How is the Expert Consensus Statement bringing science to justice?

Two years ago this month saw the launch of the Expert consensus statement on the science of HIV in the context of criminal law (Expert Consensus Statement) at a press conference during AIDS2018 in Amsterdam, published in the Journal of the International AIDS Society (JIAS), and translated into French, Russian and Spanish.

Authored by 20 of the world’s leading HIV scientists, and endorsed by more than 70 additional expert scientists, as well as IAPAC, IAS and UNAIDS, the Expert Consensus Statement described current evidence on HIV transmission, treatment effectiveness and forensics so that HIV-related science may be better understood in criminal law contexts.

The Expert Consensus Statement was the end result of a multi-year process developed by a partnership comprising the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Justice Network has now published an interim scoping report, written by HJN’s Senior Policy Analyst Sally Cameron, that explores the impact of the Expert Consensus Statement in the two years since its publication.  It is now available in English and French (see bottom of page for download links).

The report concludes that the Expert Consensus Statement is meeting both its primary aim (to support defence arguments in HIV criminalisation cases) and its secondary aim (supporting lobbying for law and policy reform) in many jurisdictions. But it also found that the process of developing and promoting the content of the Expert Consensus Statement has delivered additional benefits that further support advocacy efforts to end HIV criminalisation.

In summary, the Expert Consensus Statement is being used to:

  • Assist HIV criminalisation defence arguments and strategic litigation, changing courts’ understanding of transmission risks associated with HIV and the effectiveness of modern treatments.
  • Shape advocacy for law and policy reform, including mobilising stakeholders to lobby for reform, delivering law and policy reform, improving legal and judicial practice, facilitating community advocates’ access to government and judicial bodies, and gaining support from public health bodies and customary and religious leaders.
  • Inform scientific and medical thinking, including being cited in many peer reviewed articles and in scientific and medical press, being hosted on the sites of scientific/medical/academic organisations, and being ranked the #1 JIAS article to date.
  • Develop stronger relationships that cross silos and advance capacity, enabling efficient and informal communications between partners to rapidly move projects forward, with Expert Consensus Statement authors supporting community organisations by assisting in defence cases, answering ad hoc questions and co-authoring abstracts, presentations and articles.
  • Disseminate accurate, positive messages about people living HIV and the issue of HIV criminalisation, including facilitating keynote addresses and presentations at notable conferences and meetings, and generating global mainstream, community and social media. Ultimately, interest in the Expert Consensus Statement has elevated the global conversation about HIV criminalisation, with co-ordinated messaging translating into a powerful positive narrative in many sites.


FOCUS ON EECA: Is Belarus the worst country in the world for HIV criminalisation?

Photo: Representatives of People PLUS at the Gomel Regional Court
Our EECA hub, the Eurasian Women’s Network on AIDS (EWNA), part of the GNP+ family, found that between January 2015 and June 2017, 128 criminal cases had been prosecuted under Article 157, Belarus’ overly broad HIV-specific criminal law.

The highest number of cases in the country were reported in the Gomel region. Between 2012 and 2016, 38 cases were reported. But in the first half of 2017 alone, at least 50 cases had been filed before the courts.

The vast majority of the cases involve people in heterosexual relationships. The law is understood and applied in a way that a person living with HIV not only has a duty to disclose, but also a duty to not place another person at risk of acquiring HIV. While some cases brought to the courts involve allegations of non-disclosure, a large number of cases are between couples of different HIV status, where both parties were aware of HIV in the relationship, and the HIV-negative partner consented to sex.

Charges are laid by the state and are regardless of the partner’s desire to prosecute and regardless of whether protective measures were taken by the person living with HIV, such as using a condom or being on treatment with a low or undetectable viral load. 

Cases typically commence when health care providers hear that an HIV-negative person is in a sexual relationship with a person living with HIV, or when a pregnancy is involved. In order to be charged, all that is required is for the person living with HIV should know their HIV status and be registered with the state for HIV services.

As per community reports, people living with HIV are not getting the proper treatment, care and support that they need because of the legal barriers that Article 157 creates in the lives of people living with HIV.

In practice, the law in Belarus keeps people who learn anonymously of their HIV status from accessing treatment, education and counselling because people in Belarus can know about their HIV status and not be registered. Without being formally aware of the presence of HIV, then a person can avoid is not criminally liable. When people face the threat of criminalisation, ignorance of the diagnosis of HIV can be the most effective legal protection. 

Crucially, people who are not registered as living with HIV with the state do not receive antiretroviral treatment and therefore endanger themselves and their sexual partners.

Building the case against criminalisation on the ground

People PLUS is a public association representing people living with HIV in Belarus.

It provides counselling to clients/patients – helping them to “correctly” answer questions and complain against forced examination during epidemiological investigations from the Ministry of Health, as well as the Ministry of Internal Affairs. This has been a positive experience with, over the past month, two refusals to initiate criminal cases.

In the Gomel region – where the highest number of cases under Article 157 of the Criminal Code of the Republic of Belarus are being reported – People PLUS have held meetings with the heads of the Epidemiological Department – the “sources” of initiating criminal cases in the region.

An agreement was reached, that without violating guidelines (according to a Ministerial Agreement the Epidemiological Department has to send cases of transmission to the Ministry of Internal Affairs for further investigation), the people under investigation will be immediately provided with People PLUS contacts in order to obtain advice on how to protect themselves during an investigation.

As a result, there was a 40% decrease in the number of criminal prosecutions in the country (19 for the 1st quarter of 2018) and 49% for the Gomel region (12 for the first quarter of 2018), compared to 2017.

People PLUS notes that in the criminal laws of other countries there is the possibility of a person living with HIV to be released from criminal liability if they disclose and receive consent from another person and/or took appropriate measures to greatly reduce the risk of transmission. The application of this rule, as prescribed in the law, will protect the rights and interests of people living with HIV in Belarus. Though ultimately, this is not enough to counteract the damage to the HIV response caused by criminalisation.

A proposal on introducing similar amendments to Article 157 put forward by People PLUS was discussed at a recent meeting of the Parliamentarian Commission on Health, Physical Culture, Family and Youth Policy. The Ministry of Health of the Republic of Belarus sent a letter to the Parliament in support of the initiative. The Commission decided to submit it for discussion in the autumn session of the Parliament.

People PLUS have arranged a meeting with the Chairman of the Gomel Regional Court, S.M. Shevtsov, in order to reduce the number of ongoing cases and to get support to further changes in legislation.

Parliamentary hearings are expected to take place in Autumn 2018.

Download the EECA Regional Criminalisation Report produced by EWNA on behalf of HIV JUSTICE WORLDWIDE here

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Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “.  Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison.  A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections.  Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year.  However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

[Feature] Beyond Blame: Challenging HIV Criminalisation

Beyond Blame: Challenging HIV Criminalisation

A pre-conference meeting for AIDS 2014

In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together to discuss the overly broad use of the criminal law to control and punish people living with HIV – otherwise known as ‘HIV criminalisation’.

The meeting was hosted by Living Positive Victoria, Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and the Australian Federation of AIDS Organisations, with the support of AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

The meeting was financially supported by the Victorian Department of Health and UNAIDS.

This highlights video (12 mins, 50 secs) was directed, filmed and edited by Nicholas Feustel, with interviews and narration by Edwin J Bernard.  The video was produced by georgetown media for the HIV Justice Network.

Download the highlights video from:

Below is a feature story based on the transcript of the highlights video, with additional links and information. You can also read Felicita Hikuam’s excellent (and remarkably quickly-written) summary of the day in ‘Mujeres Adelante’ and Daniel Reeders’s impressive collection of tweets from the meeting.


A day to come together, find solutions, and move forward

Paul Kidd: On behalf of Living Positive Victoria, the Victorian AIDS Council, Australian Federation of AIDS Organisations, and the National Association of People with HIV Australia, welcome to Beyond Blame: Challenging HIV Criminalisation. We hope today’s event is inspiring and productive and that it kicks off the discussion about HIV criminalisation that will continue through the week and beyond.

Edwin Bernard: I think this is the largest HIV Criminalisation Pre-Conference to date at an International AIDS Conference. So the idea of the meeting is to bring people together. People who are working on this issue, who are interested in learning more about it, and we’re going to really work hard to come together, find solutions, and move forward.

Julian Hows: GNP+ has been involved in this issue of criminalisation since 2002, 2003, when we noticed an increase in the rates of prosecution in Europe effectively and started the first scan of the 53 signatory countries of the European Convention on Human Rights.

This has since become the Global Criminalisation Scan, an international ‘clearing-house’ of resources, research, and initiatives on punitive laws and policies impacting people living with HIV.

Jessica Whitbread: And ICW are really, really excited to be here and part of this. Criminalisation is a huge issue for us. Over 50% of people living with HIV are women and many of these laws initially and still continue to be created as a way to protect women when actually they put us more at risk.

Getting the criminal law changed and out of the HIV response

The meeting began with a surprise announcement by the Minister of Health for Victoria, David Davis, about Australia’s only HIV-specific criminal law, Section 19A of the Victorian Crimes Act. Read more about the campaign to reform the law here.

David Davis: And as a further step in our efforts to reduce the impact of HIV and reduce stigma and discrimination, the coalition government will amend section 19A of the Crimes Act 1958 to ensure that it is non-discriminatory.

Following the announcement Victoria’s Shadow Health Minister, Gavin Jennings, committed to removing (and not just amending) Section 19A within the next 12 months, should Labor win the state election in November.

A keynote address by the Honourable Michael Kirby, a former Justice of the High Court of Australia, and a member of the Global Commission on HIV and the Law, reminded us why an overly broad criminal justice apporach to prevention does more harm than good.

Michael Kirby: In the big picture of this great world epidemic, the criminal law has a trivial role to play. What is most important is getting the law changed and out, not getting the law into the struggle against HIV and AIDS.

The Iowa example: laws are subject to change and should be subject to change

The meeting then focused on Iowa in the United States where both law reform and judicial rulings have limited the overly broad use of the criminal law.

Matt McCoy: You know, in Iowa, we had a very bad law on the books, but it’s not unlike a lot of other places in the country in the United States and in the world. So there was no need for transmission, and with it, the penalty was so extreme, a mandatory lifetime sex offender registry and 25 years in prison.

Watch the video that Senator McCoy showed at the meeting explaning how law reform in Iowa happened.

Sean Strub: Iowa is a conservative farm-belt state. And the effort there began with a small group of people with HIV who started organising others with HIV and educating their own communities and then educating public health officials and reframing the issue in terms of a public health issue rather than simply an issue of justice for people with HIV. Last month, we held a conference at Grinnell College in Grinnell, Iowa. It was the first national conference on HIV criminalisation in the US. The Friday before our conference began, Governor Branstad in Iowa signed a criminalisation reform measure and made Iowa the first state in the United States to subtantively reform and modernise their statute.

Two videos of the HIV Is Not A Crime conference (also known as the Grinnell Gathering) are available.  One shows the opening ceremony and can be viewed on the Sero website.  A second video highlights the voices of US HIV criminalisation survivors featured at the meeting, and can be viewed on the Sero website.

Nick Rhoades: About a week after the conference was over, the timing was just a little bit off, nonetheless, it’s fantastic. My conviction was overturned by the Iowa Supreme Court. Yeah. Thank you… It’s kinda groundbreaking, their decision, and I, first of all, think that it’s going to have an effect beyond Iowa’s borders, but it basically said that there has to be more than a theoretical chance of transmission to be prosecuted under the law. And previously, that’s not been the case. Basically, it was just if you didn’t disclose, and you had sex, that that would be enough to convict someone. So, for the first time, they basically said that factors such as using protection, being on antiretroviral medication, having an undetectable viral load specifically, should affect whether or not prosecution is able to happen.

Senator McCoy took the opportunity to urge parliamentarians to rethink how they treat HIV in a criminal context.

Matt McCoy: Many of these laws went into effect in the United States during the AIDS crisis and the scares that society had around the issue, and in many cases they were put into effect using a one-size-fits-all measure. And so this is a great opportunity to go back and to revisit that and to realise that our laws are subject to change and should be subject to change.

Science can change laws and limit prosecutions

A number of countries in Europe have also recently revisited their criminal laws, policies or practices. A poster, Developments in criminal law following increased knowledge and awareness of the additional prevention benefit of antiretroviral therapy, presented at AIDS 2014 by the HIV Justice Network, showed where and how this has taken place.

Edwin Bernard: We have to salute the Netherlands, the very first place in the world that actually, way before the Swiss statement, between 2004 and 2007, managed to change the application of the law through a variety of Supreme Court rulings, but also because of advocacy that happened with advocates and healthcare workers and people in the community who limited the role of the criminal law to only intentional exposure or transmission. Denmark was the only country in Western Europe that had an HIV-specific criminal law, and a huge amount of advocacy went on behind the scenes and that law was suspended in 2011 based on the fact that the law was about a serious, life-threatening illness, and the reality was that in Denmark, people living with HIV have exactly the same life expectancy as people without HIV. And so the law just couldn’t apply anymore. And so, we hope that the places like Denmark and the Netherlands will provide inspiration for the rest of us.

Urgent need to focus on global South

But with two-thirds of all HIV-specific criminal laws enacted in the global South, there is now an urgent need to re-focus our efforts.

Patrick Eba: For a long time, we have been saying that there is no prosecution happening in the Global South, particularly in Africa, because we were lacking the information to be able to point to those instances of criminalisation. In fact, there is a lot of prosecution that is happening, and in the past year, if you look at the data that is being maintained by the HIV Justice Network, it is clear. We’ve seen the case in Uganda. We know of a decision that came out some time late last year in South Africa. We know of a number of cases in Kenya, in Gabon, in Cameroon [and especially in Zimbabwe]; and these really show that where we celebrate and are able today to know what is happening in the Global North, our lack of understanding of the situation in the Global South is one that requires more attention.

Dora Musinguzi: Uganda is right now grappling with lots of human rights and legal issues, and it’s going to be such a high climb to really convince our governments, our people, government agencies to make sure that we really have this reform of looking at HIV from a human rights angle, public [health] angle, gender justice angle, if we are going to achieve the gains that we have known to achieve as a country. …But we stand strong in this, we are not giving up. We are looking to a future where we shall challenge this criminalisation, and we hope to come back with a positive story.

Workshops on advocacy messages, science and alternatives to a punitive criminal justice approach

After the morning plenary sessions, participants then attended one of three workshops. The first workshop explored how to get advocacy messages right, in terms of what arguments need to be delivered by whom and to whom.

Laurel Sprague: We talked about the importance of stories. In particular, the stories of people who have been prosecuted, both because of the dignity it gives them to be able to share their own experience, and also because what we’re seeing is so broadly understood to be disproportionate once the details come out.

Laurel’s rapporteur notes can be downloaded in full here.  For an example of advocacy messagaging aimed at communities impacted by HIV see this video from Queensland Positive People.

