Important new resource, SALC’s HIV Criminalisation Defence Case Compendium, published this week

An important new resource for lawyers defending clients and working on strategic litigation was published by the Southern Africa Litigation Centre (SALC) this week. SALC is one of the newest members of HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Criminalisation Defence Case Compendium was developed to accompany a four-day training for lawyers on HIV and TB criminalisation, due to take place in Johannesburg, South Africa, later this month.

The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.

Cases range from prosecutions for spitting or biting to the landmark 2016 Malawi case of a woman successfully released on appeal after having been sentenced for breastfeeding.

To find pertinent cases quickly and effectively, the Compendium is split into three parts:

  • The first section outlines the key issues raised in the judgement, such as proof of intent, and classifies the cases accordingly in an easy to navigate table format.
  • The second section, organised by country, catalogues the categories of argument raised by the defence.
  • The third section summarises the facts of each case and the Court decisions, highlighting the key points.

The Lawyers for HIV and TB Justice: Strategic Litigation, Legal Defence and Advocacy Training will be streamed live on The Southern Africa Litigation Centre Facebook Page between 20-22 February.

The Compendium can be downloaded from the SALC website and is included as the newest resource in the HIV JUSTICE WORLDWIDE toolkit.

 

Webinar: PWN-USA HIV Criminalization First Responders Series: Combating Stigmatizing Reporting (PWN-USA, 2018)

The third and final webinar in the First Responder series focuses on working with the media. Hosted by Kamaria Laffrey (Sero) and featuring presentations from Carrie Foote (HIV Modernization Movement, Indiana) and Olivia G Ford (former PWN-USA Comms Dirctor).

US: SERO Project and Positive Women’s Network-USA Announce 2018 HIV Is Not a Crime National Training Academy Registration is Open (Press Release)

SERO Project and Positive Women’s Network-USA Announce 2018 HIV Is Not a Crime National Training Academy Registration is Open

February 5, 2018: SERO Project and Positive Women’s Network – USA are excited to announce that registration is now open for the 2018 HIV is Not a Crime III National Training Academy! Planning to participate? Register now! Get more information on the training academy website here.

Building on the amazing success of the HIV Is Not a Crime II National Training Academy in 2016, the planning process is underway for the third HIV Is Not a Crime National Training Academy to support advocates in their efforts to repeal or modernize state laws criminalizing the alleged non-disclosure, perceived or potential exposure or transmission of HIV. The training academy will be held at Indiana University-Purdue University Indianapolis (IUPUI) June 3-6, 2018.

HIV is Not a Crime III will once again unite and train advocates living with HIV and allies from across the country about laws criminalizing people living with HIV and on strategies and best practices for repealing such laws. Skills-building trainings, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning, will leave participants with concrete tools and resources to work on state-level strategies when they return home.

“The HIV Modernization Movement (HMM) is excited to welcome HIV is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” says Dr. Carrie Foote, HMM Chair and Associate Professor at IUPUI.

Interested in presenting a session at HIV Is Not a Crime III? The abstract submission process is open through Monday, February 12. Find complete instructions for submitting your session proposal here.

Interested in providing financial support for this important event? Sponsorships are still available at various levels. Please contact Sean Strub, SERO Project (sean….@seroproject.com) or Naina Khanna at Positive Women’s Network – USA (naina.kh…@gmail.com) for more information.

Questions? Please contact Tami Haught, SERO Organizer and Training Coordinator, at:  tami.haught@seroproject.com.

 

Mexico: The Mexican Secretary of Health should avoid discriminatory terminology and focus on stopping the criminalisation of people with HIV, state activists

By using the word “contaminated” the Mexican Secretary of health has committed a crime, state activists

When using the word “contaminated” against patients with the Human Immunodeficiency Virus (HIV), the Secretary of Health Arturo Iran Suárez Villa committed a crime by using a term not compliant with the official Mexican regulation 010, revealed in a position statement the Mexican Network of Organizations against the Criminalization of HIV, composed of 32 civil society organizations and member of the HIV Justice Worldwide initiative.

