Undetectable = Uninfectious. So why are people with HIV still being criminalised for having sex
By now, most people in the HIV community know that having an undetectable viral load means being uninfectious. It’s just science! But this information isn’t reflected in laws in several U.S. states, dating back to the 1980s and 1990s, that criminalize people with HIV for having sex without telling partners their HIV status — even if they use a condom on top of being undetectable.
Thankfully, there’s a movement of HIV-positive people underway that’s slowly getting states to strip back their outdated criminalization laws. It’s called the Sero Project — and at the 2017 AIDSWatch conference in Washington, D.C., we talked with folks from all over the country who are part of it.
“There’s still criminalization that impacts so many people — and it’s driven by fear,” says Paul Yabor, a longtime Philadelphia-based HIV activist (who sadly died earlier this year after this video was made).
“I’ve experienced this,” says Ken Pinkela, Sero’s director of communications and military policy, who was imprisoned and dishonorably discharged from the U.S. Army for having sex without disclosing his status. “Wrongful accusals and allegations that didn’t exist.”
Says Gina Brown, a community organizer for the Southern AIDS Coalition: “The thing that bothers me the most is that [these laws] keep people from knowing their status. So, if I know that I can go to jail because I have sex with someone whether I use a condom or not — you know, I don’t want to know! And I do community work in New Orleans, and I hear that all the time.” She also decries “the fact that no other sexually transmitted virus is criminalized.”
Says Derrick Mapp, HIV health counselor and national trainer at San Francisco’s The Shanti Project: “Me being HIV-positive — I’m not a criminal. It’s something that happens. Spitting, scratching and fighting — these things don’t transmit HIV.” Yet, HIV-positive folks have often ended up doing years in jail for exactly those actions.
Remember Eric Leonardos from the TV show Finding Prince Charming? He’s part of the decriminalization fight as well: “Martin Luther King Jr. says that an unjust law is no law at all,” he declares. “And these are unjust laws and they have no place.”
Watch our video (edited by Michael Faber) and hear them in their own words. Then consider reaching out to Sero and getting involved in the fight. They’ve already had victories in California, Colorado and Iowa. Maybe, with your help, your state could be next!
Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.
IT is very difficult to prove that someone infected another person knowingly with HIV and to then prosecute them, said Michaela Clayton, director of the AIDS and Rights Alliance for Southern Africa, last week.
Clayton said this in an exclusive interview with The Namibian on the issue of criminalising intentional HIV infection and to prosecute those believed to have transmitted the disease maliciously.
“It is very difficult to prove who the source of the infection is, because you will have to exclude every other sexual contact and every other potential risk that the person might have been exposed to in terms of HIV infections,” she said.
“You will then have to prove that the person knew that they were infected with HIV at the time of the intercourse, and that they failed to disclose that to their partner,” said Clayton, adding that many sexual offence cases were thrown out of court because “there would be no one to witness and there is no physical evidence”.
Criminalisation of intentional HIV transmission has become a concern in the management of the disease, with many countries adopting laws that allow for prosecuting those who knowingly spread the virus.
A 2008 Arasa study found that criminalising HIV did not stop the spread of the virus, but that criminalising the spread of HIV and prosecuting those implicated only increases stigma.
Clayton said the focus of lawmakers should be on how to use the law “to respond to the spread of HIV and effectively deal with the epidemic”.
Recently, the Confidénte newspaper reported about a woman who demanded money from her partner for allegedly knowingly infecting her with ‘a chronic disease’.
Pictures of the two individuals were widely shared on social media platforms, and many critics argued that intentional infection should not be criminalised as it would increase stigma and could lead to suicides and mental problems. Clayton said although it was difficult to prove the source of the infection, Namibia has laws that can be used to get justice for the person claiming to have been intentionally infected with HIV, such as “assault with intent to do grievous bodily harm”.
Clayton said the police could be approached and a case opened, and the accused person could potentially be prosecuted for assault, but then the accuser would have to prove that they had not had sexual contact with any other person.
She said a person would also not be found guilty if they had been on anti-retroviral therapy (ART), “which at times suppresses viral load and makes it impossible to infect another person”.
“If you are on ARV and you adhere to your treatment, your viral load can go down to undetectable on a test. When your viral load is undetectable, it is almost impossible to infect another person,” she said.
CRIMINALISATION AROUND THE WORLD
A report published last year indicates that 72 countries have adopted laws that criminalise intentional HIV infection. In most countries, HIV infection is listed as the only chronic disease subject to criminalisation.