A second workshop highlighted the way that up-to-date science on HIV-related risks has limited the application of the criminal law in Sweden and Canada.

David Mejia-Canales: Really mobilising their scientists, their researchers and really connecting with the lawyers, the judiciary, the prosecutors and putting to them the best evidence that they have.

Download the Powerpoint presentation given by Cecile Kazatchine of the Canadian HIV/AIDS Legal Network here.

The third workshop examined alternatives to a punitive criminal justice system approach, and the risks and benefits of using, for example, public health law or restorative justice.

Daniel Reeders: So if someone shows up at a police station or talks to their doctor about being exposed or infected with HIV, a restorative justice approach would talk about giving them an opportunity to work that issue through with the person who they are otherwise trying to report, either for criminal prosecution or public health management. It acknowledges that people experience HIV infection as an injury and that there is a lack of a process offering them an opportunity to heal.

Daniel’s entire rapporteur report can be read on his blog.

Going home with more ideas and tools and inspiration to continue our work

As the meeting came to a close participants appreciated the day as a rare and much needed opportunity to discuss advocacy strategies.

Paul Kidd: What a day! It is just so amazing to be in this room with all of these incredible people and the sense you have of how much passion and energy and commitment there is around this issue.

Richard Elliott: Even as we face numerous setbacks in our own context sometimes, we see that in fact people are making breakthroughs elsewhere and then that helps us put pressure domestically on decision makers, on legislators, on judges.

Michaela Clayton: It’s important to learn from how people have achieved successes and what have been peoples’ problems in achieving successes in different countries in addressing criminalisation. So for us it’s a wonderful opportunity to learn from others.

Dora Musinguzi: I was encouraged to know that the struggle is not only for us in Africa, in Uganda, and I was also encouraged to know that our colleagues have made progress, and so we can.

Sean Strub: I think everywhere that there is an effort for this advocacy for reform, it is a constantly evolving effort. And the fact that the HIV Justice Network and others brought together this global community which is incredibly mutually supportive. I think of any aspect of the epidemic, I can’t think of an area where there is more collegiality and mutual respect than those of us who’ve centered our work around criminalisation reform. That’s what we’re seeing here in Melbourne, just an expansion of that, and all of us going home with more ideas and tools and inspiration to continue our work.

To remain connected with the global advocacy movement against overly broad HIV criminalisation, like us on Facebook, follow us on Twitter and sign the Oslo Declaration on HIV Criminalisation to join our mailing list.

Feature: ProPublica and BuzzFeed publish the most comprehensive article yet on HIV non-disclosure laws in the United States

Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime

by Sergio Hernandez, Special to ProPublica, Dec. 1, 2013.

This story was co-published with BuzzFeed.

[Un sommaire en français est aussi disponible ici]

Nick Rhoades was clerking at a Family Video store in Waverly, Iowa, one summer afternoon in 2008 when three armed detectives appeared, escorted him to a local hospital and ordered nurses to draw his blood. A dozen miles away, his mother and stepfather looked on as local sheriff’s deputies searched their home for drugs ó not illegal drugs, but lifesaving prescription medications.

Lab results and a bottle of pills found in the Rhoades’ refrigerator confirmed the detectives’ suspicions: Nick Rhoades was HIV-positive.

Almost a year later, in a Black Hawk County courtroom, Judge Bradley Harris peered down at Rhoades from his bench.

“One thing that makes this case difficult is you don’t look like our usual criminals,” Harris said. “Often times for the court it is easy to tell when someone is dangerous. They pull the gun. They have done an armed robbery. But you created a situation that was just as dangerous as anyone who did that.”

The judge meted out Rhoades’ sentence: 25 years in prison.

His crime: having sex without first disclosing he had HIV.

Officially, the charge, buried in Chapter 709 of the Iowa code, is “criminal transmission of HIV.” But no transmission had occurred. The man Rhoades had sex with, 22-year-old Adam Plendl, had not contracted the virus.

That’s not a surprise, because Rhoades used a condom.

And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

After his lawyers petitioned the court, Rhoades’ prison sentence was changed to five years’ probation. But for the rest of his life ó he is 39 ó he will remain registered as an aggravated sex offender who cannot be alone with anyone under the age of 14, not even his nieces and nephews.

Rhoades’ is not an isolated case. Over the last decade, there have been at least 541 cases in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive, according to a ProPublica analysis of records from 19 states. The national tally is surely higher, because at least 35 states have laws that specifically criminalize exposing another person to HIV. In 29 states, it is a felony. None of the laws require transmission to occur.

Defendants in these cases were often sentenced to years ó sometimes decades ó in prison, even when they used a condom or took other precautions against infecting their partners. In 60 cases for which extensive documentation could be obtained, ProPublica found just four involving complainants who actually became infected with HIV. Even in such cases, it can be hard to prove who transmitted the virus without genetic tests matching the accused’s HIV strain to their accuser’s.

People with HIV have even done time for spitting, scratching or biting. According to the federal Centers for Disease Control and Prevention, spitting and scratching cannot transmit HIV, and transmission through biting “is very rare and involves very specific circumstances” ó namely, “severe trauma with extensive tissue damage and the presence of blood.”

Many law enforcement officials and legislators defend these laws, saying they deter people from spreading the virus and set a standard for disclosure and precautions in an ongoing epidemic.

“Shifting the burden of HIV disclosure from the infected person, who is aware of a known danger, to one who is completely unaware of their partner’s condition smacks of a ëblame the victim’ sort of mentality,” Jerry Vander Sanden, a prosecutor in Linn County, Iowa, wrote in an email to ProPublica. “It would be like telling a rape victim that they should have been more careful.”

Even many people with HIV support the laws. In a recent survey of HIV-positive people in New Jersey, 90 percent said that people with the virus bore most of the responsibility to protect their partners. More than half approved of the kind of laws that resulted in Rhoades’ sentence.

But some health and legal experts say using criminal penalties to curtail the epidemic could backfire and fuel the spread of HIV. According to the CDC, 1.1 million Americans are currently living with HIV, but one-fifth of them don’t know it. And studies show that about half of newly infected people got the virus from those who didn’t know they had HIV. So relying on a partner to know, let alone disclose, their HIV status is a risky proposition.

The laws, these experts say, could exacerbate this problem: If people can be imprisoned for knowingly exposing others to HIV, their best defense may be ignorance. Such laws, then, provide a powerful disincentive for citizens to get tested and learn if they carry the virus.

The laws “place all of the responsibility on one party: the party that’s HIV-positive,” said Scott Schoettes, a lawyer who supervises HIV litigation for Lambda Legal, a national gay-rights advocacy group. “And they lull people who are not HIV-positive ó or at least think they are not HIV-positive ó into believing that they don’t have to do anything. They can just wait for their partner to reveal their status and not, instead, take steps to protect themselves.”

Schoettes also says that the laws unfairly single out HIV, further stigmatizing and reinforcing misconceptions about living with the virus.

“There’s no reason why we should be singling out HIV for this kind of treatment,” he said. “It’s based in just a lot of fear and misconception.”

Being HIV-positive can still carry a powerful stigma. Since July 2010, the U.S. Department of Justice has opened at least 49 investigations into alleged HIV discrimination. The department has won settlements from state prisons, medical clinics, schools, funeral homes, insurance companies, day care centers and even alcohol rehab centers for discriminating against HIV-positive people. Individuals with HIV may also fear that news of their status will spread to third parties, leading to rejection, embarrassment or ostracism for themselves or even their loved ones.

In September, a disability rights group accused the Pea Ridge, Ark., school district of kicking out three siblings after officials learned that members of their family had HIV. The family’s lawyers declined to comment. The school district did not respond to requests for interviews but issued a statement acknowledging that it had “required some students to provide test results regarding their HIV status in order to formulate a safe and appropriate education plan for those children.”

In romantic or sexual settings, people with HIV often report fear of rejection, abandonment and stigmatization.

“My first girlfriend in middle school ó her mom banned her from seeing me, and it took me five years before I felt comfortable to try again,” said Reed Vreeland, a 27-year-old New Yorker who was born with HIV. Vreeland works as the communications coordinator for the Sero Project, a nonprofit advocacy group that campaigns against HIV exposure laws, which it denounces as “HIV criminalization.”

In 2006, Vreeland started dating a classmate at Bard College in upstate New York. He disclosed his HIV status on their second date.

“What’s going through your head is being scared of being rejected,” he said. “It’s scary to give someone that power.”

Vreeland and his girlfriend continued to date. Last spring, they married at a ceremony in the Bronx. “It took me a long time to propose, because I thought I would die,” he recalled. “I was saying, ëWell, OK, why should I propose if I’m scared of dying in 10 years? And if we do have a kid, then I might die and leave my kid without a father, like I grew up without a mother.'”

The fear is “choking” and “silencing,” he said. “You’re conscious that saying three letters will change the way people will see you.”

In some cases, people with HIV have been met with violence ó and even death ó after disclosing their status. Last month, in Dallas, 37-year-old Larry Dunn was sentenced to 40 years in prison for murdering his HIV-positive lover. Police said he used a kitchen knife to stab and kill Cicely Bolden, a 28-year-old mother of two, after she told him about her HIV status. “She killed me,” he told investigators, according to his arrest warrant, “so I killed her.”

Until recently, criminal punishment was virtually unheard of for infectious diseases other than HIV. Federal and state officials have the authority to quarantine the sick to contain epidemics, but this power was typically granted to health authorities, who are versed in the latest science, not police and prosecutors. Very few criminal statutes take aim at diseases. At least two states have catchall laws against exposing others to “communicable diseases,” but only if exposure happens through routes most commonly associated with HIV, such as sex, sharing needles or donating blood. And while some states have laws that specifically punish exposure to tuberculosis, syphilis or “venereal diseases,” HIV exposure is almost always punished more severely.

But since 2007, three states have added hepatitis B and C to laws criminalizing HIV exposure. Those diseases are most prevalent among the same groups of marginalized people most at risk for HIV: intravenous drug users; gay men, especially those who are black or Latino; and black women.

Yet the laws may be unnecessary. In rare cases when someone intentionally tries to spread a virus, prosecutors have been able to put them away using ordinary criminal laws, such as assault or reckless endangerment. In 1997, a New York man named Nushawn Williams was accused of deliberately infecting at least 13 people, including two underage girls, with HIV. Williams pleaded guilty to two counts of statutory rape and one count of reckless endangerment. When his 12-year sentence ended in 2010, state officials kept him confined under laws that allow dangerous psychiatric patients to be locked up. He remains behind bars.

In Iowa, Rhoades’ case has prompted some lawmakers to reconsider whether exposing someone to HIV should carry such a heavy punishment.

“Putting somebody in prison for 25 years when they didn’t even transmit HIV is the most absurd thing that the state could be doing,” said Matt McCoy, an Iowa state senator who has introduced legislation to reduce the penalties. “It’s medieval.”

Even Plendl, the man Rhoades had sex with, thinks the law is too harsh. “Do I think he needs to be locked up forever?” Plendl asked. “No. Do I think these laws need to be revisited? Yes.”

* * *

In 1986, scientists had just christened the virus that causes AIDS, the human immunodeficiency virus, or HIV. The government had already logged more than 16,000 AIDS cases and 8,000 deaths since the American epidemic began, mostly among gay men and drug users. At the time, not a single drug was approved to target HIV, and the diagnosis was, for many, a death warrant.

In a panic, state lawmakers across the country ó starting with Kernan “Skip” Hand, a Republican state legislator from Jefferson Parish, La. ó began to take a law-and-order approach to keeping HIV out of their communities.

Hand’s bill, the first of its kind in the country, passed in 1987. It imposed a sentence of up to 10 years in prison and a $5,000 fine on anyone who “intentionally” exposed a person to HIV without their “knowing and lawful consent.”

The next year, Georgia adopted a statute that made no mention of intent; it could be applied to anyone who did not disclose their HIV status before having sex or sharing needles.

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In 1989, the American Legislative Exchange Council, or ALEC ó a conservative nonprofit that develops policy positions and drafts model bills for state legislatures ó assembled a special HIV task force, which published a set of prototype statutes on subjects ranging from mandatory testing to insurance coverage. Buried in Chapter 6, alongside a proposed emergency quarantine law, was a single-page bill called the “HIV Assault Act,” which became the template for state HIV exposure laws for the next decade.

Alan Smith, who served on the committee that drafted ALEC’s model HIV bills and later served as ALEC’s executive director, recalled members’ concerns that people might intentionally try to spread the virus to drive more funding toward medical research.

“I guess there was a worry that there would be a lot worse disease than it could’ve been if people were actually on a mission to make sure more people got it so more research money could be devoted to curing it,” Smith said.

A turning point came in 1990, when Congress inadvertently gave the criminalization effort a boost by passing the Ryan White CARE Act, a landmark law that funded HIV/AIDS services.

In the run up to passage, Jesse Helms ó the late Republican senator from North Carolina ó proposed an amendment that would have criminalized HIV-positive health care workers who failed to disclose their status to patients and made it a federal crime for anyone with HIV, as well as anyone who had ever used injection drugs or engaged in prostitution, to donate, sell or attempt to donate or sell blood, semen, tissues, organs or bodily fluids. (The act itself was named after a hemophiliac teenager from Indiana who became a national poster child for the AIDS crisis when he was expelled from middle school after contracting HIV from a tainted blood treatment.)

But Ted Kennedy, the late Democratic senator from Massachusetts and the act’s primary sponsor, offered an alternative: Defund services unless states passed legislation to safeguard their blood and organ donation networks.

“No state,” Kennedy said from the Senate floor, describing the compromise amendment, “could receive funds under the act, unless laws are in place to prosecute a person who donates blood or organs if one knows that he or she is infected with the HIV virus and knows the risk of transmission from making such a donation.”

Waiting in the wings was the ALEC bill, which outlawed blood and tissue donations by people with HIV and also made it a crime for anyone with HIV to have “intimate contact” with another person without first disclosing his or her HIV status. By 1993, versions of the HIV Assault Act had been passed in Florida and introduced in Iowa, Michigan, Mississippi, New York, Nevada, Tennessee and Virginia. By the end of the decade, copycat bills had passed in nine states, including Iowa, which enacted its law in 1998.

A side-by-side comparison shows that the Iowa law was almost identical to ALEC’s HIV Assault Act. Iowa’s only major change was to its name: The “HIV Assault Act” became the “Criminal Transmission of Human Immunodeficiency Virus” law, itself a misnomer because transmission isn’t necessary for the charge to stick.

When Congress reauthorized the Ryan White CARE Act in 2000, it dropped the criminalization provision for blood and tissue donations. Nevertheless, since then, at least 14 bills have been passed across the country either enacting new HIV exposure laws or toughening existing laws’ penalties, especially when the victim is a police or corrections officer.