In support, they said that it is unacceptable for a Secretary of Health to refer to people with HIV as contaminated.

“In accordance with the methods, principles and criteria of operation of the components of the National Health System enunciated in the MEXICAN OFFICIAL REGULATION NOM-010-SSA2-2010, FOR THE PREVENTION AND CONTROL OF INFECTION BY HUMAN IMMUNODEFICIENCY VIRUSES, instruments, tissues, blood are contaminated but not people. The word is discriminatory and, in Mexico, it is a crime, “they said.

For this reason, they urged him to consult the Reference Document. UNAIDS Terminology Guidelines (UNAIDS 2015), to familiarise himself with the correct terms to be used when talking about HIV and AIDS.

“The concern of Dr. Suárez Villa – as head of the sector – should focus on avoiding any form of criminalization of people with HIV in Veracruz, since these contravene the International Guidelines on HIV / AIDS and Human Rights (UNAIDS, 2016), as it is embodied in article 159 of the Code, “they indicated.

It should be noted that HIV Justice Worldwide is an initiative composed of national, regional and global civil society organizations, working together to end the criminalization of HIV.

The founding partners are: AIDS Rights Alliance for South Africa (ARASA); Canadian Legal HIV / AIDS Network; Global Network of People Living with HIV (GNP +), HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women Network-USA. (PWN-USA); and Sero Project (SERO). The initiative is also supported by Amnesty International, the International HIV / AIDS Alliance, UNAIDS and UNDP.

Published in Palabras Claras, on January 30, 2018

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Con vocablo “contaminado”, incurrió Suárez Villa en un delito: activistas

Al usar la palabra “contaminado” contra los pacientes con el Virus de Inmunodeficiencia Humana (VIH), el Secretario de Salud Arturo Irán Suárez Villa incurrió en un delito al usar un término no aceptado por la Norma Oficial Mexicana 010, revelaron en un posicionamiento la Red Mexicana de Organizaciones contra la Criminalización del VIH, conformada a su vez por 32 organizaciones de la sociedad civil y suscrita a la iniciativa HIV Justice Worldwide1.

En su sustento, dijeron que es inaceptable que un Secretario de Salud se refiera a las personas con VIH como contaminados.

“De acuerdo con los métodos, principios y criterios de operación de los componentes del Sistema Nacional de Salud enunciados en la NORMA OFICIAL MEXICANA NOM-010-SSA2-2010, PARA LA PREVENCION Y EL CONTROL DE LA INFECCION POR VIRUS DE LA INMUNODEFICIENCIA HUMANA, se contaminan los instrumentos, los tejidos, la sangre pero no las personas. La palabra es discriminatoria y, en México, es un delito” indicaron.

Por lo que le exhortaron a consultar el Documento de Referencia. Orientaciones Terminológicas de ONUSIDA (ONUSIDA 2015), para que se familiarice con los términos correctos a usarse que cuando se habla del VIH y del sida.

“La preocupación del doctor Suárez Villa –como cabeza de sector– debería enfocarse en evitar cualquier forma de criminalización a las personas con VIH en Veracruz, ya que estas contravienen las Directrices Internacionales sobre VIH/sida y los Derechos Humanos (ONUSIDA, 2016), tal y como se encuentra plasmado en el artículo 159 del Código” indicaron.

Cabe destacar que HIV Justice Worldwide (Justicia por VIH en todo el mundo) es una iniciativa compuesta por organizaciones de la sociedad civil nacionales, regionales y mundiales, trabajando en conjunto para terminar con la criminalización del VIH.

Los socios fundadores son: SIDA y Alianza por los Derechos para Sudáfrica (ARASA); Red Legal Canadiense de VIH/SIDA; Red Mundial de Personas Viviendo con VIH (GNP+), Red de Justicia para el VIH; Comunidad Internacional de Mujeres Viviendo con VIH (ICW); Red de Mujeres Seropositivas-E.E.U.U. (PWN-USA); y Proyecto Sero (SERO). La iniciativa también es apoyada por Amnistía Internacional, la Alianza Internacional de VIH/SIDA, ONUSIDA y PNUD.

