US: Anti-criminalisation advocates worried about use of molecular surveillance to identify transmission clusters

Will the Genetic Analysis–Based HIV Surveillance Safeguard Privacy?

The CDC is beginning to use molecular surveillance of HIV to identify transmission clusters, which has some privacy advocates concerned.

The future of the U.S. public health system’s efforts to track and respond to the spread of HIV is called molecular surveillance. The Centers for Disease Control and Prevention (CDC) has recently begun scaling up a program to analyze genetic sequencing of newly identified cases of the virus so as to identify transmission clusters: groups of people who share strains of HIV so genetically similar that the virus likely passed among them.

Such a high-tech ability to characterize HIV’s pathway through sexual or injection-drug-use networks could open the door for local health departments to seek out individuals in such transmission webs or at risk of joining one so as to provide them tailored HIV care and treatment or prevention services.

The epidemic-battling prospects of this dawning method of epidemic surveillance notwithstanding, an ad hoc group of HIV advocates has begun to raise concerns about what they see as the potential for the misuse of personal information gleaned from the process.

Additionally, advocates point to the patchwork of laws that, depending on the state, make it a crime for people living with the virus not to disclose their HIV status, to potentially expose someone to the virus, or to transmit the virus to another individual during sex or the sharing of drug paraphernalia. At least in theory, a criminal case based on an alleged violation of such a law could prompt a subpoena for information from molecular surveillance records and ultimately allow such data to enter a court record.

Molecular HIV surveillance, or MHS, “provides an opportunity to help address growing HIV disparities but only if it is implemented responsibly and in collaboration and partnership with communities affected by and living with HIV,” says Amy Killelea, JD, director of health systems integration at NASTAD (National Alliance of State & Territorial AIDS Directors). “Because MHS activities are rolling out in states with HIV criminal transmission statutes in place, it is important for health departments, providers and anyone charged with safeguarding this data to follow procedures for prohibiting or limiting its release.”

How molecular HIV surveillance works

When an individual tests positive for HIV and connects to medical care for the virus, his or her clinician typically orders drug resistance testing, sending a blood sample to a lab that genetically sequences the virus. The results are sent to the clinician and to the local health department. Then, depending on the state, the findings may be stripped of information connecting them to a named individual and sent from the health department to the CDC for further analysis. Looking at diagnoses from the previous three years, investigators at the federal agency will search for genetic matches among these de-identified cases of the virus—HIV strains that have no more than a 0.5 percent variation, or genetic distance, between them.

The CDC is in especially hot pursuit of rapidly growing HIV transmission clusters, which the agency defines as a collection of genetically linked cases of which at least five were diagnosed within the most recent 12-month period. After identifying such a cluster, the CDC will report its findings to the health department that has jurisdiction over the majority of the related cases of the virus.

That health department may then take action, for example, by engaging in a practice known as HIV partner services: contacting members of the transmission cluster and asking for their help in tracking down others in their sexual or drug-sharing network who may have been exposed to HIV in order to urge them to get tested for the virus.

Among those individuals who test negative, health departments have an opportunity to promote HIV risk reduction, such as by prompting them to get on Truvada (tenofovir disoproxil fumarate/emtricitabine) as pre-exposure prophylaxis (PrEP).

Those who test positive will ideally receive a prescription to antiretrovirals (ARVs) in short order. Immediate HIV treatment protects their health and, provided ARVs reduce their viral load to an undetectable level, renders them essentially unable to transmit the virus.

Together, PrEP and HIV treatment use among those engaging in high-risk practices can help cut the links in transmission chains and possibly avert numerous downstream infections.

On a wider scale, health departments can draw upon the findings from their investigations of transmission clusters to determine where they are coming up short in promoting HIV prevention and treatment services. They can also identify societal patterns that are facilitating HIV transmission—for example, if a lack of health care access among a particularly disenfranchised population is associated with an increased transmission rate among such individuals.