In 2011, for example, Nebraska passed a measure that made biting or spitting on public safety officers a misdemeanor punishable by one year in jail and a $1,000 fine ó unless the offender is HIV-positive. Then the same crime is a felony punishable by up to five years in prison and a $10,000 fine.

At the same time, three states ó Mississippi, Nebraska and Tennessee ó have criminalized exposing someone to hepatitis B or C. In Nebraska and Tennessee, this is a misdemeanor, while HIV exposure is a felony, even though, according to the World Health Organization, hepatitis B is up to 100 times more infectious than HIV.

* * *

On June 26, 2008, Nick Rhoades was at home in Plainfield, Iowa, when he received a chat invitation on, a dating and social networking site. The sender, Adam Plendl, was a 22-year-old student at the University of Northern Iowa.

At 3 that morning, the men struck up a conversation. Plendl invited Rhoades to meet him in Cedar Falls, roughly 30 miles south of Plainfield, where Plendl had just moved into a new apartment several blocks from campus. The two men spent the next several hours drinking pomegranate vodka martinis, smoking marijuana, unpacking Plendl’s belongings and bonding over their struggles with bipolar disorder. Eventually, they had sex.

A few nights later, Plendl was sharing a midnight cigarette with Jordan Brown, a friend who had learned through the grapevine that Rhoades was, as he later described it to police, “sick.” Plendl panicked at the possibility that he had been exposed to HIV. He said he “flew out of the house” to the emergency room of the nearby Sartori Memorial Hospital.

As he tells it, Plendl never planned to press charges against Rhoades. He went to the hospital seeking a doctor who could prescribe him a short-term, emergency regimen of HIV drugs that, if started within 72 hours of exposure to the virus, can stop infection from taking root. But when the Sartori staff seemed clueless about the procedure, Plendl went to the emergency room at Covenant Medical Center in the neighboring town of Waterloo.

There, Brandy Weida-Cooper, a registered nurse who was working the graveyard shift, admitted Plendl to the ER and, records show, made the call to involve police. “I never called the police,” Plendl said. “Yes, when I was asked questions, I provided them answers. But I did not call the police; the hospital did.”

In a telephone interview, Weida-Cooper declined to explain what spurred her decision to alert authorities. (A spokesman for Wheaton Franciscan Healthcare, the Roman Catholic nonprofit that owns both Covenant and Sartori, also declined to comment.) In any case, by 4:02 a.m., a Cedar Falls patrol officer was standing in Weida-Cooper’s emergency room, ready to take Plendl’s statement.

* * *

The more than 500 instances documented by ProPublica in which people have been convicted of or pleaded guilty to HIV-specific laws since 2003 represents one of the largest collections of such cases ever assembled. Still, it is almost certainly a substantial undercount.

The data was drawn from more than 1,300 records, including court files, police reports and registries of sex offenders and prisoners. Some law enforcement agencies refused to provide records about their cases or redacted names and case numbers, saying that the suspects’ HIV status ó once used to prove their criminal guilt ó should be protected out of concern for their medical privacy. (A full breakdown of the data is here.)

Some of the cases were originally compiled through public records requests made by the Sero Project; most were independently obtained by ProPublica.

Despite its limitations, the material creates a rough portrait of how these laws have been applied through the years.

ProPublica was able to find just four cases that involved lawmakers’ original concerns about protecting the blood and organ supply. Two of these four resulted in a conviction or guilty plea, one was dismissed, and the outcome of the last could not be determined.

For cases in which the route of potential transmission could be determined, the overwhelming majority involved sex. The circumstances and relationships in those cases confound stereotypes or preconceived notions: HIV-positive defendants and their accusers have included gay and straight couples in one-night stands, dating relationships or even years of marriage. Cases have involved instances of sex between prisoners, rape and child abuse.

In Waterloo, Iowa, 42-year-old Donald Bogardus, a church-going, HIV-positive gay man who also suffers from cerebral palsy, recently pleaded guilty to charges of failing to disclose his status to a partner. “I wanted to tell him, but when I went to say it, I clammed up,” Bogardus told the Daily Iowan last year. “So many things came across my mind. I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.”

Bogardus currently works as a nurse’s assistant, but his guilty plea will place him on the state’s sex offender registry, barring him from working with patients in nursing homes.

Even just the fear of prosecution has had consequences for people with HIV. In New York, one HIV-positive woman interviewed by ProPublica said she didn’t report being raped because her attacker threatened to press charges for not disclosing her status. (New York does not have an HIV disclosure law, but the woman said she didn’t know that and feared prosecution because she’d heard of cases elsewhere.)

Women, including many alleged sex workers, were the accused in almost a quarter of the convictions and guilty pleas for which gender could be determined.

In St. Louis, Nigaila Gibbs was 20 years old when police arrested her during an undercover sting operation in 2010. Gibbs, who was born with HIV, began prostituting herself after aging out of Missouri’s foster care system. Police accused her of having sex with “hundreds” of clients and failing to warn them about her HIV status, although Gibbs told police she always practiced safe sex. At the time of Gibbs’ arrest, St. Louis County police encouraged potential victims to come forward. Three clients stepped up to complain about Gibbs, but a police spokesman said no one was found to be infected or charged with soliciting a prostitute.

Gibbs ultimately pleaded guilty to “performing an act of prostitution” while knowingly infected with HIV and was sentenced to five years in Missouri state prison. Today, searching for her name on Google turns up blog posts and message board threads titled “AIDS Whore Nigaila Gibbs May Have Infected Hundreds!” and “Fat ugly prostitute infects over 100 clients w/ HIV.”

In one 2006 case, the defendant was already in prison when he was charged with an HIV-related offense.

Thomas Tompkins was serving his last month in prison at Ohio’s Richland Correctional Institution when a guard caught him performing oral sex on another inmate in the prison library. State police questioned the two inmates about whether the encounter was consensual, and both men agreed it was. But when Tompkins acknowledged that he had not disclosed his HIV-positive status to the other inmate, prosecutors accused him of felonious assault with HIV.

Scientists agree that a man who receives oral sex has virtually zero chance of contracting HIV.

Still, Tompkins pleaded guilty to a reduced charge of aggravated assault, adding an extra year to his sentence.

And in a 2010 case from South Carolina, a 32-year-old man named Jesus Cazares spent five months in the Marion County jail awaiting trial for “exposing another to HIV.” He pleaded guilty and was credited with time served, but not before U.S. Immigrations and Customs Enforcement filed to detain him on immigration charges. In February 2011, Cazares was released into ICE custody, and a federal judge ordered him “removed” to Mexico.

In addition to the convictions and guilty pleas, ProPublica found at least 179 instances in which people were acquitted or had their cases dismissed. Yet even then, the repercussions can be severe. The accused can find their names splashed in local news accounts, making their HIV status common knowledge; they can lose jobs, homes, family members and friends; and if they can’t make bail, they can be stuck in jail, where inmates can face spotty access to HIV medications and other problems.

Last year, St. Louis prosecutors accused 40-year-old Adam Childs of exposing an ex-boyfriend to HIV. While awaiting trial in the city jail, records show, Childs was raped by another inmate and moved to protective custody. A few months later, a nurse and a prison guard were dispensing medications in Childs’ cell block when they found his lifeless body hanging over the stainless steel toilet in his cell, strung from a sprinkler cover with a blue, standard-issue jail bed sheet.

* * *

One consequence of the viral exposure legislation is that public health activities and law enforcement, which have traditionally been kept separate, can now overlap. In some states, such as Mississippi, people who test HIV-positive are routinely asked to sign a document called a “Form 917.” By signing it, patients acknowledge they have been counseled about the basics of living with HIV, including the legal consequences of not telling partners they have the virus. Similar forms have also been used in Arkansas, Michigan and North Dakota.

In several states, including Idaho, Missouri, Indiana, Michigan and Iowa, ProPublica found, prosecutors and judges have used subpoenas and warrants to force health officials to hand over these forms along with other medical records, such as test results, as evidence against patients charged with violating viral exposure laws. County prosecutors in Indiana, for example, have served at least 20 such subpoenas to the state health department since 2010.

Sometimes, health officials have initiated criminal proceedings. In Grand Traverse County, Mich., former county health officer Fred Keeslar sent a memo to the local prosecutor headlined “Recalcitrant Behavior,” suggesting that police set up a sting operation to arrest and prosecute an HIV-positive man suspected of cruising for sex in public bathrooms without disclosing his status. Keeslar did not respond to requests for comment.

On the federal level, Obama administration officials have come out against HIV-specific criminal laws. In 2010, the White House’s Office of National AIDS Policy issued a white paper saying that 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 Presidential Advisory Council on HIV/AIDS has also condemned these laws.

In 2011, the National Alliance of State and Territorial AIDS Directors, or NASTAD, also endorsed the repeal of laws that criminalize HIV exposure or nondisclosure. (Last June, NASTAD also filed a friend-of-the-court brief in the Rhoades case.)

But across the states, health officials have varying opinions. “The existence of the statutes does not affect our prevention, diagnosis and treatment efforts,” a spokesman for the Virginia state health department said.

But Jill Midkiff, a spokeswoman for Kentucky’s Cabinet for Health and Family Services, said that “imposing harsher sentences on individuals with HIV or treating HIV-positive patients differently in the eyes of the law may impact the effectiveness of the Department of Public Health’s HIV prevention efforts.”

And Donn Moyer, a spokesman for the Washington State Department of Health, said, “we believe it’s time to look at the effectiveness of such laws, given current knowledge and understanding of HIV transmission and treatment, which have advanced a lot since most of those HIV laws were written.”

Officials in Louisiana did not comment on specific criticisms of its law, but internal emails discussing ProPublica’s questions show how sensitive the topic can be. One former health department spokeswoman told a colleague it is “a touchy topic that will require governor’s office involvement.”

In Tennessee, ProPublica’s questions were sent to the state epidemiologist, who told a spokesman: “Ain’t touching it with a 10 foot pole.”

In Iowa, the Rhoades case helped spur a bill that would lower the penalties for HIV exposure, but it failed to pass. Its lead sponsor said he plans to reintroduce it. For anyone who intentionally tried to infect someone, the punishment would remain harsh: 10 years if infection occurred, and five years if it didn’t. In cases where someone didn’t intend to infect his partner but still did so after failing to take “practical means to prevent” transmission, the penalty would be two years. If there was no intention to infect and no one was infected, there would be no penalty. Local AIDS activists and the state health department support the bill, but some prosecutors still oppose it.

* * *

Whether Adam Plendl actually faced a significant risk for contracting HIV from Rhoades, or was even exposed to the virus during their encounter remains unclear. HIV is far less transmissible than many other sexually transmitted infections, such as herpes. Even for unprotected anal sex, the riskiest sexual act, the receptive partner’s chances of contracting HIV have been estimated at only five in 1,000. (The insertive partner is at a much lower risk.)

The men agree that Rhoades wore a condom during intercourse, although Plendl claims it fell off. Neither man recalls whether Rhoades ejaculated during the encounter.

But Rhoades was taking a cocktail of three antiretroviral drugs, and his medical records show they were working. The drugs had suppressed the amount of HIV in his blood to such minute levels that it was undetectable in lab tests. A widely heralded 2011 study found that similar patients were 96 percent less likely to pass HIV on to a partner.

The men did not use a condom when Plendl performed oral sex on Rhoades, and prosecutors later argued that the act could have exposed Plendl to pre-seminal fluid containing HIV. While HIV transmission from oral sex has been documented, the CDC says it’s rare, and it considers the risk low. Plendl later said he was suffering from a shaving nick, which, he worried, could have made him more susceptible to transmission.

Lab results eventually confirmed that Plendl did not contract HIV.

In the days after he visited the emergency room, Plendl cooperated with Mark Abernathy, the Cedar Falls detective who was assigned to investigate the case. Plendl gave Abernathy a copy of Rhoades’ Internet profile, which listed his HIV status as negative.

In an interview, Plendl told ProPublica he asked Rhoades if he was “clean.” He explained, “I always ask anyone, before anything, ëIs your profile correct with your HIV status?'”

Rhoades said he doesn’t remember that exchange, but he admitted to lying about his HIV status online.

“That was different,” he told a prosecutor in 2011. “That was a public openness.” Telling his close friends and family was one thing, Rhoades said, but he didn’t want his HIV infection available to “people who randomly page through profiles on an online website.”

“It’s a stigmatized condition,” he added. “I have a job.”

After their encounter, Rhoades left several voicemails on Plendl’s phone. “I wanted to get together with him,” Rhoades said in an interview. “I wanted to sit down and have the conversation about my HIV status. I didn’t realize that the reason he wasn’t returning my phone calls was because he was already in contact with law enforcement.”

Plendl said he finally called Rhoades back, with his phone wired up to police recording equipment. He confronted Rhoades, who confirmed, on tape, that he was HIV-positive and that the men had engaged in unprotected oral sex during their encounter. The recording would become crucial evidence.

Four days later, on July 14, a Black Hawk County judge approved Detective Abernathy’s request for a search warrant, allowing him to seize Rhoades’ medical records, prescriptions and a sample of his blood.

“They came to my work,” Rhoades said. “I think it was three openly-armed police detectives from an adjacent city.” The officers, he continued, “asked me to go down to the local sheriff’s office and discuss something with them, and they didn’t say what this was about.”

At the sheriff’s station, Abernathy led Rhoades ó who was dressed in a striped blue polo shirt, light tan khakis and a pair of white sneakers ó to an interview room. Initially, Rhoades signed a Miranda waiver, acknowledging his rights to silence and legal counsel, while Abernathy, a tall, balding man in his early 40s, questioned him about the encounter with Plendl.

“I have a case involving you and an Adam Plendl,” Abernathy said. “Do you know who Mr. Plendl is?”

“I know someone named Adam,” Rhoades replied.

The detective continued, asking how, when and where the meeting with Plendl occurred.

“I’m not trying to make you uncomfortable,” Abernathy said.

“I’m a little uncomfortable,” Rhoades replied.

“What was the intent of the meeting, if you will?”

“It was purely social. And I don’t know if you can subpoena ó I don’t know if they keep records of those chat conversations, but if they do, I’d be more than willing to share them, because I was quite clear that it was just a social nature,” Rhoades said.

As the interrogation continued, Rhoades plainly told Abernathy about his HIV status and his phone conversation with Plendl ó which, unbeknown to Rhoades, the detective had already listened to.

“He did find out that I’m HIV-positive,” he told the officer, “and he was very concerned about any interaction that he had with me, and I tried to assure him that nothing that happened between us was anything of risk.”

“You said you’re pretty open with it,” Abernathy said. “You don’t advertise it, but you tell your friends?”

“It’s too much to stress about. It’s a bad thing, but the more open I am, the less anxious I feel. And people around me that I’m close to ó I think it helps our friendship to be honest.”

“How come you didn’t let Adam know?” the detective asked.