US: PJP Update – March 2018

The March 2018 edition of the Positive Justice Project newsletter is available here.

Webinar: PWN-USA HIV Criminalization First Responders Series: Activating Support Networks (PWN-USA, 2018)

The second webinar in the First Responder series focuses on activating support networks for people experiencing HIV criminalization. This webinar covers how to work with local coalitions and organizations, how to create fundraising campaigns, and how to create social support systems that keep people living with HIV who are incarcerated connected to their communities and community resources.

US: Final report of the Georgia House Study Committee on access to care calls for modernisation of Georgia’s HIV criminal laws

A Moment of Outrage with a Silver Lining

Betty Price’s comments about HIV spark backlash, while her committee quietly issues a well-reasoned critique of Georgia’s HIV criminal laws

by Catherine Hanssens, CHLP Executive Director

Back in October 2017, there was a tsunami of outrage and media coverage in response to comments made by Georgia State Representative Betty Price during a committee hearing on access to HIV care and prevention. In response to testimony about the problem of access to the remarkable health and prevention benefits of current HIV treatment in Georgia, Price queried:

“… [A]re there any methods legally that we could do that would curtail the spread? I don’t want to say the quarantine word, but… It seems to me it’s almost frightening, the number of people who are living that are potentially carriers… with the potential to spread, whereas in the past they died more readily and then at that point they are not posing a risk. So we’ve got a huge population posing a risk if they are not in treatment.”

Even if Price’s comments were, as she later said, posed to provoke discussion, elected officials have no legitimate excuse for suggesting that people living longer with HIV are a public health problem, or that quarantine should ever be on the table.

Unfortunately, the view that sexually active PLHIV need to be “legally” contained is still pretty widely shared, yet rarely gets the press Price’s comments received. Media reports of a prosecutor referring to HIV, a treatable disease, as the equivalent of a “death sentence,” or calling sex while living with HIV the equivalent of pointing a loaded gun at someone’s head have yet to receive the type of outrage leveled at Price. What’s worse, Georgia’s criminal HIV law has effectively quarantined multiple PLHIV through felony convictions for sex without disclosure without any comparable national cry of outrage in response.

Media coverage of the Price controversy glanced over the substance of these hearings and what really should have been the big news—that local HIV advocates assembled an impressive panel of experts to testify about barriers to HIV treatment, including what likely was a first: a representative of the federal Centers for Disease Control and Prevention presenting powerful testimony in support of modernizing Georgia’s HIV criminal law.

And there’s more. Just a few weeks ago, in December 2017, the committee released its Final Report of the Georgia House Study Committee on Georgians’ Barriers to Access to Adequate Health Care. The report’s findings and recommendations are surprisingly progressive, and are based in no small part on the efforts of Georgia advocates who made sure committee members were equipped with information about the harms of Georgia’s HIV criminal laws and the need for reform.

In analyzing HIV care and prevention, the Committee’s report found that “[c]riminal exposure laws had no effect on detectable HIV prevention.” The report’s analysis goes on to echo the Department of Justice’s 2014 recommendation that these laws should be eliminated except in cases where a separate sex offense such as rape and an actual risk of transmission is involved; or when evidence clearly demonstrates that the person acted with the intent to transmit HIV and engaged in behavior significantly likely to do so. The report also cites a 2013 resolution from the Presidential Advisory Council on HIV/AIDS (PACHA), noting the failure of HIV criminal laws “to account for (1) the prevention measures, (2) the reality of disproportionate sentencing that often occurs, and (3) the fact that the laws are based on outdated beliefs about HIV transmission.”

