Canada: Advocacy groups call on provinces to follow the Justice Department's directive to limit prosecutions for HIV non-disclosure

Published in The Canadian Press on February 4, 2019

Groups want provinces to have consistent policies on limiting HIV prosecutions

VANCOUVER — Advocacy groups are calling on provinces to follow the Justice Department’s directive to stop unjustly prosecuting HIV-positive people for not disclosing their status if there is no chance they could transmit the virus to their sexual partners.

The directive to limit prosecutions involving people who are on HIV treatment was issued in December but applies only to federal Crown attorneys in the three territories.
 
Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, said international scientific consensus on HIV transmission was reviewed by the Public Health Agency of Canada and informed the federal decision.
 
Ontario had already amended its policies but in a limited way to no longer prosecute people with a suppressed viral load and Elliott said Alberta has said in a letter to the network it has done the same but without stating that in a policy.

The federal directive goes further in saying people who also use a condom or engage in oral sex should generally not face serious charges such as aggravated sexual assault.

“We’ve written to all provincial attorneys general following the federal directive to say ‘Here’s the federal directive. We reiterate to you what the science is telling us and public-interest reasons for you to appropriately limit the use of criminal law.’ ”

Inconsistent policies mean that HIV-positive people in most provinces may fear being threatened with prosecution by partners who have no basis for a complaint and could even shun treatment based on stigma and discrimination, Elliott said.

In July 2018, scientists from around the world, including Canada, published a consensus statement on HIV transmission in relation to criminal law in the Journal of International AIDS Society. It said correct use of a condom prevents transmission and that possibility is further decreased or eliminated when someone has a viral load that is low or undetectable.

The Canadian HIV/AIDS Legal Network and other organizations are currently pushing Attorney General David Eby to limit HIV prosecution in British Columbia.

“There is not a single circumstance identified in the current BC Prosecution Service policy where they say we will not prosecute even though both Ontario and the feds and Alberta, in a letter, have somehow been able to clearly state that no, we will not prosecute in our jurisdiction someone who has a suppressed viral load.”

Eby was not available for comment.

Dan McLaughlin, spokesman for the prosecution service, said the province is reviewing its policy and has been considering amendments to incorporate the directive of the federal attorney general.

The review will endeavour to ensure B.C.’s policy “addresses both public safety concerns and the issues of fairness and equity in a manner consistent with the law,” he said in a statement.

Elliott, who will be one of the speakers on the issue Tuesday at Simon Fraser University, said about 210 people across the country have been prosecuted for alleged HIV non-disclosure, the second-highest number in the world, after the United States.

Valerie Nicholson of Vancouver has been HIV-positive since 2004 and said her viral load has been negligible since 2008 because of the antiretroviral medication she takes.

Nicholson, who is a member of the Canadian Coalition to Reform HIV Criminalization, said B.C. is “behind the times” with its disclosure policy.

She said she always reveals her status to sexual partners but that information was used against her by a man who informed her a year and a half after their relationship ended that she transmitted the virus to him and he would call police.

“I lived in fear for six months waiting for that knock on the door for the cops to be there,” she said. “I work in this field and if that can do that to me what does it do for someone (else)? Do they stay in an abusive relationship?”

Her big worry was that she had no way to prove she’d had a conversation with the man about her HIV status at the beginning of their relationship, Nicholson said.

Angela Kaida, a Simon Fraser University global health epidemiologist with an interest in the links between HIV and sexual and reproductive health, said the evolving conversation around the virus that is treatable needs to include the latest scientific evidence.

“People can live a normal life expectancy, they can have babies, those babies can be HIV-negative and healthy. People can have sex without a condom and not transmit HIV,” said Kaida, who will also be a featured speaker at the university on Tuesday.

“We have that science but what we haven’t resolved is the stigma, the discrimination and misinformation about HIV. What the evidence tells us that even if we criminalize people it’s not serving a public health goal.”

 

US: The SERO Project looks back at its achievements in 2018

January 2019 Newsletter

Table of Contents

HIV is Not a Crime III

HIV is Not a Crime III Training Academy (HINAC III), produced by Sero in partnership with the Positive Women’s Network-USA, educated and trained 245 advocates from 36 U.S. states and six countries (Canada, Mexico, Belize, Germany, UK, and Colombia).

 

The gathering was held June 3-6, 2018, at Indiana University-Purdue University Indianapolis (IUPUI) with in-state organization partners, the Indiana HIV Modernization Movement, and Brothers United. 

 

HINAC III included a two-day Black United Leadership Institute (BULI) pre-conference for 50 participants, to elevate leadership of Black people, especially PLHIV, in state-level efforts to address HIV criminalization. The full report from the 2018 HINAC Training Academy can be read here.

 

The inaugural HIV is Not a Crime (HINAC I) event was held at Grinnell College, in Grinnell, Iowa, in June 2014. HINAC II was held in May 2016 at the University of Alabama/Huntsville, with 297 participants from 34 U.S. states, Puerto Rico, and four countries (Mexico, Canada, England, and Germany). 