“Again, it’s a need-to-know basis. And there was no ó ”

“But you guys had sex?”


“You did not have sex?”

“We did not have sex.”

Abernathy had caught Rhoades in a lie, and he bore down on it.

“Are you saying there was no oral or anal penetration?”

“No,” Rhoades answered. “No.”

“You look surprised. Which one of those surprised you?”

“Well, they both surprise me. With my condition I have to be pretty ó picky, I guess, about who I’m with and why I’m with them,” Rhoades said. “I’m honest about it. Especially when it comes to a situation that would lead to possibly a sexual encounter.”

Abruptly, Abernathy excused himself from the interrogation room. It wasn’t until he returned ó and revealed to Rhoades that his phone call with Plendl had been taped ó that Rhoades realized how serious the situation had become. He invoked his right to a lawyer, ending the interview, and went with the cops to a local hospital where nurses drew his blood.

When he was finished, he told his mother, “I don’t know if I’m going to be in trouble.”

* * *

After Rhoades’ police interrogation, his parents found him a lawyer: James Metcalf, a former local prosecutor who now runs his own criminal defense practice in downtown Waterloo.

As the case progressed, Rhoades pleaded with Plendl not to press charges. After the police interview, he left a final voicemail on Plendl’s phone, begging him to abandon the case.

“I’m just calling to absolutely get on my knees and beg you to please drop these charges,” Rhoades urged. “This has all just gone absolutely crazy. Please consider ó again, I absolutely beg you, beg you, beg you to please drop these charges.”

But on July 28, Abernathy submitted a criminal complaint to the court and county prosecutors, accusing Rhoades of violating the state’s HIV exposure law. A judge issued an arrest warrant.

When police showed up to take Rhoades into custody, he was nowhere to be found. “Without getting into too much detail, I had a nervous breakdown,” he said.

In an affidavit later submitted to the court on Rhoades’ behalf, Colleen Brems, a nurse who treated him at the University of Iowa Hospitals and Clinics in Iowa City, said that he had been admitted to the hospital’s mental health unit to recover “from a suicide attempt in [the] context of [a] severe depressive episode.”

“In a small community like Iowa,” Rhoades explained, “dealing with the most stigmatized condition, in my mind, that currently exists; becoming fodder for the media gossip mill; me and my HIV status becoming public domain; and the idea of, you know, becoming a felon and having the embarrassment to my family and feeling like my life would be absolutely ó there would be no life after if this prosecution were successful.

“It was more than I could take, and I just ó I crumbled.”

Rhoades spent a month in inpatient care. When he was discharged on Sept. 30, 2008, he was immediately taken into custody and escorted to the county jail in Waterloo. “I walked out of the hospital in my cuffs and shackles,” he recalled.

Rhoades pleaded not guilty, and the judge set his bond at $250,000. Rhoades said his family “didn’t have that kind of cash,” so he spent seven months in the Black Hawk County jail, waiting for trial.

For the first 20 days, the sheriff’s office said, Rhoades was placed in solitary confinement and was allowed one 30-minute visit each week. He lived in the jail’s secured housing unit, or SHU (pronounced “shoe”), where his HIV medications were delivered through a slot in the cell door.

Eventually, Rhoades was transferred to a cell in the jail’s high-security wing. He left the jail twice, the sheriff’s office said, for medical appointments, where he sat in a waiting room wearing an orange jumpsuit, leg irons and handcuffs.

In the meantime, Metcalf had suggested that Rhoades waive his right to a speedy trial so he would have more time to prepare a defense. At one point, Metcalf started deposing Plendl, but the interview was never completed.

By May 2009, Rhoades had grown exhausted and frayed from jail and the uncertainty. He and Metcalf decided to enter a guilty plea and hope for a lenient sentence. But at the hearing, Judge Harris gave Rhoades the maximum sentence under Iowa’s law ó 25 years in state prison. The maximum sentence under Iowa law for sexually abusing a child is 10 years.

“Prison very rarely provides rehabilitation,” Harris told Rhoades. “You’re being sent there as a punishment.”

* * *

Harris’ decision to give Rhoades the maximum sentence immediately caught the attention of the local news media. “I got lots of mail,” Rhoades recalled. “I got mail from friends, family. I got mail from POZ magazine” ó a monthly publication for people with HIV/AIDS. “I got mail from supporters who didn’t even know me.”

Judge Harris was also getting mail. Over the summer, he received a letter from Jeanne Brager, a friend of Rhoades’ who lived in Modesto, Calif., urging the judge to modify the sentence. “Murderers and child rapists receive less time than this young man did,” Brager wrote. “He is not a man with a criminal mind. Prison will destroy him. He has far too much goodness and sensitivity to survive in such surroundings. He will simply wither away and die.”

Harris also heard from Mark Kassis, an HIV/AIDS advocate in Ames, Iowa, who argued that jailing people with HIV for failing to disclose their status set a dangerous precedent and would “deepen the stigma around the disease” that “actually leads to the spread of HIV.”

The letters seemed to work. A few months later, Rhoades got a call from his attorney. “Judge Harris approached him and said, ëNow would be a good time to apply for that [sentence] reconsideration,'” Rhoades recalled. “Judge Harris said, ëYou apply for it, I’m going to grant it.'” (Harris declined to comment for this article.)

On Sept. 11, 2009, Harris granted Rhoades’ application for a sentence reduction, lowering his sentence to five years of supervised probation. Rhoades, who now lives in Waterloo, must obey an 11 p.m. curfew, wear a GPS monitoring bracelet, cannot use social media sites such as Facebook or Twitter, cannot drink alcohol and must obtain permission from a probation officer to leave the county, even to visit his parents in nearby Plainfield. He remains a registered sex offender and, as a convicted felon, he cannot vote.

Around the time that Rhoades’ sentence was reduced, Sean Strub, a fellow Iowan, was wading into the debate over HIV exposure laws. Strub, a tall, wiry 55-year-old is a well-known AIDS activist and the founder of the Sero Project and POZ magazine. In 1985, Strub was living in New York City when he was diagnosed with HIV. He nearly died in the mid-1990s, until a daily regimen of 18 pills turned his health around.

When Strub learned about Rhoades’ case, he introduced him to a civil rights attorney named Dan Johnston. In 1969, a young Johnston was working with the American Civil Liberties Union when he won Tinker v. Des Moines, a landmark U.S. Supreme Court case that established free speech rights for students in public schools. Johnston, who happened to be planning a visit to Iowa that weekend to celebrate Tinker‘s 30th anniversary, agreed to meet with Rhoades and Joseph Glazebrook, a gay 29-year-old attorney based in Des Moines.

Glazebrook had worked closely with HIV-positive clients, but mostly on employment discrimination cases. “When I first got the case, I probably was not the most sympathetic person on this issue,” Glazebrook recalled. “I guess my uninformed opinion was probably rooted in the assumption that it’s never OK to have sexual relations with somebody without disclosing things about you that could hurt them,” he said.

But as he worked on the case, his position shifted.

“Even if it’s the moral thing to do ó to be open and honest with your sexual partners about any threat to your sexual partner ó that may be a very legitimate and moral position to take, but it doesn’t make sense to legislate based upon that particular thought or feeling,” he said.

In 2010, Glazebrook and Johnston filed a petition in Black Hawk County court seeking post-conviction relief, alleging that Rhoades’ original defense lawyer had failed to fully investigate the case; that Rhoades did not understand what he was pleading guilty to; and that there wasn’t enough evidence to sustain the charges in the first place. (Metcalf, Rhoades’ original defense attorney, did not respond to requests for an interview.)

According to Rhoades’ appellate lawyers, the fact that he used a condom was proof that he did not intend to expose Plendl to HIV. In fact, they argued, wearing a condom suggested the opposite: Rhoades was trying to protect Plendl.

But Iowa’s law, which bans “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in” HIV transmission, doesn’t make an exception for safe sex. Rhoades hadn’t disclosed that he has HIV, so, the state argued, the “wrongful act is engaging in a sex act in a manner through which the virus could be transmitted.” It didn’t matter whether Rhoades used a condom, intended to expose or infect Plendl or even whether infection was likely. “Any kind of act in which a potential exchange of fluids exists is the kind of act that is criminalized by the statute,” the state said.

In 2011, just before Christmas Eve, county Judge David Staudt denied Rhoades’ petition, writing that his attorney had fully explained the statute and that Rhoades was “a very knowledgeable individual concerning the transmission or potential transmission of bodily fluids and its importance in the possibility of transmitting the HIV virus.”

The Iowa Supreme Court declined to hear another appeal but transferred the case to the state’s Court of Appeals, an intermediate-level court. In October, that court published a 3-0 ruling, upholding Rhoades’ conviction.

In an eight-page opinion, Judge Richard Doyle said Rhoades exposed Plendl to bodily fluids during the unprotected oral sex. Quoting earlier testimony from Rhoades’ doctor, the court concluded that although infection through unprotected oral sex is unlikely, it is still “possible,” and the conviction should be upheld. (Rhoades’ lawyers pointed out that Plendl was only exposed to Rhoades’ pre-ejaculate. In its friend-of-the-court brief, NASTAD called the risk of transmission in Rhoades’ case “likely zero or near zero,” while his doctor pegged the chance of transmission at one in a million.)

Rhoades’ lawyers, including Scott Schoettes, the Lambda attorney, are now asking the state Supreme Court to reconsider the appeal. While he does not have any more prison time to serve, Rhoades’ conviction under the state’s HIV exposure law makes him a “Tier III” sex offender for life. This designation groups Rhoades with the worst of the worst ó “sexually motivated” killers and kidnappers, child molesters, rapists and sex traffickers.

Every six months, at a small, nondescript office building across the Cedar River from downtown Waterloo, a polygraph examiner is brought in to conduct a “maintenance examination,” in which Rhoades must answer a series of questions about his sex life: “Have you ever had any sexual activity with an animal?” “Have you worn female clothing during masturbation?” “Have you ever had sexual contact with a corpse?”

Over the summer, while the court’s decision was still pending, I received an email from Rhoades, sent from the psychiatric unit at the University of Iowa Hospitals and Clinics. A few days earlier, Rhoades said, he had attempted suicide, fashioning a belt into a makeshift noose and swallowing a mixture of anti-seizure drugs and sleeping pills.

For four weeks, Rhoades said, he was hospitalized as doctors worked to rein in his moods using Lamictal, a drug typically used to treat bipolar disorder and seizures. At one point, he recalled, his mood swings became so severe that his doctors began to consider electroconvulsive therapy ó shock treatment.

“I’m either going to live and somehow make it and thrive ó OR I’m going to fucking put on my best face and charm my way out of here and who knows what will happen then,” he wrote from the hospital.

On July 3, I received another email. Rhoades’ mood had improved to the point that doctors were ready to let him go, with “pretty intensive outpatient follow-up.”

The next day ó exactly five years and one week after his encounter with Adam Plendl ó the doctors sent Rhoades home.

His nurse, he wrote, had “convinced them that I am not an imminent danger to myself or anyone else.”

When I asked if he considered himself dangerous, he wrote back:

“I’m never a danger to anyone else.”


Video toolkit: How to advocate for prosecutorial guidelines

New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that:

Countries should develop and implement prosecutorial and police guidelines to clarify, limit and harmonise any application of criminal law to HIV. The development of such guidelines should ensure the effective participation of HIV experts, people living with HIV, and other key stakeholders. The content of these guidelines should reflect the scientific, medical and legal considerations highlighted in the present document.

So far, only two United Kingdom jurisdictions (England and Wales, and Scotland) have produced such guidelines. This workshop, held during a seminar on HIV criminalisation in Berlin in September 2012, discussed the challenges associated with the creation of such guidelines, providing important insights from prosecutors and civil society alike, and included the European premiere of the documentary ‘Doing HIV Justice: Clarifying criminal law and policy through prosecutorial guidance’. the entire transcript of the workshop below

