Live stream: Addressing legal barriers to fast track HIV/TB response in Africa
This is the live stream of the 2nd Africa Regional Dialogue on HIV, TB and the law, on 4 August 2017. It is being streamed from The Balalaika Hotel in Sandton, Johannesburg, South Africa. For more information please visit http://africadialogue.net
State Advocacy
Release of Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform
The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law was developed by ten organizations in response to concerns about the best way to use HIV treatment advances, “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U), in HIV criminal law reform advocacy.
Intended to serve as a resource supporting state advocates working on modernizing local HIV laws, The Consensus Statement on TasP flags ways to avoid inadvertently putting people of color and those without regular treatment access at increased risk of prosecution. The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign/U=U Campaign, the Treatment Action Group and Women with a Vision are the original endorsers of the statement.
“The groundbreaking science that proves a person living with HIV on effective treatment cannot transmit HIV is changing lives, dismantling stigma, and getting us closer to ending the epidemic. Its usefulness in the context of criminal law reform has raised questions, and this statement provides much needed guidance for using the science in advocacy,” says Bruce Richman, founder of Prevention Access Campaign “Undetectable = Untransmittable”, an originating statement endorser.
The power and reach of this advocacy tool is reflected by the quickly growing list of nearly 50 organizations and individuals that have endorsed the statement since its release two weeks ago, including Equality Alabama, Georgia Equality, HIV Modernization Movement – Indiana, the San Francisco AIDS Foundation and more.
Join us by endorsing the statement and spreading the word about this movement for clear guidance on how the science of HIV treatment and prevention relates to the reform of HIV criminal laws. Visit www.hivtaspcrimlaw.org for an FAQ, resources and a list of endorsing individuals and organizations.
State Advocacy Working Group Updates
CALIFORNIA
On May 31, SB 239—proposed legislation to modernize California HIV criminal laws—passed out of the California Senate and was referred to the California Assembly. The bill successfully made it through the Public Safety and Health Committees in the California Assembly, and will likely be heard in Assembly Appropriations in August. The most current version of the bill can be found here. Members of Californians for HIV Criminalization Reform are currently organizing in-district meets with members of the Assembly to advocate for the bill’s passage. The bill is a vast improvement over current law, in particular eliminating the felony punishment of sex workers arrested for solicitation while living with HIV and retroactively vacating felony convictions of sex workers previously convicted under this section of California law.
The bill has undergone changes as it has progressed through different committees, including the addition of a “reckless exposure” provision, which makes engagement in “particularized conduct that poses a substantial risk of transmission of an infectious or communicable disease” in violation of health officer instructions a misdemeanor. The conduct must occur within 96 hours of the instruction in order to be a violation and the provision is only applicable in “circumstances that make securing a quarantine or health officer order infeasible.” Given the lack of an intent requirement and terminology that remains vague or undefined, it is hoped this “reckless exposure” provision can be further narrowed to ensure it is not applied to already-marginalized populations, such as undocumented immigrants and sex workers.
If your organization is interested in supporting modernization of California’s HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (eqca.org/chcr). Please contact brad@eqca.org or 323-848-9801 for additional information.
GEORGIA
In conjunction with National HIV Testing Day on June 27, the Georgia Coalition to End HIV Criminalization sent an open letter introducing itself to AIDS Service Organizations (ASOs) throughout the state and encouraged them to contact coalition members for HIV criminalization trainings.
Members of the coalition convened in June and July, and have been in discussion with the Williams Institute on HIV criminalization research in Georgia.
Coalition members continue to monitor developments around House Resolution 240, which formed a committee tasked with examining barriers to health care for Georgians with chronic health conditions, including HIV. The resolution requires the committee to “[a]ssess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.”
Meetings are held the first Thursday of the month from 4:00-6:00pm (ET)
If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Emily Brown (emily@georgiaequality.org) and visit the coalition’s coalition’s website for additional information.
LOUISIANA
In June, the coalition finalized its official name: Louisiana Coalition on Criminalization and Health (LCCH). The group is forming working groups focused on Education, Partnerships, Administrative, Legal/Policy, etc., to engage in more structured efforts to advance the LCCH’s goals of modernization in the state. The group is also working on mounting a rapid response to a recent prosecution in New Orleans. The case involves a man who allegedly spit at police officers, which is currently punishable by up to 11 years of incarceration under Louisiana state law.
Meetings are held on the second Wednesday of the month at 11:00am (CT).
If you are interested in information about HIV criminalization or actively participating in LCCH, please contact Chip Eakins at ceakins@philadelphiacenter.org.
MISSOURI
Missouri HIV Justice Coalition held community roundtables on July 18 and 20 in St. Louis and Kansas City to identify the perspectives and priorities of those who are most severely affected by Missouri’s HIV criminal law.
On August 5 and 6, the coalition is hosting a train-the-trainer event in cooperation with the Sero Project in Springfield.
Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.
If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at ashley@empowermissouri.org, and visit the coalition’s website for additional information.
OHIO
On July 8, Ohio advocates held a community forum in Columbus, with support from the Positive Justice Project. The event included more than 50 attendees from across the state, many of whom were new to the issue of the HIV criminalization. The first half of the day provided an overview of Ohio’s HIV criminal law, as well as recent efforts relating to Batista and Ohio’s Criminal Justice Recodification Committee. The second half of the day was a participatory workshop where attendees worked together in breakout groups to map a strategy moving forward.