Other highlights from the report’s findings on HIV criminalization include:

  • A remarkably salient and progressive observation about disparities affecting sex workers:

“Consider that both prostitution and solicitation of sodomy are misdemeanors under Georgia law when the accused is not infected with HIV. These crimes only become felonies when the accused merely knows they are infected with HIV and fails to disclose their status. Thus, the current [HIV law] falls short by penalizing behavior that does not require the type of intentional behavior for which an enhanced penalty is typically reserved….”

  • Recognition of the inequity of allowing prosecution of PLHIV under both an HIV criminal law and other sections of the criminal code:

“In Georgia, prosecutions of those infected with HIV whose actions fall under [GA’s HIV criminal law] has not been limited to those code sections. In fact, there are documented cases where the state has pursued charges of aggravated assault against an accused in such situations. This inequitable disparity in prosecution of HIV-infected people should be addressed in any reforms made to these laws.”

  • Recognition that Georgia’s HIV criminal law creates additional untenable dangers for survivors of assault:

“Because Georgia’s HIV law] criminalizes behavior upon mere knowledge of status, there is fear among those living with HIV of prosecution under this statute when they are victims of a sexual assault involving behaviors outlined in this code section. To curb this fear and empower such victims to report these serious assaults, the law should be clarified to account for these scenarios by explicitly exempting such victims from prosecution.“

In short, a legislative committee in a Southern state that included four Republicans and only one Democrat has issued a report calling for modernization of Georgia’s HIV criminal laws so that they are consistent with current scientific knowledge, focus more on intent to transmit rather than knowledge of status, and incorporate recognition of risk reduction measures. In the discussion supporting these recommendations, the committee notes opportunities and shared responsibility for preventing HIV transmission in intimate relationships involving people living with HIV and their HIV negative partners. It highlights the unacceptable disparities in the use of unique liability standards and onerous punishments against people living with HIV; the legitimacy of HIV positive sexual assault survivors’ fear of reporting crimes against them because they know the prosecutorial table could be turned against them; and the inequity of turning a potential misdemeanor into a serious felony when a sex worker is living with HIV.

This is big news and important progress for which Georgia advocates deserve a great deal of credit. The Committee’s findings should also be a call to action for advocates working to modernize these laws across the country. In a challenging political climate, where we see a frustrating lack of outrage among the press and the general public when it comes to HIV criminal laws, outcomes such as this demonstrate that while the substantive work may not grab headlines, it will have a more profound, lasting influence on public health and policy.

Webinar: PWN-USA HIV Criminalization First Responders Series: Laws, Facts and Policy (PWN-USA, 2018)

The first webinar in PWN-USA’s HIV Criminalization First Responder series included an an overview of respectful, person-first language use, facts about HIV criminalization, and what rights people living with HIV have when they are criminalized. This session also covered how to research state law and policy that impacts people living with HIV. This session featured PWN staff and chapter leaders Barb Cardell and Bonetta Spratley.

Canada: Prosecutions should not hinge on viral load, punishing people lacking access to treatment, but on actual, intentional transmission

Ontario, Canada Moves to Reduce HIV Non-Disclosure Prosecutions, Leaves Behind PLHIV Lacking Effective Health Care

Changes to HIV criminalization laws in Canada highlight the importance of the Consensus Statement on HIV TasP in Criminal Law Reform urging that prosecutions not hinge on an individual’s viral load but on actual, intentional transmission.

by Kate Boulton, CHLP Staff Attorney

Earlier this month Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins issued a joint statement announcing that Crown Attorneys will no longer prosecute cases of HIV non-disclosure where the person living with HIV has had a suppressed viral load for at least six months. Their rationale is that “HIV should be considered through a public health lens, rather than a criminal justice one, whenever possible.”

The statement occurred in tandem with the release of a report by the Canadian Department of Justice calling for a significant shift in the way cases of HIV non-disclosure are treated by the Canadian criminal justice system. The report concludes that criminal liability should not apply in instances where a person was on treatment, where a condom was used, or in cases of oral sex because these circumstances do not pose “a realistic possibility of transmission.”