The report further states that about 61 countries have recorded prosecutions for HIV “non-disclosure, potential or perceived exposure and/or unintentional transmission”.
According to Aljazeera reports from last year, the US has laws that allow for HIV positive people to be criminally charged for spitting on or biting someone.
Aljazeera also reported that an HIV positive person could end up serving a lengthy prison sentence for not disclosing their status before having sex or sharing needles.
According to the report, the criminalising of HIV infection has become concerning in Africa.
“The rise of reported prosecutions in Africa during this period [2016] (in Botswana, South Africa, Uganda, and especially Zimbabwe), along with the continuing, growing number of HIV criminalisation laws on the continent, is especially alarming,” stated the report.
US: Missouri’s laws should encourage people to seek testing, not motivate them to avoid it
Laws motivate many to avoid testing, treatment for HIV
I agree with the sentiments expressed by St. Charles County Prosecuting Attorney Tim Lohmar when interviewed following the conviction this month of former Lindenwood University wrestler Michael Johnson. Missouri’s HIV-specific criminal codes are dated and medically inaccurate and should be changed to reflect current medical knowledge.
Missouri law makes sex by an HIV-positive person subject to criminal prosecution unless the person living with HIV can prove he disclosed his HIV status. Since disclosure is very difficult to prove, many times coming down to he-said/she-said, such laws penalize knowing your status.
I’m in no way downplaying the seriousness of knowing your status and not disclosing it in a relationship. However, our laws currently motivate many to avoid being tested and treated. That is clearly not in the best interest of health in our communities and could potentially harm many of our families.
I believe Missouri can do more to reduce the rate of transmitted diseases. That’s why I sponsored House Bill 88, a needle exchange bill, in 2017. Needle exchange participants are five times more likely to enter an addiction treatment program. That’s huge.
Needle exchanges have proven that they do not increase drug use and they help prevent serious disease outbreaks caused by needle sharing. They also protect non-drug users with whom the addicted person may be in a relationship. While governor of Indiana, Vice President Mike Pence signed a needle exchange bill to respond to their outbreak of hepatitis C and HIV. Missouri can and should do this as well.
We need to modernize Missouri’s laws that encourage people to not seek diagnosis and treatment. I look forward to working on this again in the upcoming legislative session and know many others in the Legislature see the need as well.
CDC joins consensus on HIV that ‘Undetectable = Untransmittable’
The historic announcement has significant implications for HIV advocacy efforts.
In a statement acknowledging National Gay Men’s HIV/AIDS Awareness Day Wednesday, the Centers for Disease Control and Prevention (CDC) embraced a scientific consensus with profound impacts. “When [antiretroviral therapy] results in viral suppression, defined as less than 200 copies/ml or undetectable levels, it prevents sexual HIV transmission,” the statement said.
It was the first time the agency acknowledged what several massivestudies have consistently found: when an individual’s HIV viral count is undetectable, it is virtually impossible for them to transmit HIV to a sexual partner. “Across three different studies, including thousands of couples and many thousand acts of sex without a condom or pre-exposure prophylaxis (PrEP), no HIV transmissions to an HIV-negative partner were observed when the HIV-positive person was virally suppressed,” the statement continued. “This means that people who take ART daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”
Hundreds of experts and organizations had already signed onto a massive “Undetectable = Untransmittable” (U=U) consensus statement organized by the Prevention Access Campaign. Bruce Richman, executive director of the campaign, responded to the news by telling HIV Plus Magazine, “This is the moment we have been waiting for!”
The implications of the CDC acknowledging that there is “effectively no risk” are massive in terms of both politics and policy. As HIV Plus Magazine notes, nearly half of all HIV-positive people in the U.S. have brought their viral load to an undetectable level through treatment, so it’s significant to recognize that they are not contributing to the epidemic.
As the CDC continues to roll out messaging and information, it will likely not only impact prevention campaigns, but also legal fights over HIV disclosure laws. There are 38 states that have some version of a law that criminalizes perceived or potential exposure or transmission of HIV, and another six where individuals with HIV have been prosecuted under broader statutes. These laws — some even three decades old — rely on antiquated science and punish people with HIV for not disclosing their status to sexual partners even when they pose no risk of transmission.
Though passed with the intention of trying to protect people from HIV, their enforcement actually makes it more difficult to fight the epidemic. Studies have shown that the laws discourage people from getting tested (so as to avoid culpability), which means it’s more likely that people don’t know they’re positive and aren’t in treatment. The laws simultaneously create a false sense of security, such that men who believe their state has such a law are actually slightly more likely to engage in riskier sexual behaviors like condomless sex. Instead of protecting people from HIV, these laws are actually making it far easier for HIV to spread while simultaneously reinforcing stigma against people who are HIV-positive.
