Mark S. King (My Fabulous Disease) reports from the first HIV is Not a Crime conference, held in Grinnell, Iowa in 2014 in a moving video that includes interviews with people living with HIV who have been prosecuted.
Iowa Governor Terry Branstad signs 'Contagious or Infectious Disease Transmission Act', replacing draconian, unscientific HIV-specific law
Des Moines, Ia. — Today, Iowa Governor Terry Branstad signed into law Senate File 2297, bi-partisan legislation that will modernize Iowa’s HIV criminal transmission statute to make the statute consistent with contemporary science, improve public health and lessen stigmatization of people with HIV.
See more at: http://www.thebody.com/content/74558/iowa-first-to-reform-hiv-criminalization-statute.html
US: On eve of national HIV criminalisation conference Iowa's remarkable advocacy success is the model for other states to follow
If Gov. Terry Branstad signs Senate File 2297 on Friday as planned, Iowa will become the first state in the country to repeal and replace its criminal transmission of HIV law, activists say.
The law being reformed had been on the books since 1998. A broad coalition of groups, led by the Community HIV and Hepatitis Advocates of Iowa Network (CHAIN), has been working for the past five years to modernize it.
Advocates said the new law better reflects advances in science, medicine and understanding of how HIV is transmitted.
Until now, Iowa has had one of the harshest HIV transmission laws in the country. Under the 1998 law, persons with HIV could face 25 years in prison and inclusion on the sex offender registry if they could not prove they disclosed their status to a sexual partner — even if no transmission occurred and precautions such as condoms were used.
Under the new law, there is a tiered penalty system, which takes into account whether a person took precautions, whether transmission of HIV actually occurred and whether or not the person intended to transmit HIV.
The new law also adds other infectious diseases to the bill such as hepatitis, tuberculosis and meningococcal disease, which causes meningitis — so the law is no longer HIV-specific.
Finally, it removes the requirement those convicted register as sex offenders, and it will allow people convicted under the old law to be expunged from the registry.
Both the Iowa House and Senate unanimously approved the bill this year, a stark contrast to the four previous years, when similar bills languished in the legislature.
“You have to be in it for the long haul. It’s not an easy process,” CHAIN community organizer Tami Haught said of the group’s lobbying efforts. “We’re still dealing with a lot of the stigma that was around in the ’80s.”
She said when activists set out to change the law five years ago, they hoped to simply see the criminalization law repealed. But that wasn’t palatable to some lawmakers and county prosecutors, who said they still wanted to hold people with HIV accountable for protecting their sexual partners.
Finding ways to compromise was key to getting the sweeping bipartisan support needed, Haught said. Other tactics included meeting frequently with lawmakers, engaging in community education and gathering as many organizations to voice their support as possible.
CHAIN partnered with groups ranging from the Iowa Attorney General’s Office and the Iowa Department of Health to the League of Women Voters, the Family Planning Council and the Interfaith Alliance.
“We were up at the capitol almost every day it was in session talking with legislators. and that’s what needed to happen,” Haught said. “In 2014, maybe there was only one legislator who was not familiar with the law. When we started, a majority of legislators didn’t even know the law existed.”
NATIONAL ACTIVISTS LOOK TO IOWA
CHAIN’s tactics will be on display next week. The changes to Iowa’s law made national news, and activists hope to replicate those efforts in other states.
National group the Sero Project, founded by Iowa City native Sean Strub, is organizing a conference, HIV Is Not a Crime, to be held in Grinnell starting on Monday of next week.
Numerous laws similar to Iowa’s were passed in different parts of the country in the late 1990s in the wake of a high profile 1996 incident in New York. In that case, a man was charged with intentionally infecting 13 women and girls with HIV.
Additional pressure came from the federal government, which at the time required states to have an HIV transmission law on the books to access federal funding for HIV prevention and treatment through the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act.
Today, there are 34 states with a HIV-specific criminalization on the books. Only two had harsher penalties than Iowa. Now, Iowa has become a model for how change could happen elsewhere.
When they started work on the conference, organizers were hoping for perhaps 50 people to attend. As of earlier this week, more than 170 activists from across the United States and four other countries have signed up to spend June 2 through 5 to learn and share lobbying and education techniques related to HIV transmission decriminalization.
“We wanted to bring advocates to one place and give them the tools to go home and try to modernize the laws,” Haught said.
Foremost of those tools should be a willingness for people living with HIV to share their own stories, she said.
“We need to speak up and show we are your neighbors, your friends, your family members,” she said. “Sharing our stories had a great impact on legislators.”