In June, the Ohio Criminal Justice Recodification Committee released its final recommendations to the state legislature. The recommendations can be found here. In brief, the proposal would remove HIV non-disclosure from Ohio’s felonious assault law, and create a new offense entitled “Dangerous Sexual Activity,” which would contain the following provisions: 1) intentional transmission of HIV by any means would be punished as a 2nd degree felony 2) non-disclosure of HIV status and sexual activity resulting in transmission would be punished as a 2nd degree felony and; 3) non-disclosure of HIV status and not taking “reasonable precautions” (ART or condom use) prior to sexual activity would be punished as a 1st degree misdemeanor. Refer to page 57 in the link for details. Coalition members wrote a letter to the Recodification Committee opposing a similar proposal in December 2016. That letter can be found here.
Meetings are the second Wednesday of the month at 5:00pm (ET).
If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
TENNESSEE
The PJP Tennessee Working Group convened in June and July and reviewed updates from recent legislative advocacy efforts. This summer advocates are fine-tuning their legislative strategy, working on a rapid response plan and opportunities for prosecutorial and public defender education.
Meetings are held on the fourth Thursday of the month at 1:00pm (CT).
If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
TEXAS
Advocates are planning an HIV Criminalization 101 webinar in August to introduce new members to the basics of this advocacy work. The group convened in June and added many new members to their coalition.
Meetings are held on the third Thursday of the month at 6:00pm (CT).
If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Arpita Appannagari at aappannagari@hivlawandpolicy.org.
Criminal Case Update
CHLP’s assistance in criminal cases includes counseling defendants and their families, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.
MISSOURI
In April, the Missouri Supreme Court upheld the Court of Appeals’ decision overturning Michael Johnson’s conviction and remanding his case for a new trial. The case is back in the 11th Judicial Circuit Criminal Court, St. Charles County, Missouri. The trial has not started, as the case is in a preliminary stage. The next court date is August 28, 2017.
NEW YORK
On June 19, the U.S. Supreme Court denied Nushawn Williams’ request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity while living with HIV. CHLP, along with other organizations and individuals, had filed a brief in support of Williams, arguing that his case was the only one in New York in which an individual was essentially isolated or quarantined based on his HIV status, in violation of his Constitutional rights and federal disability protections. His attorneys are analyzing next steps in his case.
OHIO
On May 17, the Supreme Court of Ohio heard oral arguments in Orlando Batista’s case. Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. No ruling has been issued to date.
If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or pjp@hivlawandpolicy.org.
Every now and then, the conversation around the criminalisation of HIV and STI transmission is brought up. It was recently raised in a sitting of the joint select committee reviewing the Sexual Offences Act and other related acts. It was raised by representatives of the Office of the Director of Public Prosecutions (ODPP) who, while not recommending the specific criminalisation of transmission of HIV and STIs, highlighted the case of George Flowers and the complexities that arose from it.
George Flowers, a man living with HIV, knowing himself to be living with HIV, had unprotected sexual intercourse with several women who subsequently contracted the virus from him. This occurred in Canada and he subsequently came to Jamaica. An extradition request by Canadian authorities was challenged on the basis that Jamaica did not have similar laws criminalising endangering the lives of a person through transmission of sexually transmitted infections.
The Supreme Court ruled that Jamaica did have similar laws based on persuasive case law (R v Dica; R v Konzani) from Britain, which identified the reckless or intentional transmission of HIV and other STIs as amounting to assault occasioning bodily harm, which is captured in the Offences Against the Person Act. The ODPP representatives questioned whether the state of the law needed to be codified into legislation which specifically criminalised HIV transmission.
While we understand the need to prevent the transmission of HIV and the importance of holding those who, by their wilful or reckless actions, put others at risk for harm accountable, the question is whether the specific criminalisation of HIV transmission is the route to do this. Specific transmission raises several issues that I will discuss below.
Positive Status
First, as with all criminal offences, the crime of wilful or reckless transmission has a mental element. In this case, a person ought to know they have HIV and knowingly have sexual intercourse with another person whom they have not told about their positive status.
The only way to know that one has HIV is by doing an HIV test. A valid defence is that a person did not know his/her HIV status. Laws that specifically criminalise HIV transmission, therefore, can have the unintended effect of dissuading persons from getting tested and, by extension, knowing and managing their HIV status.
Second, these laws shift the burden of protecting oneself from contracting HIV to the person who is living with HIV. Consistent with the Ministry of Health, we would like to emphasise that it is the responsibility of each consenting adult to protect himself/herself from contracting HIV by engaging in safe sex consistently. Rather than emphasising that point, these laws require persons living with HIV (PLHIV) to disclose their status in the face of societal stigma and discrimination.
Jamaica’s current state of the law is consistent with international human-rights standards that balance the right to life, liberty and security of the person on one hand and the right to privacy and freedom from discrimination on the other.
Wilful and reckless transmission of HIV is covered under general criminal laws related to assault and wounding, i.e., where a person actually infects another with HIV or any other STI, knowing one was so affected and intentionally or recklessly putting the other person at risk, one is criminally liable. This focuses on the fact of transmission, and not the fact of a PLHIV having sex with another person.
Current Realities
My organisation, the Jamaican Network of Seropositives (JN+), strongly feels that any attempt to codify the principles arising out of Dica and Konzani should be cognisant of current realities around HIV transmission and prevention.
Such legal provisions should not criminalise a PLHIV who is virally suppressed for having sex with someone who is HIV negative without sharing his/her status. The legal provisions should specifically relate to wilfully or recklessly having unprotected sex with another person, which leads to transmission. Persons should not be criminalised for condoms ripping and similar occurrences. The legal provisions should not criminalise the transmission of HIV and other sexually transmitted infections.
