On Thursday I present my poster at AIDS 2010 analysing two years of US arrests and prosecutions, so this is extremely timely, and very exciting. It is also the first time I have added a ‘decriminalisation’ label to my keywords – a significant milestone!
From the National HIV/AIDS Strategy for the United States, July 2010.
An important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV. At least 32 states have HIV-specific laws that criminalize behavior by people living with HIV. Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility. Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist. While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.
Recommendation 3.3 Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.
Obama administration calls for end to HIV-specific criminal laws
Advocates call new strategy a ‘wonderful development’
Many HIV experts and advocates are applauding the nation’s first comprehensive National HIV/AIDS Strategy, issued on July 13 by the White House, because it calls for an end to state laws that criminalize the transmission of HIV.
Those laws date back to the late 1980s and early 90s, when the death toll from HIV infection was mounting and no medications were readily available to treat the viral infection.
“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says, after acknowledging the rationale behind passage of such laws. “CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”
Michigan is one of 32 states with HIV-specific criminal laws. In Michigan, it is a felony for a person with HIV infection to engage in sexual penetration “however slight” without first disclosing their HIV-positive status to the sex partner. The law includes the use of sex toys, which have never been shown to be a route of transmission for HIV. It does not, however, include sharing needles, which is an extremely effective way to transmit the virus, experts say.
National experts weigh in
“It is the first truly meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP (Office of National AIDS Policy) staff to respond substantively and decisively,” Catherine Hanssens, executive Director of the HIV Law and Policy Center in New York.
Hanssens pointed out how the strategy’s implementation plan — which is a companion document to the strategy — goes beyond merely advising legislatures to re-visit their HIV-specific laws and contains specific goals to address HIV criminalization, including study by the Department of Justice.
“Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals; subject people with HIV to irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, and also consequently represent a violation of federal antidiscrimination laws created to protect those affected by HIV,” said Hanssens.
Bebe Anderson, director of the Lambda Legal Defense and Education Fund’s HIV Project, echoed Hanssens, calling the strategy and its implementation plan a “wonderful development.”
But she says individual states may struggle with addressing the laws.
“I think it will depend on each state and the political environment,” she noted.
Michigan lawmakers divided on HIV-specific criminal law
Anderson’s statement is reflective of the political reality in Michigan today. With the state House controlled by Democrats and the state Senate controlled by Republicans, lawmakers say that while these changes might be necessary, they will be difficult to achieve.
“If they don’t work, then we have to revisit them,” said House Speaker Andy Dillon of Redford Township of the HIV-specific criminal laws.
“Absolutely, we need to revisit them,” said Rep. Joan Bauer (D-Lansing). “I am open to looking at what is working and what is not.”
Mark Meadows (D-East Lansing) chairs the House Judiciary Committee and he too said he would revisit the laws. He said he felt it was still important to revisit Michigan’s bio-terrorism law to clarify it after a 45-year-old HIV-positive Clinton Township man was charged with the law for allegedly biting a neighbor during a fight. Those charges have since been dismissed by Macomb County Circuit Court Judge Peter Maceroni.
Meadows said prosecutions such as the Macomb case increase stigma against the HIV-positive community. He previously has called that prosecution “silly.”
But Republican law makers say not so quick.
State Sen. Tom George (R-Texas Township) chairs the Senate Health Policy Committee.
“I see these (calls to address specific laws– such as the HIV-specific criminal laws or nondiscrimination laws) as more of a political agenda and less of a public health issue,” George said. “I don’t think changing that or revisiting that is going to make a big difference like testing will.”
George, who is seeking the Republican nomination for governor and is a physician, is pushing legislation which will change Michigan’s law on HIV testing, which requires signed informed consent before an HIV test can be conducted. His legislation would make Michigan an opt-out state, meaning patients would give general consent for HIV testing when consenting for care and treatment. They could opt out of HIV testing, but only in writing.
Rep. Rick Jones (R-Grand Ledge) serves on the House Judiciary Committee. And while he has been a vocal critic of the HIV-as-terrorism prosecution, and previously said he was in favor of repealing the state criminal law on HIV disclosure, now says he no longer favors the move.
“After careful consideration and listening to the feelings of my constituents, I think you should have to disclose it,” says Jones. “Should it just be HIV? Absolutely not. It should include things that are much easier to transmit like Hepatitis and TB.”
Jones is the former sheriff of Eaton County and says he thinks that an HIV-positive person spitting at a police officer, and declaring the hope the officer is infected, should be criminalized, even though there is no known risk of infection from the act.
“It shows intent,” Jones said.
The National HIV/AIDS Strategy specifically cites criminalizing spitting as a concern.
“Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status,” the report states.
Jones admitted it is a crime already in Michigan to spit on a police officer, noting that he vividly recalled while a road officer having a suspect spit at him. That man, Jones said, ended up serving 30 days in jail for the incident.
Regardless of the how debate starts shaping up in Michigan, don’t expect the Michigan Department of Community Health to step into the fray anytime soon, says Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.
“Really, at this point in time, that is something the legislature will have to initiate,” Szwedja said.