Arwel Jones: I just wanted to say a few words, really, because you haven’t heard from me yet.  And I just wanted to say a little bit about my role and my observations, if you like, just before we watch the film. Just to, to place that in context.  And, even though I’m the only prosecutor here I believe, you know, I’m really pleased to be here. I’m really glad that we’re having this opportunity to come together to have this really honest and adult debate about how we tackle these issues.  And actually, when we stop and analyse it, the reality is we have a, a lot more in common than we have apart.  So it would be good to keep that in mind.  I’m an independent prosecutor.  I don’t work for the Ministry of Justice in England and Wales so, as such, I’m here more to explain what the law is in England and Wales and not to provide perhaps the policy justification for it.  Now, in England and Wales, we will prosecute for transmission whether that is intentional or reckless.  But we don’t prosecute, there’s no criminal offence of exposure and there’s no criminal offence of failing to disclose status. So I guess, in the context of the discussion that we had this morning, it’s that area around reckless prosecutions which is perhaps where there’s a, a difference of view between what England and Wales do and what those here representing the various agencies believe. But, as I say, I’m here really to explain what we do rather than why England and Wales have reached this particular position.  We’re here to talk about the prosecutorial guidelines that we have in place in England and Wales, and the film that we’ll watch shortly is going to explain how that came about, some of the obstacles that we faced along the way, but really the, the content and outcome of those guidelines will come through.  But a further point I really wanted to make was that, in terms of the success of these guidelines, you know, the success of these guidelines will not necessarily be particularly visible because you won’t get to hear about those cases.  We saw on various peoples’ slides this morning the lurid headlines that various sub-editors will put in their newspapers.  And, generally, it’s when a person is convicted of a crime of this nature that it becomes part of the public consciousness.  And there are, of course, in England and Wales, a small number of prosecutions that we do bring.  Now this is running around about.  We brought about 20 cases since 2007 so we’re talking about a small number of cases.  Aside from those 20 or so cases, there is significantly more cases which have been brought to the CPS where we’ve applied the guidelines that you’re gonna hear about now, and we’ve decided that no action should be taken against the person.  Now we accept that more needs to be done in terms of how quickly that process works and there may be some circumstances where the individual has been put through a very unpleasant ordeal simply from having had the police come in, arrest them, take away their property, etc.  So there’s more work that we need to do and we’re not claiming it’s a perfect system but what we would want you to just have in mind is that there will be a lot of cases which the police will investigate and the prosecution authority will decide this shouldn’t be prosecuted and that will be the end of the matter.  I just wanted to just say a couple of things really in conclusion and this was following on from the points this morning around, you know, preaching beyond the choir, going outside of this group of people who generally have a, have a common aim and a common purpose.  And, as I say, I come as an independent prosecutor, not as a policy maker so, in a way, what I say now (is) really more my personal observations having been involved in this work rather than any official standpoint.  But, in terms of extending the reach of this work and really looking to persuade authorities and law makers to change their approach, I would just perhaps make two suggestions really or offer up two thoughts for you. Firstly, I would just remind everybody, as I said at the outset, that actually we have a lot more in common with each other than perhaps we have different to each other and I think it would be really useful just to bear that in mind.  And, at the risk of sounding like somebody who doesn’t have a sense of humour, I think some of the language and the terminology around, you know, ‘speaking with the Devil’, etc, probably isn’t that helpful when you’re looking to try and build adult relationships with another agency.  So, as I say, we’re amongst friends here and I know that comments have been made in good humour.  But, actually, just to dislodge from your minds the suggestion that those involved in making laws and applying laws are somehow, you know, your pariahs, I think would probably help you get to the next stage.  And, in doing that, it would just be helpful I think to try and see things, and I offer these comments respectfully, and I hope nobody is insulted by what I say, but, if you could just perhaps see things from the other perspective, I think that might help you in overcoming some of the obstacles that you face.  So, for example, we have heard a lot this morning.  The line has been said ‘there is no evidence to suggest that prosecutions for transmission of sexually transmitted infections has a deterrent effect on other peoples’ behaviour’.  And the way that, that line, that mantra, if you like, is put out there suggests a misunderstanding of the purpose of any criminal justice system.  And those involved in the justice system, whether they be the law makers in the Ministry of Justice, or prosecutors or judges, just need to have a much wider consideration.  Deterrence is one aspect.  Public health is one aspect.  But we also have a responsibility to use the justice system for other goals and other ends.  And, amongst the other goals will be, as well as deterrents, there’ll be issues around rehabilitation but there’ll also be issues around delivering justice for the victims and recognising completely what’s been said about the mutual responsibility.  I think it’s probably unhelpful to try and leave out the point of saying that the victim or the complainants in these cases has no real rights to a recourse, that there’s no real right to honesty in the context of sexual relations. I mean, ultimately, you know, we’re dealing with scenarios, for example, of where individuals … you know, complainants will responsibly ask their partners questions around whether they’re infected or not, whether they’ve been tested, and where certain individuals will lie to that other person.  And, based on that lie, the complainant will be making an informed decision or what they think is an informed decision. Of course, it won’t, it won’t be a genuinely informed decision because they will have been lied to. So for that person there who ultimately is infected and sees the justice system as bringing them some recourse, I think it may not be enough just to say, “Well, you know, everybody’s got the right to be dishonest in the field of human relations.”  By all means, say the criminal justice response is disproportionate but I think, if you’re going to say that, you need to offer some kind of an alternative for those victims or complainants who are in this position where they are … there’s various pieces of work going on around restorative justice, which is an alternative approach to prosecution, which might possibly be something that could be explored.  I’m not saying that necessarily is the solution but I don’t think it really helps just to end your argument at the point of there shouldn’t be any criminal justice response and that victim or complainant needs to be left where they are.  And then the final point I would make would be just about getting the attention of the law and policy makers, and I think you just need to do what we’ve been doing today and that’s highlighting the much wider impact of this relatively small number of prosecutions.  Now justice systems, I speak of England and Wales but I suspect that others around the world are in a similar position, are absolutely creaking under a vast array of competing priorities and those other priorities will often have far more direct victims.  So, for example, in England and Wales, you know, those who are victims of rape and sexual offences are making a, you know, thousands of members of the population are victims of those crimes. Likewise, hate crimes: vast numbers of people are victims of a hate crime.  So, for the law and policy makers, you know, these are key priority areas.  Now, if you want to really push STI transmission up the agenda, you need to do what Susan was saying this morning, which is look beyond the small number of cases that are actually prosecuted and look at this much wider ripple effect.  Look at the rock that’s thrown into the pool and the much wider impact it has on society.  And I think by really getting those messages across, that would be the way to grab the attention of those who are responsible for law and policy.   So those are just a few introductory words from me.  We’re gonna watch the film now.  It’s about 30 minutes so there’ll be plenty of opportunity for questions and discussion at the end.  And, as I say, I’m genuinely pleased to be here and I’m really genuinely interested to hear your questions and hear what your own experiences are.  Okay, thank you.

 [Doing HIV Justice screening]

Lisa Power: I’m, as you know, I’m Lisa.  I was in that film along with Arwel and Yusef who can’t be with us today.  I think what’s useful about the film is it shows that it’s quite a long process and quite a complex process.  And it actually, we were the first country to do it but it’s also now there’s been some guidelines in Scotland which is a neighbouring country within the United Kingdom, and things went slightly differently there.  What I would like to do is ask Cat Murphy who’s here, who had something to do with that, to say a little bit about that and then actually ask people – I think the best thing we can do is do this as a kind of surgery, you know.  You, you’re bound to have questions about what happened and we can talk through maybe how it could happen in other countries.  You know, what are the different barriers that you face?

Catherine Murphy:  Probably I think the two most obvious differences has certainly helped that across the border in England and Wales.  We had these guidelines and we could kind of refer to them, so that certainly helped.  But the nature of the politics in the UK is such that Scotland don’t necessarily always follow what England does, so it wasn’t a given.  So we had to make a legitimate argument. I think we didn’t have the same level that Lisa and Yusef had. The people who had been prosecuted in Scotland were exclusively white heterosexual men so we didn’t have the same equalities lever, if you like, and so we had to look for other, other means to open the doors.  The other thing was that the law in Scotland is different so exposure cases can be tried in Scotland.  So we, we had an additional difficulty.  And the third difference I would say is that the Crown Office in Scotland who have done a great job with us but consultation wasn’t something that particularly sat very comfortably with them, they weren’t as open to meeting with us and, and showing their working, as Arwel says.  That wasn’t something that institutionally they were used to doing. So we, the way we found, our first lever that we found was we actually, for a long time we had been told yes, exposure can be prosecuted but there’s no appetite for it; it’ll never happen.  And it did happen.  And the, the moment it happened, we realised we’ve been very naive here and we immediately started to lobby really quite strongly on the public health arguments. At that point, we go the public health Minister involved who basically told the Crown Prosecution Service in Scotland to meet with us.  So the public health argument, the justice, justice department weren’t necessarily listening to it but we got the, we got, we got that discussion at Cabinet level.  And that opened the door for us.  And I think we had to, we had to approach the, the issue of discussing it with the Crown Prosecutions in Scotland very differently.  They weren’t as ready to share things with us.  They weren’t as ready to put it out to public consultation.  And we really just had to work within the parameters.  We really wanted to see exposure charges dropped completely and that wasn’t going to happen but what we have hopefully done is, is get a policy which reduces the likelihood of them happening to a very, very small and narrow kind of criteria.  So it was, it was, it was just, it’s been interesting because we could refer to England and we could use the experiences there but we certainly had to adapt and change them where necessary.

Lisa Power:  Has anybody got any questions or comments?  Any observations?  Anybody who’s trying to do this in another country?

Marielle Nakunzi (Sweden):  Well we have actually but that was before I got bored on the project, so I don’t know how that went. Or rather I do know because the prosecutor’s office just said that, “Well it’s too few cases.” I’m sorry, I’m from Sweden, you know, the worst country ever!  Well they say, “It’s too few cases, it’s no big deal.  We don’t, we are not interesting, interested in going forward with this.”  But I, I have a few observations.  Lisa, you said in the film that you have to collect evidence that it’s not working. Could you please talk some more about that because I mean we know that it’s not working in a health point of view but how do I, how do I explain this to the prosecutors?  In what sense doesn’t it, doesn’t it work for the prosecutors?  And you also said that you have to get a change in the public opinion.  I think this is the most difficult part.  How do we get the public opinion aboard on understanding that this is an important thing to change?  I mean to, that this is actually an important justice issue.

Lisa Power:  The evidence that we collect, basically, because Terrence Higgins Trust is the biggest single HIV support organisation in the country and we have the National Helpline for HIV-related issues, we were hearing a lot about the cases that weren’t necessarily in the papers.  And a lot of, because I’d spoken up about the cases, I mean this was a controversial issue even within Terrence Higgins Trust.  I think one of the things that came clear from discussions from Deutsche AIDS-Hilfe earlier is that one of the issues, when this starts to come up in a country, there are often disagreements within an organisation about what should be done, and I led that debate within THT so people started telling me about these cases, started asking me from the Helpline and so on what we, what we should be doing.  And I just started writing down every single case, actually keeping the details of what was going wrong.  And we were able to uses that to show the, the authorities that there was a real mess going on.  And I think it’s fair to say that, I mean the Crown Prosecution Service was very aware that there was a mess going on because, centrally, they weren’t being told about a lot of the cases, strange things were happening locally, there were long delays because local offices didn’t know what to do with the cases and, instead of asking someone senior, they were sitting on them.  We were able to show from actual cases some of the things that were going wrong.  And actually we used that originally as leverage with the police and we started the work, working on the policing transmission document because the Metropolitan Police actually agreed to work with us and we were incredibly lucky that we found helpful officers.  But, if we hadn’t been documenting all those cases, we wouldn’t have had any lever at all.  And we had to put that, that evidence together with, with Yusef’s really good knowledge of the levers of power in the sense of equality duties and things like that to, to put that together.

Marielle Nakunzi:  So you mean that the prosecutions weren’t working?  The, the police work wasn’t working?  Not, not the actual prosecutions as such  wasn’t working against whatever?

Lisa Power:  We, we were able to show, for example, that, I remember the case of a man who was arrested on his doorstep and he didn’t even know he had HIV. That’s, he actually found out he had HIV by the police turning up on his doorstep to arrest him.  And marching him off to be tested.  Now, obviously, that’s a miscarriage of justice.  We had other cases where a gay man was assaulted by somebody he had picked up that night.  And, instead of the person who assaulted him being charged, when it was found out that he had HIV, there were threats to charge him. There was a lot of confusion about people being charged when they’d had sex with someone but no transmission had happened.  There were attempts to use all kinds of different charges so it wasn’t just grievous bodily harm – there were charges of, there was an attempt to bring charges of rape because it was seen as non-consensual sex. A whole load of other things going on.  Attempted murder in a few cases early on. So bringing, documenting the chaos is really important because, if you can’t show the something’s going wrong, you can’t expect people to move to put it right.  What was your second question?

Susan Timberlake:  Yes, how to change public opinion.

Lisa Power:  Well we didn’t.  We realised that it comes as, I can’t understand why it comes as a big shock to HIV activists that we have a different take on HIV from the general public because we know it in so many other areas.  We know that there are all those prejudices out there.  Certainly, in my country there, you know, we have a lot of, a lot of prejudices.  So we, we knew that general public opinion was not going to be easy to change.  And I think in England and Wales, we chose a different route from the majority of countries in the, in the mid-2000s who were going for legislative change or going for changing the views of the public.  We actually said, “We have to mitigate the harms that are being done, document what’s happening and it’s going to be a longer fight to change public opinion.”  And actually public opinion is beginning to change now.  One of the reasons it’s changing is because we had a prosecution last year for herpes transmission and, all of a sudden, lots and lots of people who were carriers of herpes or knew people with herpes, which is, “Hang on a minute, maybe this isn’t that fair after all.”  But you have to find those points of connection.

Arwel Jones:  Just going back to the first point around whether things weren’t working, from the prosecution viewpoint it wasn’t so much that things weren’t working; it was just we were in such unfamiliar territory. We use the same legislation here, the Offences Against the Person Act that we use for general crimes of violence. Now these cases, thankfully it could be said, are very infrequent. We have over 3,000 prosecutors in England and Wales. The chances of a prosecutor coming across a case of this nature was small.  The chances of a prosecutor having more than one of these cases was even smaller.  So we needed to provide something from the centre that would guide prosecutors who came into this unfamiliar territory.  I mean normally, when prosecutors deal with crimes of violence, we’re talking about fights in pubs or stabbings, or what have you.  It’s relatively straight-forward, you know.  Have you got the right person here?  Could that person say that they were acting in self-defence?  Did that person actually cause the harm that resulted?  You know, these are fairly standard questions.  Move this same legislation into the field of consensual sexual relations, you can abandon all those questions and a whole new raft appear.  So that’s why we felt we had to come up with some guidance.

Marielle Nakunzi:  That is actually good advice because you have to talk to lawyers or prosecutors in legal language and that I think everybody can understand.

Catherine Murphy:  Can I just say a thing about Scotland in terms of the point that Lisa made on criminal investigations?  The evidence that we produced to the Crown Office in Scotland was again about how it was not working.  But it wasn’t about the prosecutions.  To this day, the Crown Office in Scotland think that all the prosecutions are very sound.  And we didn’t even have that argument.  We didn’t have that discussion.  What we did was we showed them maybe between about five and 10 police investigations which had never reached court but were very, very clearly inappropriate.  And what we said was, you know, “Because you haven’t clarified the law, because you haven’t provided a policy or guidance, you might be confident that, when it gets to you, your decision-making is very strong.  But look at what’s happening on the ground.”  And we then had to act.  But it made, it created a space where we didn’t have to have the arguments about the actual prosecutions; we could just focus on, on the, the other kind of collateral damage, if you like.

Kevin Osborne (IPPF):  I think the film was really great.  You all looked really good. I like the soft angle lens that you used when.. really nice.  No, you all looked great.  Two quick questions. Arwel, you said something about there was a long time period, I think a year, to get it finalised ’cause you got like 60 responses.  Was there anything surprising in the responses that, if you look back and go, ’cause obviously you deal with them. Was there anything that you thought was really surprising or good?  That’s the one question.  My other question is maybe for everybody, is around the impact.  So you’ve done these prosecutorial guidelines, you’ve all worked well together.  Like so what?  What has it resulted in?  Has it, for example, resulted in less work for CPS because now it’s very clear there’s certain cases, when they maybe hit your desk, they’re just a non-starter so it’s less work for the police, less work?  Are you Lisa seeing less people coming forward thinking they may have a case, they may not have a case?  So, if we look long-term besides like the process issues, like the, like the so-what, has it resulted in, I don’t know, like I’m just trying to think, less work because of the clarity, less people feeling like they can criminalise, that it’s, you know, what’s the like so-what the impact of it?

