Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we 

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

  • Sixty-nine countries still criminalize same-sex sexual relationships.
  • More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
  • One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
  • Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk. 

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn dismissal of appeal in Singapore HIV criminalisation case

The Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN) condemn the dismissal of the appeal by a Singaporean man living with HIV who was convicted to two years’ imprisonment for not disclosing his status to his sexual partner and for not communicating the risk of HIV transmission to his sexual partner. We are particularly concerned that the judgement has emphasised the lack of explaining the risk of HIV transmission as the main reason for dismissing the appeal.

“HIV prevention is a shared responsibility and therefore not the sole responsibility of people living with HIV. If more people are sensitised to the rights of people living with HIV, including their sexual rights, and were aware of the mechanisms of HIV transmission there would be far less stigma and discrimination towards people living with HIV. Furthermore, HIV criminalisation creates a bad public health environment where people living with HIV have fears in disclosing their status, which lead to delay in engaging in care and treatment,” said Rico Gustav, Executive Director of GNP+.

According to the Infectious Diseases Act in 2016 of Singapore, Section 23 (1) a person who knows that he has HIV Infection shall not engage in any sexual activity with another person unless, before the sexual activity takes place — (a) he has informed that other person of the risk of contracting HIV Infection from him; and (b) that other person has voluntarily agreed to accept that risk.

“HIV is the only disease singled out as a transmittable disease in the Infectious Diseases Act,” said Edwin Bernard, Global Co-ordinator of the HIV Justice Network. “Not only does this perpetuate stigma, it also creates a false sense of security, suggesting that only people with diagnosed HIV can transmit HIV, when many new infections come from those who are undiagnosed. Ironically, a law such as this one that places such an onerous burden on people with diagnosed HIV, is only likely to make HIV testing, and open and honest discussions around HIV, less likely.”

Furthermore, the facts of the case reported in the judgement suggest that there was no effective HIV risk during any sexual activity, regardless of whether or not disclosure – and acceptance of risk – was established beyond reasonable doubt. Condoms were used early in the relationship, and subsequently when condoms were not used, the unjustly convicted man had a very low viral load.

As expressed in the Expert Consensus Statement on the Science of HIV in the context of criminal law, HIV criminalisation laws and prosecutions have not always been guided by the best available scientific and medical evidence, have not evolved to reflect advancements in knowledge of HIV and its treatment, and can be influenced by persistent societal stigma and fear associated with HIV. HIV continues to be singled out, with prosecutions occurring in cases where no harm was intended; where HIV transmission did not occur, was not possible or was extremely unlikely; and where transmission was neither alleged nor proven.

GNP+ and HJN not only strongly condemn this legislation and the dismissal of appeal of this case, but all kinds of HIV criminalisation, which often entails legislation that is applied in a manner inconsistent with contemporary medical and scientific evidence and includes overstating both the risk of HIV transmission and also the potential for harm to a person’s health and wellbeing. Such limited understanding of current HIV science reinforces stigma and may lead to human rights violation and undermines efforts to address the HIV epidemic.


HJN Logo Rectangle

Canada: Alexander McClelland reports on the 8th Symposium on HIV, Law and Human Rights

Working to end the criminalization of HIV in Canada

On June 14, I travelled to Toronto to meet with leading activists, researchers and experts working to end the criminalization of HIV in Canada for the 8th Symposium on HIV, Law and Human Rights. Organized by the Canadian HIV/AIDS Legal Network, the annual forum for the past few years has focused solely on advocacy to end Canada’s position as a global leader in the criminalization of people living with HIV for alleged non-disclosure, exposure and transmission.

At a time when HIV has lost traction on both the political and public radar, years of dedicated advocacy to reform HIV criminalization have commanded political will to address change on this issue. This year, I felt the impact of our advocacy and the increased political will in the presence of Canada’s Minister of Justice and Attorney General the Hon. David Lametti and in the remarks that he made. Mr. Lametti opened the day with a promise to continue the process, initiated by his predecessor Jody Wilson-Raybould in 2016, to reform the “over-criminalization” of HIV. He acknowledged that the recent federal directive (which is only applicable to the territories) was not enough, further committing to engage with provinces to motivate similar directives in the provinces to address ongoing criminalization.

