“As a trans woman living with HIV, I’m always worried that if I don’t disclose to my partner before we even approach the bedroom that they’ll turn around and charge me with a crime. When you have to tell a potential partner that you’re trans and poz, there’s always a fear that they will use that information to make your life hell.
4 States With Scientifically Unsound Laws Criminalizing HIV
1. Missouri: It is unlawful for any individual knowingly infected with HIV to bite another person. The law also specifically prohibits the use of a condom as a defense in a nondisclosure case. 2. Michigan: It is a felony, with a four-year jail sentence, for those who know they are HIV-positive to engage in “sexual penetration, however slight” without first disclosing that status to a partner.
Law Enforcement and HIV Policy Groups Release Fact Sheet for Police on HIV Risks “Spit Does Not Transmit” Intended to Reduce Officer Anxiety and Needless “Exposure” Prosecutions (Press Release)
The Center for HIV Law and Policy (CHLP), the National Organization of Black Law Enforcement Executives (NOBLE) and the American Association of Prosecuting Attorneys (AAPA) today released a new fact sheet that they hope will bring law enforcement officers up to speed on the real risks of HIV that they face from possible exposure to the bodily fluids of those they police.
According to these organizations, every year people with HIV are the subject of felony criminal charges ranging from aggravated assault to intentional HIV transmission following police encounters in which defendants are accused of spitting at or biting police, usually in the course of a stop or arrest for a minor incident, such as disorderly conduct. Although the risk of transmission ranges from zero to far less than 1%, and there are no known cases of HIV transmission to a police or corrections officer from such events, spit and bite incidents have resulted in new or enhanced criminal charges and sentences of more than thirty years in prison. The fact sheet, Spit Does Not Transmit, provides current information, complete with citations to published experts, about transmission risks from non-sexual contact with a person’s bodily fluids.
“Accurate information is critical to law enforcement and corrections officers – In our line of work, our lives and the lives of others depend on it. Studies show just how much misinformation about HIV is transmitted among people in every part of the country, and every profession,” said Joseph Akers, Jr. NOBLE Interim Executive Director. “The nature of law enforcement is such that we encounter people from all walks of life with all sorts of problems. We are regularly exposed to risks; that’s the nature of the job. It is important for officer safety that we understand the facts about HIV transmission, and it is also important that an arrest not turn into a more serious set of charges simply because the arrestee has HIV.”
Statistics show that of all the cases brought against people with HIV for so-called exposure offenses, twenty-five percent (25%) arise from incidents in which spitting or biting has been alleged, and almost all of these have been brought by law enforcement or corrections employees. Law reform efforts that would eliminate the ability to prosecute people on the basis of their HIV or other disease status when they act without the intent or real ability to transmit – as is generally always the case with spitting and biting – are under discussion in multiple states, said Rashida Richardson, a staff attorney with CHLP.
“It is a waste of time and money to devote public safety resources to conduct that, while distasteful, poses no risk of harm,” observed David LaBahn, Executive Director of the American Association of Prosecuting Attorneys. “Too many prosecutions are based on outdated notions of what HIV is and how it is transmitted. Information is the antidote, and this is a good place to start.”
[Although focused on the US, this factsheet will be useful anywhere police are inadequately trained on HIV-related risks during occupational exposure, including discarded needles.]
The fact sheet is available below and on The Center for HIV Law and Policy’s website.
Uganda: As second reading of controversial national HIV law awaits, activists hope regional HIV law – with no HIV criminal statute – will take precedence
Activists in Uganda are seeing an opportunity to shoot down the country’s controversial HIV Bill that criminalises transmission of the Aids virus and enforces mandatory testing, after President Yoweri Museveni signed a more liberal one proposed by the East African Community. They want Uganda’s parliament to incorporate into law the EAC HIV and Aids Prevention Bill (EAC HIV Bill) that President Museveni signed last week. More than 30 NGOs in Uganda find the national law that is awaiting a second reading in parliament offensive, saying that it could exacerbate the spread of HIV. Laws passed by the East African Legislative Assembly take precedence over national laws. President Museveni can also prevail upon the Ugandan parliament to drop the bill.
US: Activists highlight problematic HIV criminalisation statutes in Georgia, Louisiana and beyond
Robert Suttle met the man through mutual friends. There was no romantic interest at first, but on a New Year’s Eve after a night of partying in Louisiana, the two decided to spend the night together. One thing led to another. Suttle told the man he was HIV positive.
UK: NAT letter to Guardian highlighting that police fears over occupational HIV exposure are unwarranted
A police officer in your article ( All in a night’s work, G2, 27 March) states getting HIV or hepatitis from uncapped needles as his biggest fear. Of all the risks police officers face, some highlighted elsewhere in the article, the risk of HIV infection is by far the lowest.