We reiterate that conversations regarding HIV transmission should be cognisant of the experiences of people living with HIV. They should be mindful of furthering the stigma and discrimination that PLHIV face by inadvertently painting them as vectors of the disease. Rather, they should be mindful of the relevant nuances as they seek to protect and promote the rights of all.
– Ricky Pascoe is president of the Jamaican Network of Seropositives. Email feedback to columns@gleanerjm.com and jnpluscommunications
HIV Criminalization: A Concept That Has to Be Talked About
The topic of HIV is an issue many people are uneducated in, especially when bringing up different complex fragments that are connected with HIV and how they influence the lives of people living with HIV. Unfortunately, most people today lack knowledge, understanding and curiosity in the basic information on HIV, thus many don’t know how understand how laws and policies impact people living with HIV. This is where the issue of HIV criminalization comes in–a topic that many, unfortunately, don’t think about these days, since many don’t know it exists or do not understand its impacts. But it has become one of the most crucial issues for HIV/AIDS activists today.
According to the Center for HIV Law and Policy, in 36 US states, people living with HIV have been arrested, accused and prosecuted against for having consensual sex, biting and spitting. In addition to this, since 2008, there have been more than 260 cases reported of HIV criminalization under states in which there are HIV specific laws and in states where there were broad terms for bodily fluids or sex work. Because of these gruesome and unjust laws, people living with HIV are a specific target, living in fear and stigmatized for their status. Also, many people are illiterate about these prejudiced laws, which break the basic principles of human rights and instead of asking questions; many ignore the issue of HIV criminalization that is present in their country. This kind of mentality has to be stop, and an open educational and informational dialogue has to begin.
Monique Howell is a veteran who served in the US army. She is now a stay-at-home mom of three boys and a motivational speaker. “I have been criminalized for living with HIV for nondisclosure by having unprotected sex with another soldier. I was put on trial. The other soldier did not get the virus,” Howell explained.
Furthermore, Howell described that if convicted, she was looking at 8 to 12 years. “They moved me out of my house and into a single soldier barracks where I was monitored day in and out while on trial. They ended up dropping all my charges and released me out the military,” Howell further illustrated.
Howell knows many others fighting today against HIV criminalization and pointed out how this is a long, challenging road to bringing justice to many today who are accused of criminal acts for living normal lives with HIV. “The SERO Project has been working countless hours trying to make these laws accurate and up to date. Not only the SERO Project, but others have started campaigns and partner up, including PWN-USA with the SERO Project, to come together with ideas on how we can continue to head in the right direction with HIV criminalization,” she finally added.
Toward the end of the conversation, Howell depicted how she still has hope of creating a society in which people will be educated about HIV and changing the laws that stigmatize and create fears for those living with HIV. “My hopes is that we are treated fairly and not treated based off society’s ignorance. We must educate one another.”
Ken Pinkela was in the US army for 29 years. He is currently working with the SERO Project as the Military Policy Director and runs communications/social media for the project. Pinkela was falsely accused and prosecuted for HIV exposure by an Army Lieutenant. “With no investigation or evidence of any kind (physical or medical), I was courtmartialed and convicted of then an aggrevated assault (which was later dropped to assault and battery via an important US Air Force HIV case).”
The US military does not have authorization nor do they have a congressinally authorized charge related to anything HIV, Pinkela revealed. Pinkela emphasized how he has received unfair and unjust treatment from the Army, in which he was stopped from being deployed and having overseas assignments. Even though there has been slow progress in the military, the changes have still been valuable; one of them is the US Air Force case, “US vs. Gutierrez,” in which the court has recognized the benefits of advanced medicine and science. However, even though this kind of recognition exists, there are issues that still negatively impact service members who are HIV positive.
“HIV positive service members are singled out and given an order that is known as the Safe Sex Order, which threatens that any sexual contact with or without a condom is subject to prosecution, even if the service member discloses their HIV status,” clarified Pinkela.
Moreover, Pinkela illustrated how service memebers living with HIV are seen as sexual deviants; thus there is a big gap between those who are HIV negative and those who are positive. In the end, Pinkela described how he hopes that the HIV Discrimination Act will be passed. Just this year in March, the bill (HR 1739) was re-introduced in the US House of Representatives.
In the last couple of years, there has been significant progress and work into modernizing HIV specific laws. For example, in 2016, Colorado modernized their STI codes, which included the repeal of HIV specific status. Their coalition effort was spearheaded by Positive Women’s Network – USA Colorado.
In 2014, Iowa modernized their HIV specific laws. Tami Haught is one of the activists who helped change those laws, where she led community forums to educate communities, lobby legislators and organized CHAINS’s state lobby day. This kind of initiative started way back in 2004 and was active in 2009, when many activists and advocates gathered and realized they needed to bring a change.
Currently, Haught is the SERO Project’s Organizing and Training Coordination and is helping and supporting different states to modernizes their HIV specific status. Haught explained that one of the greatest issues of HIV criminalization is the lack of knowledge about this problematic issue. “People living with HIV are generally aware of these laws. The general public is very unaware about basic HIV facts. People are still unaware of how HIV is transmitted so a lot of misinformation is still available to people.”
Haught described that with HIV criminalization can come another horrific factor that deeply impacts a person’s life: sex offender registration. One of the worst case scenarios of an HIV criminalization case came from Iowa. “One-time sexual encounter, protection was used, person living with HIV was medically adherent ad virally suppressed, so there was no exposure to HIV–zero risk of harm. However, Iowa’s law was a disclosure law, the person living with HIV was unable to prove disclosure, so he was charged, convicted, and sentenced to 25 years of jail and lifetime sex offender status. This was consensual sex between two adults,” explained Haught.