 

Planning is now underway for HINAC IV, date and location to be announced soon.

 

Sero video from HINAC III for Day With(out) Art 2018: Alternate Endings, Activist Risings

Sero supporter Mark S. King worked with Visual AIDS to create a video at HINAC III as part of Visual AIDS Day With(out) Art 2018: Alternate Endings, Activist Risings. Thank you to Mark and Visual AIDS, as well as Stacy Jennings, Billy Willis III, Susan Mull, Shyronn Jones, and Contonnia Turner, all featured in the video.

 

Network Empowerment Project: Tools to Strengthen a Movement

Sero’s Network Empowerment Project was inspired by the Denver Principles and other PLHIV self-empowerment initiatives and launched to facilitate the creation and strengthening of PLHIV networks, whether they are focused on advocacy, education, recreation, provision of services, or social support.

 

PLHIV networks improve health outcomes for people living with HIV as well as contribute to stigma reduction and improve advocacy outcomes. PLHIV Networks enable us to:

  • Determine our own agenda(s), rather than having them defined by others;
  • Choose our own priorities and strategies;
  • Select and hold accountable leadership of our own choosing;
  • Speak with a collective voice.

When we create community and work together, our voices are heard more clearly, and we have a greater influence on the policymaking that so profoundly affects our lives. PLHIV networks also have traditionally been the incubators from which emerges new PLHIV leadership.

 

NEP’s online tool kit provides resources, research, and contacts to help create and strengthen PLHIV networks.

Sing Your Song: PLHIV Networks Change Lives

On December 1, 2018, World AIDS Day, Sero released a new video about PLHIV networks, filmed at the Mississippi Positive Network‘s “We, the Positive” summit in Jackson, Mississippi in October 2018. It is a moving illustration of the power of networks to change lives and strengthen the voice of PLHIV.

 

State Updates

Texas: A Network is Born

In May 2017, history was made when Texans living with HIV, from Houston, Dallas, San Antonio, Beaumont, and elsewhere, created the Texans Living With HIV Network. Venita Ray, a woman living with HIV who helped organize the meeting, said, “TLHIV will be a collective voice for all Texans, ensuring that we are involved with all policies and decisions that impact our quality of life.”

“TLHIV will continue the legacy of involvement by people living with HIV embodied in the Denver Principles,” says Ray, who also serves as deputy director of Positive Women’s Network-USA. “Nothing about us without us!”

Sero staffers Tami Haught and Robert Suttle, along with facilitator Laura McTighe, were on hand at the gathering, which was supported by Sero and the Southern AIDS Coalition.

Michigan Passes HIV Criminalization Reform

Excerpt from Michigan Makes Strides in HIV Disclosure Law press release], published by Michigan Coalition for HIV Health and Safety:

January 8, 2019 – LANSING, MI. After five years of work by the Michigan Coalition for HIV Health and Safety with the Michigan Department of Health and Human Services (MDHHS), advocates living with HIV and other national and local partners, Michigan’s HIV disclosure law has been modernized.

The new legislation, HB 6020 and HB 6021, was introduced by State House Representative Jon Hoadley (D-Kalamazoo) and was supported by the Republican majorities in the House and Senate. After passing both chambers, the bill was presented to Governor Snyder who signed the bill December 27, 2018.

Previously, a person living with HIV (PLHIV) could face a felony up to 4 years in prison for not disclosing their HIV status prior to any type of sexual penetration. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.

The amended law removes those living with HIV who are on treatment and virally suppressed—posing no risk of transmitting HIV—from being subject to prosecution. It also narrows the scope of sexual activities subject to prosecution, from “any type of sexual penetration to only “vaginal and anal sex.” Oral sex, which poses no or negligible risk of transmission regardless of whether the person with HIV is on treatment or virally suppressed, is no longer subject to prosecution.

View the full press release here.

Virginia is for (Justice) Lovers

In November, Ending HIV Criminalization and Over Incarceration in Virginia Coalition (ECHO VA) and Sero hosted a strategic planning meeting for service providers, grassroots activists, public health professionals, legal experts, and PLHIV to engage across differences; strengthen connections to broader struggles for racial, gender, economic, and health justice; and to develop shared values and priorities in the movement to end HIV criminalization in Virginia.

Georgia: HIV Rural Research and Training Conference

Sero hosted a workshop on HIV criminalization at the HIV Rural Research and Training Conference in Savannah, Georgia in September 2018. The workshop focused on strategies and tools to advance HIV criminalization reform efforts and, specifically, to update attendees on legislative reform efforts underway in Georgia and Florida.

Jack White III, co-director of THRIVE SS‘s Political and Social Action Network, presented current efforts of the Georgia HIV Justice Coalition. Sero’s Kamaria Laffrey discussed successes and challenges the Florida HIV Justice Coalition has experienced.

