US: A summary of HIV-specific bills aimed at updating Michigan’s existing laws currently moving through Senate

Senate HIV Bills Package Explained

By Eve Kucharski| December 19th, 2018|Michigan, News

A package of bills is moving through the Michigan Senate that could change the way Michigan health officials monitor and address the HIV epidemic. Introduced last May in the Michigan House of Representatives, the eight-bill package contains HIV-specific bills that are aimed at updating Michigan’s existing laws that contain outdated language regarding issues like the spread of HIV, the role of local health departments in the virus’ treatment and criminal punishment for those who do not inform their sexual partner of their HIV-positive status.

Criminalization and Spread of HIV

Two bills within the package, 6020 and 6021, have come under extra scrutiny by some HIV advocacy organization around Michigan since they were amended from their original form to pass through the House. They were proposed by Democratic State Rep. Jon Hoadley of Kalamazoo who intended to “modernize our outdated HIV criminalization statute” by reducing the sentence for non-disclosure of one’s HIV status to a sexual partner from a felony to a misdemeanor, and to provide a change “to the sentencing guidelines” that currently exist.

“But the legislative process is never a linear line and there were still concerns that folks had around disclosure, around folks who are intentionally trying to transmit HIV without discussions and a number of other issues,” Hoadley said. “So, working in a bipartisan way to get as much as we could in the 99th legislative session, Dr. Canfield and I worked together with other stakeholders to put together a version of a bill that was able to then move.”

In a Dec. 11 Senate health policy committee, Republican State Rep. Edward Canfield said that the emphasis of the bill’s changes are on promoting treatment for HIV.

“I believe that what we’ve come up with in this package as it’s presented to you today really does bring the state of this health condition forward and helps people realize that getting treated is the best pathway,” he said. “… So it not only helps people live lives, but it protects our public health as well.”

The two bills now rest in the Senate, waiting on a decision before the lame duck session is over. Should they not come up for a vote, the bills will die and will need to be proposed again in the 100th legislative session in 2019. Hoadley said that despite the amendments the bills will provide two main benefits.

“The first is that we strike the very outdated definition that was used in the current law that criminalized behaviors, some of which can literally not transmit HIV. So, we’re really limiting the type of behaviors to vaginal and anal intercourse,” Hoadley said. “Second, we create a tiered system. So, if someone knows their status, does not disclose, acts with reckless disregard, and transmits HIV, that is treated at current felony level still. But, if they don’t transmit then that would potentially be a misdemeanor if all the other criteria are met.”

To illustrate his point, Hoadley said that currently there were 19 cases prosecuted under the current law that were considered felonies even though no transmission of the virus occurred.

“So, if this had been in the law, 19 people would have spent fewer of their years in prison,” he said.

Hoadley added that he feels the new bill will make current HIV transmission cases fairer because they will provide an extra level of defense for those who have been able to take medication and suppress their viral load — or literally reducing the function of the virus to undetectable levels within their system. People who have been medically suppressed for six months are “by definition not acting with reckless disregard, so they are not eligible for prosecution under the law.”

“So, for the first time in Michigan, as we work to continue making the criminal justice system fairer — there’s still a lot more to do there — people have a shield from accusations that they didn’t disclose or whatever the case may be, they have an affirmative defense,” Hoadley said. “That part is really groundbreaking as well.”

6020 and 6021’s Critics

But as groundbreaking as that defense is, it is only viable for those who can afford care to suppress their HIV. Critics of the bill’s changes like former BTL contributor Todd Heywood who is the chair of the Ingham Community Health Center board, testified against the legislation as an HIV expert. He said that this unfairly discriminates against people of color without access to treatment centers.

“There is already a racial disparity as it relates to the prosecution of people living with HIV. … Black men who have sex with women represented just 16 percent of the cases of people living with HIV (outside of Wayne County). They represented 36 percent of the prosecutions,” Heywood said. “We know in the state of Michigan and nationally that people of color have less access to medical care and have higher viral loads already. The way the current legislation is written will exacerbate this prosecution and create a deeper racial disparity that is unfair to people of color without addressing any of the other underlying issues.”

When asked about these racial disparities, Hoadley said he understands there is still much work to be done, but said he feels that this is a better alternative to the existing law on the books, citing it as “terrible about what it criminalizes.”