During the Q and A, he was pressed on the Ontario government’s recent cuts to legal aid, which will have a devastating impact on people’s right to access justice, including people living with HIV who are criminalized. Lametti promised to work to support legal aid services and also told the media afterwards that, if re-elected, he would continue reform efforts, even making HIV criminalization an election issue.

The real-life impact of criminalizing HIV non-disclosure

Following Mr. Lametti came the panel on the lived experiences of people who have been criminalized. Here, I presented outcomes from my doctoral research, where I interviewed people across Canada who had been charged or prosecuted with aggravated sexual assault due to alleged HIV non-disclosure. Many of these individuals are now registered as sex offenders. Research was also presented from the Women, ART and the Criminalization of HIV (WATCH HIV) study, revealing how women with HIV live in fear, under constant surveillance due to HIV criminalization.

During this panel session of lived experiences came the most powerful moment of the day: Michelle W., a member of the Canadian Coalition to Reform HIV Criminalization and survivor of HIV criminalization, spoke of her experiences as an Indigenous woman, surviving years of sexual abuse at the hands of men, and of her life as a former sex worker and drug user in Vancouver’s Downtown East Side. She is now a registered sex offender, having served an over two-year sentence on charges of aggravated sexual assault for alleged HIV non-disclosure. The charge came about after she fled her abusive ex-boyfriend, who then went to the police out of revenge. Michelle brought the room to tears, garnering a standing ovation. Her experiences outline the vital importance of centring our advocacy efforts on lived experiences, and the need for an intersectional analysis of the issue of HIV criminalization to hold the legal system accountable for the devastating impact it has had on women, particularly Indigenous women.

Canada “one of the worst in the world”

A particularly eye-opening moment during the day was when Edwin Bernard, global coordinator for the HIV Justice Network, presented an overview of the global environment of HIV criminalization. He mentioned his own fears of the distinctively harsh context in this country, noting that as someone living with HIV, he feels scared when visiting from the United Kingdom that he could become subject of our harsh laws. He further stated, “Canada’s criminalization context for people living with HIV remains one of the worst in the world.” But he also said that activism here is mobilizing for change in inspiring and pioneering ways.

To address next steps for changing our global distinction and the ongoing harms of the criminal law, further sessions focused on how to achieve legislative reform, as well as the consequences of changing the current legal approach. This included discussions of removing the laws of sexual assault from being applied to cases of HIV non-disclosure, meaning that the sex offender registry would no longer be a mandatory outcome of prosecutions.

Next steps and potential pitfalls

Discussions also focused on the double-edged sword of mobilizing science for legal reform. Science has so far helped to inform reform efforts, such as the recommendation that criminal laws no longer be applied to people who have an undetectable viral load. However, this has the potential to turn viral suppression into a dividing line for criminalization, opening the door to further marginalize and criminalize people without (or with limited) access to medication coverage, such as migrants and homeless people.

A further complication with reform efforts is that a shift away from criminal laws may mean a greater reliance on public health authorities, who are also known to apply coercive and stigmatizing practices. This might mean intensified forms of surveillance of people living with HIV, such as mandatory viral load reporting, and the increased use of public health legislation to mandate treatment.

The week after we met, the House of Commons Standing Committee on Justice and Human Rights released their report on the criminalization of HIV non-disclosure. The report included a major positive recommendation, to remove HIV non-disclosure from the laws of sexual assault ̶  This development was many years in the making. However, the report also asks for a new law to be developed, one that would apply to all communicable diseases. There’s still more work to do.

Strategizing collectively has been a success of the movement to reform HIV criminalization in Canada, one of the inspiring things about Canada’s response that Bernard noted in this presentation. In the end, this symposium helped to continue to strengthen and galvanize our work to change Canada’s heinous distinction as a global leader in criminalizing our community.