The CDC’s embrace of the consensus that “undetectable equals untransmittable” could be an effective buffer for the enforcement of these laws, if not the basis for challenging them directly. In 2014, the Iowa Supreme Court issued a landmark ruling overturning a conviction under that state’s HIV criminalization law specifically because of the science showing that the individual could not have transmitted the virus because of his undetectable viral load. That same year, Iowa also became one of the first states to start to dismantle its HIV criminalization laws, which had previously been some of the harshest in the country.
Overcoming these stigmatizing laws and spreading knowledge about the research on undetectable viral loads is essential to the ongoing fight against HIV. As the CDC statement notes, men who have sex with men are still “severely affected by HIV,” representing two-thirds of all new diagnoses in the United States. Some studies have indicated that more transmissions are happening from people who have been diagnosed but who have not entered treatment. The case could not be stronger that getting them into treatment will, in most cases, halt their transmission of the virus.
Ideally, the CDC will build off this endorsement of the science and do more to advocate for that treatment. Unfortunately, President Trump has proposed massive cuts to the funding that helps supply 11.5 million people worldwide with antiretroviral drugs, and the health care policies he supports also make it harder for people with HIV to afford the care they need. It’s a good sign that the government has caught up with the science, but now it will be essential for officials to fund the policies that science supports.
California Law Modernizing HIV Criminalization Awaits Governor’s Signature
On Sept. 11, 2017, California lawmakers passed SB 239. As reported previously, the bill reduces HIV transmission from a felony to a misdemeanor. This means that people who are convicted will face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV. SB 239 now awaits Governor Brown’s signature, the final step before becoming law.
For Nestor Rogel, a California activist living with HIV, the bill’s passage brings a sense of freedom. Rogel, who was born HIV positive, has always had to take numerous precautions to document his disclosure in order to avoid potential prosecution. Not only does the bill bring a sense of personal relief, but he’s hoping for broader changes in societal attitudes. “Decriminalization is a good step to destigmatization,” he told TheBody.com. “California is used as a model for so many things. I’m hoping that other states will take California as a model in this, as well.”
Idaho Statewide Coalition Created to Modernize HIV Criminalization Laws
Kerry Thomas was the first person ever prosecuted under these laws; in 1999, Thomas was convicted and sentenced to 15 years in prison for nondisclosure. In 2009, Thomas was prosecuted and again pled guilty to nondisclosure. This time, the judge sentenced him to 30 years. Thomas is not eligible for parole until at least March 2029.
In 2016, after attending the HIV Is Not a Crime conference, Kevin Lish of All Under One Roof LGBT Advocates of Southern Idaho began pulling together a statewide coalition to modernize laws and address the harsh penalties in the state’s HIV-specific codes. “We need laws that encourage people to be tested, know their status and have honest conversations with potential partners so that we can start curbing the number of new cases in Idaho,” he told A&U Magazine.
Now, the bad: Massachusetts Bill Would Criminalize Nondisclosure
Massachusetts Bill Would Criminalize Nondisclosure
Ten Massachusetts lawmakers are sponsoring H2295, which criminalizes HIV nondisclosure before sex or sharing needles. It also further criminalizes engaging in sex work (which is already a crime punishable by prison sentence) if the person is HIV positive, as well as donating or selling blood, organs, tissue and other bodily fluids or body parts. The proposed penalty would be a minimum of five years in prison (and a maximum of 15 years).
The bill has remained in the Joint Committee on the Judiciary since its introduction in January.
Maryland Adopts Law Authorizing Court-Ordered HIV and HCV Testing
In May, Governor Larry Hogan signed HB 1375 into law. The law authorizes judges to issue “emergency orders” for HIV and hepatitis C testing if the person is believed to have “caused exposure to a victim.” Victims include law enforcement officers, firefighters, emergency medical technicians (EMT), forensic scientists and health care workers collecting medical evidence of sexual assault. The law authorizes the test to be conducted via oral swab.