“I think we have to always be looking at race-based discrepancies in both our health system and our criminal justice system. One of the reasons I think the bill addresses a part of that is by eliminating many of the unscientific ways that someone could have gotten charged with these crimes previously, regardless of someone’s intent or not; everybody’s a little bit safer,” Hoadley said. “When we talk about discrepancies in the criminal justice system, this bill will, across the board, limit the number of folks who could even enter into eligibility of the law and also creates tiers. And part of that balancing act is that the current law captures so many more folks who could not even to some degree transmit HIV.”

In his testimony, Heywood also provided a numerical representation of the additional cost of maintaining a prisoner who has HIV using his own medication.

“Four bottles of one month’s worth of HIV drugs for me and I will tell you that that adds up to be between $62,000 and $67,000 a year to keep me alive,” Heywood said. “And we as taxpayers will then have to bear that burden when we put somebody in prison. That information is not in your fiscal analysis and I think that that needs to be taken into account. It is fiscally irresponsible when we have other options and ways to address this.”

Heywood’s reference to “other ways” refers to Michigan’s section of the public health code that addresses people infected with diseases that are “health threat[s] to others.” That statute does not criminalize those with contagious diseases, but rather puts them into immediate emergency treatment. His testimony suggested an amendment that would link the new bills to existing legislation.

“We could tie ‘health threat to others’ to this legislation which would then require that a person go through the probate process to address their HIV and the psychosocial issues that are involved in likely transmission behavior before they go through a criminal process,” Heywood said.

Hoadley said that he recognized the existing faults of the bill, but sees the currently rewritten legislation as a jumping off point to a more inclusive law.

“I think we have to continue to tackle places where we see discrepancies in health care,” he said. “For me, this shows why this project is a step in the right direction but not a finishing line.”

Privacy Concerns

Also included in the bills was a move to require women in their third trimester of pregnancy to get tested for HIV, Hepatitis B and syphilis. As written, the legislation would not allow a woman to opt out of such testing which essentially creates a system of mandatory testing. Currently, lawmakers are floating amendments that would allow a woman to opt out from the testing verbally. A second bill on testing would have mandated HIV testing consent be included in other general medical consents, and that a person not wishing to take an HIV test opt out in writing which presents a barrier to that process. Lawmakers are working on an amendment to allow people to verbally opt out of HIV testing.

Additional legislation would eliminate the 90-day record retention rule related to HIV partner services. The new legislation would allow the state to maintain those records indefinitely. Something they already do, in violation of Michigan law.

“Currently under Michigan law, the partner notification information that is solicited after somebody is diagnosed with HIV is only supposed to be kept for 90 days. What the state has not said publicly is that since 2003 they have been collecting that data,” Heywood said. “They currently have a database containing over 500,000 names and information of people at risk for HIV, living with HIV or tested for HIV. In addition to that, they shifted about three years ago to a federal database owned by the CDC not in the state of Michigan that all of that information is being stored on, in violation of Michigan law. ”

Lawmakers are working on an amendment which will allow the data to be maintained no longer that 365 calendar days.

An amendment related to partner services is also being considered which will prohibit local and state health officials from contacting a person identified as a sexual or needle-sharing partner of a person living with HIV, or the persons living with HIV when they have declined partner services.

“The problem with this is that there is nothing to stop me when I have a partner notification conversation with a health department official from saying — and I apologize Sen. Shirkey for identifying you — Sen. Shirkey and I shot needles of methamphetamine up and now Sen. Shirkey’s name is in a federal database as a methamphetamine user,” Heywood said. “Whether it is true or not, the senator would have no knowledge of that and no option to remove that from the database. That is deeply problematic.”

The lame-duck session is scheduled to end this week, Thursday. More updates about this legislation will come out as it moves through the Senate.

Published on December 19, 2018 in Pride Source

Belarus: Welcoming important developments in the fight against unjust HIV criminalisation

HIV JUSTICE WORLDWIDE along with our partners at The Eurasian Women’s Network on AIDS and Global Network of People Living with HIV (GNP+) welcome this week’s announcement of an amendment to Article 157 of the Criminal Code of the Republic of Belarus, which finally allows consent following disclosure to sexual partner as a defence. Whilst recognizing there is still a long way to go to remove all unjust criminal laws against people living with HIV in Belarus, we congratulate our partners and colleagues in Belarus People PLUS for this achievement!

Today, Parliamentarians of the House of Representatives of the National Assembly of the Republic of Belarus adopted in the second reading three bills, one of which was the law “On introducing amendments to some codes of the Republic of Belarus”. Among other changes, an amendment was adopted to article 157 of the Criminal Code of the Republic of Belarus (one of the most draconian HIV-specific criminal laws in the world), which now allows that people who have warned their partners will no longer be held criminally responsible for potential or perceived HIV exposure or transmission.