US: Well-meaning bill to repeal Maryland's HIV-specific criminal law may do more harm than good, advocates warn
A Maryland lawmaker and a handful of local advocates have started the course to repeal the state’s HIV-specific criminal law, and if other states’ efforts are any indication, Maryland’s path will likely be a long and winding one. Maryland Del. Shirley Nathan-Pulliam (D-Baltimore County) decided last week to withdraw a short-lived bill that would have repealed a state law that makes it a misdemeanor crime – punishable by a fine of up to $2,500 and/or three years in prison – for a person who has HIV to “knowingly transfer or attempt to transfer” the virus to another person. Nathan-Pulliam said she withdrew the bill after hearing from HIV advocates who feared a straight repeal of the state law might do more harm than good.
As Kenya and Uganda assent to East African Community's Regional AIDS Law, the lack of an HIV criminalisation statute apparently holds back Tanzania and Burundi
Having a common regional approach to the HIV and Aids pandemic is an important step for the East African Community, as the five member states get ready for closer integration. The increased trade and labour migration that comes with closer economic ties will invariably create situations where large numbers of foreign nationals travel or relocate freely in their territories.
Mich. HIV data collection violates intent of statute, says lawmaker who helped create law
LANSING, MICH. – Michigan’s health department is violating the legislative intent of an HIV-related statute – and maybe the law itself – by indefinitely collecting information on people who test for HIV at federally funded clinics, says a former state lawmaker, who helped pass sweeping health reforms in the wake of the AIDS epidemic.
Canada: Police training and guidelines in criminal HIV non-disclosure cases urgently required
The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (HALCO) have submitted a paper to the Ontario Association of Chiefs of Police Diversity Committee, informed by their extensive experience in working on the issue.
The paper includes concrete recommendations for police that could be addressed in a general Best Practice Manual, and recommend the development of specific guidelines in relation to non-disclosure of HIV (and possibly other sexually transmitted infections), in consultation with people living with HIV and the Ontario Working Group on Criminal Law and HIV Exposure (CLHE), as well as other relevant stakeholders.
The submission states
The Ontario Association of Chiefs of Police should engage in a dialogue with representatives of the community, including the Ontario Working Group on Criminal Law and HIV Exposure(CLHE) in order to develop:
- training for police about HIV transmission and the realities of living with HIV today; and
- guidelines for police handling matters of alleged HIV (and possibly other sexually transmitted infection) non-disclosure.
Indeed, both training and guidance on HIV-related issues are urgently required in the aftermath of last November’s Supreme Court ruling which has created a great deal of confusion regarding the exact circumstances when alleged HIV non-disclosure may be a crime.
As the submission notes
Guidelines can help ensure that complaints are handled in a fair, non-discriminatory and consistent manner across the province; criminal investigations are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV; criminal investigations do not reinforce societal prejudices, preconceptions, and irrational fears regarding HIV, or undermine public health efforts to prevent the spread of HIV; unnecessary investigations are not pursued; and the rights of people living with HIV and complainants are fully respected and preserved.
Guidance around confidentiality issues are needed now more than ever. Last month, Toronto police issued a press release stating they were looking for a gay man “who failed to notify his partner that he is HIV positive.” The following day, they withdrew the alert “after police probed the case, [because] investigators found that no criminal offence was committed.” Unusually in this case, however, no name or photo was released.
Specific recommendations from HALCO and the Legal Network on this issue state:
Police should consider the negative impacts of publicly disclosing a person’s HIV-positive status given the high level of stigma experienced by people living with HIV. Police must ensure that the privacy of HIV status and other medical information is respected to the greatest extent possible (applies to accused and complainants). Media releases including the name, picture and/or health information of an accused are extremely prejudicial for people living with HIV and should only be published in exceptional circumstances and under strict conditions. Police should be mindful that even where HIV is not specified on a police and/or media release, members of the general public and/or people associated with the accused may easily understand that the accused is HIV-positive because of general awareness of HIV non-disclosure prosecutions in Canada. Detailed guidance should be developed to assist police in making decisions to publish a police and/or a media release, and to assist police with the content of such releases. Guidance should be developed to assist police in communicating to the media and the public about cases involving HIV non-disclosure.
The campaign for police training and guidelines in Ontario runs in parallel with a similar campaign for prosecutorial guidelines. A recent article in Lawyers Weekly highlights how advocates have been pushing for such guidelines for several years, and are hopeful that some movement may now take place
That hope springs from two sources. First, Canadian provinces would not be the first to put such guidelines in place. England, Wales and Scotland already have related prosecutorial requirements. Second, Ontario’s justice ministry had previously indicated a willingness to do this before the recent SCC decisions were handed down.
The full submission can be read below or downloaded here.
The criminalization of HIV non-disclosure: Recommendations for police