Tennessee Adopts Law Authorizing HIV, Hepatitis Testing of Arrested Individuals
May seems to have been a bad month for HIV criminalization. Tennessee also enacted a law requiring HIV and hepatitis testing. HB 1283 requires HIV and hepatitis testing for any arrested person if requested by a law enforcement officer, firefighter or EMT exposed to blood or bodily fluids “in any manner that presents a significant risk of transmission.” It also allows any employee of the state’s bureau of investigation’s crime laboratories who might have been exposed to bodily fluids to request such a test. Unlike the Maryland law, HB 1283 requires a blood test rather than an oral swab.
Maggi Duncan, executive director of the Tennessee Association of Police Chiefs helped draft the legislation. “We’re talking about a criminal,” she reportedly said, ignoring the fact that arrests do not automatically mean convictions or guilt. “In the course of being arrested, they could have possibly exposed a first responder.”
A new coalition in Texas aims to reform HIV criminalization & find a united voice for people living with HIV
by Chip Alfred
It’s called the Lone Star State to commemorate a single white star that signifies Texas’ battle for independence from Mexico. Now Texans living with HIV are waging another war—fighting a legal system that locks people up for decades for behavior that poses no risk of HIV transmission.
“We need to stop criminalizing people living with HIV,” says Venita Ray, public policy manager at Houston’s Legacy Community Health. Ray, fifty-eight, an African-American attorney, was diagnosed with HIV in 2013. “There’s no evidence to show that criminalization deters behavior, or that it stops transmission. It’s just to punish us for being HIV-positive,” she adds. “If we really want to end the epidemic, we can’t prosecute our way to zero.”
Texas ranks number two in the nation in number of AIDS diagnoses. It’s also the second largest state in the country in both area and population. Unlike most states, however, Texas has no HIV-specific criminal laws. Therefore, the data on the number of HIV criminalization cases and convictions is hard to gather. It also has effectively given prosecutors wide latitude in using general criminal laws to charge HIV-positive defendants with attempted murder and aggravated assault. Texas’ aggravated assault statute makes it a second-degree felony (two to twenty years in jail and a possible fine of $10,000) “to cause serious bodily injury to another or to use or exhibit a deadly weapon in the commission of an assault.” If an aggravated assault is committed against someone the perpetrator knows is a security officer, it’s a first-degree felony (punishable by five to ninety-nine years in prison and a possible fine of $10,000).
What I found most disturbing in researching this article is that the Court of Appeals and the Supreme Court of Texas have consistently upheld aggravated assault convictions in which HIV was considered “a deadly weapon”—even in cases where the only body fluid exchanged was saliva, which has never been documented to transmit HIV.
An HIV-positive man from Texas who spat at a police officer during his 2006 arrest for being drunk and disorderly was sentenced to thirty-five years behind bars by a Dallas court. The Court of Appeals affirmed the verdict, which mandates that the defendant serve at least half of his sentence before being eligible for parole. This was because the jury found that his saliva was a deadly weapon.
In the Texas legislature, there have been recent efforts to enact laws that would make it easier for prosecutors to invade the privacy of HIV-positive defendants and build criminal cases against them for no-risk behavior like spitting. Thanks to advocates like Venita Ray, none of this legislation has passed. “When I’m standing up in front of the legislature, I’m not speaking of a hypothetical person. I’m saying, ‘What you just did impacts me.’ That has power.” Ray, with the support of The Sero Project’s Assistant Director Robert Suttle and Organizing and Training Coordinator Tami Haught under the umbrella of Sero’s Network Empowerment Project, created Texans Living with HIV (TLHIV), the first statewide network of its kind in the U.S. “This network enables Texans with HIV to determine their own priorities, select and hold accountable leadership of their own choosing and to speak with a collective voice,” says Sean Strub, executive director of Sero. “Texas now has the organizational infrastructure to be better prepared to mobilize and advocate on a whole range of issues that affect people living with HIV.”
Venita Ray tells A&U the new coalition of about twenty advocates will focus on ending isolation for PLHIV and eliminating stigma. “The same communities that are already disproportionately impacted by the criminal justice system are the same people impacted most by HIV criminalization—black people, brown people, people living in poverty.”
TLHIV will take on issues that impact the quality of life for people with HIV and criminalization will be one of those. “We want to be that collective voice for people living with HIV in the state of Texas,” Ray explains. “We’re building power amongst ourselves.” The key, she says, is creating an environment where individuals feel safe to stand up, show up and speak up. “We’re building an army and we need them all. I’m a grandmother; I’m an auntie; I’m a yoga teacher. The more people see people like me or your Bible school teacher, the more we humanize this disease. The best thing I ever did was deciding not to be invisible and not be silent anymore.”