At the February 2018 Conference on Retroviruses and Opportunistic Infections (CROI) in Boston, CDC epidemiologist Anne Marie France, PhD, MPH, presented a report on the agency’s recent efforts to identify molecular clusters, depicting this technology as a prime tool for helping to determine where and among whom the virus is rapidly transmitting. The agency, she said, was recently able to identify 60 rapid transmission clusters, which included five to 42 individuals, among whom the virus was transmitted at a rate 11 times greater than that of the general population.

The members of these clusters were disproportionately men who have sex with men, in particular young Latino MSM. Gathering such demographic information is especially vital as the CDC tries to make sense of why, in the MSM population, Latinos have seen a rising HIV transmission rate in recent years while the infection rate has leveled off among their Black counterparts and continued a long decline among white MSM.

The effort to safeguard private information

The late 1990s saw the beginning of a long-running debate about the potential costs of switching to a name-based system of reporting HIV test results, in which the names of people diagnosed with the virus were kept on file by state health departments. At the time, a broad swath of advocates expressed grave concerns that that this form of surveillance would lead to privacy violations and scare people away from testing for the virus.

By and large, such fears were not borne out during the more than a decade it took for every state to switch over to name-based reporting. Instead, this recordkeeping transition proved vital in the CDC’s effort to comprehensively track the epidemic nationwide and to provide better-tailored responses.

Now HIV advocates have staked a similarly critical stance with regard to molecular HIV surveillance: that the technology’s use may lead to privacy violations and also deter people who are concerned about such outcomes from getting tested.

According to the CDC, the Public Health Service Act governs the privacy of information reported through the agency’s National HIV Surveillance System, forbidding its release for non-public-health purposes. This protection remains in effect in perpetuity, even after an individual’s death.

In response to POZ’s inquiries about molecular HIV surveillance, a CDC spokesperson stated in an email: “As a condition of funding [from the federal agency], state and city health departments must comply with strict CDC standards for HIV data security, including multiple requirements for encryption of electronic data, physical security, limited access, [personnel] training and penalties if procedures aren’t followed.”

For example, CDC policy holds that only authorized individuals should have access to information that identifies people included in molecular HIV surveillance analyses. Health agencies should print out such information only when necessary, and such hard copies should be kept under lock and key, not taken out of the health department office and shredded when they’re no longer in use.

As for the matter of how such surveillance may affect individuals’ attitudes toward getting tested for HIV, the CDC relayed to POZ findings from a recent survey of young adults never tested for the virus. When asked their main reasons for not being screened, 70 percent reported they didn’t see themselves as at risk for HIV and 20 percent said they were never offered a test. The implication is that for most people, privacy concerns may not be a major factor affecting their willingness to get tested.

Community engagement and response

In the eyes of its critics, the CDC has not properly reached out to members of the HIV community for input about the scale-up of molecular surveillance.

“I see how [molecular surveillance] could be beneficial for HIV prevention strategies in certain circumstances,” says Sean Strub, POZ’s founder and former publisher and the executive director of the Sero Project, a nonprofit that focuses on reforming HIV criminalization statutes. “But before [molecular surveillance is] utilized, the privacy and potential for abuse concerns need to be addressed in partnership with community activists.”

Addressing the CDC’s recent actions as it has pushed the rollout of molecular surveillance, David Evans, the interim executive director of Project Inform in San Francisco, says, “Meaningful engagement [by the CDC] with the communities most vulnerable to HIV has been sporadic and ineffective or completely absent in many geographic locations already. And I have yet to see concrete plans to ensure this takes place at the local, state and federal level going into the future.”

Evans and Strub were among the attendees of a recent daylong meeting about molecular HIV surveillance convened by Georgetown Law School in Washington, DC. The confab, which included CDC representatives, heard concerns that partner services programs may wind up violating individuals’ privacy, including potentially sharing their sexual orientation, as outreach workers engage in partner services efforts.

“Doing partner services successfully now takes a finesse that we have probably not developed in the staff across the country who are doing this work,” says another of the meeting’s attendees, Eve D. Mokotoff, MPH, director of HIV Counts in Ann Arbor, Michigan, which provides guidance on HIV surveillance issues nationally and internationally. “I am concerned that our country’s partner services workforce does not have the sensitivity, skill and tools needed to make them a welcome member of our prevention efforts. They too often offend clients, out them to others or otherwise are ineffective.”