However, the judge reconsidered his case and he was released from prison. Once the law was modernized in 2014, people accused of HIV criminalization were removed from the sex offender registry list.
Haught explained how today, the SERO Project is doing everything they can to help not only modernize the laws, but to help people impacted by HIV criminalization laws. They have their own Survivor’s Network which offers different programs to support those who need the most. “Cindy Stine communicates with people and runs the Christmas Card project to send greeting to people currently incarcerated to let them know they matter and are not forgotten, offering hope and hopefully comfort to a group of people other would ignore or throw away. Everyone matters to us,” said Haught.
Kamaria Laffrey is currently fighting against HIV criminalization as the Florida Community Organizer for The SERO Project. Laffrey mentioned how more and more people today are aware of the problematic issue of HIV criminalization, since there are many networks collaborating together in the fight against HIV criminalization. “The SERO Project, PWN, The Center for HIV Law & Policy, HIV Justice Worldwide and many others are instrumental in building skills for advocates to go into their communities and educate other people living with HIV, public health experts, legislators, law enforcement entities, and even trauma center response facilities,” explained Laffrey.
However, Laffrey also revealed the situation in Florida when it comes to HIV criminalization. “The laws in Florida were passed in 1986. Between the years of 1988-2016, Florida has convicted 99 people under HIV criminalization laws. These laws differ by region, demonstrating differences in behavior, prosecutor attitudes or local political culture. Of those 99 cases, 53 of them were women. As of 2014, women accounted for 28% of all people living with HIV; however made up 54% of those convicted under the laws,” explained Laffrey.
Laffrey’s future plan is to help out people that are victims of HIV criminalization; she will organize and collaborate with different networks working to eradicate HIV criminalization laws. “I personally plan to continue to conduct the workshop Be the Change You Seek: Engaging in a Resistant Community to challenge people to understand that the vagueness of our laws is intentional, and that we don’t have to accept them just because they are on the books when they are used to wrongfully prosecute a group of people,” explained Laffrey.
In the same way, one of her greatest hopes for other activists and advocates is to fight for education, so that people will become more aware and conscious about the unfairness of HIV criminalization laws and the way they impact people’s lives. That way, people will be able to fight together to change these outdated, discriminatory laws.
Evidence- and rights- based laws and policies are key to ending AIDS
On the five-year anniversary of the Global Commission on HIV and the Law’s groundbreaking report, former members of the Commission and partners commend 88 countries for advancing the report’s recommendations and urge other countries to enact progressive legislation and protect human rights
NEW YORK – Five years ago, a landmark report published by the Global Commission on HIV and the Law urged governments to promote laws and policies grounded in evidence and human rights in order to turn the tide against AIDS. This week, members of the Commission and representatives of UN Member States, civil society, academia and international organizations came together to assess the progress made in advancing the report’s recommendations, look at the barriers that remain and discuss opportunities for further progress.
The Commission – comprised of former heads of state, human rights, public health and legal experts – released a report that has led a multi-year effort to ensure that national laws, policies and practices that impede the AIDS response are overturned. Laws that stigmatize people living with and vulnerable to HIV perpetuate discrimination and block people from seeking health services and undermining public health goals.
“HIV is still one of the deadliest diseases in the world and it’s unforgivable that national governments have failed to address legislation that fuels the AIDS pandemic,” said former Commissioner Michael Kirby, a former Justice of the High Court of Australia. “Laws that criminalize HIV are anti-science, unjust and unconstructive.”
It’s not all bad news – the Commission also pointed out several success stories, noting that legislation based on science and human rights has helped advance the global commitment in the Sustainable Development Goals to end HIV for good and leave no one behind. Today, there’s still reason to be optimistic.
“It is time for countries to think proactively about designing laws and policies that will help end the HIV epidemic,” said former Commissioner Bience Gawanas, a lawyer and human rights expert. “We’ve seen that some countries, including Ghana and Mozambique, have been able to improve HIV responses by adopting more progressive policies. If we’re going to defeat HIV, other countries need to do the same.”
Since the release of the Commission’s report, the United Nations Development Programme (UNDP) and its partners have helped advance the report’s recommendations in 88 countries. Several countries have conducted comprehensive assessments of laws, policies and practices affecting people with HIV and have changed legislation as a result. National conversations on the rights of people living with and vulnerable to HIV have led countries to reform discriminatory practices against people living with HIV. Judges, civil society organizations and partners have been instrumental in helping to overturn discriminatory legislation and counter HIV stigma.
The Commission’s recommendations contributed to several success stories over the last five years. These include:
“Equality, inclusion and non-discrimination are at the heart of the 2030 Agenda for Sustainable Development,” said Achim Steiner, UNDP Administrator. “Laws and policies that protect rather than punish, combined with programmes that reduce stigma and discrimination, exist and need to be scaled up if we are to achieve our goal of ending the AIDS epidemic by 2030.”
By replacing legal practices rooted in stigma with legislation based on science, these countries are among the frontrunners taking steps to protect the human rights of people living with and affected by HIV.
“It’s incredible to see the progress that some countries have made over the past five years,” said Michel Sidibé, Executive Director of UNAIDS. “They’ve taken important strides to protect the rights of women and people living with and vulnerable to HIV.”
These countries have shown us that laws and policies grounded in evidence and human rights, combined with programs that reduce stigma and discrimination, can help accelerate progress to end the AIDS epidemic by 2030.