Of course it makes sense to acknowledge that any move to reduce the number of prosecutions for HIV non-disclosure in Canada is a good thing. That said, the Ontario AG and Health Minister’s announcement does not go nearly far enough; it suggests that the appropriate “public health lens” is simply to narrow the discriminatory criminal legal system targeting of people living with HIV to those without effective health care.

A statement issued jointly by the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), Canadian Positive People Network (CPPN), the Ontario Working Group on Criminal Law + HIV Exposure (CLHE), and the Canadian Coalition to Reform HIV Criminalization essentially makes that point, observing that the Ontario announcement “falls well short” of even the relatively modest recommendations made in Justice Canada’s report. Citing the Community Consensus Statement released in November 2017 by the Canadian Coalition to Reform HIV Criminalization (CCHRC), the organizations stress that “criminal prosecutions should be limited to cases of actual, intentional transmission of HIV.”

Earlier this year, the Center for HIV Law & Policy and partners addressed precisely this issue in the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The Consensus Statement cautioned against the use of viral detectability as a bright line test in HIV criminal law reform.  By explicitly relying on viral detectability as a dispositive factor in the decision to prosecute or not prosecute someone, the announcement in Ontario manifests the major concerns articulated in the Consensus Statement. 

The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform outlines how reliance on viral detectability in HIV criminal law reform efforts poses a number of harmful, if unintended, consequences:

  • Leads to using a person’s health status or access to health care as determinative of guilt or innocence, rather than a demonstrated intent to do another person harm;
  • Provides support to the misguided perception among prosecutors and policymakers that HIV is somehow easy to transmit or that sex without the benefit of treatment is inherently “risky,” and that an HIV diagnosis is akin to a “death sentence.”
  • Obscures or deemphasizes other essential arguments for HIV criminal law reform, including the right of PLHIV to be free from state-sanctioned stigma and discrimination on the basis of health status alone, and fundamental principles of fairness and justice.

National HIV data in Canada illustrate the problem this approach poses for nearly half of all Canadian PLHIV. At the end of 2014, just over half (54%) of the estimated total PLHIV in Canada were virally suppressed.[1]

Regardless of the country, HIV law and policies must reflect the hard fact that disparities in access to treatment and the ability to reach long-term viral suppression inevitably interact with disparities in the criminal legal system. The synergy between these two discriminatory and deeply unequal systems will result in compounded harm for communities that are already disproportionately affected by HIV criminalization:[2] sexual and gender minorities,[3] Indigenous communities,[4] individuals experiencing poverty or homelessness, people who use drugs,[5] sex workers,[6] and people of color.[7]

Staff from the Canadian HIV/AIDS Legal Network have also flagged this tension, writing in a June 2017 blog post that advocates must be mindful of how new scientific advancements are incorporated into HIV criminal reform efforts:

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

The Center for HIV Law & Policy welcomes Canada’s efforts to move away from the discriminatory and harmful criminalization of PLHIV. But Canadians deserve a more just, inclusive, and transformational conception of HIV criminal law reform that leaves no one behind, and which does not serve to reproduce and entrench inequalities in the public health and criminal legal systems.

More resources can be found on our website: www.hivlawandpolicy.org and at www.hivtaspcrimlaw.org


[1] https://www.canada.ca/en/public-health/services/publications/diseases-conditions/summary-measuring-canada-progress-90-90-90-hiv-targets.html (As of 2014, approximately 80% of PLHIV in Canada were diagnosed. 76% of those diagnosed were receiving ARV treatment, 89% of whom were virally suppressed).  See also Peter Rebeiro et al., Sex, Race and HIV Risk Disparities in Discontinuity of HIV Care After Antiretroviral Therapy Initiation in the United States and Canada, 31 AIDS Patient Care & STDs 129 (2017).

[2] http://www.aidslaw.ca/site/hiv-criminalization-in-canada-key-trends-and-patterns/?lang=en (“[T]he [HIV] criminal law is increasingly used against people living with HIV from marginalized populations. Since Mabior, the proportion of Black men charged in HIV non-disclosure cases has grown . . . The proportion of gay men charged in HIV non-disclosure cases has also increased.”