Some of those who has shared their stories include Iowans convicted under the 1998 law. One of those is Donald Bogardus, 43, of Waterloo.
GETTING HIS LIFE BACK
Bogardus was convicted under the old law after authorities said he had unprotected sex with a man three times in 2009.
The man didn’t contract HIV. Bogardus had an undetectable viral load, which means the virus could not be detected in his blood.
People with an undetectable viral load have almost no chance of transmitting the virus. The new law takes that into consideration when sentencing — the old law did not.
“It was not my intent to hurt him by far,” Bogardus said in a video the Sero Project made to tell his story. “The reason I didn’t disclose was I was afraid of rejection. I was afraid of being talked about. I was afraid of losing a friend.”
He spent two months in prison — he was facing 25 years — before receiving a suspended sentence in February, with two to five years of probation. He also had to register as a sex offender, which meant he lost his job as a certified nursing assistant at Country View, a Black Hawk County-owned nursing and mental health care center.
Now that his name will be taken off the registry, effective July 1, he’s hopeful he will be able to return to his old job.
“It has lifted a burden off of me. I’m just being able to get my life back,” he told The Gazette. “I felt like I was in a big cage, and now I feel some relief.”
He also believes the changed law will encourage more people to get tested in the first place because, under the old law, the only defense was not knowing you were HIV positive. The new law also encourages behavior public health officials are pushing, Haught said.
“Now we are incentivizing doing the right thing. If you are taking your medication and using protection, you can’t be prosecuted,” she said.
She said she wants HIV to be treated just as any other communicable disease.
“We’re hoping this will help reduce the stigma associated with being HIV positive and encourage testing and treatment,” she said.
Read more: http://thegazette.com/subject/news/new-hiv-transmission-law-makes-iowa-model-for-nation-20140529#ixzz33CDVnzKV
Australia: Campaign against Victoria’s HIV-specific criminal law launched to tie in with Melbourne Declaration for AIDS 2014
Living Positive Victoria, the organisation representing people living with HIV in the Australian state of Victoria, has launched a campaign for community and cross-party political support to reform the state’s HIV-specific criminal law, the only such law in Australia.
Section 19a of the Crimes Act 1958,’ Intentionally causing a very serious disease’ states
A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence.
In subsection (1) very serious disease means HIV within the meaning of section 3(1) of the Public Health and Wellbeing Act 2008 .
The statute, which treats HIV as exceptional and applies a uniquely higher penalty than for other crimes of violence, carries a 25 year maximum penalty.
The call for law reform is a response to the release of the Melbourne Declaration in advance of the 20th International AIDS conference, also known as AIDS 2014, to be held in Melbourne in late July.
“Leading into AIDS 2014 is a highly opportune moment to grasp the issue of law reform so that HIV is treated as a public health matter,” says Ian Muchamore, President of Living Positive Victoria.
The Melbourne Declaration focuses on the need to address multiple legal barriers in the global HIV response, in order “to defeat HIV and achieve universal access to HIV prevention, treatment, care and support”.
In line with the Oslo Declaration on HIV Criminalisation, it explicitly states that “nobody should be criminalized because they are living with HIV.” And elsewhere the Declaration “expresses concern at the continued enforcement of discriminatory, stigmatizing, criminalizing and harmful laws which lead to policies and practices that increase vulnerability to HIV.”
HIV criminalisation is set to be a major focus of international attention at AIDS 2014. Living Positive Victoria is one of the hosts of the Beyond Blame pre-conference (along with Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and Australian Federation of AIDS Organisations) which is supported by the AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.
Read and sign the Melbourne Declaration here
Read and sign the Oslo Declaration here
Read the Living Positive Victoria press release here
Register for Beyond Blame: Challenging HIV Criminalisation (July 20th, Melbourne) here
Canada: More than 70 scientific experts sign on to consensus statement on HIV transmission risks in the context of criminal law
More than 70 scientific experts Canada-wide have today released a consensus statement confirming when there is a low-to-zero possibility of a person living with HIV transmitting the virus in various situations.
The statement was developed out of a concern that “a poor appreciation of the scientific understanding of HIV and its transmission” is contributing to the overly broad use of criminal charges against people for alleged non-disclosure of HIV status in Canada.
It concludes that “HIV physicians and scientists have a professional and ethical responsibility to assist those in the criminal justice system to understand and interpret the science regarding HIV. This is critical to prevent miscarriage of justice and to remove unnecessary barriers to evidence-based HIV prevention strategies.”