About the Global Commission on HIV and the Law:
The Global Commission on HIV and the Law was launched in June 2010 by UNDP on behalf of the Joint UN Programme on HIV/AIDS (UNAIDS) to provide global leadership on HIV-related legal and human rights issues by analyzing what is known about the interactions between the legal environments, human rights and HIV; fostering evidence-informed public dialogue on the need for rights-based law and policy in the context of HIV; and identifying clear and actionable recommendations with a concrete plan for follow-up. (www.hivlawcommission.org)
Contact informationSangita Khadka, Communications Specialist, UNDP Bureau for Policy and Programme Support, email: sangita.khadka@undp.org tel: +1 212 906 5043Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.
The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.
“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”
The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.
In the preamble, they note that:
discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.
Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.
Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.
To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV
For example, question 7 asks “isn’t some progress better than no progress at all?
This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.
With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.
The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.
Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.
Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.
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.
A call for applications for the European HIV Academy for Enabling Legal Environments is now open.
This two-day training academy for people living with and affected by HIV, is dedicated to skills building for addressing punitive or disabling legal environments.
Around 25 participants from across Europe will be selected to take part in this training academy, which will focus on three intersectional legal barriers affecting people living with, and affected by, HIV:
The training academy is organised in collaboration with Deutsche AIDS Hilfe (DAH) – the host organisation of AIDS Action Europe (AAE) – the European AIDS Treatment Group (EATG), Global Network of People Living with HIV (GNP+) and the HIV Justice Network (HJN).
When: 13-14 September 2017 Where: Deutsche AIDS Hilfe, Berlin, Germany Apply here: https://www.surveymonkey.com/r/WZRFV35 Applications close Wednesday July 26th (23:59 CET)
The objectives of the training academy are:
Format
The training academy is organised in a workshop format with presentations and group work. The trainers are leading experts in the field from the organising bodies and their networks. The entire training will be in English; no translation will be provided.
Participant criteria
People working on improving HIV-related legal and policy environments in any of the 53 countries in the WHO Europe region are welcome to apply. Participants will be scored based on country needs-assessment, fluency in English and links to local and national networks.
Only complete applications submitted via the online form will be accepted.
Scholarships
Some scholarships are available to cover all costs including flights and accommodation, or flights or accommodation only. If you wish to apply to a scholarship, please indicate this on the application form. Please note that all meals are provided to all participants.
When will justice department announce new approach to prosecuting cases of HIV non-disclosure?
Critics say that recent conviction of Indigenous woman is further proof that the use of sexual assault laws in cases of HIV non-disclosure continue to criminalize marginalized people and women of colour.
An Indigenous woman with HIV has had her appeal on an aggravated sexual assault conviction dismissed by the Manitoba Court of Appeal. The decision handed down on June 29 comes as a blow to the growing movement of lawyers and human rights advocates pushing to change laws that they say criminalize people with HIV, in particular vulnerable women.
Activists have been calling for a moratorium on all new prosecutions of HIV-non-disclosure cases.
The woman convicted in the most recent case is pregnant. She will serve nine months in a Manitoba prison. (NOW Magazine has decided not to publish her name out of respect for her privacy.)
She was convicted in 2014 for failing to disclose her HIV status to a friend she had unprotected sex with three times. They had both been drinking on each occasion. The friend later tested positive for HIV, but it’s not clear if he contracted the condition from the woman. It was never proven in court.
Testimony at her trial also revealed the woman’s own history of intergenerational sexual violence and her belief she had contracted HIV through coerced sex. But the appeal court decision did not take any of that into consideration as mitigating factors.
“Everyone is very shocked and saddened,” says Laverne Gervais, Project Coordinator of Sisters of Fire at Ka Ni Kanichihk, a support group for Indigenous women living with HIV attended regularly by the woman. “She did everything that the law wants people to do, she attended programming, bettering herself, and was working on starting a new family with her committed boyfriend.”
The conviction is considered by critics to exemplify the injustices of the current use of sexual assault laws against people living with HIV, including the stigma still attached to the condition even though it is now considered a chronic and manageable condition that can be rendered undetectable after treatment.
The trial and appeal had been widely publicized in sensational articles. The woman’s high school graduation photo was leaked to the media shortly after her arrest.
Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, says the fact she is HIV-positive completely changed how she was viewed by the court. “The judge presumptively saw her as a sexual assailant.”
The judge who presided over her original trial, Justice Colleen Suche, noted in her decision that the woman’s behaviour was not predatory “or part of a pattern of dangerous behaviour. Rather, her silence [in not disclosing her HIV status] was the result of fear” – namely, as a result of her own history of sexual abuse.
However, Suche instructed the jury to disregard testimony related to her intoxication.
Says Elliott: “Had she been HIV-negative, her intoxication would have been relevant in her ability to consent or not to the sex. But it was not understood as relevant in her ability to disclose her HIV status. The distinction is biased. This is clearly not a sexual assault, and the application of that law in this case does a disservice to those laws.”
It was alleged by the Crown that the accused may have transmitted HIV to her friend, but Suche indicated in her decision that “the question was not relevant” and, therefore, not before the jury. There was also no HIV phylogenetic analysis done, a test to determine if the same strain of HIV was transmitted from one person to another. The woman reportedly gave him a condom during one of the sexual encounters but he didn’t use it.
Due to the conviction on aggravated sexual assault, she is now a registered sex offender. She was allowed to volunteer at her daughter’s daycare program, but will now be barred from doing similar volunteer work because of her conviction.
She faces a challenging time in jail. People incarcerated for sexual assault because of HIV non-disclosure face stigma, discrimination and violence behind bars. They are often housed in protective custody as a result, which can mean being held in administrative segregation 24/7.