Until today, Article 157 states that people living with HIV are totally criminally liable for potential or perceived HIV exposure or transmission, even if the so-called injured party had no complaints against their partner, knew about the risks and consented. Prosecutions took place because infectious disease doctors informed police and many people were convicted (read Yana’s story here)

In 2017, 130 criminal cases were initiated under Article 157 of the Criminal Code of the Republic of Belarus, with another 48 in the first half of 2018. Now, it will be possible to revisit those cases.

Anatoly Leshenok, representative of the NGO, People Plus states: “The adopted changes are only the first step in achieving our goal of decriminalising HIV transmission. According to information received from the department for drafting bills, other, more fundamental changes to Article 157 of the Criminal Code of Belarus have not been approved. It is necessary to continue to work with these State structures and with public opinion in order to form a more tolerant attitude towards HIV-positive people. But those changes that have been adopted today – that’s a success for our team! ”

Anatoly Leshenok. Photo: UNAIDS Country Office in Belarus

After approval by the Council of the Republic and the President, the amendments will make it possible to revisit previous sentences of the courts, and improve lives of people that were broken previously, as well it provide opportunity now and in the future for people living with HIV in serodiscordant partnerships to plan their lives without worrying if they are criminals every time they have sex.

Kenya: Positive Justice campaign launched today to challenge unjust HIV-specific law

Today, on International Human Rights Day, the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK) and the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) have launched the Positive Justice campaign to finally end HIV criminalisation in Kenya.

Today's Positive Justice launch (photo: @KELIN via Twitter) — Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

In 2015, in Aids Law Project v Attorney General and Others [2015] the High Court of Kenya declared section 24 of the HIV and AIDS Prevention and Control Act unconstitutional and suspended the law. The High Court ruling focused on the absence of a definition for “sexual contact”, holding that it is impossible to determine what acts were prohibited. It also found the provision does not meet the standards for a justifiable limitation of the constitutional right to privacy.

However, Section 26 of the Sexual Offences Act (2006) still contains vague and overly broad provisions that have resulted in a number of recent arrests and unjust prosecutions for biting (March 2018), breastfeeding (September 2018), and alleged non-disclosure (December 2018).

Today’s Positive Justice campaign launch (photo: @KELINKenya via Twitter)

Consequently, today KELIN have filed a petition asking the High Court in Nairobi to strike down as unconstitutional Section 26 of the Sexual Offences Act on the grounds that it discriminates against people living with HIV, women, and the poor, and violates a number of fundamental human rights.

Download and read Petition 447 – which will be heard on 4^th March 2019 for directions – at this link: http://www.kelinkenya.org/wp-content/uploads/2018/12/Petition-447-of-2018-Final.pdf

According to a KELIN press release published today

The prosecuting authority’s interpretation of Section 26 of the Sexual Offences Act, as demonstrated by the prosecutions of several of the PLHIV challenging the law, effectively makes it a crime for a woman with HIV to birth and raise children. The prevailing interpretation also effectively criminalizes marriage between a person who has HIV and a person who does not.

“Laws that make criminals of people simply for having HIV ignore science. People who are on HIV treatment and are virally suppressed are not infectious. The key to a successful HIV response and ending AIDS is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible. Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” noted M.A, the fourth petitioner and a representative of the Discordant Couples in Kenya.

HIV criminalization laws are also notorious for abuse and arbitrary enforcement. “Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” cautioned Mr. Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK).

It is for this reason that five people living with HIV and stakeholders working in HIV response came together to file the petition and launch the campaign dubbed Positive Justice. The campaign seeks to raise awareness on the negative effects of enforcement of the law on PLHIV, and engage relevant stakeholders including the media, legislature, judiciary, law enforcers, and Ministry of Health in advocating for the rights of people living with HIV.

“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UN AIDS Fast Track targets in ending AIDS,’ said Mr. Allan Maleche, the Executive Director at KELIN.

Uganda: New efforts underway in Uganda to challenge HIV legislation, especially its provisions on the disclosure of HIV status

Kampala, Uganda | IAN KATUSIIME | Rosemary Namubiru, a nurse, was in 2014 sentenced to three years in jail for criminal negligence over what seemed a potential infection of a baby with HIV the virus that causes AIDS. Her crime was that as an HIV positive nurse, she placed the life of a baby in danger when she pricked herself with an injection she was administering.