Sero’s Tami Haught and Cindy Stine led a discussion on building a diverse coalition of PLHIV; medical, public health, and legal professionals; and AIDS service, healthcare, and faith-based organizations to mobilize for change. 

To get involved with the Georgia HIV Justice Coalition, contact Johnnie Ray Kornegay III at johnnie.kornegay@counternarrative.org. For information about theFlorida HIV Justice Coalition, contact Kamaria Laffrey at kamaria.laffrey@seroproject.com.

Florida: Learning from the Legislative Process

Efforts in the Florida legislature to modernize HIV-related statutes made progress in 2017 and 2018. After a day-long stakeholders planning session in October, 2018, the Florida HIV Justice Coalition is now organizing for the 2019 legislative session.

Sero’s Kamaria Laffrey coordinates the Florida HIV Justice Coalition and works closely with its steering committee to expand their coalition of advocates and allies to share a clear, unified message with the community, media, and legislators on the detrimental effects of HIV criminalization.

 

The Steering Committee includes representatives from ACLU-FL, Lambda Legal, AHF, Sero Project, PWN, Southern Poverty Law Center, SAVE, Equality FL, The AIDS Institute, and Sex Workers Outreach Project. Kamaria also works on a regional training program to groom leaders, particularly women living with HIV, to educate and mobilize on HIV criminalization issues across Florida.

Pennsylvania: PLHIV Organizing in the Keystone State

Sero, Positive Women’s Network-Philadelphia, and the AIDS Law Project of Pennsylvania are working together to raise awareness of HIV-related stigma, discrimination, and criminalization in Pennsylvania.

 

Last May, Sero’s Sean Strub participated on a panel discussion at the LGBT Center of Central Pennsylvania with Julie Graham, a criminalization survivor, Alder Health Service’s Rosemary Brown, and Ronda Goldfein, Esq., executive director of the PA AIDS Law Project. Strub and Goldfein participated on a similar panel held in the Lehigh Valley at Northampton Community College.

 

In September, a delegation including Waheedah Shabazz-El (PWN-USA), Teresa Sullivan (PWN-Philadelphia), Andrea Johnson (PWN-Philadelphia), Adrian Shanker and Atticus Ranck (Bradbury-Sullivan LGBT Center in Allentown), Adrian Lowe (PA AIDS Law Project), as well as Strub and Goldfein, met with Pennsylvania Surgeon General Rachel Levine and her staff to review a range of HIV-related issues.

 

A statewide strategic planning session is scheduled for February 2019 to coordinate plans for launching a new Pennsylvania PLHIV HIV Justice Network.

 

If you are interested in joining the movement to create a statewide network in PA, contact: info@seroproject.com.

 

Idaho Moving Forward

The Idaho Coalition for HIV Health and Safety hosted a 2-day strategic planning meeting September 25-26, 2018. The meeting focused on drafting a modernization bill, messaging and advocacy organizing strategy.

North Carolina HIV Advocacy Conference

Sero’s Tami Haught joined Carolyn McAllaster (Duke HIV/AIDS Law Clinic), Jacquelyn Clymore (NC HIV/STD/Viral Hepatitis Director), Alicia Diggs (Positive Wellness Alliance), and Jeffery Edwards-Knight (Mecklenburg County Public Health) at the 2018 NC HIV Advocacy Conference: Building Power Across the Spectrum.

The opening plenary, “HIV Criminalization in North Carolina: Where We’ve Been and Where We’re Going,” presented changes in North Carolina’s HIV control measures, reviewed task force processes, and discussed the interaction between state and county health officials and where North Carolina fits within national efforts to end HIV criminalization.

North Carolina AIDS Action Network debuted this short video.

International AIDS Conference

At the 22nd International AIDS Conference, held in Amsterdam in July 2018, Sero helped make awareness of and action addressing HIV criminalization a priority:

Sero co-sponsored a pre-conference, Beyond Blame 2018: Challenging HIV Criminalization.

Sero’s Robert Suttle spoke on a panel at the conference’s opening plenary (Robert’s comments begin at 1:38:00). Right after Robert’s eloquent comments, Sir Elton John and Prince Harry came on stage for their presentation!

An Expert Consensus Statement on the Science of HIV in the Context of the Criminal Law was released at a press conference with representatives from the International AIDS Society, International Association of Providers of AIDS Care, UNAIDS, Sero, and HIV Justice Worldwide. The statement, now endorsed by more than 70 of the most respected HIV scientists, physicians, and researchers in the world, was also published in the Journal of the International AIDS Society.

Professor Linda-Gail Bekker, the President of the International AIDS Socity, listens intently as Kerry Thomas, a member of Sero’s board of directors, spoke at the press conference by telephone from the prison in Idaho where he is incarcerated and serving a 30-year sentence for HIV non-disclosure, despite using condoms and having had an undetectable viral load.

Sero’s Kamaria Laffrey (left) spoke at the march that opened the conference, joined by Laela Wilding and Quinn Tivey, icon AIDS activist Elizabeth Taylor’s granddaughter and great-grandson, who are continuing Dame Elizabeth’s legacy through their work with the Elizabeth Taylor AIDS Foundation.