On World AIDS Day December 1, 2016, the Federal Minister of Justice Jody Wilson-Raybould promised “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”
Wilson-Raybould also acknowledged in her statement that the Canadian criminal justice system “must adapt to better reflect the current scientific evidence on the realities of this disease.”
But the hoped-for immediate moratorium on new HIV non-disclosure cases that activists have been lobbying for is not happening. And a new approach to prosecuting such cases is now not expected until the fall.
Until then, the law will continue to be applied in ways, critics say, that create more vulnerability and insecurity for already marginalized people in society, especially women of colour.
“We can’t be living in fear of the criminal law any longer,” says Jeff Potts, of the Canadian Positive People Network, a national organization representing people living with HIV. “HIV is not a crime.”
Law 12.984 defines as a crime the discrimination of people living with HIV / AIDS in Brazil. Institutions and persons who deny education, health or employment to HIV-positive persons, as well as those who promote their segregation or disclose their serostatus in order to offend them, are punishable.
For the director of the Department of Surveillance, Prevention and Control of STIs, HIV / AIDS and Viral Hepatitis, Adele Benzaken, it is important to discuss not only discrimination but about mortality caused by late diagnosis, irregularities and treatment abandonment.
Caio Oliveira, of the United Nations Children’s Fund (UNICEF), stressed that article 130 of the Brazilian Penal Code already criminalizes the exposure of people to serious illnesses. In this way, it would not be necessary for the bill to make the transmission of the virus a heinous crime. “We need to make sure that the people who need them do not have any problems,” he said.
In addition to representatives of the UN System, leaders of social movements, non-governmental organizations and representatives of the public power participated in the meeting.
“Another major problem … is the confidentiality of medical records. Why? Because you will only be able to get this information if in any way these medical records come to the public domain, come to the justice system, “warned federal prosecutor for Citizen Rights, Deborah Duprat. The prosecutor also stressed that this issue may reach mainly socially stigmatized groups, which hide the infection to their families and society to avoid discrimination.
Pétala Brandão, from Conectas Human Rights, said that the bill is a result of human rights setbacks in Brazil. “It is a manifestation of a punitive ideology, of criminal recrudescence, which creates stigma and vulnerability,” he said.
She stressed that the participation of the United Nations is fundamental to guarantee the rights of all people, but that there must be, in essence, an articulation with civil society and social movements.
Erika Kokay (PT-DF) endorsed the argument of the Conectas specialist. “This culture of fear turns into hate and creates intolerance. The project creates invisible social differences, “said the deputy.
With a strong focus on the sexual and reproductive rights agenda, UNFPA is one of 11 UN agencies to be part of the HIV / AIDS working group. The agency has assumed the presidency of the group for the 2017-2018 biennium.
UNFPA works to promote universal quality health services, including the prevention and treatment of reproductive tract infections and sexually transmitted infections, including HIV / AIDS.
Created in 1997 through a multisectoral approach, the working group seeks to support the response to the HIV / AIDS epidemic in the country. This mobilization places HIV among the priority themes of joint action of the UN System for several years.
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Grupo de trabalho critica projeto de lei que criminaliza transmissão do HIV
O Grupo Temático Ampliado das Nações Unidas sobre HIV/AIDS (GT/UNAIDS) reuniu-se na segunda-feira (3) para discutir o atual panorama da epidemia de AIDS no Brasil e articular a oposição ao Projeto de Lei 198/2015, que torna crime hediondo a transmissão deliberada do vírus. Este foi o primeiro encontro do grupo presidido pelo Fundo de População das Nações Unidas (UNFPA).
Para o representante do UNFPA no Brasil, Jaime Nadal, o projeto de lei vai contra os ideais e propostas das Nações Unidas referentes à epidemia de HIV/AIDS. A criminalização da transmissão do HIV, além de reforçar a estigmatização das pessoas que vivem com o vírus, pode desencorajar as pessoas a realizarem a testagem e o tratamento, uma vez que estariam sob a ameaça de se tornarem criminosas, afirmou.
O projeto de lei desconsidera os avanços científicos em HIV/AIDS, que comprovam que tratamentos antirretrovirais reduzem em até 96% as chances de transmissão do vírus em relações sexuais. “Muitos países, em todo o mundo, estão reformando suas leis que criminalizam a transmissão do HIV”, lembrou Nadal, completando que o projeto vai na contramão da tendência mundial.
A diretora do UNAIDS no Brasil, Georgiana Braga-Orillard, reforçou a fala do representante do UNFPA. Segundo ela, o projeto de lei vulnerabiliza ainda mais as populações com estado sorológico positivo, já que “considera as mais de 800 mil pessoas vivendo com HIV no Brasil como criminosos em potencial”.
Segundo ela, a meta do Sistema ONU no Brasil é que todas as pessoas realizem o teste para o vírus e, se necessário, façam o tratamento — o oposto do que aconteceria se o projeto de lei for aprovado.
Em nota técnica, o UNAIDS salientou seis argumentos contrários ao projeto de lei: ele penaliza os mais vulneráveis; promove medo e discriminação; favorece a aplicação seletiva da lei; desconsidera as evidências científicas sobre HIV; põe em risco a privacidade e a confidencialidade; e faz com que o Brasil perca o protagonismo na resposta ao HIV/AIDS.
A Lei 12.984 define como crime a discriminação contra pessoas que vivem com HIV/AIDS no Brasil. São passíveis de punição instituições e pessoas que negarem educação, saúde ou emprego às pessoas soropositivas, bem como as que promoverem sua segregação ou divulgarem seu estado sorológico com o intuito de ofendê-las.