Mokotoff calls for improved education of such frontline public health staff in order to ensure the highest level of professionalism, discretion and sensitivity.

As for the possibility that information acquired via molecular surveillance could be used in a criminal trial, Killelea notes the federal and state data privacy and security laws that limit health departments’ release of data except in narrow circumstances.

“This is particularly important when it comes to the release of surveillance data for law enforcement purposes,” Killelea wrote in an email, “i.e., as a result of a court order or subpoena in the course of a prosecution under a state HIV criminal transmission statute.”

“It’s important to note,” Killelea added, “that state laws vary on whether a subpoena or court order is required for health departments to release surveillance data and judges don’t necessarily need to approve a subpoena.”

A likely safeguard, Killelea says, protecting molecular surveillance information from entering a trial is that for a judge to approve a subpoena such data would have to be able to prove the direction of HIV infection—who infected whom—which in most cases the technology cannot determine. Consequently, the release of this sort of information in a courtroom setting could be “rare or nonexistent,” according to Killelea. But as this surveillance technology advances, the directionality of infection could become provable, thus undermining such a legal safeguard.

In response to such legal concerns, the CDC told POZ that the agency has “urged all state and local [health department] programs to review their own laws and policies for protection of data and to work with local policymakers to enhance protections as needed.”

In an effort to guide such state-level policy revisions, the CDC has on hand a piece of model legislation called the Model State Public Health Privacy Act. And while the federal health agency is not actively engaging in an effort to change HIV criminalization statutes, a chief document on its website regarding molecular HIV surveillance suggests that states and local jurisdictions should “consider evaluating any laws that criminalize HIV transmission” as a part of a larger effort to “minimize the risk that molecular surveillance data will be misused or misinterpreted.”

Benjamin Ryan is POZ’s editor at large, responsible for HIV science reporting. His work has also appeared in The New York Times, New York, The Nation, The Atlantic, The Marshall Project, The Village Voice, Quartz, Out and The Advocate. Follow him on Facebook and Twitter and at benryan.net.

Published in POZ on August 13, 2018

Bringing Science to Justice: End HIV Criminalisation Now

News Release

Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

Amsterdam, July 25, 2018 — Today, 20 of the world’s leading HIV scientists released a ground-breaking Expert Consensus Statement providing their conclusive opinion on the low-to-no possibility of a person living with HIV transmitting the virus in various situations, including the per-act transmission likelihood, or lack thereof, for different sexual acts. This Statement was further endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and 70 additional experts from 46 countries around the world.

The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference, now underway.

“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”

The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.

“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”

Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms. But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”

While today’s Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)

We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.

“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”

HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.

To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161

VIsit the HIV JUSTICE WORLDWIDE website to read a short summary of the Expert Consensus statement here: http://www.hivjusticeworldwide.org/en/expert-statement/

To understand more about the context of the Expert Consensus Statement go to: http://www.hivjusticeworldwide.org/en/expert-statement-faq/

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. It is run by a Steering Committee of ten partners – AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero Project, and Positive Women’s Network – USA (PWN-USA) – and currently comprises more than 80 member organisations internationally.

US: Webinar on HIV criminalisation primarily aimed at defense lawyers organised by NACDL and CHLP on Dec 15

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases.

Date: Thursday, December 7, 2017

When: 1:30 p.m. – 3:00 p.m. ET

Cost: FREE

CLE credit: Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Note: Confirmed registrants will receive a web link via email the morning of the event.

Registrants will be sent a link to the written CLE materials in advance of the webinar.

