The nightmare Nick Rhoades has been living the past four years began after a one-time sexual encounter with another Iowa man, Adam Plendl. It was June 2008. The 34-year-old Rhoades, who is HIV positive, says he was on antiretroviral medications.
Blogger explains why she would never use the criminal law to punish her husband for infecting her
Here are two U.S. organisations that can sometimes offer legal help and can certainly offer advice and support for those facing prosecution for HIV transmission and/or failure to disclose a HIV+ status.
Journalist Rod McCullom interviews Rep Barbara Lee about the REPEAL HIV Discrimination Act
Pop quiz: Which nation leads the world in the prosecutions of HIV exposure and/or transmission? Perennial human rights violators such as Russia, China, or dictatorships in the Middle East or Africa? Not even close. The surprising answer: The United States. In more than 60 nations it is a crime to expose another person to or transmit HIV.
Relations Between Poz And Neg Men Need Work
Relations Between Poz And Neg Men Need Work Posted 8/23/2012 3:00:00 PM We live in a sero-discordant world and you would think that thirty-one years into the epidemic we would have made great strides in the relations between poz and neg men. However, it’s increasingly clear that is not the case.
Concurring Opinions " Margo Kaplan on Gawker, HIV, and Magic Johnson
the Law, the Universe, and Everything Margo Kaplan on Gawker, HIV, and Magic Johnson Margo Kaplan is a new assistant professor of law at Rutgers-Camden . After reading a recent Gawker post on NBA great Earvin “Magic” Johnson, she wrote the following, which we are happy to post: “On Wednesday evening, popular blog Gawker.com aired a post offering a cash reward for the identity of the individual who transmitted HIV to Magic Johnson.
Canada: Journalist Noreen Fagan examines what the Supreme Court ruling might mean for people living with HIV
Risk assessment Since HIV is no longer a death sentence, should the law still make it illegal for someone with the disease to keep that information from a sexual partner? With the Supreme Court set to answer that question this fall, NOREEN FAGAN examines the implications for society and those with HIV.
Criminalizing the HIV-Positive Community |News | Towleroad
Despite a spate of good news for the eradication of HIV — the FDA’s approval of Truvada to prevent its transmission, the Supreme Court decision upholding the Affordable Care Act and thus retaining the ACA’s great benefits for those living with HIV, and the lifting of the HIV/AIDS travel ban that allowed the International AIDS Conference to take place in Washington, D.C.
People with HIV Fear Unfair Treatment in Courts
People with HIV Fear Unfair Treatment in Courts Originally printed (Issue 2032 – Between The Lines News) Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.
US: Illinois modernises its HIV-specific criminal law
By Ramon Gardenhire (from AIDS Foundation of Chicago)
In my role as director of government relations for the AIDS Foundation of Chicago (AFC), I have to come to terms with the reality that the legislative process often means having to make ugly compromises.
This sentiment hit home this past legislative session, when the Illinois General Assembly passed a bill that would amend the state’s law that makes exposing someone to HIV a crime.
The Illinois criminal transmission of HIV law, on the books since 1989, has no basis in science, discriminates against people with HIV, and stigmatizes HIV.
AFC strongly opposes the law and fights for its repeal. However, when it became abundantly clear that SB 3673 was going to pass with overwhelming support, we made a strategic decision to work the bill’s sponsor to minimize the legislation’s harm as much as possible.
We decided to make a bad law better.
SB 3673, introduced by Sen. Dale Righter (R – Mattoon) and sponsored in the House by Rep. Jim Sacia (R – Freeport) unanimously passed both chambers in the Illinois General Assembly. It amends the current HIV criminal transmission law to allow prosecutors to access medical records to learn if someone knew their HIV status, a fact that has to be established before an individual can be prosecuted.
This bill was a response to a tragic case in Whiteside County, Ill., in 2009, involving a man who allegedly knowingly exposed several women to HIV. The state’s strong HIV confidentiality law prevented police from accessing the suspect’s medical records to determine if he knew he had HIV. After charging him with 13 counts of criminally transmitting HIV to another person, the man was only sentenced with one count. There was no way to prove that he had knowingly exposed his partners to HIV.
We fear that the amendment to the law would deter individuals from testing for HIV because they could be prosecuted for criminal HIV transmission if they learn their status. Earlier versions of the bill would have allowed access to social service agency and counseling records; AFC and allies were able to remove this provision, which would have had a chilling impact on testing and risk-reduction counseling.
AFC and our partners, ACLU of Illinois and AIDS Legal Council of Chicago, were able to negotiate significant changes to the underlying law in return for not working against the provision that allowed access to medical records. The changes we made are below. This bill:
1. Requires that prosecutors prove that an individual specifically intended to transmit HIV to another individual – This is an increased legal standard that prosecutors must meet and consider before bringing criminal charges.
2. Limits acts of transmission to only “sexual activity without the use of a condom” – Prosecutors cannot charge individuals for activities that will not transmit HIV, such as biting or spitting.
3. Defines the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse – This means no more criminal transmission cases for oral sex or kissing.
4. Exemption from prosecution if a condom is wore during sexual activity – No more criminal charges if a person uses a condom.