S.O.S.

Dear Sero Project supporters and allies,

Working to end HIV-related stigma, discrimination, and criminalization can be frustrating or disheartening, especially for those who suffer the most extreme consequences of such injustice. That’s partly because HIV stigma bias is, unfortunately, rising rather than declining. Even as we make progress in our efforts to end HIV criminalization—and we have made progress this year—the road ahead stretches long into the future.

Decades ago, I first viewed my AIDS activism as a temporary priority, something that could be fixed and then I could move on with other endeavors and priorities in my life. My perspective changed over time, as it did for others, because we learned, or experienced, how inextricably HIV-related injustices are linked to other injustices. Even as effective therapy changed what it meant to live with HIV, it only brought those other injustices into starker relief.

Eventually, I stopped looking for where the road ended, for some mythical point in the future when all will be well, and came to understood that activism was a defining value in my life, fundamental to my purpose. A similar commitment is reflected in Sero’s staff—Robert Suttle, Tami Haught, Ken Pinkela, Kamaria Laffrey, Cindy Stine, and Gonzalo Aburto—and it is shared by so many partners, allies, and comrades in the broader community of those fighting to end HIV criminalization. I salute all of them and I salute you.

Let’s hope 2019 brings a renewed respect for people living with HIV and many more allies in our struggle for justice for all.

Regards,

Sean Strub

Executive Director

 

Sero at Harvard Law School

Last March, Sero’s Executive Director, Sean Strub, participated on a panel, Creating a Viral Underclass, at an event at Harvard Law School organized by Harvard Law School Lambda, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and the Center for Health Law and Policy Innovation.

 

Sero Holiday Card Project

Every year, Sero’s Cindy Stine coordinates a Holiday Card project to send cards to incarcerated people, mostly people living with HIV or other chronic health conditions. Volunteers all over the U.S. prepare cards according to the restrictions imposed by prison officials (no glitter, colored paper, etc.) Cindy collects the cards and sends them to the recipients to let them know there is a community that cares about them and is thinking of them, especially over the holidays.

Media Watch: Sero in the News

 

Many thanks to Allison Nichol, Sero’s Senior Legal and Policy Advisor, for her dedication and commitment to the rights of people living with HIV. Allison has taken a new full-time position as Director of Legal Advocacy for the Epilepsy Foundation of America. We are grateful that she will continue to work with Sero on several projects in a pro bono capacity, and we wish her the best of luck in this new role.

 

Thank You

Sero’s work is made possible by contributions from many donors, including major support from the Elton John AIDS Foundation, H. van Ameringen Foundation, Broadway Cares/Equity Fights AIDS, Ittleson Foundation, ViiV, AIDS Healthcare Foundation, and the Levi Strauss Foundation. Please support Sero’s work by donating online.

 

US: New legislation updates Michigan's HIV disclosure law, reflecting advances in HIV science

Source Michigan Coalition for HIV Health and Safety – Press release January 9, 2019

MICHIGAN MAKES STRIDES IN MODERNIZING HIV DISCLOSURE LAW

 January 8, 2019 — LANSING, MI. After five years of work by the Michigan Coalition for HIV Health and Safety with the Michigan Department of Health and Human Services (MDHHS), advocates living with HIV and other national and local partners, Michigan’s HIV disclosure law has been modernized.

The new legislation, HB 6020 and HB 6021, was introduced by State House Representative Jon Hoadley (D-Kalamazoo) and was supported by the Republican majorities in the House and Senate.  After passing both chambers, the bill was presented to Governor Snyder who signed the bill December 27, 2018.

 Previously, a person living with HIV (PLHIV) could face a felony up to 4 years in prison for not disclosing their HIV status prior to any type of sexual penetration. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.

The amended law removes those living with HIV who are on treatment and virally suppressed-posing no risk of transmitting HIV-from being subject to prosecution. It also narrows the scope of sexual activities subject to prosecution, from “any type of sexual penetration to only “vaginal and anal sex.” Oral sex, which poses no or negligible risk of transmission regardless of whether the person with HIV is on treatment or virally suppressed, is no longer subject to prosecution.

For PLHIV who are not on treatment and not virally suppressed, it remains a felony if they do not disclose and do transmit HIV sexually. If they do not disclose and do not transmit, the penalty has been reduced to a misdemeanor in the amended statute. Any person with a “specific intent” to infect another person also remains subject to prosecution.

“The Michigan Coalition for HIV Health and Safety (The Coalition)  salutes and applauds Rep. Hoadley’s effort in progressing a decades old law and thanks our partners in the coalition, the Sero Project for their guidance and MDHHS for leading the effort,” states Kelly Doyle, Executive Director of CARES (Community AIDS Resource and Education Services of Southwest Michigan). “Rep. Hoadley has worked with coalition partners to seek advice and leadership from PLWH and those who provide care for PLWH throughout the state.”