Presenters

Dr. David Wohl (Chapel Hill, NC)

David Alain Wohl, MD is a Professor of Medicine in the Division of Infectious Diseases at the University of North Carolina (UNC). He is Site Leader of the UNC AIDS Clinical Trials Unit at Chapel Hill, Director of the North Carolina AIDS Education and Training Center (AETC) and Co-Directs HIV Services for the North Carolina state prison system. In 2014, he became Co-Director of the UNC-Duke-Clinical RM Ebola Response Consortium. Dr. Wohl’s research aims to optimize the treatment of HIV including the identification of the most effective therapeutic approaches, and minimizing adverse effects of therapy. He also is active in investigations focused on HIV vulnerable populations, such as the incarcerated. He is active within the US AIDS Clinical Trials Group and HIV Prevention Trials Network and served two terms as a member of the US Department of Health and Human Services Antiretroviral Guidelines Panel. As part of the response to the 2013-16 Ebola outbreak in West Africa, Dr. Wohl led UNC clinical research efforts to test interventions for Ebola Virus Disease in Liberia and now directs a clinical cohort of Ebola survivors. In addition to his research and administrative activities, Dr. Wohl maintains a large HIV continuity clinic at UNC.

Stephen Scarborough (Atlanta, GA)

Stephen R. (Steve) Scarborough is a criminal defense attorney in Atlanta whose practice focuses on appellate and post-conviction matters in state and federal courts. A graduate of Emory University and Yale Law School, he has been a longtime public defender, a staff attorney at the Southern Regional Office of Lambda Legal, and an attorney in private practice representing persons accused in serious felony cases. He is interested in the intersection of the criminal law and public health and has represented several persons who were accused of HIV-related offenses or were subject to enhanced sentences on account of their status. He is part of a community effort to replace Georgia’s outdated, HIV-specific reckless conduct statute, which imposes felony liability in a broad range of cases where transmission of HIV is nearly or totally impossible.

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.

US: Mark S. King explores why the breakthrough message equating "HIV undetectable to untransmittable" matters

Five Reasons ‘HIV Undetectable’ Must Equal ‘Untransmittable’

By Mark S. King

From MyFabulousDisease.com

December 15, 2016

We are not dirty, we are not a threat, and we are not disease vectors. In fact, we are the solution. People living with HIV who achieve viral suppression, who become undetectable, are the solution to the end of new HIV infections in the United States. … When we look back 20 years from now we’re going to judge ourselves in terms of how well we responded to this opportunity.

— Dr. Rich Wolitski, person living with HIV and acting director for the Office for HIV/AIDS and Infectious Disease Policy at the U.S. Department of Health and Human Services

When Dr. Wolitski delivered his speech at the closing plenary of the 2016 United States Conference on AIDS (USCA), he received a standing ovation. He was referring to this year’s newest findings of HPTN 052 and the PARTNER study, which showed that people living with HIV who are undetectable are not transmitting the virus to their negative partners.

How wonderful that something many of us have assumed for years has been proven to be true. So now we can spread the news and encourage people with HIV to seek treatment and stick with it. And hey, there’s nothing like a little intercourse a la natural with your partner to reward yourself for being undetectable, am I right?

Not so fast. There is some strong resistance to a message that equates undetectable to untransmittable, and it’s not coming from where you might think.

Here are five reasons why this breakthrough message matters.

1. The science is solid.

The PARTNER Study has recorded 58,000 acts of penetrative sex without condoms between 1,000 positive/negative couples, in which the HIV positive partner had an undetectable viral load. There were no infections between the couples. Not a single one. The same results were reported in the HPTN 052 study and the empirical evidence to date. As Dr. Wolitiski said in his USCA speech, “this is a game-changing moment in the history of the HIV epidemic.”

Resistance to the conclusion that undetectable people pose no risk of infection has been either a matter of scientific data scrutiny or a fear that people may not actually be undetectable when they think they are. Let’s break that down.

A review of the argument against saying “zero risk” is enough to make you cross-eyed. It is based on the premise that nothing, really, is without risk. Detractors of the non-infectious message will calmly explain the perils of placing any risk at zero and then hypnotize you with statistical origami. Suffice it to say that proving zero risk is statistically impossible. You risked electrocution by turning on your device to read this article.

There will always be somebody who claims a terminally unique HIV infection, even if the precise circumstances of their claim may be murky. Weird things happen. Some folks are convinced that people who drink alcohol sometimes spontaneously combust. But you don’t see warning labels about it slapped on every bottle of Wild Turkey by overzealous worrywarts.