Arwel Jones:  Yeah, in terms of the, the consultation, it kind of threw up all the different areas which are featured in the final guidance.  As I said, in the film, the science was all very new to us and, as lawyers, we’re trained in certain doctrines and then now we’re having to move into a completely different field.  So that was a big eye-opener for us.  Likewise, the issues around the reasonable safeguards, the issues around consent. Very subtle issues around consent. I’m familiar with consent in the concept of rape and that’s fairly straight-forward up to a point. You know, is the person consenting to the sexual act?  Here we have a very refined version of that. A person can be consenting to the physical act but not consenting to the risk that is attached to that physical act.  So, in a way, these were all things that were coming out through the consultation process which made their way into the final guidance.  I mean, in terms of, of the impact, I would just wish to say really, as I said at the outset, firstly there are a whole raft of cases which never go anywhere now, which I think is a good, positive outcome.  Secondly, I think transparency has been reached and again, as I said in the film, people might not agree but at least they know the process by which a prosecution decision is made.  And, thirdly, and perhaps more controversially, you know, we’re aware of the arguments that say prosecutions for transmission may result in certain people not testing themselves and therefore that increases the public health risk, which is a fair point and a fair argument.  And then the argument is modified to say and actually the prosecutions themselves and the guidance themselves are some sort of detriments to public health.  Now it would be interesting to see what sort of evidence there is as to, you know, in the context of sexual relations, how much people give advanced thought to the prospect of prosecution.  Now that evidence may exist and, if it does, it would be really interesting to see it.  But, if people do give advanced thought to the prospect of prosecution whilst they regulate their sexual lives, and if they decided per chance to go onto the CPS website and say, “Well I wonder what the CPS would do if I act in a certain way?” I would hope that people would be encouraged by the very clear statement within our guidance that says, you know, there are two courses here open to you which will mean that you’re not really gonna be looking at being prosecuted.  You can either use a reasonable safeguard, which effectively negates recklessness, or you can explain to your sexual partner and secure their consent to the risk involved.  You know, take either of those courses, you know, and you should be fine.  So, in that sense, you know, if that is helping towards greater responsibility within sexual activity, it would be nice to think that this was a, a positive outcome from the guidance.

Lisa Power:  I think, to be honest, in, in some stages of this, we actually created more work for our Arwel’s team rather than made less for them and I think particularly the later stages of the consultation was a lot of work for you. But it’s been incredibly useful and Arwel’s team have now produced a training, an on-line training guide, and stuff like that.  And for me I’m actually, there are, because of the amount of publicity there’s been over the cases that go to court, there are actually quite a lot of accusations but those accusations are getting cleared up much faster these days.  Far fewer of them are getting to court and then having to be stopped because they haven’t been through due process. There is much more consideration given by people in Arwel’s team to whether a prosecution should take place.  The whole system is massively more transparent.  We’re able to give people much clearer advice on the Helpline or face-to-face, or in training with doctors, things like that.  So I think it’s, there is plenty of evidence of the positive effects of having done this.  But what I’m doing at the moment is I’m working with Arwel’s team to actually do an analysis of the cases that have been happening over the last couple of years, the ones that have gone as far as reaching Arwel’s team.  The ones that have gone on to prosecutions and the ones that have not been taken forward, and trying to look at what are, you know, are there any common factors in the cases that have gone forward and the ones that haven’t.  And it’s clear to me that actually one of the things that’s happened is  the police guidance came in after the Crown Prosecution Service guidance and the police guidance has not been promulgated through the police with anything like the vigour that the CPS guidance has been promulgated through the CPS.  So we are still seeing a lot of errors at the police level. So that will be quite interesting.  But that research is pretty much in, in preliminary stages.  But again the Prosecution Service have worked with us really closely.  They put a lot of working into that, for which I’m profoundly grateful.  They’ve got an interest in seeing that justice is being done and that’s really helpful as well.  And it’s as simple as: if something’s going wrong with a case and it comes to our attention, I can phone Arwel or I can phone one of Arwel’s staff and just say, “Is, you know, are you sure that this is following the procedure, this case?”  And, and I can trust that Arwel will look at it and we’ll get a straight-forward answer.  And that makes people a lot more confident that we might not like some of the law as it stands but at least there will be a lot less miscarriages of justice.

Nikos Dedes (Greece):  Thank you. I have a question for Arwel but before that I just wanted to make a comment about the question of whether the law or the litigations can act as a deterrent  And, and these may be blurred a little bit within the European context because we have most of the litigations in countries where they have very low prevalence and therefore one may wrongly assume that it may have actually worked as a deterrent.  But Susan perhaps later you can give a comment on the data that Scot Burris presented from the US where they have measured that the impact of all these stupid litigations of biting and of spitting, and all of these things, have absolutely had zero effect in when you would ask people whether they would protect themselves or whether they would be aware of transmission.  So, so there is a lot of evidence in the US that it actually doesn’t work in a positive manner.  My question is: how did you escape from the exposure debate?  Because, indeed, all the edifice of your guidance is based on the fact that you need a transmission otherwise you’re gonna have so much false accusations coming forward, and saying, “Oh well, this person didn’t tell me he was HIV positive.” I mean you can make up this. You can, you can wrongfully accuse someone and you can even argue that, you know, “Well I didn’t get HIV but he pointed the gun towards me.”  But how did you, from the legal side, how did you just keep it exclusively to, to transmission?

Arwel Jones:  Well I think the short answer would be we could say, “Tell us what criminal offence has been committed.”  We took the first case of Mohammed Dica to establish in law that an actual transmission fell within the remit of this act from 1861 but, obviously, if somebody makes an allegation, the first question that a prosecutor will ask is, “Well what crime has been committed here?”  You know, there simply isn’t a crime on the statute book. You could attempt an intentional transmission so, if somebody went out, I don’t know how you’d get the evidence of this but, if somebody went out trying to seek sexual partners and for whatever malicious reason wanted to try and infect them, then you’re into an intentional transmission scenario.  If they had sexual relations with that intention but transmission didn’t actually occur, then that would be an attempt.  But that’s the only scenario.  It’s never occurred, we’ve never had a case to consider along those lines, but it’s legally possible.

Lisa Power: There are pros and cons to using existing laws and we complained a lot about the fact that the legal system was using a law from 1861 that was so vague but one of the beauties of it is that the charge is reckless transmission and you can’t attempt to be reckless because, by the very nature of recklessness, you’re not thinking about it.  So you can’t make a conscious attempt to be reckless.  So we were, in some ways, we fell into that.  We were lucky that that was not possible.  But, in the early stages, in the, in the mid-2000s, there were a number of fairly strong attempts to charge people with all kinds of things around mental anguish, actual bodily harm, all kinds of other things for, for actually just exposing someone to HIV but none of it took.  God bless the English judicial system which just said, “No, it’s complicated enough as it is thank you very much.”

Susan Timberlake:  Let me, let me just do a check-in here.  Now we’ve, we’ve heard about the development of these prosecutorial guidelines and people have, one interesting point made during the film was that it was a conscious and maybe controversial decision to go this approach which is basically harm reduction.  And two groups that opposed criminalisation chose the harm reduction approach of, of working with the CPS to develop the prosecutorial guidelines.  From the perspective of those here and the work you’re doing on this issue, you know, would you feel comfortable with this approach and do, are any of you in here wanting to take up and move forward on the development of prosecutorial guidelines?

Nikos Dedes: Well I’ve already approached Susan and Arwel about what we would like to do in Greece because you may have read that, in late April, there was a police raid a week before Greek elections.  There was a police raid in the streets and the apprehended women who were soliciting sex, well at least they were accused for that, those were women who were drug users and the majority of them actually had been infected in a huge outbreak among drug users in 2011 for which obviously the State should be, we should be pressing charges against them.  And the same Minister who was the Minister of Health and should have been responsible for having averted such an event, was then using a law for public health protection and, and, and, you know, and then we believe that they, they misused the law and they made compulsory testing within police stations without consent.  And the majority, of course, of the women were found to be negative but, for all those who were found to be HIV positive, some 30 women, they pressed charges for intentional grievous bodily harm, against unknown people.  Because, even in the Greek law, the Greek lawyers were telling us that the, that the law that they used cannot be initiated without a complainant. It requires a complainant in Greece. But the, the prosecutor, in the absence of a complainant, complained on behalf of the society.  And that’s why also they, they put their names and their faces in plain public view.  So this has reminded us that, I mean this, what we were planning to do we had decided before this event.  We wanted to have a workshop where we would invite peers from abroad because we were aware of what the Crown Prosecution had done, and have a discussion with the prosecutors in Greece, and also with judges, and use all the policy recommendations that have come out from UNAIDS, and have a debate with academics and the Ministries of Health and Justice, and, of course, the, the judges and the prosecutors. So this is what we intend to do and we hope that such a debate can increase the awareness among all these judges and the prosecutors about HIV today.   What it means to have HIV.  What is the harm.  What is, what are the risks of transmission.  All of these things that are misrepresented by the media as well and people have not caught up with  So we hope that this process and learning from the excellent work that you did in the UK can actually help  both in the long-term but also address the acute problem we have right now.

Marc Dixneuf (France):  I’m Marc. I work in France and in France here it’s a question of contacts because we have a new government and a new ministry of justice.  And she just have a long interview in Le Monde yesterday and she did not say that in these words but  in fact, she want to, to stop with penal populism.  And it’s very, the penal populism … yeah, because you know it’s a way you have, you do not discuss anymore of the sort of meaning of a fine or of a sentences, for example.  Last year in France, as in all the countries, the sentences for prison, for jail have been more and more years and years, and years, and things like that. And she decided to stop that, just to question what is justice for? What, what is the meaning of justice?  So it’s a good context. And the other thing is, our problem in France it’s to find the right button to push on because with the CPS and with the question of equity, it was a way to, to get in this discussion.  But in France I wonder which is the, the right way to get in.  Because we have a National AIDS Council, I used to work for it and I’ve contributed the first position of the National AIDS Council on criminalisation, it’s not a good text. It’s bad. And I think that now we have more information and the works done by UNAIDS, by the Commission, and the works done in England, give us information how to work better.  So the National AIDS Council, would be interesting to restart work on it but I think that the National AIDS Council have to do what we didn’t do before.  It’s to work more closely with justice administration, with the lawyers, with the judges. And that’s something that we plan with, with the National AIDS Council.  And like maybe it could be successful. But we have very few cases in France but more and more each year since four or five years.  So it’s started to be a little bit a problem for us.

Marielle Nakunzi:  Well, as you have understood, in Sweden we have many hills to climb.   First of all, more than half of our cases are exposure, non-disclosure, exposure, not actual transmission, so that is the first hill to climb. And I think we need to work together with the health authorities, people who can explain that this doesn’t help them in their work, which is also very important. And I think we are on our way to getting a good collaboration. But the next step: I think we have to work on guidelines. Since we are using the general law, we can’t go in and ask to change the law.  We need guidelines. I think it’s very inspirational that you have come so far and I think we can use the methods but we still need to work on the language.  We need to find our allies and I think again that medical authorities, disease control board and so on, they are starting to move and we are very happy for that.  It will take some time but I would really use, we, I saw you in, in Washington.  I have all the papers.  So we are I think for us it’s, it’s the way to go.  And I hope that we, in the Nordic countries, can work, because we have similar systems.  So we can also work together on this.  So that’s how we will continue.

Kim Fangen (Norway):  In Norway now we’ve for a long time, the National LGBT organisations have had a health program called ‘Pink Competence’ or something and they’ve been out talking to, to nurses and doctors.  One thing is certain: health issues that are, this group are faced with but also how they are treated.  And now they have started with a school programme and they also want to do a justice police program, mainly focused on hate crime and, and, you know, general violence towards gay and lesbian people.  But I also asked them if they would include HIV and STIs in that, and I think it’s very important, especially in the process we are in now in Norway, to raise this issue and see how we can approach it from different ways, and just start to communicate in a constructive way.  So we’ll be in touch.

Lisa Power:  I just wanted to pick up on something that Susan said a few minutes ago which was you referred to this I think very perceptively as a harm reduction approach.  And I find it very interesting that, that is hasn’t been taken up in more countries because HIV activists are generally very keen on harm reduction and we think harm reduction is a great idea in terms of drugs issues.  We talk all the time about condoms or reducing viral load to zero, which are not perfect but they’re very good harm reduction measures.  They’re much better than not doing anything.  And yet, in many countries, I’ve seen people just not, not take this route because it doesn’t actually change the law.  And I think it, it does us no good to be purist because we have to reduce the harm that is being done.  If we believe that harm is being done by these cases, then why are we not working to reduce that harm?  I think to, to fail to do that suggests that it, we’re, it’s just rhetoric.  But maybe that, I’m biased because, you know, it’s definitely made a difference in England and Wales.  We have yet to see whether it will make a difference in Scotland but we very much hope so.  And just having that dialogue is incredibly useful, you know.  I think it’s important to get a better understanding between ourselves and the law because the law is used in a number of different ways about HIV.  It’s not just criminal prosecutions.  The way that people with HIV are treated within the police and the legal systems is often not entirely fair.  And I think it helps to bring all this together.  Is that just me?  Does anyone else have a, a view on that?

Silke Klumb (Germany):  So as Carsten said this morning, we are discussing if this might be a way.  I think it’s a way of harm reduction and we want to go this way.  We will see how it can go with 16 federal states and, to my perspective, it has to do with the justice system as something not reachable and independent, and not addressable, so what we perceived for a long time.  And we have to learn the language. To be heard, we have to learn the thinking or the perspectives of the justice system to go into discussion. But we have to do so.  And what we learned in the last months during the discussion of our position paper but as well in the National AIDS Council where we will have a position paper or a position as well, that there’s such a lack of knowledge of living with HIV today and tomorrow, and a lack of knowledge about transmission and about the epidemic that only imagining what people could learn by doing this process of having guidance, the whole discussion on: okay what’s, what is the situation?  We had a discussion in March, on a conference in Munich, where a prosecutor from, from the Munich court took part in a panel discussion and he afterwards said that he learnt such a lot on HIV and on his perspective, which was leading his whole picture of HIV transmission or exposure.  So we try to go on with this dialogue but he was stopped by his Ministry or his boss, whoever it is is. So not the Ministry: probably… So it’s very difficult to find people who take the responsibility and say, “Okay, I’m up to go with you.”  And they don’t know where we will find them but we will find them I’m sure.

Susan Timberlake:  Okay, I just want you to all know I’m sending around a few ‘drugs’.  It’s sugar, chocolate and alcohol.  So, when you eat these things, go like this, okay.  Because otherwise you’ll have it all down your front.  And, if you don’t take alcohol, don’t eat one.  This is to get everybody’s energy level up, okay.  I think, you know, it sounds like a barrier for everybody is entering the world of the prosecutorial service and trying to speak the language, and find the levers. I’m wondering if there’s been other discussions about … I don’t wanna take it away from prosecutorial guidelines but are prosecutorial guidelines considered one of many ways to minimise harm or are there other discussions with either prosecutorial services or health ministries even about other ways such as, well, Arwel you mentioned restorative justice and there’s also various public health measures that some countries have tried. Sweden is well-known for those.  And there are lots of issues regarding those.  But is this a discussion where people see prosecutorial guidelines as one of several ways to deal with overly broad criminalisation or is no-one considering other alternatives?  Anybody want to respond to that?  Kim maybe you could say whether or not you, coming out of this massive work that the Commission has done, will there be ways to build on that towards different procedures or approaches that will improve the situation in Norway?  I don’t mean the details ’cause I know you can’t speak about the details but I mean it’s a tremendous learning process where in Norway they’ve brought together so many different speakers and interest groups as you did on maybe a smaller, well I’m not sure how big it was in, in the UK but, you know, are you going somewhere with this beyond just the Commission report?  Do you think you can build on it?