Gael Adrien Mbama: HIV laws must be modernized to prevent further stigmatization
More than 119,589 people diagnosed with thehuman immunodeficiency virus live in California. That diagnosis alone has allowed these people to be stigmatized and receive unfair treatment under the law.
Under the California Code, Health and Safety section 120291, HIV-positive individuals who knowingly expose their partners to thediseaserisk up to eight years in prison. Because of this law, HIV patients have been singled out and treated as felons, instead of as individuals dealing with a serious disease.
Some lawmakers seem to understand this. California State Senator Scott Wiener introduced Senate Bill 239, which lowers the offense of intentionally exposing others to HIV from a felony to a misdemeanor. While numerous lawmakers have supported the implementation of the bill, others have voiced strong disagreement.
For instance, Republican State SenatorJoel Anderson is on record stating that intentionally transmitting any life-altering diseases should require jail time. This stance is shared by other Republican state senators, such asJeff Stone, who insisted that transmitting HIV should remain a significant crime, as reclassifying this offense to a misdemeanor would be a “miscarriage of justice.”
Despite this harsh opposition, Californians must support SB 239. Passing this billwill help decrease HIV’s prevalence byencouraging people to get tested for the disease, instead of remaining clueless about their health condition, as only those aware of their HIV status can be charged. The bill would ensure thatthose who are HIV-positive arenot grossly persecuted with felony charges, and would place HIV on the same standardas other communicable diseases.
California’s HIV transmission lawswere written in the 1980s, when HIV’s hysteria was at its pinnacle and medication for the diseasewas nonexistent. These laws allowed law enforcement to prosecute HIV-positive people who exposed the virus to others, even if those exposed ended up not being HIV positive.Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project at UCLA School of Law, saidthatwhilescientific advancementsover the past three decadeshave made the eradication of the HIV epidemic possible, the law has not caught up and continues to perceive HIV as an instant, life-ending disease.
Consequently, HIV is treated in California as a criminal issue, rather than a public health problem. And the results are devastating.
Like in too many criminal justice systems throughout the nation, minorities are unfairly targeted by California’s HIV laws. Black and Latino people make up an overwhelming 67 percent of individuals prosecuted for exposing others to HIV despite only representing 51 percent of HIV/AIDS cases in California.
Hussain Turk, a UCLA law alumnus who is HIV-positive, said he thinks California’s current laws promote violence and domestic abuse. Turk said people have used HIV transmission laws as a way to seek revenge against their HIV-positive partners.
This sentiment is echoed by Dr.Edward Machtinger, a UC San Francisco professor of medicine and director of the Women’s HIV Program at UCSF. Machtinger said people can be held hostage in abusive relationships because of their fear of prosecution for being HIV positive.
Machtinger said current criminalization laws written before the existence of effective HIV medications scare people away from being tested and beginning treatment. These laws alsoincrease the risk of more infections by shaming individuals who are HIV positive.
Indeed, because of these laws and the stigmatization that they create, HIV remains a tough disease to disclose.
Today’s HIV medications, if taken regularly, allow people to have undetectable HIV viral loads in their bloodstream and thus, lead lives without the risk of transmitting the virus to their partners.
It is clear SB 239, which is awaiting Gov. Jerry Brown’s approval, must be signed into law given the egregious problems resulting from California’s antiquated legislation.Threatening HIV patients with felonies has never been the appropriate means to tackle the HIV epidemic. HIV-positive individualswill continue to live with the fear that a felony is running through their veins, so long as the archaic laws from the 1980s continue to be enforced.
Of course, many SB 239 opposers believe that decreasing the offense of exposing partners to HIV from a felony to a misdemeanor will lead to a resurgence of new HIV infections. But, as Weiner points out, HIV is the only communicable disease being treated as a felony. Other life-altering diseases, like syphilis for instance, only lead to misdemeanor charges. As such,thosewho purposely infect their partners will still be prosecuted but on the chargeof a misdemeanor, which is the standard for all other serious communicable diseases.
California ranks among the highest number of HIV cases in the nation, so it is crucial to acknowledge the indisputable failures of the current law and support SB 239. This bill can put an end to the discrimination experienced by those who are HIV positive and encourage people to get tested, therefore decreasing infections.
It is time to modernize these laws that promote racial injustice and stigmatization. And ultimately,people who are HIV positive are not felons; they just have an illness.
Australia: Proposed sexual health law in New South Wales is a step backwards & runs counter to good public health
PROPOSED SEXUAL HEALTH LAW REFORMS IN NSW SLAMMED BY EXPERTS
The reforms would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The New South Wales government has introduced a bill that would see people with HIV or an STI who fail to take “reasonable precautions” face a fine or up to six months in prison.