And yes, there is the possibility that someone might develop a viral load if they are not adherent to treatment and then transmit the virus. But the message here is that people who are undetectable cannot transmit HIV. If you stay on treatment and are undetectable you will not transmit HIV. Can we please celebrate this simple fact without remote qualifiers?

It is also important to note that a Canadian consensus statement concluded that any “viral blips” or sexually transmitted infections (STIs) were “not significant” to HIV transmission when someone is undetectable.

2. Major health experts are on board (but not all community leaders).

Public health leaders, from the New York Department of Health to the National Institutes of Health (NIH), have embraced these findings and its meaning to people with HIV, while community advocates and organizations have been reluctant to get on board, citing a theoretical risk of infection. Or maybe they consider changing their fact sheets and web sites an enormous bother.

The Prevention Action Campaign and their seminal message “U=U” (undetectable equals untransmittable) was founded on the energetic efforts of a man named Bruce Richman. He entered the HIV advocacy scene a few years ago, seemingly out of nowhere, carrying aloft the banner of undetectability. Richman gathered signatures of health experts the world over for a consensus statement about the research, while cajoling every U.S. HIV organization in sight to adopt language that removes the stigma of infectiousness from people who are undetectable.

My review of the web sites and statements from major HIV organizations includes no strong language about undetectable people not transmitting HIV. Worse, some exaggerate the risk from those who are undetectable. How could such a new research breakthrough be met with such ignorance and apathy by our own leaders? I will defer shaming anyone by name while they take a little time to update their official language. (Notable exceptions to this sad rule include work going on in the United Kingdom and France that flatly states that undetectable means non-infectious.)

This skepticism from our own community reduces people with HIV, again, to a problem that must be managed. It suggests that those of us who have achieved undetectability don’t have the judgment to keep taking our medications or to see our physician regularly to be sure our treatment plan is still effective. It keeps us in the role of untrustworthy victims unable to make decisions that will keep the rest of you safe from us. What infuriating, stigmatizing nonsense.

3. This is about HIV. Only HIV.

Auxiliary issues often creep into this debate that may be well-meaning but only muddy the waters, such as the fear that promoting the message of non-infectiousness will lead to more sexually transmitted infections (STIs) because of the freedom it allows (see also: critics of PrEP, the birth control pill, and any other vehicle that might lead to unbridled sexual pleasure).

Rates of STIs — which were on the rise before the advent of PrEP or news from the PARTNER Study — are deeply concerning but ultimately tangential. We are in desperate need of comprehensive sexual health programs, to be sure, but in this instance I feel compelled to “kill the alligator closest to the boat.” This is about being HIV undetectable, not syphilis impermeable. Being undetectable will not prevent other infections or address promiscuity or remove stubborn stains.

Advocates are also sensitive to the continued compartmentalization of our community, between those who are positive or not, who is on PrEP or not, and now, between those with HIV who are able to achieve viral suppression and those who cannot, despite their best efforts. I sympathize with this new divide among HIV positive people but believe the greater good — removing shame and stigma from those who are not capable of transmitting — shouldn’t be downplayed. All HIV positive people of good will can and should celebrate this development, regardless of their own viral load.

4. This is a major victory for HIV criminalization reform.

Terribly important work is being done to repeal and reform HIV criminalization laws that prosecute people with HIV for not disclosing their status to a sexual partner. Our lead defense is often that the defendant never posed a risk to their partner in the first place, due to their use of protection or the fact the defendant was undetectable and therefore rendered harmless.

Imagine the glee with which prosecutors might punch holes in this defense, based on statistical mumbo-jumbo saying “zero risk” is impossible and using it to explain to a jury that Joe Positive did, in fact, pose a risk to his sexual partner and should be jailed for it. Put that doubt into the heads of a jury, and another person with HIV gets a 30-year sentence for daring to have sex at all.

5. This profoundly changes how people with HIV view themselves.

Internalizing the fact that I cannot transmit HIV to anyone has had an effect on me that is difficult to describe. I can only liken it to the day the Supreme Court voted for marriage equality. Intellectually, I knew I was a gay man and a worthy human being. But on the day of the court’s decision I walked through the streets of my neighborhood with my head held higher. Something had changed. I felt whole.