Author: Alexander McClelland

South Africa: Constitutional Court Justice Edwin Cameron, a leading figure on HIV and the law, to retire in August

Justice Edwin Cameron to step down in August after 25 years as a judge

Justice Edwin Cameron is expected to retire as a judge on August 20, the Constitutional Court announced on Twitter on Thursday.

Cameron is expected to step down from the apex court on the 25th anniversary of his appointment as a judge.

Cameron, who worked as a human rights lawyer during apartheid, defended ANC members and fought for gay and lesbian equality, according to his profile on the Constitutional Court’s website.

He revealed that he was HIV positive in 1999, at a time when many people living with the virus faced significant stigma from a deeply ignorant public. He contracted the virus in the late 1980s.

In 2017, he told the Constitutional Hill website: “The stigma is still enormous. It would be helpful if we had more [prominent people open about being HIV positive], but each has to take that decision personally.”

Cameron, a keen cyclist, was appointed to the Constitutional Court in 2008 by then acting president Kgalema Motlanthe.

The announcement about him stepping down has been met with sadness. There were also expressions of admiration for what he accomplished over the years.

US: American Medical Association adopts policy to advocate for repeal of legislation that criminalises nondisclosure of HIV status

Catch up with the news and other key moments from the AMA House of Delegates’ meeting in Chicago. The 2019 AMA Annual Meeting wrapped up on June 12.

Thursday, June 13

Prison inmates and staff should get more health education, training. Poor health outcomes are rampant in U.S. jails and prisons, thanks to subpar hand hygiene, oral health and other factors. The AMA, in a vote yesterday, also backed giving incarcerated women access to contraception. Read more.

Doctors back funding plans to end HIV epidemic. In a strong show of support for major action to “end the epidemic of HIV nationally,” delegates yesterday voted to advocate funding plans that focus on:

  • Diagnosing individuals with HIV infection as early as possible.
  • Treating HIV infection to achieve sustained viral suppression.
  • Preventing at-risk individuals from acquiring HIV infection, including through the use of pre-exposure prophylaxis (PrEP).
  • Rapidly detecting and responding to emerging clusters of HIV infection to prevent transmission.

In a separate action, AMA delegates took action to address the 32 states and two U.S. territories that have punitive laws criminalizing individuals who fail to disclose HIV status to sexual partners.

“Current criminalization laws are outdated and do not reflect the current science of HIV transmission or the fact that HIV is a chronic, but manageable medical condition—particularly since nondisclosure of other infectious diseases is not criminalized,” said AMA Board Member E. Scott Ferguson, MD.

People with HIV who take antiretroviral therapy medication as prescribed and are able to get and keep an undetectable viral load have effectively no risk of transmitting HIV to their HIV-negative sexual partners.

In light of that, delegates adopted new policy to:

  • Advocate for repeal of legislation that criminalizes nondisclosure of HIV status for people living with HIV.
  • Work with other stakeholders to develop a program whose primary goal is to destigmatize HIV infection through educating the public, physicians and other health care professionals on current medical advances in HIV treatment that minimize the risk of transmission due to viral load suppression and the availability of PrEP.

US: Black/queer communities bear the grunt of HIV criminalisation laws

How HIV Stigma Leads To The Criminalization Of Black Queer Communities

After the 1990s, many black and queer people have been charged with crimes related to stigma.

After the HIV/AIDS epidemic in the 1990s, many black and queer people have lived with the stigma attached to their communities. 

The association between the disease and queerness began when many of the first cases involving HIV concerns were found among gay men in 1981. Though it has been proven having sex with queer folks doesn’t constitute transmission of HIV, many remain less informed on the topic. 

This belief has filtered into the criminal justice system, where queer people have been targeted as the culprits of HIV and AIDS transmission. According to Centers for Disease Control and Prevention, 60 percent of black people who receive HIV diagnoses are queer, black men. 

They say 90 percent of black heterosexual women have received a positive HIV diagnosis. Those who are infected with HIV often receive proper care, wear condoms, or have successfully suppressed the virus. Yet, black queer folks tend to have more encounters with the criminal justice system regarding possible HIV exposure, transmission, and disclosure. 