In her defence, Namubiru said she pricked herself accidentally as sometimes happens among medical workers. But her pleas were cast aside as police and swarms of media cameras swooped on her. Test results for HIV infection on the baby were negative but Namubiru still served her sentence.

When she was released after one year of her sentence, she reportedly got threats to harm her from her neighbours and had to travel to the countryside and stay away from her home in Kampala for several months for her safety.

Although Namubiru was not charged under the HIV and AIDS Prevention and Control Act 2014, her case was widely discussed recently at a symposium organised for journalists by Uganda Network on Law, Ethics and HIV/AIDS (UGANET) meant to discuss better ways for which the media can report about the law. The symposium was held at Imperial Golf View Hotel in Entebbe.

UGANET has already challenged the law in the Constitutional Court but they say the symposium with journalists on Nov.6 and 7 was necessary to carry out more media sensitisation on the law. They said they have faced an uphill battle challenging the law; especially its provisions on disclosure of HIV status.

“The vagueness of some provisions of the law has caused many arrests,” says Dora Musinguzi, the Executive Director of UGANET.

Some of the contentious provisions of the law include Article 18 (2) (d) where the results of an HIV test may be disclosed or released to “a medical practitioner or other qualified officer who is directly involved in the treatment or counselling of that person, where the HIV status is clinically relevant.”

Musinguzi says this is “too wide a window” for the medical officer to operate in. The other provisions of the law are those that criminalise “attempted transmission of HIV” and “intentional transmission of HIV”. The argument against this provision is that it interferes with medical ethics and the doctor patient relationship. She added that criminalisation of HIV positive persons fuels discrimination as happened in the case of Namubiru.

Members of UGANET were unhappy with the way journalists covered Namubiru’s arrest. The general feeling was that the media led the public trial and conviction of Namubiru.

Government is fighting people with HIV

Beatrice Were is the embodiment of living positively with HIV; the virus that causes AIDS. She was a young woman when she discovered she was HIV positive in 1991. Two years later, she lost her husband and thought her world had ended. She even wrote a will. But thanks to a support environment, she took on a new turn as an HIV activist. Over the years, she has spoken at various forums both in Uganda and abroad.

However a few years ago, Were said at the symposium, she started worrying not because of the deadly virus but due to the HIV and AIDS Prevention and Control law. She said it has hindered some of her dreams.

“I love children and have always wanted to start a kindergarten but that law may kill the business,” she said and is worried of Article 18 (2) (e) in the HIV law which states that results of an HIV status may be disclosed to “any other person with whom an HIV infected person is in close or continuous contact including a sexual partner, if the nature of contact, in the opinion of the medical practitioner or other qualified officer, poses a clear and present danger of HIV transmission to that person.”

This means that a doctor can disclose the status of someone living with HIV to friends, workmates depending on the doctor’s assessment of the closeness. This possibility is something that alarms activists like Were.

She says the law ignores the high level of stigma attached to HIV/AIDS sufferers in Uganda and the caution required when disclosing a positive status.

She says, for example, she cannot start a kindergarten for fear of the law because a medical practitioner might disclose her status to children under her care and frighten some of them even if she poses no danger to them.

“I feel like the government is fighting people with HIV,” she says.

She says the proposed law is the latest sign that the government is making lots of steps backwards since the 1990s when it was regularly praised for its progressive policies on HIV/AIDS.

Were and other members of UGANET say the government largely ignored their views as the law was being made despite efforts to make their contribution.

HIV activists say that with the law in its current form, fewer people will be willing to come out on their status given the current environment.

“When the law is not there, you see a lot of Beatrices (Were) and less of Namubirus,” Musinguzi remarked.

Members of UGANET also oppose mandatory testing for HIV, citing mainly cases of partners of pregnant women.

“While some of these laws are well intentioned, mandatory testing laws are regressive,” says a lawyer who did not want to be named. “They drive people away from health facilities for HIV prevention and counselling,” she added.

Were says she is concerned about those who unlike her may fear disclosing their status and withdraw further due to the current legal regime.

“The law is a toxin in the environment of HIV where we have invested so much in the fight,” she said.

Activists selfish?

But Dr Medard Bitekyerezo, the chairman of the National Drug Authority and who was key in the composition of the law when he was a Member of Parliament for Mbarara Municipality says those who are against this law are being ‘’selfish’’.