The Public Health Amendment (Review) Bill 2017seeks to make changes to Section 79 of the Public Health Act 2010, removing the existing law around disclosure of HIV, but replacing it with a new offence meaning anyone who knows they have an STI could be charged for not taking undefined “reasonable precautions”.
Sexual health organisation ACON has criticised the bill, saying it is at odds with good public health practice.
“Given that most of the STIs that would be covered by this proposal are treatable, it is our position that the new offence created in s79 introduces unprecedented, unjustified, and disproportionate penalties and runs counter to good public health processes,” ACON said in a statement on its website.
“This new offence could deter people from sexual health testing and contact tracing. The evidence indicates that HIV and other STIs are more likely to be transmitted via someone who has undiagnosed infection.”
ACON said that STIs are a health issue, not a criminal issue, and called on concerned members of the public to contact NSW Minister for Health Brad Hazzard.
Nic Holas of HIV organisation The Institute of Many agreed that the proposed new law is worrying.
“Those of us in the HIV-positive community are very concerned about the proposed changes to the Public Health Act,” he said.
“It used to be that you had to disclose your HIV status or face some kind of penalty, potentially. Last year the New South Wales government recognised that that kind of forced disclosure put all the responsibility on HIV-positive people, which was unfair and ultimately unhelpful in ending HIV.
“But now it seems what they’re trying to do is remove that—which is really great—and introduce punitive charges on anyone who’s HIV-positive or anyone with an STI if they don’t take reasonable precautions.”
Holas called the proposed law “really extreme” and said it could deter testing and result in worse public health outcomes.
“That’s extremely concerning for us, because the World Health Organisation says that those sorts of extreme punitive measures do the opposite of driving down rates of HIV and STIs, and send them upwards,” he said.
Holas said there is already provision under the law for a person intentionally spreading an STI to be charged with grievous bodily harm. He called for the proposed new offence to be scrapped.
“What’s far more important to ending HIV and the current high rates of STIs is to encourage testing and treatment, not heavy prison sentences,” he said.
Canada: Ontario leads the world in the over-criminalisation of HIV non-disclosure
Ontario a ‘world leader’ in unjustly prosecuting people living with HIV, advocates say
HIV-positive individuals being ‘criminalized’ when it comes to disclosing their status to sexual partners, by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission, critics argue.
It was around Christmas in 2008 when Chad Clarke said he got a phone call from a former partner screaming at him that he had given her HIV.
The next three years would see Clarke arrested for aggravated sexual assault, denied bail twice, pleading guilty to avoid a longer sentence, sent to prison where he was placed in protective custody, and put on the national sex offender registry for life.
The charge related to a failure to disclose his HIV status, although Clarke said that at the time he did not believe he was HIV-positive. Although he had tested positive in 2004, he said he had believed a second test showed he was negative. He said he’s been on medication, with an undetectable viral load, since 2008.
“HIV is not a crime,” Clarke, 45, told the Star in a recent interview. “It’s a public health issue. Isn’t health supposed to be key?”
People living with HIV in Canada risk an aggravated sexual assault charge and prison time if they don’t disclose their status to their sexual partner, unless a condom is used and the individual has a low viral load, which refers to the amount of the HIV virus in their blood.
Advocates have long complained of HIV-positive individuals being unjustly prosecuted by a criminal justice system that has failed to catch up to the science around HIV and the risks of transmission.
It’s an issue that is now on the agenda of federal Justice Minister Jody Wilson-Raybould, who has referred to an “over-criminalization of HIV non-disclosure” and is looking at introducing changes this year. But critics say the Ontario government has so far failed to match the federal government’s efforts in what remains a complex and sensitive area of the law.
“There are some serious injustices taking place right now,” said Ryan Peck, executive director of the HIV & AIDS Legal Clinic Ontario. “People living with HIV are being criminalized for engaging in behaviours that should not be criminal, and to make it worse, people living with HIV are being charged, prosecuted and convicted of aggravated sexual assault.”
It wasn’t long ago when the media proclaimed AIDS as the “gay plague” that carried a death sentence, but the stigma around HIV/AIDS has hardly disappeared, as advocates point to the continued criminal prosecution of those who don’t disclose their status to their sexual partners as one example.
At least 184 people in 200 cases have been charged in relation to HIV non-disclosure since 1989, according to a report published this year by the Canadian HIV/AIDS Legal Network. In Ontario, at least nine cases have been taken to court since 2012.