In 2015, a black gay man named Michael Johnson was charged with reckless exposure in Missouri, for not disclosing his HIV positive status with his partners. Missouri’s law states partners must disclose their HIV positive status, even if they are practicing safe sex. 

He was later portrayed by media and prosecutors as a predator, and often referred to as the screen name he used to meet potential partners: “Tiger Mandigo.” Because his accusers were white gay men, who possibly saw Johnson as a threat, he was sentenced to 30 years in prison. 

HIV criminalization laws, like the one in Missouri, refuse to look at advances in HIV prevention and care. Instead, they look to lock up folks to stop the spread of what the law constitutes as a HIV epidemic. 

Science has proven HIV criminalization laws are not reducing the transmission of HIV. They are actually scaring folks, especially in black/queer communities, from going in for a HIV screening. If their diagnosis comes back positive, and they don’t share that information with partners — for fear of abandonment by their partners due to the stigma that HIV holds — they are subject to criminal prosecution. 

Since their formation, state laws have not been revised to reflect the advances in HIV treatment and prevention. Many HIV positive folks use condoms, ask for consent prior to sex, and receive treatment such as PreP. Some folks living with HIV are virally suppressed. 

Science has also shown the likelihood of HIV transmission is rare even if it is intentional. Some state laws even criminalize those with HIV for spitting or biting during sex, when science has shown saliva is not a method of HIV transmission. 

HIV criminalization laws specifically refuse to look at the evidence and use the stigma to target black queer communities for punishment, and exclude them from society. Southern states house 21 of the areas with the highest likelihood of transmission among black queer men. 

The South also has the highest mass incarceration rates, with states like Louisiana and Mississippi locking up black people the most. 

The logic, possibly, is if we lock away all those who are HIV positive for possibly transferring the virus to their partners, then the spread will be controlled and all risk will be eliminated. But, some rates of transmission have not changed despite HIV criminalization laws currently in place. 

For example, between 2012 and 2016, the rate of black, gay, and bisexual men with HIV diagnoses remained the same.

However, black/queer folks bear the grunt of these laws as they are often the target of incarceration. A total of 38 states have laws that punish people for having potential to expose someone to a STD, which includes HIV. 

Those laws include sentence enhancement if the case pertains to possible HIV exposure, transmission, or lack of disclosure. A total of 28 states have criminalization laws that are HIV specific. Then, 19 states specifically require those who are HIV positive to disclose their status to their sexual partners. 

Two-thirds of those with HIV, who are facing prosecution in states with HIV specific laws, are black. In almost every case of HIV specific prosecution, the accused have been convicted and sentenced to prison. 

Charging black queer people who are HIV positive with carceral punishment is another way of shaming them for enjoying pleasure in the guise of disease containment. If the point of ensuring safety from transmission is to contain the virus, then putting black queer folks in prison isn’t the answer. 

It instead reinstates more violence onto black/queer folks, and disregards their safety in a justice system stacked against them. It has been proven placing those who are HIV positive into prisons doesn’t de-escalate the epidemic. It only delays the process of getting everyone infected the care they need. 

It also continues to stigmatize black/queer communities who already have enough to worry about. States need to eliminate these HIV specific criminal laws and let black/queer communities live in peace.


Canada: B.C.’s improved HIV prosecution guidelines remain out of step with scientific evidence and international guidance

Richard Elliott: B.C.’s improved HIV prosecution guidelines don’t go far enough

Opinion: B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Last month, the B.C. Prosecution Service changed its approach to HIV criminalization.

A new policy provides direction to prosecutors in cases where someone is accused of not telling their sexual partner they are HIV-positive.

While the Prosecution Service has taken an important step toward limiting misuse of criminal charges in these cases, overall this new policy remains out of step with scientific evidence and extensive international guidance. The result is that people living with HIV in B.C. continue to live under the shadow of unjust prosecution.

No other medical condition has been criminalized as HIV continues to be. Just imagine being told you are HIV-positive. The news is overwhelming at first, but you take on board the medical advice given to you and you learn that thanks to modern medicine you can live a fulfilling, healthy and long life.