Para a diretora do departamento de Vigilância, Prevenção e Controle das ISTs, HIV/Aids e Hepatites Virais, Adele Benzaken, é importante discutir não somente sobre discriminação, mas sobre a mortalidade causada pelo diagnóstico tardio, irregularidades e abandono do tratamento.
Caio Oliveira, do Fundo das Nações Unidas para a Infância (UNICEF), destacou que o artigo 130 do Código Penal brasileiro já tipifica como crime a exposição de pessoas a moléstias graves. Dessa maneira, não seria necessário que o projeto de lei tornasse a transmissão do vírus um crime hediondo. “Precisamos assegurar que as pessoas que precisam não tenham mais problemas”, finalizou.
Além de representantes do Sistema ONU, participaram do encontro lideranças de movimentos sociais, organizações não governamentais e representantes do poder público.
“Outro grande problema (…) é a confidencialidade dos registros médicos. Como é que fica? Porque você só vai poder ter essa informação se de alguma maneira esses registros médicos vierem a público, vierem para o sistema de Justiça”, alertou a procuradora federal dos Direitos do Cidadão, Deborah Duprat. A procuradora ressaltou também que esse ponto pode atingir principalmente grupos socialmente estigmatizados, que escondem a infecção de suas famílias e da sociedade para evitar discriminação.
Pétala Brandão, da Conectas Direitos Humanos, afirmou que o projeto de lei é resultado dos retrocessos dos direitos humanos no Brasil. “Ele é uma manifestação de uma ideologia punitivista, de recrudescimento penal, que cria estigma e vulnerabilização”, declarou.
Ela ressaltou que a participação das Nações Unidas é fundamental para a garantia dos direitos de todas as pessoas, mas que deve haver, imprescindivelmente, articulação com a sociedade civil e movimentos sociais.
Para a deputada Erika Kokay (PT-DF) endossou o argumento da especialista da Conectas. “Esta cultura do medo se transforma em ódio e cria intolerâncias. O projeto invisibiliza as diversidades sociais”, disse a deputada.
Com forte atuação pela agenda de direitos sexuais e reprodutivos, o UNFPA é uma das 11 agências das Nações Unidas a fazer parte do grupo de trabalho sobre HIV/AIDS. A agência assumiu, este ano, a presidência do grupo para o biênio 2017-2018.
O UNFPA atua para a promoção do serviço de saúde de qualidade universal, incluindo a prevenção e tratamento das infecções do aparelho reprodutor e das infecções de transmissão sexual, incluindo o HIV/AIDS.
Criado em 1997 por meio de uma abordagem multissetorial, o grupo de trabalho busca apoiar a resposta à epidemia de HIV/AIDS no país. Essa mobilização coloca o HIV entre os temas prioritários de atuação conjunta do Sistema ONU há vários anos.
“I would not have consented to sex had I known of their HIV” status. This statement is problematic and here’s why.
On June 15, 2017 the Canadian HIV/AIDS Legal Network held a symposium in Toronto, Ontario, Rethinking Justice: the 7th Symposium on HIV Law and Human Rights. The symposium focused on unjust HIV criminal legislation in Canada.
Canada unfortunately has one of the worst records in the world for the overly broad use of criminal laws to address HIV nondisclosure. Panels of experts and those with lived experience of HIV criminalization presented their research and experiences. The legal experts discussed the history of the nondisclosure law and how the notion of “fraud” relates to criminal laws for nondisclosure.
In Canada when a person does not disclose their HIV status to sex partners it is considered an act of fraud where consensual sex did not take place. Because the sex is not consensual, as the complainant maintains they, “would not have consented to sex had they known of their partner’s HIV status” charges of aggravated sexual assault are applied. Aggravated sexual assault comes with a prison sentence which can range from ten years to a life time imprisonment where it is deemed the person posed a significant risk of serious bodily harm, which posed a realistic possibility of transmission of HIV.
Presented here are a couple of highlights of Supreme Court of Canada rulings, which the reader can explore further. The Supreme Court of Canada rulings laid out the terms and conditions for which “fraud” could be used to prosecute people living with HIV for non-disclosure of their status. The focus of this article is on the notion of fraud from the perspective of people living with HIV including the detrimental effects legislative and popular belief pose.
In 1998 the R v. Cuerrier, (1998) 2 SCR 371 ruled in a nondisclosure of HIV case that
“HIV/STI non-disclosure amounts to fraud vitiating consent, thus transforming consensual sex into a sexual assault when,
AND
the complainant would not have consented to sex had they known accused person’s status
exposing a person to the risk of HIV “endangers life” and therefore is considered aggravated (sexual) assault
In 2012 the R v Mabior, (2012) SCC 47 and R v D.C. (2012) SCC 48 ruled specifically in the case of HIV: there needs to be a “significant risk of serious bodily harm”, which poses a “realistic possibility” of transmission of HIV.
Section 265 (3) (c) of the Criminal Code of Canada states: fraud vitiates consent to contact. For the purposes of this section, no consent to physical contact is obtained where the complainant submits or does not resist by reason of fraud.
You can read more about these Supreme Court of Canada rulings, a complex phenomenon where the highest court in the country has intervened with no clear resolution to date as Canada remains a world leader in prosecutions for non-disclosure of HIV status. There are approximately 187 non-disclosure prosecutions in Canada to date.
In the meanwhile here’s the latest on nondisclosure and the notion of fraud and “reasonable risk” of transmitting the HIV virus, as experienced on interpersonal levels by people living with HIV.