According to a press release issued today
The Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario (HALCO), la
Coalition des organismes communautaires québécois de lutte contre le VIH/sida (COCQ-SIDA) and the Ontario Working Group on Criminal Law and HIV Exposure applaud this consensus statement. Grounded in a comprehensive review of the most recent and relevant scientific evidence, the statement confirms that current Canadian law is going too far and ignoring the science. We welcome scientific experts speaking out against the many unjust prosecutions against HIV-positive people that we are seeing in Canada, which have too often resulted in draconian sentences for conduct that posed no significant risk of transmitting the virus.
In 2012, we expressed our deep disappointment with the decisions of the Supreme Court of Canada in the cases of R. v. Mabior and R. v. D.C. Under these rulings, people living with HIV can be sent to jail and registered as sexual offenders for life for not disclosing their status even if they have used a condom or had an undetectable or low viral load, had no intent to harm and indeed did not transmit HIV. We characterized these decisions as being unfair, harmful to both individual and public health, and at odds with the science. Since these rulings, we have witnessed trial judges struggling with the difficulties they pose, particularly when this overly broad approach contradicts the scientific evidence.
Today, scientists themselves have detailed their concerns with the continued overuse of some of the most serious charges in the Criminal Code in circumstances in which prosecutions are entirely unjustified. In the consensus statement released today, scientists have sent a strong message to Crown prosecutors and judges calling for restraint.
Indeed, scientists’ assessment of the evidence supports our long-standing call for, at most, an extremely limited use of the criminal law. Among other things, the science supports the position that people who practice safer sex (e.g., by using a condom) or who are under effective antiretroviral therapy should not be prosecuted or convicted for HIV non-disclosure. Prosecuting people in such circumstances runs counter to available scientific evidence showing that the risk of transmission is negligible or even nil. Such misuse of the criminal law does nothing to help curb the HIV epidemic and drives people further away from effective HIV prevention, care, treatment and support services.
We welcome the stand taken today by medical experts and scientists from all across Canada and endorsed by the Association of Medical Microbiology and Infectious Disease Canada. It is time for the Canadian criminal justice system to take into account what the science tells us about HIV and its transmission; this evidence cannot be legitimately disregarded.
Read the full consensus statement below or download (for free) from Canadian Journal of Infectious Diseases & Medical Microbiology at http://www.pulsus.com/cjidmm
US: Iowa modernises its HIV-specific law, SF 2297 passes unanimously
(Press release from One Iowa. Further detailed analysis will be available soon)
DES MOINES–After a series of negotiations, a historic bill passed through the Iowa House early this morning that will modernize Iowa’s discriminatory HIV law. Iowa’s current law, 709c, is based on outdated science and beliefs that actually discourages testing and disclosure because of severe penalties associated with simply knowing one’s status. The new bill, Senate File 2297 (SF2297), will change the law so that it is no longer HIV specific, and converts sentencing into a tiered system instead of the “one size fits all” approach used in 709c. The bill unanimously passed the Iowa Senate in February, and moved to the House for debate this morning. The bill, which also passed unanimously in House chambers, will now head to Governor Terry Branstad’s desk for his signature.
The proposed changes to the law are supported by One Iowa, the state’s leading lesbian, gay, bisexual and transgender (LGBT) organization, and by Community HIV/Hepatitis Advocates of Iowa Network (CHAIN), an organization that has spent the last 5 years trying to reform Iowa’s HIV law. Iowa currently has one of the harshest laws in the nation that targets people living with HIV and AIDS.
“After 5 long years of fighting to change Iowa’s law, those of us living in Iowa with HIV and AIDS can finally breathe a sigh of relief,” said Tami Haught, Community Organizer with CHAIN. “We commend the leadership in the Senate and the House for understanding the importance of this bill and the need to modernize Iowa’s draconian 709c law. None of this would be possible without the bipartisan support of Senators Matt McCoy, Steve Sodders, Charles Schneider and Rob Hogg; in addition to Representatives Beth Wessel-Kroeschell, Chris Hagenow and Chip Baltimore. The changes in this new bill are a step in the right direction.
“While the bill that passed today will have a lasting and positive effect on the lives of many Iowans who currently live with HIV and AIDS in our state, our work is far from over,” Haught added. “We must continue our outreach and education within the public sphere about the realties of those living with HIV, to dispel the harmful stereotypes, stigma and misinformation often associated with the disease. Our hope is that by beginning to modernize the laws in Iowa, it will signal other states with similar legislation to do the same. HIV is not a crime; our laws here in Iowa and across the country need to reflect this fact.”