Kim Fangen:  Well I indeed hope so because I think it’s, the work that  has been done is very thorough and also we’ve been 12 people together from various areas trying to find the same language. And also, as you said trying to see it from different angles.  And for me, personally, it’s been very useful, and I think that we all can learn something from that.  And I think it should be a clear ambition to try to take this further.  And also, when this hearing letter goes out and we start to discussing it in various places, I really do hope so. And I think, if we actually are going to achieve something, this has to be done.  And the first place that we want to go with this is to the medical people so see how the can take it further and how they can start to talk with the lawyers etc, etc. And I think that’s the way to do it.  But I think  it’s a good platform to build on.  So hopefully, yes.

Marielle Nakunzi:  I think that the guidelines that is the goal but there has to be a lot of other things to be done. For different reasons, not only for the question of criminalisation, but for the stigma issues as such. We are working currently with the Disease Control Board to try to, they are trying to do some guidelines on risk, which will be very important for us when we continue and talk to the prosecutors.  And we are also discussing on the Nordic level to try to get the Nordic Council aboard because there are a lot of good areas to discuss between the Nordic countries so we want them to allow us to present our cases on the Nordic level.  And I think that will be a very important thing to do because we can learn from the Danish example, from Norway’s very good research and from what we are doing in Sweden and so on.  So Nordic Council is the next step for us we hope.

Nikos Dedes:  I think that, apart from this interventions within, for procedures is also to make more visible reversals in, in courts, particularly Supreme Courts, which has already taken place.  And this could be collected and made more public.  I think the, also the, already the one change in Denmark in the law – maybe there are other examples.  And we’re waiting for, so changes in the legislation, reversals of court cases – this could help.  And I think what you also mention about the evaluation of the risks. CDC only this year, after 30 years, published on their website the risks of transmission of HIV.  And I think that we should use that, I mean and, of course, there should be, let’s see what ECDC would also do so that we can use this as evidence but actually, in terms of recklessness or what is the risk of, in the absence of transmission, of how reasonable it is to press charges for so low risks. And, if I may comment, whenever we use about reasonable safeguards, I think it is an insult to antiretroviral treatment to equate it to condom use.  Condom use is exceedingly less efficient than antiretroviral treatment. They cannot be, actually, one could say that a person who has had an HIV negative result before a week is actually exposing too much greater risk every time he has sex with a partner, with a condom, compared to anyone who is on treatment. So it’s, they’re, they’re not comparable.

Lisa Power:  Well I, I should have known I was like blue touch paper and retire with you on that by now but what I’m saying is they may not be comparable but neither of them is abstinence. And, effectively, changing the law is like abstinence. And all of the other things are some form of harm reduction. But I think there’s another point that I wanted to make is that the thing about these guidelines, now we have them, although I don’t think the system is perfect, one of the things that was going badly wrong beforehand was that the people who were most likely to be prosecuted were… they were migrants or people who didn’t have English as a first language, people who had no access to the justice system.  And I was very concerned about serious miscarriages of justice with people pleading guilty because they didn’t know any better or the guy, for example, the second case who just pleaded guilty even though he hadn’t been tested. Now that would not happen now.  And I feel much more secure that although there may be an early stage miscarriage of justice of some kind that actually, by the time something hits court, it is much less likely to result in any kind of a miscarriage of justice.  And I think that is particularly important because there are different levels of access to justice and I, in my middle class innocence, was not aware of the levels of disparity between the access to justice of an undocumented migrant who didn’t know their way around the English law and a highly articulate middle class gay man who knows it chapter and verse, and has access to a really good solicitor, and a private eye, to chase after other people that the complainant may have had sex with and things like that.  So there’s a real levelling of the playing field in having these guidelines that I think is absolutely vital.  As long as there are laws around this, that makes a huge difference.  And for me that’s one of the big things.  And I know, as you said Cat, you know, the people in Scotland were not undocumented migrants from Africa but actually all those white heterosexual men have been socially disadvantaged in some way.  They’ve been migrants. They’ve had mental health problems. They’ve not had access to decent justice.  Yeah?

Catherine Murphy:  I mean it’s just an observation but what I meant by that is that it wasn’t the same lever we used.  We used a different lever but I think the, the men that had been prosecuted in Scotland were perhaps the people who were the furthest away from support and services, and they were the group who had the least amount of kind of recognisable support and services. And I think that was evidenced by the fact that on more than one occasion the first we heard about the cases was when they were in the national newspapers. Where people contacted us, we were able to help them, and in most cases it didn’t make it to court, where we were able to intervene and help people. But it’s when people didn’t have access to support that it more often than not made it to court.  One of the things that you picked up on that I think was really important and it was very, very important in Scotland was we were able to open the door and we were able to go in there and make the initial arguments but there were, at points where I could see the prosecutor’s kind of eyes glaze over, because they knew that I was just kind of on my high horse and having, you know, having a rant.  But where it was really, really useful was to get the clinicians involved and sometimes to my frustration, but that the views of the clinicians and the arguments of the clinicians carried much, much more weight.  But getting them involved really kind of started to tip the balance for us.

Edwin Bernard (HIV Justice Network):  Hi, so one of the reasons that I wanted this, this workshop to happen was about getting Susan and Lisa, and Arwel together in terms of… So the question I really want to ask is of Lisa and Arwel, if you hadn’t, didn’t have already prosecutorial guidance and you knew now that UNAIDS was coming out with its updated guidance, which was pretty much a sort of generic version of what you’ve done, would you look at that and go, “Yes, that’s a great idea. Let’s look at UNAIDS policy and  incorporate it in England and Wales”?  Because that’s sort of what we’re not trying to ask the rest of the world to do.  And Susan, I sort of want to ask how, given that UNAIDS usually works in countries outside of Europe, particularly outside of western Europe, what kind of influence do you think your updated guidance will have in terms of helping advocates working towards prosecutorial guidance and how can we help you and how can you help us?

Lisa Power:  Okay, well I think we did use the existing UN materials when we were having the discussions but, at that stage, there really wasn’t that much.  I think the longer you don’t do something about this the harder it gets to think of this as a reasonable path because you’re so embroiled in all the other arguments.  And for us it was quite a simple decision at that stage.  I think for somebody to have gone quite a few years down the path of fighting criminalisation and then to move into it, which is what the Scandinavian countries are doing, is much harder.  But, actually, you’re doing it in a much more coherent way than we did it.  We really stumbled around and I think, you know, the film is, barring my participation, the film is brilliant but it, the one thing it can’t convey is the years in which we just wandered about poking different levers and trying things.  And I actually think, you know, you’re doing a really great, coherent job now, the stuff that Matthew was putting up today about the evidence, the way that you’re understanding the, if you like, the Scandinavian psyche around law and trust, and stuff like that.  We didn’t do any of that stuff.  We just cobbled it together. And actually, I think if we’d had all of these things now, it would have been a much less painful job.  I might still have wanted to shoot a couple of people and that absolutely doesn’t include Arwel, but some his predecessors in this process were more difficult to work with than Arwel was. And I think that’s actually one of the lessons is find the champions, find the good people, find the people who can work together and from our end don’t use that language, don’t do the, you know, the Devil stuff or whatever.  We chose not to take people in who were shouty and we chose to try and use what we’d call ‘parliamentary language’ but I think, in this case, it’s UN language.  But we’re all… it’s very easy for any of us to draw battle lines up.  It’s very easy for any of us to perceive people as the other side.  And actually finding out what we had in common around wanting justice, wanting the least awful process, wanting to work our way through frankly a law that neither or us particularly chose was incredibly helpful. Is that fair?

Arwel Jones:  No, absolutely, that’s fair.  I mean the CPS was formed in 1986 so we’re still a relatively young organisation but we are a, I think a rapidly maturing one.  I think what Cat described as perhaps the shutters coming down is where we would have been a few years ago but there’s been a growing recognition certainly for us as a prosecution service that we’re there to, you know, serve our communities, and that includes the interests of all within the community. And I think the process that this was an early part of has now continued to the extent where this is, you know, business as usual for us.  I mean a key issue in the UK in recent months has been around the activities of journalists who have been hacking into mobile phones and computers, etc. Again, similar to STI transmissions, a very small niche area of prosecution.  A very unfamiliar area of prosecution but one where we needed to develop an understanding of how were we going to approach those cases. On the one hand, we had recognition for freedom of speech, freedom of expression and the right to a free press to carry out its valuable work in exposing wrong-doing, on one end of the scale.  On the other end of the scale, we had to recognise the right to privacy of people such as celebrities who shouldn’t have all their voicemails listened to. So again we had to produce some guidelines this year on that. We followed pretty much the same process. We invited in all the groups. We met with a number of journalists, editors, who told us, “Look, you can’t prosecute us because we’re exercising our right to free speech.”  We met with some victims groups who said, “You’ve gotta do something about this.  These journalists are acting beyond the pale. You know, what they’re doing is unconscionable and it’s really affecting our lives.” So from those discussions we produced a draft guidance document. That was consulted upon and now, in the last couple of weeks, we’ve published our final guidance. So again it’s a similar transparent process:  you talk to people, you listen to people then you lay out your guidance so that, in the months to come when we make decisions as to whether or not we’re going to prosecute journalists, you know, at least people know the framework within which we’re operating.  So, in a way, this, the world of STIs was the start of a process which has now taken us to where we are now and we, we feel very comfortable with this.

Lisa Power:  I’ve never thought of HIV activism as leading to the Leveson Inquiry, but it’s, it’s fascinating Arwel.

Susan Timberlake:  Let me see if I can first remember Edwin’s question and then, second, respond to it.  You know, an organisation like UNAIDS is in an interesting position here because, basically, you know, we’re supposed to guide governments on the most effective HIV response but what we’ve traditionally been doing is working with developing countries and that’s where most of our offices are, almost all our offices, and we relate to the developed world as donors to the global HIV response. We’ve take on, though, the developed world more and more lately through the issue of what we call ‘punitive laws’ and these are not only criminalisation of HIV transmission but it’s HIV-related travel restrictions, it’s heavily punitive approach to drug possession for personal use, to sex work and, of course, it’s not such an issue in the developed world but it is other places. You know, LGBTI, criminalisation of homosexuality.  So, we have the scope to do that – I’ll be frank with you that, you know, sometimes developed countries look at us like, “You’re crazy,” you know, “we’re not gonna listen to you, the UN. We consider you a development agency that’s supposed to be working with the developing world.” So it’s somewhat of an uphill battle but, you know, we’re hoping to the degree that we can put out something useful that it will be another authoritative voice that will be taken up and, and will be useful.  I don’t wanna to sing the possibilities of this document too highly because I think in this world, and we were talking about it before, that prosecutors listen to prosecutors more than anybody else. And police listen to police. And it’s as if, you know, if you don’t come from those backgrounds, you really don’t have that much to add. I don’t mean to put it that starkly but, you know, I’ve been in many sessions where we’re trying to sensitise police to HIV-related issues and they wanna hear from other police, and the other experience, and that’s understandable because that’s their world.  So, whereas the UN can come out with something that’s authoritative from the point of view of being the UN, being supposedly bringing together all the the science and the latest law, these sort of efforts are also incredibly important and need to, somehow we need to find ways where they’re taken forth into other prosecutorial services and national context.  But we have just a few more minutes.  One of our take-aways that we’re supposed to have come away from this to report on at the plenary is what people plan to do in the next five years. Now we’ve heard some views from France, from Sweden, from Norway, from Greece. You’re in  Germany here. So it sounds like, you know, people do have plans. Does anybody else who hasn’t spoken want to add anything, you know, from your perspective of where you might wanna go with this?  Do you think it’s relevant the notion of pursuing prosecutorial guidelines in your context?  Sir, do you wanna say anything?  No?  Anybody else?   Cat?

Catherine Murphy:  I think there’s two, I think we probably in Scotland have two plans.  One would be to again kind of follow the lead, if you like, of England and we have these prosecutorial guidelines now but what we see them as most probably most importantly is a lever to speak to the police and to try and improve police practices. Because actually I do actually think that that’s what causes the most harm to individuals is actually unjustified investigations rather than the actual cases that make it to court. So I think the plan is to speak to the police, but the other thing I would say about Scotland is that we haven’t mastered entirely is that the same month that the guidelines were being published, earlier that month we saw HIV used in an assault case as an aggravating factor in an assault case for spitting and biting, which is something that had never, ever happened in the UK, and it was only in Scotland.  So I think we’ve managed to get these, these guidelines on HIV transmission and exposure but we still have, I think we’re probably gonna have to go again for another set of guidelines, maybe a shorter set, around HIV as an aggravating factor in any kind of a criminal charge, most predominantly assault.  So I think it’s gonna be just an ongoing process but hopefully we’ll get there.

Silke Klumb:  It’s more on the question what else than prosecutorial guidelines. I wanted to add two things. First, we have the very special situation in Germany that all judges refer to a verdict from 1988, from the highest Supreme Court, so there is need for a new verdict but we won’t get any if there is no reversal.  So we don’t know how to manage this but this really could change the whole picture because it’s not anymore 1988.  And the other thing, working with clinicians, to make sure that they give more…they feel more the power they have in those whole prosecution, in the whole processes because those clinicians who are heard in the processes they have really the power to give not only an actual picture of living with HIV today but also to give their view on how the whole situation of transmission and epidemiology is working.  And they sometimes just forget about it.  So there are some of the clinicians with us discussing and also discussing with their circles of, how do we say this, I forgot the word … Okay, so in their working groups to make sure that the importance of their consultations is really seen.

Susan Timberlake:  Yeah, I think that’s an incredibly important point that, and we often say that what we need is a lot more activist-scientist, you know, or, or medical professionals who first of all a lot of ’em do not know what’s going on in the criminal justice world around this issue and, when they find out they’re aghast.  And they, you know, with probably not that much support or encouragement, would be willing to speak out and engage with those who would listen to them. And so that’s a real, very important strategy. Your other point about what we would call ‘strategic litigation’ trying to get a court case that is going to itself improve the application of the law is also very important.  We’re all waiting for the Supreme Court of Canada to issue its verdict and it’s quite… it could go I have no idea which way it’ll go but let me just say it might be interesting Arwel if you commented on this.  The way UNAIDS is going right now in generic terms about developing our guidance is that, you know, we’re asking courts and prosecutors to do something which is difficult to do, which is to take into account a lot of the messy, complex factors of sexual transmission, or a threatened sexual transmission of HIV that go to the issues of harm and, and risk, and penalties. And the court in Canada has before it, and I may be mischaracterising this, and I apologise if I am, but it’s very tempting to just base it all on disclosure. If the the law requires disclosure, it simplifies the life of prosecutors tremendously because it just means that if you’ve had sex and you’re positive, and you didn’t disclose, you’re guilty. That’s it. That’s the only factor you look at. And there are quite a few jurisdictions like that, and it’s an easy way to go for courts. And it’s tempting I think in part because it’s easy. But what we’re usually arguing is that, no, this is highly complex, intimate relationships, it’s wrapped up with scientific considerations that change according to the nature of the sex act, the nature of medication.  And we’re asking that all these sort of things be taken into account.  But we’ll see what this court case comes out with. And I don’t know Arwel if you wanna respond to what I just said.  I may be mischaracterising the prosecution.

