health and promoted the perception that they are “potential criminals or a threat to innocent’ people”.

“For these reasons, the application of criminal law to the transmission of HIV should be kept for those very few cases in which a person who knows their HIV status has not disclosed this to a sexual partner and acted with the express intent to transmit the virus. Invoking criminal laws in cases of adult private consensual sexual activity is disproportionate and counterproductive to enhancing public health,” said Myers.

According to Bruning there is a strong difference between keeping personal information secret knowing it won’t affect anyone else, and being reckless or deliberate.

“To me, burying your head in the sand is not is not useful, although I understand how stigma can affect people to an extent they are in denial, but that’s very different to someone who injects their blood (in 2009 an HIV positive man deliberately injected his sleeping partner with his blood to deliberately infect her so they could have sex) into someone else,” said Bruning.

Published in Stuff on April 2, 2017

US: Florida State Senate Committee Supports Public Health Measure To Modernize HIV Laws (Press Release)

Press release from the Sero Project

Tallahassee March 22, 2017

The Florida HIV Justice Coalition today applauded members of the Florida State Senate’s Criminal Justice Committee for voting unanimously yesterday in favor of Senate Bill 628.

SB 628 will modernize Florida statutes regarding sexually transmissible infections (STIs) to reflect advances in scientific knowledge and medical treatment, particularly as they concern prevention and treatment of HIV.

The Florida HIV Justice Coalition, comprised of physicians, healthcare workers, legal, public health and policy professionals, people living with HIV and other allies, has led a statewide effort to raise awareness and mobilize support for reform.

Senator Rene Garcia (R-Hialeah), the SB 628’s chief sponsor, said, “Florida doesn’t want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic. With the support of public health leaders, prosecutors, major HIV service providers in Florida, like the AIDS Healthcare Foundation, the Sero Project (a national network of people living with HIV) and others, we are going to get there. Today’s unanimous vote by the Senate Criminal Justice Committee is an important step.”

Leaders in providing services for people with HIV in Florida, as well as nationally, agree that early testing and ongoing adherence to treatment can stop the spread of HIV.

“Virtually all HIV transmission in Florida is from people who have HIV but do not know it, because they have not been tested, or are not on treatment,” said David Poole, Director of Legislative Affairs at AIDS Healthcare Foundation, Florida’s leading HIV service provider. “Getting tested, treated and virally suppressed prevents HIV transmission. That’s why updating these statutes is a vital HIV prevention strategy for Florida.”

“Public health policies and criminal statutes should be aligned to incentivize HIV testing and treatment. Any criminal act concerning transmission of sexually transmitted infections should be based on an intent to harm, a significant risk of harm and actual infliction of harm,” said Mrs. Kamaria Laffrey, a Winter Haven resident who has led the Florida HIV Justice Coalition and is a woman living with HIV. “We will continue to work with Senator Garcia and other legislators to improve SB 628 as it continues through the legislative process.”

“We commend and thank Senator Garcia for his leadership. We look forward to working with the legislature and our allies to improve public health and ensure equality and justice for all Floridians,” said Tami Haught, a woman living with HIV who coordinates state organizing for the Sero Project, a national organization working to modernize HIV-specific criminal statutes in 32 states.

The bill next moves to the Senate Health Policy Committee. Similar legislation, HB 605, has been filed in the House and will be heard first by that chamber’s Criminal Justice Committee.

Further information:

Kamaria Laffrey, Coordinator, Florida HIV Justice Coalition Kamaria.laffrey(at)seroproject.com

David Poole, Director of Legislative Affairs, AIDS Healthcare Foundation david.poole(at)aidshealth.org