 “I’m encouraged that the legislature understands the advances in HIV science and look forward to continuing efforts that support PLWH,” states Pat Clark, advocate living with HIV.

 “The previous law needed immediate attention and updating from its inception 30 years ago,” said Curtis Lipscomb of LGBT Detroit.  “As a partner of The Coalition, modernizing Michigan’s HIV disclosure law significantly impacts our state’s residents who are affected by HIV and AIDS.  Although the new law doesn’t wave the magic wand to solves all immediate concerns, we have made progress that makes Michigan safer and smarter.”

 The new law reflects the significant advances in HIV science, particularly concerning how viral suppression impacts transmission risks. Viral load tests measure the amount of HIV in the blood of a person living with HIV; effective HIV treatment can suppress the level to below the limits of detectability by contemporary technology. When the viral load cannot be detected, the person with HIV is not at risk of transmitting HIV to their sexual partners.

 “My hope is that The Whitmer Administration invests in educating Michiganders living with HIV about the modernized law and the importance for getting tested for HIV,” Lipscomb adds.  “The work of The Coalition will continue to modernize and improve this bill to include PrEP and condom usage as well as work towards eliminating racial disparities in HIV healthcare.

 Contact Kelly Doyle for further information at (269) 806-3970.

 ###

 The Michigan Coalition for HIV Health and Safety, founded in 2013, works to modernize Michigan’s HIV response to increase the health outcomes and safety of all Michiganders. The Coalition includes more than 30 Michigan non-profit organizations.

 CARES was founded in 1985 and supports 10 counties in Michigan. Its mission is to maximize the quality of life for people living with HIV and to minimize the transmission.

 LGBT Detroit, founded in 1994, commits to furthering its mission, increasing the prominence and visibility of Detroit’s LGBT culture, and building a strong, healthy and vibrant community, with a focus on youth and young adult development, sexual orientation and gender identity education and advocacy, and emotional and physical well-being.

US: A summary of HIV-specific bills aimed at updating Michigan’s existing laws currently moving through Senate

Senate HIV Bills Package Explained

By | December 19th, 2018|Michigan, News

A package of bills is moving through the Michigan Senate that could change the way Michigan health officials monitor and address the HIV epidemic. Introduced last May in the Michigan House of Representatives, the eight-bill package contains HIV-specific bills that are aimed at updating Michigan’s existing laws that contain outdated language regarding issues like the spread of HIV, the role of local health departments in the virus’ treatment and criminal punishment for those who do not inform their sexual partner of their HIV-positive status.

Criminalization and Spread of HIV

Two bills within the package, 6020 and 6021, have come under extra scrutiny by some HIV advocacy organization around Michigan since they were amended from their original form to pass through the House. They were proposed by Democratic State Rep. Jon Hoadley of Kalamazoo who intended to “modernize our outdated HIV criminalization statute” by reducing the sentence for non-disclosure of one’s HIV status to a sexual partner from a felony to a misdemeanor, and to provide a change “to the sentencing guidelines” that currently exist.

“But the legislative process is never a linear line and there were still concerns that folks had around disclosure, around folks who are intentionally trying to transmit HIV without discussions and a number of other issues,” Hoadley said. “So, working in a bipartisan way to get as much as we could in the 99th legislative session, Dr. Canfield and I worked together with other stakeholders to put together a version of a bill that was able to then move.”

In a Dec. 11 Senate health policy committee, Republican State Rep. Edward Canfield said that the emphasis of the bill’s changes are on promoting treatment for HIV.

“I believe that what we’ve come up with in this package as it’s presented to you today really does bring the state of this health condition forward and helps people realize that getting treated is the best pathway,” he said. “… So it not only helps people live lives, but it protects our public health as well.”

The two bills now rest in the Senate, waiting on a decision before the lame duck session is over. Should they not come up for a vote, the bills will die and will need to be proposed again in the 100th legislative session in 2019. Hoadley said that despite the amendments the bills will provide two main benefits.

“The first is that we strike the very outdated definition that was used in the current law that criminalized behaviors, some of which can literally not transmit HIV. So, we’re really limiting the type of behaviors to vaginal and anal intercourse,” Hoadley said. “Second, we create a tiered system. So, if someone knows their status, does not disclose, acts with reckless disregard, and transmits HIV, that is treated at current felony level still. But, if they don’t transmit then that would potentially be a misdemeanor if all the other criteria are met.”

To illustrate his point, Hoadley said that currently there were 19 cases prosecuted under the current law that were considered felonies even though no transmission of the virus occurred.

“So, if this had been in the law, 19 people would have spent fewer of their years in prison,” he said.

Hoadley added that he feels the new bill will make current HIV transmission cases fairer because they will provide an extra level of defense for those who have been able to take medication and suppress their viral load — or literally reducing the function of the virus to undetectable levels within their system. People who have been medically suppressed for six months are “by definition not acting with reckless disregard, so they are not eligible for prosecution under the law.”