That a person can choose to not have sexual contact with someone living with HIV and then have the option to pursue criminal charges of aggravated sexual assault on the basis of fraud and “risk of transmission” if they realize after the fact they did not practice universal caution in the first place, is problematic on many levels.
Here’s why: it fuels stigma and discrimination against people living with HIV. It deters people from getting tested for HIV and knowing their status and seeking treatment. It fuels criminalization of HIV non-disclosure. (Criminalization has not proven to be effective in lowering rates of HIV transmission.) It reinforces an imbalance of power for individuals in taking responsibility for their own sexual well-being.
” It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status.”
Charging people with fraud in HIV non-disclosure cases exacerbates lack of education in regards to modern scientific information in the world of HIV. It does not take into consideration the fact that having an undetectable viral load makes it impossible to transmit the virus (Undetectable=Untransmittable or U=U). As well there is no acknowledgement of pre-exposure prophylaxis (PrEP) as a prevention measure).
Criminal charges remain value laden and racist as they tend to target marginalized groups of minorities, rather than being driven by scientific evidence and facts.
The general public behaves negatively towards disclosure, discouraging people from being open about their status and in some instances making it impossible. The general public has the strong arm of the law on their side and they can always prosecute someone for nondisclosure, using fraud as a basis, without giving any thought to how they might manage disclosure differently.
People living with HIV want to disclose, as every person who struggles with disclosure will attest. It is not simply fear of disclosure, but the stigma and bashing which follows, that make it almost impossible for many to face disclosing their HIV status. This includes severe stigma, using disclosed information in damning ways to harm persons living with HIV as well as potentially many forms of violence (especially toward women who are in positions of power imbalances in relationships), blackmail, constant rejection and the more subtle kinds of rejection which are often the most hurtful.
People living with HIV want to pursue some sort of normalcy in fulfilling their basic human need and basic human right to intimacy and relationships with others. After a while, as a means of self-preservation, disclosing becomes not so easy for all the reasons described.
How can the general public insist upon disclosure when they set the tone and grounds for unsuccessful disclosure?
It’s fucked. People living with HIV are fucked.
The power imbalance is blatantly tipped in favour of the HIV-negative.
But if people are going to continue with irrational expectations, whereby the HIV-positive are obliged to disclose their status or risk prosecution, yet are bashed, stigmatized and often threatened with different types of violence when they do meet their obligation to disclose, then what are people living with HIV supposed to do?
This situation sets the stage for non-disclosure and everything that entails.
The irony is not lost as the HIV-positive continue to disclose and make every effort to convey modern facts about HIV in the hope that it will make disclosure easier. To date, it has not been effective. As a matter of fact, the stigma around HIV disclosure is worse than ever.
This irrational pattern of thinking leaves people living with HIV in a position where it is often near impossible to get the facts out about modern science which dispel myths and stigma that are rooted in fear and ignorance. People living with HIV face deprivation of intimacy and relationships that are key components to a healthy lifestyle, and part of basic human needs like hunger and thirst.
If people go for prolonged periods without their basic human needs met I would hazard a guess they are not in the greatest state of mind or body while struggling with the stress and constant reminder that life is not as it should be. They might be thinking about what it would be like to experience intimacy, free of the complications, just this once. “Oh to escape from this imposed burden and to feel normal again, just for a while.” This is a key factor in disclosure complexity.
Here are a few options available to people living with HIV under these circumstances. None of them are ideal:
Never be intimate again. Live in isolation and fear of prosecution as well as discrimination from the general public.
Continue to disclose and suffer the backlash with the end result being more stigma and bashing, no intimacy, with continued responsibility and onus being on people living with HIV to disclose. Live with fear of prosecution even if disclosure occurred.
Remain hopeful and continue to educate and advocate for change in public perception and legislation, which recognizes scientific modernization proving that the HIV-positive are not a risk. Recognizing how intimacy is a basic human need and right.
Continue to advocate for changes in HIV criminal laws that are to date not effective, while trying to maintain hope for a more favourable and balanced situation than the disclosure dilemma we now see.
It’s time to rethink the statement, “I would not have consented to sex had I known of their HIV status.” A person living with HIV, who is on medication and has an undetectable viral load cannot transmit the HIV virus sexually. Why would you not have sex with a person who is living with HIV?
It’s time to learn and absorb this vital information which changes the notion of what “reasonable risk” means and which offers a new, fear-free perspective to people living with HIV.
Modern scientific developments have been a secret well guarded by gatekeepers, as this information is largely left out of the criminalization discussion. This scientific information is not new or cutting edge, yet is not discussed with the general public or taken account of in legislation.
Prosecutions, discrimination and ostracism remain the favoured options in managing HIV disclosure here in Canada.
The general public, supported by legislation and policy, has created this situation; how can they begin to fix it? What about some suggestions for the general public and law makers? People living with HIV already know what their responsibilities are.
Education leads to change in thinking, change in decision making, and a change in the statement, “I would not have consented to sex had I known of their HIV status.” Change in legislation and change in public perception would ultimately lead to a decline in transmission rates, improved quality of life for people living with HIV and the removal of the stress and threat of criminalization.
If people living with HIV are received with positive and supportive responses, disclosure of HIV will be far less complex and hopefully one day it will be a nonissue.
But back to the fraud charges, and some questions to ponder in this complex state of affairs: How can people living with HIV be criminally charged with fraud, under the circumstances described here? Can those who make disclosure difficult be prosecuted for fraud? Does choosing not to know the facts while promoting ignorance and in turn harm to people living with HIV constitute fraud? If disclosure were more of a shared responsibility, would there be such harsh legislation in place?
And how can responsible decisions be made and opinions formed which ignore scientific facts?
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