In my thirty-five years living with HIV, I have never felt exactly that way. I deserve to. And so do millions of other people with HIV.

Of all the arguments to adopt the message that undetectable people cannot transmit HIV, that enhanced feeling of self-worth may be the most important reason of them all.

Australia: Analysis of the limitations of scientific evidence to prove timing and direction of alleged HIV transmission in three criminal trials

This article by Paul Kidd in the March 2016 issue of HIV Australia examines the use of HIV phylogenetic analysis in three Australian criminal trials. It argues that courts in Australia appear to accept forensic evidence uncritically. As the forensic methodology used in phylogenetic analysis is inherently limited, it argues there is risk of miscarriage of justice where this type of evidence forms a substantial part of the prosecution case.

Read the full article at: https://www.afao.org.au/library/hiv-australia/volume-14/vol-14-no-1/phylogenetic-analysis-as-expert-evidence-in-hiv-transmission-prosecutions

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

Prison time for HIV?

Prison time for HIV? It’s possible in Veracruz

El Daily Post, August 6th 2015

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women.

The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.

The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.

But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.

The bill was promoted by Dep. Mónica Robles Barajas, a member of the Green Party, which is allied with the ruling Institutional Revolutionary Party. She said the legislation is aimed at protecting women who can be infected by their husbands.

“It’s hard for a woman to tell her husband to use a condom,” she said in an interview with the Spanish-language online news site Animal Político.

The legislation, however, raises serious questions, both legal and medical, as well as concerns about human rights.

The most obvious problem is the notion of “intentional” infection. Robles emphasizes that the bill is based on a “willful” passing of the virus, which she defines as a carrier having sexual relations when he or she is aware of his or her HIV infection.

But the notion of intentionality in such cases is a complicated one for prosecutors, legal experts say. The he-said/she-said factor can be a sticking point, according to Luis González Plascencia, a former head of the Mexico City human rights commission, with the accusation likely to be based on one person’s testimony.

“There could be ways to show through testimony that there was an express intention to infect,” González told Animal Político. “But that’s always going to be circumstantial.”

A likely abuse of the law, he said, is attempted revenge or blackmail. An angry spouse or other partner can, with a simple declaration, create a legal nightmare.

Even if the issue of intentionality can be overcome, the very notion of criminalizing HIV infection is controversial. AIDs and human rights experts are against it.

One of them is Ricardo Hernández Forcada, who directs the HIV-AIDS program at Mexico’s National Human Rights Commission (CNDH). International experience, he says, indicates that punitive policies accomplish little besides government intrusion into private life. (Eastern Europe and Southeast Asia are regions where laws similar to the new one in Veracurz have existed.)

A Veracruz non-governmental organization called the Multisectoral HIV/AIDS Group issued a communiqué in response to the new legislation, declaring, “Scientific evidence shows that legislation and punishment do not prevent new infections, nor do they reduce female vulnerability. Instead, they negatively affect public health as well as human rights.”

González concurred. “The only thing that’s going to happen is that there will be another crime in the penal code that won’t accomplish anything except generate fear,” he said.

The Multisectoral Group also pointed out a disconnect between the law and medical science. It’s virtually impossible, the group says, to determine with certainty who infected whom with a sexually transmitted disease.

“Phylogenetic analyses alone cannot determine the relationship between two HIV samples,” the group said in its release. “They cannot establish the origin of an infection beyond a reasonable doubt, or how it occurred, or when it occurred.”

Robles, for her part, objects to the notion that the legislation criminalizes HIV carriers, insisting that the target is the intentional infection of another through sex. She emphasized that the aim of the new law is to protect women, who are often in a vulnerable situation.

“It’s directed much more at protecting women than homosexual groups,” she said. “There is a high incidence among women because there is no awareness of the risk they run.”

Opponents, however, see the new law as a step backward for men and women, and for public health in general, insisting that penalization comes at the expense of prevention.