[3] See, e.g. http://www.catie.ca/en/fact-sheets/epidemiology/epidemiology-hiv-gay-men-and-other-men-who-have-sex-men

[4] http://blog.catie.ca/2016/10/04/we-need-to-address-the-unique-and-complex-issues-of-indigenous-people-living-with-hiv/

[5] http://www.catie.ca/fact-sheets/epidemiology/injection-drug-use-and-hiv-canada

[6] See, e.g., http://pubmedcentralcanada.ca/pmcc/articles/PMC4704989/

[7] http://online.liebertpub.com/doi/abs/10.1089/apc.2016.0178; http://www.accho.ca/portals/3/documents/acb_strategy_web_oct2013_en.pdf(In 2009, African, Caribbean, and Black people represented an estimated 19% of people living with HIV in Ontario, with a relative rate of heterosexual HIV acquisition that was 24 times higher than among others infected through heterosexual contact.)

US: Georgia Coalition to End HIV Criminalization seeks re-evaluation of state's HIV criminal laws

Are state’s HIV laws unfair? Activists say it’s time for change

Nina Martinez moved to Georgia from Washington, D.C., in 2005. Just a few months after she settled into her new Atlanta home, she learned about Georgia’s criminal laws regarding people disclosing their HIV status to others. It personally changed things for her.

“As a person living with HIV, I didn’t even form relationships because I didn’t want someone who was just mad at me, who said, “ ‘She didn’t tell me she was HIV-positive,’ ” said Martinez. “I haven’t minded being single for the last 12 years or so, but it’s not necessarily by choice. I guess.”

The Georgia laws that Martinez is referring to are almost 30 years old. They state that people with HIV can serve jail time for not disclosing their HIV status to others in certain situations. Those situations include having sex with someone; sharing a needle; performing paid sex work; or donating blood, body fluids, body organs or body parts. People with HIV can be imprisoned for up to 10 years for any of these violations.

The sentence goes up to 20 years of prison time (and no less than five years) for a person with HIV to put their body fluids on a peace office or a correctional officer, while the officer is on duty. This includes the acts of biting, spitting or throwing bodily fluids such as blood, semen, vaginal secretions, saliva, urine and feces.

Numerous other states also have such laws, and their purpose is obvious: to prevent people from deliberately infecting others with HIV. There have been cases of people doing so.

But with improved understanding of HIV transmission, and scientific strides that have made infection less deadly, critics say the laws are largely outdated..

Martinez says the current Georgia laws are unfair because they allow prosecution of people who did not intend to transmit the disease, and even people who had taken precautions against transmission, like using condoms or taking HIV medication. And she says the disclosure laws create a “he said, she said” situation, because it’s hard to prove what people in an intimate relationship communicated to each other.

“This law does not allow me to provide a good defense for myself against cases where somebody might falsely accuse me of not disclosing,” said Martinez. “It doesn’t require that I actually harm someone for me to be prosecuted. And that’s not right.”

“I just want the ability to be able to have somebody else be legally responsible for their own health,” Martinez continued. “Like why am I legally responsible?”

A movement to change HIV laws has been under way for some time. Martinez is one of the steering members of the Georgia Coalition to End HIV Criminalization, an advocacy group.

The coalition would like to see several changes to Georgia’s current code. One of those changes would be a requirement that a person be prosecuted only if there’s proof of intent to transmit HIV.

“Another thing that we want to see is to get these laws aligned with science,” said Sequoia Ayala, a lawyer and policy fellow at Sister Love, and a member of the Georgia Coalition.

The CDC has stated that the risk of transmission of HIV from biting, spitting or throwing fluids is negligible.  Because of this, the coalition wants to see that section of the law removed. Assaults with bodily fluids would still be illegal, but the offender’s HIV status would not be relevant.