“So, for the first time in Michigan, as we work to continue making the criminal justice system fairer — there’s still a lot more to do there — people have a shield from accusations that they didn’t disclose or whatever the case may be, they have an affirmative defense,” Hoadley said. “That part is really groundbreaking as well.”

6020 and 6021’s Critics

But as groundbreaking as that defense is, it is only viable for those who can afford care to suppress their HIV. Critics of the bill’s changes like former BTL contributor Todd Heywood who is the chair of the Ingham Community Health Center board, testified against the legislation as an HIV expert. He said that this unfairly discriminates against people of color without access to treatment centers.

“There is already a racial disparity as it relates to the prosecution of people living with HIV. … Black men who have sex with women represented just 16 percent of the cases of people living with HIV (outside of Wayne County). They represented 36 percent of the prosecutions,” Heywood said. “We know in the state of Michigan and nationally that people of color have less access to medical care and have higher viral loads already. The way the current legislation is written will exacerbate this prosecution and create a deeper racial disparity that is unfair to people of color without addressing any of the other underlying issues.”

When asked about these racial disparities, Hoadley said he understands there is still much work to be done, but said he feels that this is a better alternative to the existing law on the books, citing it as “terrible about what it criminalizes.”

“I think we have to always be looking at race-based discrepancies in both our health system and our criminal justice system. One of the reasons I think the bill addresses a part of that is by eliminating many of the unscientific ways that someone could have gotten charged with these crimes previously, regardless of someone’s intent or not; everybody’s a little bit safer,” Hoadley said. “When we talk about discrepancies in the criminal justice system, this bill will, across the board, limit the number of folks who could even enter into eligibility of the law and also creates tiers. And part of that balancing act is that the current law captures so many more folks who could not even to some degree transmit HIV.”

In his testimony, Heywood also provided a numerical representation of the additional cost of maintaining a prisoner who has HIV using his own medication.

“Four bottles of one month’s worth of HIV drugs for me and I will tell you that that adds up to be between $62,000 and $67,000 a year to keep me alive,” Heywood said. “And we as taxpayers will then have to bear that burden when we put somebody in prison. That information is not in your fiscal analysis and I think that that needs to be taken into account. It is fiscally irresponsible when we have other options and ways to address this.”

Heywood’s reference to “other ways” refers to Michigan’s section of the public health code that addresses people infected with diseases that are “health threat[s] to others.” That statute does not criminalize those with contagious diseases, but rather puts them into immediate emergency treatment. His testimony suggested an amendment that would link the new bills to existing legislation.

“We could tie ‘health threat to others’ to this legislation which would then require that a person go through the probate process to address their HIV and the psychosocial issues that are involved in likely transmission behavior before they go through a criminal process,” Heywood said.

Hoadley said that he recognized the existing faults of the bill, but sees the currently rewritten legislation as a jumping off point to a more inclusive law.

“I think we have to continue to tackle places where we see discrepancies in health care,” he said. “For me, this shows why this project is a step in the right direction but not a finishing line.”

Privacy Concerns

Also included in the bills was a move to require women in their third trimester of pregnancy to get tested for HIV, Hepatitis B and syphilis. As written, the legislation would not allow a woman to opt out of such testing which essentially creates a system of mandatory testing. Currently, lawmakers are floating amendments that would allow a woman to opt out from the testing verbally. A second bill on testing would have mandated HIV testing consent be included in other general medical consents, and that a person not wishing to take an HIV test opt out in writing which presents a barrier to that process. Lawmakers are working on an amendment to allow people to verbally opt out of HIV testing.

Additional legislation would eliminate the 90-day record retention rule related to HIV partner services. The new legislation would allow the state to maintain those records indefinitely. Something they already do, in violation of Michigan law.

“Currently under Michigan law, the partner notification information that is solicited after somebody is diagnosed with HIV is only supposed to be kept for 90 days. What the state has not said publicly is that since 2003 they have been collecting that data,” Heywood said. “They currently have a database containing over 500,000 names and information of people at risk for HIV, living with HIV or tested for HIV. In addition to that, they shifted about three years ago to a federal database owned by the CDC not in the state of Michigan that all of that information is being stored on, in violation of Michigan law. ”

Lawmakers are working on an amendment which will allow the data to be maintained no longer that 365 calendar days.

An amendment related to partner services is also being considered which will prohibit local and state health officials from contacting a person identified as a sexual or needle-sharing partner of a person living with HIV, or the persons living with HIV when they have declined partner services.

“The problem with this is that there is nothing to stop me when I have a partner notification conversation with a health department official from saying — and I apologize Sen. Shirkey for identifying you — Sen. Shirkey and I shot needles of methamphetamine up and now Sen. Shirkey’s name is in a federal database as a methamphetamine user,” Heywood said. “Whether it is true or not, the senator would have no knowledge of that and no option to remove that from the database. That is deeply problematic.”

The lame-duck session is scheduled to end this week, Thursday. More updates about this legislation will come out as it moves through the Senate.

