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.