The current statute does not consider any measure a person with HIV has taken to prevent the risk of transmission. This includes the use of a condom or adherence to antiretroviral medication regime.

“We know now that if an individual has access to their medication, and they have taken the medication, and have achieved a viral load of less than 200 copies, they’re unable to transmit HIV via sex,” said Ayala. “And yet the reality is that an individual being adherent to their drugs does not relieve them of any culpability.”

After several years of discussion with the coalition, the Georgia Legislature is now considering the issue. In the spring, Rep. Sharon Cooper (R-Marietta), four other House representatives and four members of the medical community formed a study committee focused on addressing barriers to adequate health care in Georgia.

The House study committee met in mid-October to discuss HIV laws, and recently released a final report. Possible changes, in line with the coalition’s goals, and best practice recommendations released in 2014 by the U.S. Justice Department were outlined in the final report.

The changes include removing most HIV-specific criminal penalties. But penalties would remain in the following situations: If an HIV-positive person commits a sexual assault where there is a risk of transmission, or when a person is aware of being HIV-positive and intends to transmit the virus, and there is a significant risk of transmission.

The final report said that if people with HIV are taking medication, they should be able to present that as a defense in an HIV criminal case.

Though the committee recommended significant changes to the law, no immediate action was outlined. In fact, Cooper told one of the presenters at the October study committee meeting not to expect any changes in Georgia’s HIV criminal law in the next year.

“There is a time for everything,” said Cooper. “And next year’s session is probably going to be really, really short. Probably not the time to introduce any new legislation on certain things. But certainly this is information to look forward to.”

A mixed picture nationally

According to 2017 statistics from a national advocacy organization, the Center for HIV Law and Policy, 34 states have HIV-specific criminal laws. In six of those states, people who are convicted under the law are required to register as sex offenders. Over the past nine years, 303 people with HIV have either been arrested or charged under these laws.

In Georgia, at least 12 people have received lengthy prison sentences for not disclosing their HIV status. Other recent news stories of alleged reckless conduct by people with HIV may add more to that list

The coalition says these cases “required characterizing otherwise normal and legal behavior as criminal for no reason other than the defendant’s HIV status.”

Several states have been re-evaluating their HIV criminal laws. Texas repealed its statutes in 1994. Illinois revised its laws in 2012, and Iowa passed revisions in 2014.

In 2016, Colorado repealed two of its HIV criminal laws and changed language in other statutes to regard HIV like other sexually transmitted diseases. In October, California changed exposing someone to HIV from a felony to a misdemeanor, treating the virus like other STDs under the law.

Every state in the Southeast except Alabama has criminal laws related to HIV. Right now, Florida and Georgia seem to be the only two states in the region that are looking at changes. In May, the Florida Legislature considered changing HIV-related felonies to misdemeanors. It failed in the Senate, but legislators will likely re-introduce it next year.

And now Georgia has the study committee’s recommendations.

Rep. David Dreyer (D-Atlanta), who was not a member of the House study committee, is firmly for changing the HIV laws. But he thinks just as Rep. Cooper predicted, real action may take some time.

“I think these [laws] were enacted when people were afraid of HIV. When the science might not have been in on how HIV gets transmitted. And it was just a reaction out of fear, rather than science,” said Dreyer. “But these things do take a few years,” said Dreyer. “And this issue is going to be important in policy circles for years to come.”

Martinez is determined to keep fighting for reform, even if it takes years.

“Our HIV criminal laws don’t even fit the attributes of traditional criminal laws. Criminal law says you have to have intent to harm and you acted in a way that made harm likely,” said Martinez. “Our current Georgia law does not require intent to transmit or actual transmission. It literally only requires that you didn’t say something you should have said.”

Victoria Knight is a graduate student studying health and medical journalism at the University of Georgia. She also works as a health reporter for WUGA-FM, the Athens-area NPR station, and has a bachelor’s degree in microbiology from the University of Tennessee. You can follow her on Twitter at: @victoriaregisk

Published in The Pulse on Dec 16, 2017