“What happens when someone who smokes marijuana rapes your 12-year old daughter and infects her? Of course you test her and also this person to protect other people from him,” he explains.

Bitekyerezo says in the process of making this law, he and other MPs made serious consultations where a number of case scenarios were drawn up. “We are not traumatising or criminalising anybody. What is wrong with somebody knowing their status and then putting a safeguard? Let them not be selfish.”

He tells The Independent that part of the information that was used during the making of the law was gathered when he was chairman of Board of Trustees AIDS Information Centre (AIC).

On the charge of criminalisation, he says not everybody with HIV is bad-hearted. “There are some people who have HIV and behave more responsibly than those who are negative,” he adds that some of those who are positive are living safer lives.

Bitekyerezo who says he spent a lot of time in Mbarara treating HIV positive people says some of the clauses in the law have been misinterpreted. “There is no doctor who is going to disclose anyone’s status. He says the law is meant to help people who may be positive but have negative partners and are looking to conceal their status from the negative one.

“Activists don’t want to help people. The message to doctors and nurses is simple- safeguard the people in your hands, protect them from HIV.”

Outside the air-conditioned conference rooms of the luxurious Imperial Golf View Hotel, as those for and against argue and face off in courts of law, the media must now find new ways to cover contentious cases of HIV positive persons like Namubiru who get caught under a disputed HIV law.

Published in the World News on November 20, 2018

Eurasian Women's Network on AIDS launches awareness campaign to draw attention to HIV criminalisation in EECA region

Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” information campaign

By ChaseVirusNotPeople

The Eurasian Women’s Network on AIDS is launching the “HIV Is Not a Crime” awareness campaign, which aims to draw attention to the situation with the criminalization of HIV transmission in the Eastern Europe and Central Asia region. Within the campaign, we expect to hold discussions with activists and human rights defenders who will enhance their professional level, moreover, we will take efforts to change public opinion on the topic of criminalization.

We will focus on the following issues:

– Why does the criminalization of HIV transmission not solve the problem of the HIV spread?

– Why criminalization violates human rights?

– How are criminalization and gender related?

– How a person who is charged with transmitting HIV can defend themselves?

– … And many more questions, that you can write to us in the comments and send by letters and messengers.

The campaign “HIV Is Not a Crime” is one of the components of the “Chase Virus, Not People” campaign of EECA region community networks, which reflects the criminalization of HIV as one of the key barriers to access to treatment and support, conducive to an increase in new HIV/AIDS cases and mortality, and also being a violation of human rights.

The information campaign “HIV Is Not a Crime” is held within the framework of the project “HIV Criminalization Scan”, supported by the Global Network of People Living with HIV (GNP+). The project was launched in 2017 and produced an analytical report on the situation with the criminalization of HIV transmission in 9 countries of the EECA region, published in January 2018, as a preliminary result. You can read the report and cases in the “Criminalization” section on page “Our projects” page of www.ewna.org website.

The campaign is supported by the East Europe and Central Asia Union of People Living with HIV (ECUO) and the Minusvirus.org online platform

US: Coalition of US organisations and networks issue Call to Action for HIV Criminal Law Reform grounded in racial justice

Call to Action for Racial Justice in HIV Criminal Law Reform

A coalition of racial justice, HIV, and criminal justice organizations and networks have come together to issue this Call to Action in support of an HIV criminal law reform movement that is grounded in racial justice and leaves no one behind.

The collaboratively drafted Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform was launched in July 2017[1] in response to uncertainty about the most effective way to incorporate modern HIV treatment advances, reflected in the Undetectable=Untransmittable campaign, into efforts to reform HIV criminal laws.

Since then, the urgency of this question has only intensified: changes in North Carolina, Canada andSweden have all hinged on whether or not a person is virally undetectable. Many states continue to grapple with how or if U=U should be used as an essential element in advocacy for HIV criminal law reform. Some argue that eliminating criminal liability for those who can document regular health care engagement and consistently low viral load is an improvement that is better than no progress at all.

However, HIV justice in the criminal legal system cannot be achieved without racial justice. Particularly with the well-documented racism in the U.S. criminal legal system, justice demands interrogation of the harms inherent in relying on U=U as a vehicle for HIV criminal law reform.

Modern, consistent treatment and care has significantly improved the lives of people living with HIV, whose life expectancies are now similar to HIV-negative people. However, fewer than half of all PLHIV in the US have sustained viral suppression.[2] Any reform that uses viral detectability as a litmus test for criminal liability leaves a majority of PLHIV behind and creates a viral underclass of PLHIV whose increased risk of prosecution effectively gets a current-day seal of approval.