Arwel Jones:  No, you’re absolutely right.  We do need to look at all the different nuances and issues here. I would say though that prosecutors are well versed in carrying out those difficult balancing exercises across a whole different range of contexts.  For example, here we’re talking about public health versus criminal justice response. You know, child abuse cases require incredibly difficult decisions about the need for a prosecution response on the one hand with the potential ongoing harm to the child that would ensue from the prosecution taking place and that child having to be exposed to the whole process. So, you know, we are used to these difficult balancing exercises. But we certainly wouldn’t want to go down the road of just a nice, simple, prosecuting by numbers approach.  Well, if that factor’s there, that box is ticked and therefore we prosecute. But, in terms of the idea of simplicity, I suppose I just would throw something back to yourselves, which is just around, the threshold that you collectively set as to when a prosecution is appropriate.  And you’ve come out very clearly, saying intentional transmission is meritorious of prosecution; beneath that it’s not. It’s an approach that has a commendable simplicity but I’m not necessarily sure that again it takes into account all the whole range of behaviours that lie beneath that. I mean the concept of recklessness is… it’s a wide-ranging concept and embraces a whole range of different behaviours and conducts.  I mean, if I was to draw an analogy, you know, if you think about somebody who drinks, I don’t know, three or four glasses of wine and then goes and drives their car.  You know, they’re being reckless.  Now hopefully nothing will happen but they’re still exposing other people to risk.  This analogy might break down at some point but I’ll, but bear with me on this.  Somebody who drinks a bottle of whisky and then gets behind the wheel of a car is reaching a really high level of recklessness. So the point I suppose I’m trying to make, to translate here is that there are certain individuals in the field of sexually transmitted infections who cross a certain threshold of recklessness in the nature of their conduct, in the potential harm that they’re exposing others to as such that they are probably a bit closer to those who are intentional than those who are not blameworthy at all.  So I would just perhaps invite you to reflect a bit further on, you know, what sort of mindset are you looking for here.

Lisa Power:  I think you’ve just opened up another two-hour discussion Arwel. However, what I would say is, you’ll notice that some of the language earlier today was intentional or malicious which is part of that shifting around. And also I think that’s why some people find it easier to say, “No prosecutions at all,” because those are very shifting sands.  But actually you’ve picked on something which was a major issue for debate within the UNAIDS work around what is the barrier between intent and recklessness.  And you’re coming from a point of view of the English law where the barrier for intent is set about as high as the barrier for intent goes. If you were in South Africa, you’d have a very different definition of how far intention goes.  And so that’s another thing is whenever we’re using any of these terms, we’ve always got to remember the cultural context because intention in the UK is totally different from intention in South Africa and God knows in most of the American states they don’t care about intention at all.  You know, intention is absolutely almost anything. So I think we’ve gotta bear the cultural context in mind when we’re having these discussions and that’s why it’s so helpful actually to have the UN and UNAIDS actually being willing to thrash some of this out, and being willing to show leadership that makes our governments more likely to, because they’re not used to being scolded by UNAIDS or any organ of the UN. Now some of them may be a little contemptuous of that but actually I think that’s mainly because they’re like, “Oo, are we as bad as other people then?” So I just wanna thank you for keeping plugging at it.  And I think everybody who’s around here is, you know, everybody’s trying to do something about this. So we should all exchange as much information as we can and do what we can to mitigate harm in our own jurisdictions, and try and share what we learn with each other, whatever it may be –  the negative and the positive.  So thank you and thank you Susan.

Susan Timberlake:  Okay, I think we’re supposed to stop at four.  Do we have a coffee break? Yep … yeah.

Arwel Jones:  So, the England and Wales guidelines, I do have a few copies here if anybody would like to take them away but they are also available on the CPS website.

Susan Timberlake:  Okay, so we’ll wrap it up.  What is the plan of action? We’re s’posed to [Quarter of an hour coffee] – yeah, so, so go away fro 15 minutes and then we’ll all come back and plenary, and hear from the groups.

Lisa Power:  We find out what everybody else got up to.

Susan Timberlake:  Yes.  Thank you everyone.


Interview with Iowa’s Tami Haught on building a broad law reform coalition

Meet Tami Haught: Iowa’s Anti-Criminalization Advocate 

Tami Haught explains how, with the support of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) and hundreds of Iowans living with HIV, she helped build a broad coalition to reform Iowa’s HIV criminalization statute, Iowa Code 709C. Haught discusses the small victories that the coalition has won over the past year. 

What is the current HIV-specific law in Iowa and how does it affect Iowans living with HIV?

The old joke in Iowa is that if you’re HIV-positive and you go to a bar, make sure to bring a notary public with you, that way you can have your disclosure letter notarized to prove that you did disclose your status before you had sex. But this law is no joke, because it has negative public health consequences.

Under Iowa’s Code 709C you may be subjected to prosecution if you cannot prove that you disclosed your positive status to a partner, regardless of intent, regardless of condom use, regardless of an undetectable viral load, regardless of transmission, and the sentences can be very severe.

What are the negative public health consequences of Iowa’s HIV criminalization law?

The latest research shows that HIV criminalization legislation, like Code 709C, discourages HIV testing, treatment and care, which works against the public health recommendations being proposed by experts.

Can you tell me about your work to repeal and reform this legislation?

The bill that was proposed eliminated the HIV-specific part of the current law by including hepatitis, tuberculosis and meningitis. The proposed law would also create a tiered system of sentencing, which maintains severe sentencing in cases of intentional transmission of HIV but allows lesser sentencing in cases of nondisclosure when a condom was used, when there was no intent, or when HIV was not transmitted.

We also included direct language in the bill about what “exposure” meant, based on the latest scientific research. For example, in over 30 years of research there has been no documented case in which saliva transmitted HIV–yet, inexplicably, people are still being prosecuted in many states for spitting.

But the bill didn’t quite get passed. What happened?

The reformed bill passed through Iowa’s bipartisan Senate Judiciary Subcommittee (3 to 0) and the Senate Judiciary Committee (8 to 3), and we were very close to getting the bill passed in the legislature, but at the last minute one of our allies changed sides and introduced an amendment that scuttled the bill. Still, we’ve had great support from Senator Matt McCoy, Senator Steve Sodders, Senator Charles Schneider, and many more members of Iowa’s legislature, and we’re very grateful for the assistance we received from Deputy Attorney General Eric Tabor, and Randy Mayer from Iowa’s Department of Public Health.

One lesson we’ve learned is to never assume who is on your side, because we have some great advocates, both Democrats and Republicans, who are fighting for us. So don’t look at the “D” or the “R” behind a name, because you never know the personal story or how someone may have been personally touched by HIV/AIDS.

Why do you feel personally mobilized by this bill?

Toward the end of my husband’s life, in the mid-1990s after both of us had been diagnosed, he became very scared of laws that prosecuted people for HIV exposure. He was afraid that I would charge him with criminal transmission–which I would have never done. But my husband eventually had a nervous breakdown and the thought of these HIV criminalization laws really started his downward spiral even faster, because they increased the stigma and shame and guilt that he felt after first being diagnosed.

What are some of the lessons that you’ve learned in Iowa that can be applied elsewhere?

For HIV-negative people not familiar with these laws, it takes them a while to understand the issues. When I conduct HIV criminalization forums, I usually show Sean Strub’s documentary HIV is Not a Crime. Just seeing Nick Rhoades, Robert Suttle, and Monique Moree tell their stories does a lot to reverse people’s prejudices and preconceptions. They begin to understand that people living with HIV are just like their neighbors and families.

In Iowa we’ve found that personal stories matter in changing people’s minds about HIV criminalization laws. One focus this year is to collect people’s stories to show that disclosure is not always easy, and that sometimes disclosure comes with consequences. Many HIV-positive people still fear that they’ll lose employment or housing if they tell the wrong person about their status. Even for me, it took six years after my husband’s death to talk openly about my status.

For advocates trying to reform HIV criminalization laws in other states, I’m sure people can learn from our successes and mistakes here in Iowa. Hopefully, sharing our experiences will help advocates in other states save time and money so that we can get these laws changed faster.

From The SERO Project’s Spring 2013 Newsletter

A Spectacle of Stigma: A First-hand Account of a Canadian Criminal HIV Exposure Trial, by Carl W. Rush

Carl W Rush’s powerful essay on the trial of Noel Bowland and Steven Boone who were found guilty on two counts each of aggravated sexual assault in December 2012 for allegedly not disclosing that they were HIV-positive before having a foursome in a hotel room is published in full below with his permission.

It begins thus:

I recently attended the criminal HIV exposure trial of two young men in Kitchener, Ontario. Each was found guilty of two counts of Aggravated Sexual Assault for exposing (but not infecting) two other men to HIV. They are now liable for a Life Sentence.

Prior to the trial, I had been following HIV exposure trials in Canada and reading the courts’ decisions. To me, many of the guilty verdicts just did not seem to fit the evidence presented in the trial or in some cases did not even seem to follow the law. How does non-violent, consensual sex between adults become a crime? I had been wondering if I was missing something; I wondered what it was that I was blind to. Was I being unreasonable? Did I not properly understand the law or the legal procedures? Was I blind to my own ignorance or bias? When I found out that another HIV exposure trial was scheduled right in my own neighbourhood, I knew that I had to go. I had to see what was happening for myself.

His conclusion, that “Canadian HIV exposure trials are both a symptom and a perpetuation of the stigmatization of Canadians with HIV,” definitely resonates with those of us working to end such unjust prosecutions.

Legal and policy alternatives to HIV criminalisation: community-level and societal approaches

by Edwin J Bernard

Legislators in Mauritius decided not to criminalize exposure to HIV or even HIV transmission. Legislators realized that legislation criminalising HIV exposure and/or transmission would not be able to withstand a constitutional challenge, because of the difficulties with proof, the likely vagueness of the definition of exposure, and the risk of selective prosecution. The main reason for not criminalising HIV transmission was, however, the concern about detrimental impacts on public health and the conviction that it would not serve any preventive purposes. Criminalisation would have created more problems than solving them. Therefore, Mauritius decided to put its resources where they are most likely to have a positive impact on reducing the spread of HIV: increased funding for HIV testing and counselling and for evidence-informed prevention measures.

Rama Valayden, Attorney General and Minister of Justice and Human Rights, Republic of Mauritius[i]

Policymakers may well feel under pressure to use the criminal law in response to HIV to be seen to be “doing something” that appears to have an impact upon their local HIV epidemic. This pressure is likely to be felt more acutely where it appears that HIV prevention programmes have failed.[ii]

Nevertheless, UNAIDS recommends that instead of being tempted to apply the criminal law in these situations, governments should implement evidence-informed and human rights-based (but sometimes controversial) HIV prevention programmes to deal with the myriad underlying causes of HIV transmission and acquisition.

This way, the significant personal and financial resources that may be spent on pursuing a limited number of individual cases within the criminal justice system could be more productively used to expand HIV prevention efforts, including individual, society- and community-wide education; making available condoms and other HIV prevention tools (including ART), MTCT services, sterile drug use equipment, and other strategies designed to reduce HIV infection on an individual and population level. In short, they should be aiming for policies that support universal access to HIV testing, treatment and support services.[iii] [iv]

In many jurisdictions around the world, a substantial number of individuals at highest risk of acquiring HIV – people who use drugs, sex workers, men who have sex with men – are criminalised and punitive approaches drives people underground. [v] Consequently, UNAIDS recommends fewer punitive laws and more supportive policies in favour of expanding programmes proven to reduce HIV transmission while protecting the human rights both of people living with HIV and those who are HIV-negative. These include:

  • Removing criminal offences against men who have sex with men;
  • Removing criminal sanctions on sex work so as to promote empowerment of sex workers;
  • Allowing the provision of evidence-informed harm-reduction programmes for people who use drugs;
  • Enacting privacy and anti-discrimination laws that protect people living with HIV;
  • Enacting laws that ensure prevention and treatment programmes reach all people living with HIV and empower them with information, education, and treatment.[vi]

In addition, governments may also consider addressing some of the root causes underlying vulnerability to HIV infection, such as income and gender inequality, sexual violence, discrimination, and problematic substance use. Since women are both biologically and socio-economically more vulnerable to acquiring HIV, UNAIDS suggests that governments strengthen and enforce laws against rape (inside and outside marriage), and other forms of violence against women and girls; improve the efficacy of criminal justice systems in investigating and prosecuting sexual offences against women and girls, and support women’s equality and economic independence through legislation, programmes and services.[vii]

Case study: South Africa – HIV-specific criminal law not necessary

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law, concluding that such a law was not necessary due to a lack of evidence that alleged wilful or negligent behaviour by people with HIV was occurring frequently enough to warrant such a law and that “a change to the law would therefore probably be based (without denying that real instances of dangerous conduct occur) on general fears, anxieties and “urban legends”. It also concluded that: “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”[viii]

Nevertheless, pressure to create an HIV-specific law continued during debates for the new Sexual Offences Bill. In submissions made to the Parliamentary Joint Ad Hoc Committee on Socio-Economic Development, the National Working Group on the Sexual Offences Bill, a consortium of civil society groups, stated in 2005: “There are existing common law offences that already criminalise the deliberate transmission – these have rarely been used and give rise to difficult questions of evidence and proof. A new offence will not change this in any way.”[ix] Earlier versions of the Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape. However, that definition was not included in the Sexual Offences Act that was ultimately approved in 2007. [x] Rather, the legislation mandated HIV antibody testing for suspected rapists and allows for longer prison sentences for rapists subsequently found to be HIV-positive.[xi]


[ii] Human Right Watch. World AIDS Day: Punitive Laws Threaten HIV Progress. Press Release, November 25, 2009.

[iv] Op cit. UNAIDS/UNDP (2008b).

[vi] GNP+ and UNAIDS. Positive Health Dignity and Prevention. Technical Consultation Report, Tunisia, April 2009.

[vii] Op cit. UNAIDS/UNDP (2008a)

[ix] National Working Group on the Sexual Offences Bill. Submission to the Parliamentary Joint Ad Hoc Committee on Socio-economic Development. South Africa, 2005.

[x] South African Department of Justice and Social Development. The New Sexual Offences Act. (Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.

[xi] Proposal discussed in Matthews S. Criminalising deliberate HIV transmission – is this good public health? SAMJ 96 (4): 312-314, 2006. See also Bernard EJ. South Africa: New rape laws mandate HIV testing for alleged offender. Criminal HIV Transmission. January 8, 2008.