“When used correctly and no breakage occurs, condoms are 100 per cent effective at stopping the transmission of HIV,” according to a 2014 consensus statement published by a number of leading Canadian HIV/AIDS medical experts. As well, because of advances in medication that can keep a person’s viral load low or undetectable, advocates say that the risks of transmission are far lower than they once were, regardless of condom use.
Therefore, they say, HIV-positive people should not be required to be placed in the delicate position of disclosing their status, unless there is intention to transmit HIV as well as actual transmission of HIV.
“In the best of all worlds, that would be the right thing do,” Toronto criminal defence lawyer Cynthia Fromstein, who has represented many HIV-positive individuals, said of a person disclosing one’s status.
“However, people have faced bad reactions, people have faced violent reactions, to disclosing their HIV status. People are also just people, they face rejection, which is hard, and particularly if you know that you in fact don’t pose a risk to someone, then I think people don’t want to put themselves in that position.”
Matters are further complicated by the fact that Ontario has no official prosecutorial guidelines to help guide Crown attorneys in their approach to these cases, and to decide whether to even bring one to court.
It gets even more complicated when you consider the Supreme Court’s last pronouncement on the topic in 2012, where it was found that a person must disclose if there is a “realistic possibility of transmission,” a phrase that has left Crown attorneys and judges differing on just what that means.
The federal government has been studying the issue since last year, and it’s expected to be discussed at the upcoming federal, provincial and territorial justice ministers’ meeting in Vancouver this week.
The gathering comes almost a year after Wilson-Raybould announced last Dec. 1, World AIDS Day, that she intended to look into the criminal justice system’s handling of HIV non-disclosure cases and work on the issue with her provincial and territorial counterparts.
“HIV treatment has slowed disease progression to the point that, for many, HIV infection can now be regarded as a chronic, manageable condition,” she said in a statement at the time.
“Still, the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS. Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”
The Criminal Code contains no laws specifically related to HIV non-disclosure, but the offence of aggravated sexual assault — reserved for the most egregious sexual assaults — is typically laid in such cases, and almost always carries prison time following conviction.
HIV/AIDS organizations do not oppose prosecutions in the rare cases where an individual had the intent to transmit the HIV virus, although whether the charge should still be aggravated sexual assault remains a matter of discussion.
While the federal government is responsible for amending the Criminal Code, it is the responsibility of provincial Crown attorneys to apply the law, and use their discretion when deciding whether to prosecute a particular offence.
In a statement sent to the Star last week, the federal department of justice said the government hopes to provide an update on its work on the issue by the end of the year. But it also reiterated that enforcement of the laws is very much a provincial matter.
“The work currently being undertaken with provincial partners will allow each jurisdiction to make informed decisions about how to address prosecutorial and charging practices within their area of responsibility,” the statement said.
Advocates have demanded that Ontario Attorney General Yasir Naqvi order a moratorium on the prosecution of non-disclosure cases — except in cases where intentional transmission of the virus is alleged — until the federal government implements its plan, which may include prosecutorial guidelines that the provinces could choose to adopt.
Their pleas have so far proven to be unsuccessful, as Crown attorneys in Ontario continue to bring non-disclosure cases — even where the virus was not transmitted — to court.
“The intolerable fact remains that Ontario continues to be a world leader in unjustly prosecuting people with HIV,” the Ontario Working Group on Criminal Law and HIV Exposure wrote in an April letter to Naqvi.
“The pattern of zealous, overly broad prosecution of people living with HIV in Ontario is the result of deliberate choices, both by individual prosecutors and (the Ministry of the Attorney General).”
Naqvi’s office said last week that he did meet with the working group last year, and that during the meeting, “the attorney general reiterated his commitment to work with the federal government as they review the way our justice system handles HIV-related cases.”
The discussion between advocacy groups and successive attorneys general in Ontario on non-disclosure prosecutions have been described as more or less one-sided, with very little progress being made on the government’s side.
Several years ago, the government did propose prosecutorial guidelines for non-disclosure cases, but the three outside experts allowed to read them — and who are also barred from discussing their contents — said they were so bad they told the ministry that no guidelines would be a better option.
“I don’t think it would be fair to say that we were consulted in the drafting of anything,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network, who was one of the three experts, along with Peck and criminal defence lawyer Jonathan Shime, to see the draft.
“We had repeatedly put forward our ideas about what we thought they should be about.”