“Knowing that they could be at risk of prosecution, people won’t get tested,” the CNDH’s Hernández Forcada said. “These measures inhibit people’s will to know their diagnosis.”

UNAIDS Reference Group on HIV and Human Rights updates statement on HIV testing to include the “key trend” of “prolific unjust criminal laws and prosecutions”

The UNAIDS Reference Group on HIV and Human Rights has updated its statement on HIV testing — which continues to emphasise that human rights, including the right to informed consent and confidentiality, not be sacrifced in the pursuit of 90-90-90 treatment targets — in the light of “three key trends that have emerged since the last statement regarding HIV testing was issued by the UNAIDS Reference Group (in 2007).”

One of these is “prolific unjust criminal laws and prosecutions, including the criminalization of HIV non-disclosure, exposure, and transmission.” The other two involve the recognition that HIV treatment is also prevention, and policies that aim to “end the AIDS epidemic as a public health threat by 2030.”

This statement is an important policy document that can be used to argue that public health goals and human rights goals are not mutually exclusive.

The Reference Group was established in 2002 to advise the Joint United Nations Programme on HIV/AIDS (UNAIDS) on all matters relating to HIV and human rights. It is also fully endorsed by by the Global Fund to Fight AIDS, Tuberculosis and Malaria Human Rights Reference Group.

This statement is issued at a time when UNAIDS and the Global Fund are renewing their strategies for 2016–2021 and 2017–2021, respectively.

To support these processes, the Reference Groups offer the following three key messages:

1. There is an ongoing, urgent need to increase access to HIV testing and counselling, as testing rates remain low in many settings. The Reference Groups support such efforts unequivocally and encourage the provision of multiple HIV testing settings and modalities, in particular those that integrate HIV testing with other services.

2. Simply increasing the number of people tested, and/or the number of times people test, is not enough, for many reasons. Much greater efforts need to be devoted to removing barriers to testing or marginalized and criminalized populations, and to link those tested with prevention and treatment services and successfully keep them in treatment.

3. Public health objectives and human rights principles are not mutually exclusive. HIV testing that violates human rights is not the solution. A “fast-track” response to HIV depends on the articulation of testing and counselling models that drastically increase use of HIV testing, prevention, treatment, and support services, and does so in ways that foster human rights protection, reduce stigma and discrimination, and encourage the sustained and supported engagement of those directly affected by HIV.

The section on HIV criminalisation is quoted below.

The criminalization of HIV non-disclosure, exposure, and transmission is not a new phenomenon, but the vigour with which governments have pursued criminal responses to alleged HIV exposures — at the same time as our understanding of HIV prevention and treatment has greatly advanced, and despite evidence that criminalization is not an effective public health response — causes considerable concern to HIV and human right advocates. In the last decade, many countries have enacted HIV-specifc laws that allow for overly broad criminalization of HIV non-disclosure, exposure, and transmission. This impetus seems to be “driven by the wish to respond to concerns about the ongoing rapid spread of HIV in many countries, coupled by what is perceived to be a failure of existing HIV prevention efforts.” In some instances, particularly in Africa, these laws have come about as a response to women being infected with HIV through sexual violence, or by partners who had not disclosed their HIV status.

Emerging evidence confrms the multiple implications of the criminalization of HIV non-disclosure, exposure, and transmission for HIV testing and counselling. For example, HIV criminalization can have the effect of deterring some people from getting tested and finding out their HIV status. The possibility of prosecution, alongside the intense stigma fuelled by criminalization, is good reason for some to withhold information from service providers or to avoid prevention services, HIV testing, and/or treatment. Indeed, in jurisdictions with HIV-specific criminal laws, HIV testing counsellors are often obliged to caution people that getting an HIV test will expose them to criminal liability if they find out they are HIV-positive and continue having sex. They may also be forced to provide evidence of a person’s HIV status in a criminal trial. This creates distrust in relationships between people living with HIV and their health care providers, interfering with the delivery of quality health care and frustrating efforts to encourage people to come forward for testing.

The full statement, with references, can be downloaded here and is embedded below.

HIV TESTING AND COUNSELLING: New technologies, increased urgency, same human rights