If we look at this general statistic more closely, disturbing patterns emerge. National data show unequivocally that there are significant racial disparities in treatment access and sustained viral suppression. The most recent comprehensive analysis showed that Black PLHIV had the lowest level of sustained viral suppression across the board — 40.8% as compared to 56.3% of whites and 50.1% of Hispanics.[3]

Racial and regional disparities are reflected in every study that examines the experiences and outcomes of Americans who pass through our criminal legal and healthcare systems. The South, which experiences the highest regional burden of HIV in the U.S., also has the greatest number of people who are uninsured. At the same time, nine of the ten states [4] with the highest rates of incarceration are also in the South. Across the country Black people are disproportionately targeted and harmed at every stage of the criminal legal system, from policing to incarceration and sentencing.[5]

Any HIV criminal law reform effort that relies on viral suppression will inevitably leave behind Black PLHIV who face the greatest harm from the intersecting injustices of the U.S. criminal legal system and inequitable treatment access. We must not only acknowledge these inequities in our efforts but also actively seek to challenge and dismantle them in our calls for change.

As the HIV criminal law reform movement continues to grow and more states mobilize for reform, we must hold ourselves accountable to our communities and to each other. In recent years, four states have passed measures amending their HIV criminal laws or health code,[6] and we know there are new legislative actions on the horizon — this past legislative session saw at least five HIV criminal law bills.

We issue this Call to Action with the understanding that state coalitions often face difficult decisions and options that may reduce harm or appear to reduce harm in the short-term, but can also have unintended negative consequences in the long-term, or for those who are most frequently targeted by law enforcement. Our hope is that advocates will continue to learn from one another and pursue the best possible outcomes in their states while maintaining a commitment to strategies for reform which advance racial, economic, and gender justice.

Take action:

Endorse the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform.
Share the Consensus Statement as a tool and resource to support conversations around treatment access, HIV criminal law reform, and racial justice.
Educate on the personal empowerment and critical importance of U=U and other scientific advances in HIV as tools for reform rather than heart of reform.
Advocate for an HIV criminal law reform strategy which is accountable to all of the communities it affects.

The following organizations join this Call to Action:

The Black AIDS Institute

The Center for HIV Law and Policy

The Counter Narrative Project

Positive Women’s Network

Prevention Access Campaign/U=U

The SERO Project

NOTES:

[1] Original launching endorsers included the Center for HIV Law and Policy, Prevention Access Campaign/U=U, The Counter Narrative Project, Treatment Action Group, Women With a Vision, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, The National LGBTQ Task Force, PFLAG, and Housing Works.

[2] This refers to PLHIV who have received a diagnosis.https://www.cdc.gov/mmwr/volumes/67/wr/mm6704a2.htm

[3] This CDC analysis included 38 reporting jurisdictions, accounting for a total of 651,811 PLHIV. (2018)

[4] Florida, Georgia, Texas, Mississippi, Arkansas, Alabama, Louisiana, Missouri, Oklahoma. The other state is Arizona. https://www.usnews.com/news/best-states/slideshows/10-states-with-the-highest-incarceration-rates?slide=10 (2017)

[5] Georgia demonstrates the synergistic interaction of racial disparities across these different systems:

50% viral suppression for Black PLHIV in Georgia
71% of newly diagnosed cases of HIV in Georgia are Black (Black people make up 31% of Georgia’s overall population)
62% of people incarcerated in Georgia are Black
Following arrest for an HIV-related offense, Black men are more than twice as likely to be convictedof the offense than white men.

[6] IA, CO, CA, NC

Bringing Science to Justice: End HIV Criminalisation Now

News Release

Networks of people living with HIV and human rights and legal organisations worldwide welcome the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law

Amsterdam, July 25, 2018 — Today, 20 of the world’s leading HIV scientists released a ground-breaking Expert Consensus Statement providing their conclusive opinion on the low-to-no possibility of a person living with HIV transmitting the virus in various situations, including the per-act transmission likelihood, or lack thereof, for different sexual acts. This Statement was further endorsed by the International AIDS Society (IAS), the International Association of Providers of AIDS Care (IAPAC), the Joint United Nations Programme on HIV/AIDS (UNAIDS) and 70 additional experts from 46 countries around the world.