You go on to meet someone and have consensual sex. You use a condom, which is the safer sex practice recommended as a cornerstone of HIV prevention since the virus was identified decades ago.

But, because you didn’t tell your sexual partner you have HIV, you can be charged with aggravated sexual assault. Even though HIV cannot pass through an intact condom, you could spend years in jail and be designated a “sex offender” for the rest of your life.

The Prosecution Service has refused to clearly rule out prosecuting people who use condoms. Instead, its new policy only says that using a condom is a factor that “may” weigh against prosecuting someone.

This flies in the face of evidence-based recommendations given by advocacy and human rights groups around the world. These include the international expert consensus statement published last year by leading HIV experts — including three leading Canadian scientists (two of them from B.C.) — concerned that criminal prosecutions in cases of alleged HIV non-disclosure are often based on a poor appreciation of the science.

People living with HIV and advocates across Canada had hoped B.C. would prove itself to be a leader and go even further toward justice than the federal government has done.

In December, Canada’s attorney general issued a directive to limit HIV non-disclosure prosecutions. But it only applies in the territories, where federal prosecutors handle criminal prosecutions. It was disheartening to learn that B.C.’s new policy does not reflect the longstanding scientific knowledge we have about condoms and their effectiveness.

B.C.’s policy shows minor progress in limiting the overly broad use of the criminal law against people living with HIV. It is a positive step, for instance, that it now states there will be no prosecution in cases where the person living with HIV has a “suppressed viral load” for at least four months — this means they have had treatment to suppress the virus in their body to ensure there’s no risk of transmission.

The new policy also says there should be no prosecution for having just oral sex, although with the caveat there must be “no other risk factors present.”

These positive updates reflect current scientific understanding, so it’s perplexing the Prosecution Service maintains an antiquated stance on condom use and persists in potentially prosecuting people who practice safer sex.

B.C. has missed an important opportunity to create an updated policy that considers and reflects human rights, updated science and international guidance on this issue. British Columbians, and especially people living with HIV, deserve better.

Richard Elliott is executive director of the Canadian HIV/AIDS Legal Network


US: It's time to change Missouri HIV criminal statutes and end stigma

Missouri’s HIV criminal statutes are due for an update

AIDS Project of the Ozarks (APO) is a non-profit community-based organization serving a 29-county region in SWMO including over 800 clients with HIV/AIDS and their families. In the early years of the epidemic, with no effective treatment options, an HIV diagnosis was tantamount to a death sentence.  My friends were dying and that’s why I became involved with this work. Not long after our founding in 1983, Missouri joined a great number of states in enacting strict laws that penalize people living with HIV (PLHIV) for engaging in sexual activity as one method to combat the epidemic.

Thankfully, much has changed in the 36 years since we were founded. With today’s medications, in a matter of months, people living with HIV are suppressing the virus in their bloodstream, rendering it incapable of transmission to another person. The Center for Disease Control confirmed this information in 2017.

Undetectable = untransmittable.

PLHIV are leading long, productive lives without the fear of exposing loved ones to the virus. Pre-exposure prophylaxis (PrEP) and condoms or other latex barriers are viable means of HIV prevention that unaffected partners can use to take control of their own risk of contracting the virus.

Yet, as the law stands in Missouri, if someone living with HIV cannot prove without a doubt that they have disclosed their HIV status to a sexual partner, they may be subject to Class B felony charges – the same as a 2nd-degree murder – even when no transmission of HIV has occurred. An HIV diagnosis is no longer a death sentence, however, our laws continue to treat it as such.

The stigma associated with HIV was built on top of misinformation during the 1980s. When APO started, we didn’t even put our name on the building directory because the fear of the stigma of HIV was an incredible barrier for people seeking testing and treatment. Today, we have a better medical understanding and more people are living longer with HIV. It is time to stop living bound by fear and paralyzed by stigma. As modeled by APO’s newly constructed facility with our large  sign on one of Springfield’s busiest thoroughfares, it is time to come out from the shadows. It is time for our General Assembly to embrace public policy, grounded in today’s medical realities, and modernize HIV-specific criminal codes.