Although the amended law significantly narrows the situations that could result in prosecution for criminal transmission, these cases are likely to always involve “he said he said” or “she said” cases that happen between the sheets with no witnesses.
It will be one person’s word against the other to determine if the couple used a condom and which sex acts they engaged in. Cases will hinge on whether the infected partner disclosed his or her HIV status before having sex. Too often, former partners press charges for criminal transmission as retaliation when a relationship has soured.
The bill does include an important protection against prosecutorial abuse. Judges must approve all requests for medical records, and the judge reviews records and determines if they are before they are turned over to prosecutors. However, AFC and other advocates will remain vigilant to ensure that abuses do not occur.
The bill has been sent to Gov. Pat Quinn who will likely sign the bill into law. According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV criminal transmission laws. The bill strikes an apprehensive compromise between HIV advocates and law enforcement. While the bill is an improvement, it still contains problematic sections. AFC will continue to monitor the law once it is enacted, and look for opportunities to repeal it altogether.
Denmark: Safer sex without a condom (editorial)
Below is an excellent editorial by Henriette Laursen, director of AIDS-Fondet, and Susan Cowan, staff specialist at Statens Serum Institut, on the current state of HIV science and how it should impact the Danish Government’s deliberations on whether or not to enact a new HIV-specific criminal statute following the previous statute’s suspension in February 2011.
Henriette tells me that the Government’s deliberations are still ongoing and that there will be no decision before the end of summer. But, she notes, “I guess the longer [Denmark is] without a penal code the easier [it is] to prove the country can live without [an HIV-specific law].”
The original Danish article, published in Information on 12th June 2012, can be found here. This is my English translation (with the assistance of Google translate) which might not be completely faithful to the Danish. Nevertheless, the ideas and arguments in the editorial are unchanged from the original.
Safer sex without a condom
The Ministry of Justice’s proposal to revise the Penal Code on HIV, may have the consequence that those who can infect cannot be punished, and those who may be punished, cannot infect
In medical records, you can now find advice from infectious disease physicians to HIV patients which say thinks like: “Has been informed that (s)he has a sustained fully suppressed HIV and can drop the condom.”
‘Safer sex’ for a person living with HIV today is not just sex with a condom, but also sex while under medical HIV treatment.
Medical HIV treatment today has the status of an adequate protection against infection in line with – or even more effective – than condom use. It is therefore completely by the book for the doctor to inform their successfully treated patients that they can drop the condom – in order to have children the old fashioned way, for example.
This knowledge, however, is not so well known outside of the medical field. Not least in the context of both the past and the present Government’s deliberations on what to do with the Danish HIV-criminal provision which is currently suspended because HIV is no longer a life threatening illness.
As an alternative to the former penal provision working group under the Ministry of Justice suggested that HIV-infected persons who know their HIV status should be punished by up to two years in prison for having sex without a condom. This is completely without regard to whether the patient could possibly infect anyone due to the effects of medication.
To date, fifteen years after the introduction of effective HIV treatment, not a single case has been documented where a well-treated person with HIV has infected another person through sex.
Infection comes rather from HIV-infected persons who do not yet know their HIV status and therefore not in medical care. Due to their lack of knowledge that they are HIV-positive, for good reason these people are not penalized.
The infectious cannot be punished
If implemented the working draft statute broadly means that those who can infect cannot be punished, and those who may be punished, cannot infect.The Working Group did not wish to limit the provision to people with HIV who actually are infectious, because it would be too difficult for the prosecution to prove this during a trial. [Editor’s note: this is exactly the same weak argument that the Manitoba and Ontario Crown Prosecutors used in the Canadian Supreme Court.]
The Working Group evidently believes that that the same difficulties are not present when it comes to prove whether or not a condom was used.
Strange approach
It seems quite odd that it would be easier to prove what happened between two people in a bedroom than through medical records to determine whether the person with HIV at the time was under HIV treatment, where outcomes from regular blood tests can show that HIV is reduced to a degree which means that they cannot infect.We would ask that future legislation is based on current knowledge about HIV. Since the implementation of the previous HIV criminal law there have been so many advances in the field that it no longer makes sense to criminalise HIV transmission.
HIV should now be equated with other serious infectious diseases and not have its own special rule in criminal law. HIV should instead preferably be fully addressed in the health system.
Harmful criminalisation
It should also be taken into consideration that the criminalisation of HIV transmission in our opinion does not help when it comes to limiting the spread of HIV. On the contrary, the fear of punishment means people hide and are not tested for HIV. It is not only harmful to the individual, who is at risk of illness and even death, but also for prevention.If Government and Parliament, however, focused on work to clear the prejudice and stigmatisation of people living with HIV out of the way by implementing a decriminalisation of HIV, it would be of great benefit for prevention.
The time has come to repeal the HIV provision in the Penal Code. Medical advances mean that HIV is no longer the same kind of illness that it was 10 and 20 years ago.
Some people may be reassured if a small part of the Criminal Code is preserved to allow prosecutions for very egregious cases when a person knows their HIV status, is not on medical treatment, and in a reckless manner repeatedly and knowingly exposes others to infection. But to introduce the provision as proposed is not only pointless, but downright harmful for HIV control in Denmark.