The Expert Consensus Statement was written to both assist scientific experts considering individual criminal cases, and also to urge governments and criminal justice system actors to ensure that any application of the criminal law in cases related to HIV is informed by scientific evidence rather than stigma and fear. The Statement was published in the peer-reviewed Journal of the International AIDS Society (JIAS) and launched at a critical moment during the 22nd International AIDS Conference, now underway.

“As long-time activists who have been clamouring for a common, expert understanding of the current science around HIV, we are delighted with the content and widespread support for this Statement,” said Edwin J Bernard, Global Co-ordinator of the HIV Justice Network, secretariat to the HIV JUSTICE WORLDWIDE campaign. “Eminent, award-winning scientists from all regions of the world have come together to provide a clarion call for HIV justice, providing us with an important new advocacy tool for an HIV criminalisation-free world.”

The Statement provides the first globally-relevant expert opinion regarding individual HIV transmission dynamics (i.e., the ‘possibility’ of transmission), long-term impact of chronic HIV infection (i.e., the ‘harm’ of HIV), and the application of phylogenetic analysis (i.e., whether or not this can be used as definitive ‘proof’ of who infected whom). Based on a detailed analysis of scientific and medical research, it describes the possibility of HIV transmission related to a specific act during sexual activity, biting or spitting as ranging from low to no possibility. It also clearly states that HIV is a chronic, manageable health condition in the context of access to treatment, and that while phylogenetic results can exonerate a defendant when the results exclude them as the source of a complainant’s HIV infection, they cannot conclusively prove that one person infected another.

“Around the world, we are seeing prosecutions against people living with HIV who had no intent to cause harm. Many did not transmit HIV and indeed posed no actual risk of transmission,” said Cécile Kazatchkine, Senior Policy Analyst with the Canadian HIV/AIDS Legal Network, a member and key partner organisation of the HIV JUSTICE WORLDWIDE campaign. “These prosecutions are unjust, and today’s Expert Consensus Statement confirms that the law is going much too far.”

Countless people living with HIV around the world are currently languishing in prisons having been found guilty of HIV-related ‘crimes’ that, according the Expert Consensus Statement, do not align with current science. One of those is Sero Project Board Member, Kerry Thomas from Idaho, who says: “I practiced all the things I knew to be essential to protect my sexual partner: working closely with my doctor, having an undetectable viral load, and using condoms. But in terms of the law, all that mattered was whether or not I disclosed. I am now serving a 30-year sentence.”

While today’s Statement is extremely important, it is also crucial to recognise that we cannot end HIV criminalisation through science alone. Due to the numerous human rights and public health concerns associated with HIV criminalisation, UNAIDS, the Global Commission on HIV and the Law, the UN Committee on the Elimination of Discrimination against Women, and the UN Special Rapporteur on the Right to Health, among others, have all urged governments worldwide to limit the use of the criminal law to cases of intentional HIV transmission. (These are extremely rare cases wherein a person knows their HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit the virus.)

We must also never lose sight of the intersectional ways that — due to factors such as race, gender, economic or legal residency status, among others — access to HIV treatment and/or viral load testing, and ability to negotiate condom use are more limited for some people than others. These are also the same people who are less likely to encounter fair treatment in court, within the medical system, or in the media.

“Instead of protecting women, HIV criminalisation places women living with HIV at increased risk of violence, abuse and prosecution,” says Michaela Clayton, Executive Director of the AIDS and Rights Alliance for Southern Africa (ARASA). “The scientific community has spoken, and now the criminal justice system, law and policymakers must also consider the impact of prosecutions on the human rights of people living with HIV, including women living with HIV, to prevent miscarriages of justice and positively impact the HIV response.”

HIV criminalisation is a pervasive illustration of systemic discrimination against people living with HIV who continue to be stigmatised and discriminated against on the basis of their status. We applaud this Statement and hope it will help end HIV criminalisation by challenging all-too-common mis-conceptions about the consequences of living with the virus, and how it is and is not transmitted. It is indeed time to bring science to HIV justice.

To read the full Expert Consensus Statement, which is also available in French, Spanish and Russian in the Supplementary Materials, please visit the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161

VIsit the HIV JUSTICE WORLDWIDE website to read a short summary of the Expert Consensus statement here: http://www.hivjusticeworldwide.org/en/expert-statement/

To understand more about the context of the Expert Consensus Statement go to: http://www.hivjusticeworldwide.org/en/expert-statement-faq/

HIV JUSTICE WORLDWIDE is a growing, global movement to shape the discourse on HIV criminalisation as well as share information and resources, network, build capacity, mobilise advocacy, and cultivate a community of transparency and collaboration. It is run by a Steering Committee of ten partners – AIDS Action Europe, AIDS-Free World, AIDS and Rights Alliance for Southern Africa (ARASA), Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV (GNP+), HIV Justice Network, International Community of Women Living with HIV (ICW), Southern Africa Litigation Centre (SALC), Sero Project, and Positive Women’s Network – USA (PWN-USA) – and currently comprises more than 80 member organisations internationally.