Reps. Holly Rehder (R-Sikeston; HB 167) and Tracy McCreery (D-Olivette; HB 166) have come together in bipartisan collaboration. Public health and HIV are not partisan topics. We applaud the House Health and Mental Health Policy Committee for advancing a House Committee Substitute for both bills forward on April 15.

We urge Springfield’s own – Speaker Elijah Haahr – to schedule floor debate time for HCB HB 167 & 166 with ample time for amendments and discussion to resolve several outstanding concerns. We thank both sponsors for their bipartisanship, and we urge the same from their colleagues. The time is now to change the law and end the stigma. To send a message to your representative, visit

APO provides medical care, case management, education to the general public, and services to persons with HIV infection, their families and significant others in a confidential, caring environment. We also offer primary medical care to those who are not HIV positive, in a safe inclusive environment. Our walk-in testing schedule at APO (1636 S Glenstone, Suite 100, Springfield, MO 65804) is Mon, Tues, Thurs, and Friday 9am-Noon and 1-3pm; and at APO Downtown (303 Park Central West) 5:30 pm to 10:30 pm on Fridays and Saturdays with HIV, Hepatitis C, and syphilis, gonorrhea, and chlamydia testing. Safer-sex supplies are available at both locations.

US: Law student wins scholarship prize for writing about HIV criminalisation in Louisiana and its negative impact on women

Draconian state law criminalizing HIV exposure subject of winning paper by Tulane Law student

Louisiana is one of more than two dozen states with a law that criminalizes exposure to HIV, charging, prosecuting, jailing and labeling anyone who potentially exposes another to the virus as a sex offender.

An exposition of the broadly-written and punative state law and its impact on women is the subject of a paper written by third-year law student Rachel Brown, and the winner of the 2019 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights Law.

 “Your submission, When the Body Is a Weapon: An Intersectional Feminist Analysis of HIV Criminalization in Louisiana, stood out among an impressive showing by other writers,” the selection committee wrote to Brown. “We received many excellent papers that demonstrated solid research, innovative ideas, sharp legal analysis, and excellent writing skills – and yours was the most remarkable.”

The prize, co-sponsored by If/When/How: Lawyering for Reproductive Justice, the Center for Reproductive Rights (CRR), and the Center on Reproductive Rights and Justice at Berkeley Law (CRRJ), encourages innovative analysis and advocacy in writing about reproductive rights and justice issues.  It comes with a $750 award for Brown, plus publication in the Berkeley Journal of Gender, Law & Justice, one of the most prestigious national journals in gender law. Brown’s paper also will be adapted for other platforms, including the If/When/How website.

“The law’s draconian penalties devastate the lives of women convicted, all while failing to advance any legitimate public health or penological goal – ultimately, putting both HIV negative and positive persons at risk,” Brown said.

Brown’s paper provided analysis of how HIV criminalization in Louisiana is enforced in a discriminatory pattern, often targeting the populations mostly affected by the virus: women of color, trans women, sex workers and the poor. She initially wrote it for a law course called Feminist Legal Theory, taught by Saru Matambanadzo, the Moise S. Steeg Jr. Associate Professor of Law at Tulane.

“Rachel’s paper was a clear standout in our seminar,” said Matambanadzo. “She was among the more sophisticated thinkers in the course and her capacity to bridge activism with theory and her commitment to intersectional feminism is rare for a student at this stage. I’m excited that her hard work has been recognized by the Sarah Weddington prize.”

Brown, who has a master’s in social work from Tulane, said she is passionate about reproductive justice and chose the topic because of its severe adverse impacts on women. A third-year law student, she is the outgoing president of Tulane’s chapter of If/When/How: Lawyering for Reproductive Justice. She also is finishing a stint in the Civil Rights and Federal Justice Clinic.

 After graduation in May,  Brown plans to combine her social work background and new legal training to advance public policy in reproductive justice.