Published on December 19, 2018 in Pride Source

Belarus: Welcoming important developments in the fight against unjust HIV criminalisation

HIV JUSTICE WORLDWIDE along with our partners at The Eurasian Women’s Network on AIDS and Global Network of People Living with HIV (GNP+) welcome this week’s announcement of an amendment to Article 157 of the Criminal Code of the Republic of Belarus, which finally allows consent following disclosure to sexual partner as a defence. Whilst recognizing there is still a long way to go to remove all unjust criminal laws against people living with HIV in Belarus, we congratulate our partners and colleagues in Belarus People PLUS for this achievement!

Today, Parliamentarians of the House of Representatives of the National Assembly of the Republic of Belarus adopted in the second reading three bills, one of which was the law “On introducing amendments to some codes of the Republic of Belarus”. Among other changes, an amendment was adopted to article 157 of the Criminal Code of the Republic of Belarus (one of the most draconian HIV-specific criminal laws in the world), which now allows that people who have warned their partners will no longer be held criminally responsible for potential or perceived HIV exposure or transmission.

Read Yana’s story on GNP+’s website

Until today, Article 157 states that people living with HIV are totally criminally liable for potential or perceived HIV exposure or transmission, even if the so-called injured party had no complaints against their partner, knew about the risks and consented. Prosecutions took place because infectious disease doctors informed police and many people were convicted (read Yana’s story here)

In 2017, 130 criminal cases were initiated under Article 157 of the Criminal Code of the Republic of Belarus, with another 48 in the first half of 2018. Now, it will be possible to revisit those cases.

Anatoly Leshenok, representative of the NGO, People Plus states: “The adopted changes are only the first step in achieving our goal of decriminalising HIV transmission. According to information received from the department for drafting bills, other, more fundamental changes to Article 157 of the Criminal Code of Belarus have not been approved. It is necessary to continue to work with these State structures and with public opinion in order to form a more tolerant attitude towards HIV-positive people. But those changes that have been adopted today –  that’s a success for our team! ”

Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus
Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus

After approval by the Council of the Republic and the President, the amendments will make it possible to revisit previous sentences of the courts, and improve lives of people that were broken previously, as well it provide opportunity now and in the future for people living with HIV in serodiscordant partnerships to plan their lives without worrying if they are criminals every time they have sex.

 

Kenya: Positive Justice campaign launched today to challenge unjust HIV-specific law

Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.

Today's Positive Justice launch (photo: @KELIN via Twitter)
Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

In 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

However, Section 26 of the Sexual Offences Act (2006) still contains vague and overly broad provisions that have resulted in a number of recent arrests and unjust prosecutions for biting (March 2018), breastfeeding (September 2018), and alleged non-disclosure (December 2018).

Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)
Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.

Download and read Petition 447 – which will be heard on 4th March 2019 for directions  – at this link: http://www.kelinkenya.org/wp-content/uploads/2018/12/Petition-447-of-2018-Final.pdf

According to a KELIN press release published today

The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.

“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.

HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).

It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.

“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.

Uganda: New efforts underway in Uganda to challenge HIV legislation, especially its provisions on the disclosure of HIV status

Kampala, Uganda | IAN KATUSIIME | Rosemary Namubiru, a nurse, was in 2014 sentenced to three years in jail for criminal negligence over what seemed a potential infection of a baby with HIV the virus that causes AIDS. Her crime was that as an HIV positive nurse, she placed the life of a baby in danger when she pricked herself with an injection she was administering.

Eurasian Women's Network on AIDS launches awareness campaign to draw attention to HIV criminalisation in EECA region

Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” information campaign

By 

 

The Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” awareness campaign, which aims to draw attention to the situation with the criminalization of HIV transmission in the Eastern Europe and Central Asia region. Within the campaign, we expect to hold discussions with activists and human rights defenders who will enhance their professional level, moreover, we will take efforts to change public opinion on the topic of criminalization.

We will focus on the following issues:

– Why does the criminalization of HIV transmission not solve the problem of the HIV spread?

– Why criminalization violates human rights?

– How are criminalization and gender related?

– How a person who is charged with transmitting HIV can defend themselves?

– … And many more questions, that you can write to us in the comments and send by letters and messengers.

The campaign “HIV Is Not a Crime” is one of the components of the “Chase Virus, Not People” campaign of EECA region community networks, which reflects the criminalization of HIV as one of the key barriers to access to treatment and support, conducive to an increase in new HIV/AIDS cases and mortality, and also being a violation of human rights.

The information campaign “HIV Is Not a Crime” is held within the framework of the project “HIV Criminalization Scan”, supported by the Global Network of People Living with HIV (GNP+). The project was launched in 2017 and produced an analytical report on the situation with the criminalization of HIV transmission in 9 countries of the EECA region, published in January 2018, as a preliminary result. You can read the report and cases in the “Criminalization” section on page “Our projects” page of www.ewna.org website.