“We are pleased to see Iowa’s policy makers move this bill forward,” said Donna Red Wing, Executive Director for One Iowa. “The changes proposed in this bill will have a profound impact on the lives of Iowans living with HIV and AIDS. This bill will send an important message across the nation, most significantly to those states that still operate under the misinformation of the past. We applaud CHAIN’s efforts, but especially the work of Community Organizer Tami Haught. Tami has fearlessly and passionately shared her story with legislators and community members alike. She has changed hearts and minds, and should be commended as one of the many unsung heroes of this movement. After 5 years of conversations and perseverance, today we celebrate a victory for Iowa’s HIV community.”
Panel asks how HIV criminalization affects positive women
Canadian HIV/AIDS Legal Network discussion explored nondisclosure and sexual assault laws
US: Second attempt to modernise Iowa's HIV-specific criminal law during current legislative session
A new bill, introduced Monday by Senator Rob Hogg, along with bi-partisan support, seeks to reform Iowa’s 709c HIV law. Iowa’s 709c law states a person has committed criminal transmission of HIV if that person knowingly engages in intimate contact without disclosing his or her positive status, whether infection occurs or not. If passed, the new law would no longer be specific to HIV, and would rely on a tiered sentencing system, rather than the current “one size fits all” approach.
Tami Haught of Community HIV/Hepatitis Advocates of Iowa Network (CHAIN) explains the tiered system of sentencing, “If someone intends to transmit and transmission takes place it is still a class B felony, if there is intent but no transmission it is a [class] D felony and if there is no intent but transmission takes place it is a class D felony.”
Haught also goes on to explain that under the new bill, Iowans would no longer be sentenced as sex offenders and a retroactive clause in the bill would remove anyone sentenced under 709c from the sex offender registry. Prosecutors would also have to prove substantial risk, rather than the current law which simply requires non-disclosure.
CHAIN along with One Iowa, the state’s leading lesbian, gay, bisexual and transgender organization, are both supportive of the changes proposed in the bill, and CHAIN has worked hard to reform the law, which they describe as discriminatory.
“This bill is a step in the right direction and will have a profound impact on the lives of Iowans living with HIV and AIDS,” says Haught. “This bill, if passed through the Senate and the House, will be a significant victory for Iowa and Iowans living with HIV. Our work is far from over, however. We must continue to dispel the stigma and misinformation that surrounds HIV and those who live with it each and every day. HIV is not a crime, and this bill would reflect that. It would lift a burden from Iowans living with HIV and AIDS, and is a vast improvement from the current law.”
“We commend Senator Hogg for his efforts and we support this important move forward,” says One Iowa Executive Director Donna Red Wing. “In addition, we thank Senators Matt McCoy, Charles Schneider and Steve Sodders for bringing much-needed public attention to this important issue. We congratulate members of CHAIN on this victory, and are sincerely grateful for Community Organizer Tami Haught’s tireless efforts. Tami is one of the many unsung heroes of this movement. None of this would have been possible without her passion and perseverance, but more importantly her willingness to share her personal story with legislators and community members. Today is a step forward for Iowa, as we continue to work with the state legislature on both sides of the aisle to ensure equality and justice for all Iowans.”
The bill will be up for discussion Tuesday afternoon in a judiciary subcommittee hearing at 4:30.
Moving from potential complainant to anti-criminalisation advocate
Dee Borrego is a 30-year-old woman, who since being diagnosed with HIV at the age of 20 has been on the forefront national HIV/AIDS activism. For Visual AIDS, Borrego has written an essay in which she talks about the anger and frustration she had towards her ex upon learning about her status, and how she has come to learn that HIV Criminalization is wrong for everyone – especially people living with HIV. The essay is part of the Visual AIDS Play Smart program, an honest and straightforward approach to promote dialogue and action around harm reduction, HIV testing, PEP & PrEP, and other contemporary issues such as HIV Criminalization and No Condoms as Evidence. To learn more: Play Smart
US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?
Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa. He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.
Watch Donald tell his story to the SERO Project.
Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.
He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”
As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.
Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner. Later reduced to a year served, he now must register as a sex offender for the rest of his life.
(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)
Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.
However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.
These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet
Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.
This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins
During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.
Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.
We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.
These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.
According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators. This may create the final push for law reform this legislative session (which ends in April).
Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier
Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.
Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.
Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.
This is a summary what they are proposing.
The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.
It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.
Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.
Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.
If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.
The bill eliminates the requirement to register as a sex offender.
With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.