Among those suggestions: an acknowledgement that an undetectable viral load alone means there is no realistic possibility of transmission, regardless of condom use.
What prosecutors do have access to is a so-called “practical guide” prepared in 2010 by Hamilton Crown attorney Karen Shea, who successfully prosecuted Johnson Aziga for first-degree murder, an infamous 2009 case in which two of the women infected with HIV by Aziga later died from AIDS. Aziga’s trial heard that he had known since 1996 that he was HIV-positive, but did not start taking medication until 2005, two years after his arrest.
Shea’s 72-page document, which the Ministry of the Attorney General fought for years to keep secret after receiving a freedom of information request from Toronto lawyer Marcus McCann, covers everything from the elements the Crown must prove to secure a conviction, to the kind of information that should be sought on an HIV-positive individual from public health officials.
McCann expressed concern that the guide could have a chilling effect on individuals seeking help from public health authorities, as the guide encourages Crowns to seek information on accused persons from public health to use in court.
Indeed, HIV test results and other information gleaned from public health have been put on the record in court by the Crown at bail hearings and trials in non-disclosure cases.
The provincial government has previously acknowledged that while it’s not an official policy or guideline, Shea’s guide has been used to assist other Crown attorneys, although it’s unclear which parts are still consulted given that the science and case law have evolved since 2010.
“Many roads lead to Karen Shea. I don’t think she’s the only destination, but she is clearly on the turnpike as one of those stops,” said Elliott at the Canadian HIV/AIDS Legal Network.
Shea declined to comment to the Star.
Crown attorneys take into account scientific developments and new case law when considering to prosecute a case, said a spokesperson for the Ministry of the Attorney General, who confirmed that the ministry’s criminal law division has a “group of experienced prosecutors who are available to provide advice on HIV exposure cases,” but didn’t say who is part of that group.
The last time the Supreme Court ruled on HIV non-disclosure, in a 2012 case known as R v. Mabior, it found that disclosure was not necessary if the individual had a low viral load and a condom was used.
But Chief Justice Beverley McLachlin, writing for a unanimous court, also said that the double requirement “does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.”
The meaning of that statement has played out in Canadian courtrooms since 2012, including in a recent Brantford non-disclosure case, where the Crown argued that Mabior requires low viral load andcondom use to avoid disclosure obligations, but the judge found otherwise.
The case involved a man, C.B., who has a low viral load but did not disclose to two women before having condomless sex. He was subsequently charged with two counts of aggravated sexual assault. Neither complainant was infected with HIV.
The trial took place in April, four months after Wilson-Raybould announced the federal government would target the over-criminalization of HIV non-disclosure.
Testifying for the defence, Dr. Philippe El-Helou, director of the HIV Clinic at McMaster University, said that in all of his years treating HIV patients, “he has not seen a transmission occur from a carrier who has an undetectable viral load,” Ontario Court Justice Robert Gee wrote in his decision.
The judge acquitted C.B. of all charges.
“The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?” Gee wrote in a ruling released last month.
“The defence takes the position that the Supreme Court’s decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.”
Gee sided with the defence, accepting El-Helou’s evidence that given C.B.’s undetectable viral load, “the risk of transmission in this case was as close to zero as can be measured.”
It is exactly the kind of case that advocates have long demanded be kept out of courtrooms in the first place, and why they hope sound prosecutorial guidelines would be of great help to Crown attorneys.
Chad Clarke has become an outspoken advocate since leaving prison in 2011, marching in the streets and speaking at numerous HIV/AIDS conferences. What he would most like to see is his name taken off the sex offenders’ registry.
He said he has post-traumatic stress disorder that goes “through the roof” every year when he has to sign in with police, one of the conditions of being on the registry. He lives on a fixed income, applying for jobs is difficult, and family relationships are strained.
“If you want to keep the charges against me, I’ll live with that, but take me off that damn sex offenders’ registry, because every day that I look at myself in the mirror, I see myself as a sex offender, and that’s not cool,” he said.
“I would like to personally see that instead of sticking this person in jail, you get them a point of care, you get them on medication right away, you get them mental health care, because trust me, mental health (issues) will go with you the rest of your life if you have HIV.”
How a group of dedicated advocates in Colorado ‘modernised’ their HIV-related laws to improve the legal environment for people living with HIV. Featuring Barb Cardell and Kari Hartel of the Colorado Mod Squad and Colorado State Senator, Pat Steadman.
Interviews by Mark S King
Written and introduced by Edwin J Bernard • Directed and produced by Nicholas Feustel for the HIV Justice Network
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