Beyond Blame symposium highlights intersectionality of issues related to HIV criminalisation at AIDS 2018

Strategies to oppose the unscientific criminalisation of HIV transmission received a high profile at events in advance of the 22nd International AIDS Conference (AIDS 2018) in Amsterdam this week.

These included the launch by the Global Commission on HIV and the Law of a Supplement to its 2012 Report, Risks, Rights & Health, and the HIV Justice Worldwide symposium, Beyond Blame: Challenging HIV Criminalisation.

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

Photo: Representatives of People PLUS at the Gomel Regional Court

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

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

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

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

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

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

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

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

Building the case against criminalisation on the ground

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

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

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

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

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

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

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

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

Parliamentary hearings are expected to take place in Autumn 2018.

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

US: Panel Discussion with advocates working towards ending HIV criminalisation

Dismantling HIV Criminalization: A Panel Discussion

LA MAMA GALLERIA

Dismantling HIV Criminalization brought together activists and advocates working to end practices that punish and incarcerate people living with HIV, linking Visual AIDS’ summer exhibition Cell Count to the ongoing movement against HIV criminalization.

The panel featured a discussion between Kate Boulton of the Center for HIV Law and Policy, Kenyon Farrow of TheBody.com, Abdul-Aliy Muhammad of the Black and Brown Workers Collective, and Robert Suttle of the Sero Project.

Kate, Kenyon and Robert had just returned from the 2018 HIV is Not a Crime Conference in Indianapolis, where activists from around the country gathered to build a national movement against HIV criminalization.

Dismantling HIV Criminalization was dedicated to David Plunkett, a survivor of HIV criminalization who passed away in 2018. After five years in prison, David’s successful appeal in 2012 set a legal precedent in New York that the saliva of a person with HIV could not be characterized as a deadly weapon. David contributed an essay to the catalog for Cell Count, reflecting on his experience facing HIV criminalization. The catalog is available for purchase at the Visual AIDS store.

LINK TO VIDEO OF PANEL DISCUSSION

PANELIST BIOS

Kate Boulton is a Staff Attorney at the Center for HIV Law and Policy, where she focuses on HIV criminal law reform and the overrepresentation of people living with HIV in the criminal legal system. She has particular interest in the intersection between HIV criminalization and the criminalization of sex work, and recently spearheaded the creation of an advocacy toolkit addressing this issue. From 2007 to 2012, Kate served with the Centers for Disease Control and Prevention, where her work centered on migrant health and infectious disease. She earned her JD from Harvard Law School and her MPH from the University of Michigan.

Kenyon Farrow is the senior editor with TheBody.com and TheBodyPro.com. Kenyon has a long track record working in communities impacted by HIV as an activist, writer, and strategist. Prior to joining TheBody.com, he served as U.S. & Global Health Policy director for Treatment Action Group (TAG), where he led a research project to explore the role of community mobilization in the U.S. HIV response and helped develop strategies for southern jurisdiction’s ending-the-epidemic campaigns. Kenyon has also worked on campaigns large and small, local, national, and global on issues related to criminalization/mass imprisonment, homelessness, and LGBT rights. He is the co-editor of the book Letters From Young Activists: Today’s Rebels Speak Out. His work has also appeared on websites and in publications such as The Body.com, POZ, The Atlantic, TheGrio, Colorlines, ReWire News, The American Prospect, and AlterNet.

Abdul-Aliy Muhammad is a Black queer poz non-binary jawn* from Philadelphia, PA. They’ve worked in the field of HIV prevention for 6 1/2 years and currently work as an organizer with the Black and Brown Workers Collective and does anti-oppression trainings with the BlaQollective. Abdul-Aliy is releasing A Flower Left To Wilt, their first poetry book, on October 26, 2018.

Robert Suttle is the Assistant Director of the SERO Project, a network of people living with HIV and allies fighting for freedom from stigma and injustice. He oversees the community outreach and education and coordinates Sero’s HIV Criminalization Survivors Network.