The campaign is supported by the East Europe and Central Asia Union of People Living with HIV (ECUO) and the Minusvirus.org online platform

 

US: Coalition of US organisations and networks issue Call to Action for HIV Criminal Law Reform grounded in racial justice

Call to Action for Racial Justice in HIV Criminal Law Reform

A coalition of racial justice, HIV, and criminal justice organizations and networks have come together to issue this Call to Action in support of an HIV criminal law reform movement that is grounded in racial justice and leaves no one behind.

The collaboratively drafted Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform was launched in July 2017[1] in response to uncertainty about the most effective way to incorporate modern HIV treatment advances, reflected in the Undetectable=Untransmittable campaign, into efforts to reform HIV criminal laws.

Since then, the urgency of this question has only intensified: changes in North Carolina, Canada andSweden have all hinged on whether or not a person is virally undetectable. Many states continue to grapple with how or if U=U should be used as an essential element in advocacy for HIV criminal law reform. Some argue that eliminating criminal liability for those who can document regular health care engagement and consistently low viral load is an improvement that is better than no progress at all.

However, HIV justice in the criminal legal system cannot be achieved without racial justice. Particularly with the well-documented racism in the U.S. criminal legal system, justice demands interrogation of the harms inherent in relying on U=U as a vehicle for HIV criminal law reform.

Modern, consistent treatment and care has significantly improved the lives of people living with HIV, whose life expectancies are now similar to HIV-negative people. However, fewer than half of all PLHIV in the US have sustained viral suppression.[2] Any reform that uses viral detectability as a litmus test for criminal liability leaves a majority of PLHIV behind and creates a viral underclass of PLHIV whose increased risk of prosecution effectively gets a current-day seal of approval.

If we look at this general statistic more closely, disturbing patterns emerge. National data show unequivocally that there are significant racial disparities in treatment access and sustained viral suppression. The most recent comprehensive analysis showed that Black PLHIV had the lowest level of sustained viral suppression across the board — 40.8% as compared to 56.3% of whites and 50.1% of Hispanics.[3]

Racial and regional disparities are reflected in every study that examines the experiences and outcomes of Americans who pass through our criminal legal and healthcare systems. The South, which experiences the highest regional burden of HIV in the U.S., also has the greatest number of people who are uninsured. At the same time, nine of the ten states[4] with the highest rates of incarceration are also in the South. Across the country Black people are disproportionately targeted and harmed at every stage of the criminal legal system, from policing to incarceration and sentencing.[5]

Any HIV criminal law reform effort that relies on viral suppression will inevitably leave behind Black PLHIV who face the greatest harm from the intersecting injustices of the U.S. criminal legal system and inequitable treatment access. We must not only acknowledge these inequities in our efforts but also actively seek to challenge and dismantle them in our calls for change.

As the HIV criminal law reform movement continues to grow and more states mobilize for reform, we must hold ourselves accountable to our communities and to each other. In recent years, four states have passed measures amending their HIV criminal laws or health code,[6] and we know there are new legislative actions on the horizon — this past legislative session saw at least five HIV criminal law bills.

We issue this Call to Action with the understanding that state coalitions often face difficult decisions and options that may reduce harm or appear to reduce harm in the short-term, but can also have unintended negative consequences in the long-term, or for those who are most frequently targeted by law enforcement. Our hope is that advocates will continue to learn from one another and pursue the best possible outcomes in their states while maintaining a commitment to strategies for reform which advance racial, economic, and gender justice.

Take action:

  1. Endorse the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform.
  2. Share the Consensus Statement as a tool and resource to support conversations around treatment access, HIV criminal law reform, and racial justice.
  3. Educate on the personal empowerment and critical importance of U=U and other scientific advances in HIV as tools for reform rather than heart of reform.
  4. Advocate for an HIV criminal law reform strategy which is accountable to all of the communities it affects.

The following organizations join this Call to Action: 

The Black AIDS Institute

The Center for HIV Law and Policy

The Counter Narrative Project

Positive Women’s Network

Prevention Access Campaign/U=U

The SERO Project

NOTES:

[1] Original launching endorsers included the Center for HIV Law and Policy, Prevention Access Campaign/U=U, The Counter Narrative Project, Treatment Action Group, Women With a Vision, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, The National LGBTQ Task Force, PFLAG, and Housing Works.

[2] This refers to PLHIV who have received a diagnosis.https://www.cdc.gov/mmwr/volumes/67/wr/mm6704a2.htm

[3] This CDC analysis included 38 reporting jurisdictions, accounting for a total of 651,811 PLHIV.  (2018)

[4] Florida, Georgia, Texas, Mississippi, Arkansas, Alabama, Louisiana, Missouri, Oklahoma. The other state is Arizona. https://www.usnews.com/news/best-states/slideshows/10-states-with-the-highest-incarceration-rates?slide=10 (2017)

[5] Georgia demonstrates the synergistic interaction of racial disparities across these different systems:

[6] IA, CO, CA, NC

 

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.”

FINAL_KERRY_NOT-A-CRIME-POSTERWhile 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.