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.

Join PJP and Take Action!

• Join the Positive Justice Project. Get connected to advocacy efforts in your state, or start a local advocacy group in your state with our support.
• Sign-on to the Consensus Statement on HIV TasP in Criminal Law Reform.
• Donate to help us expand our work!

HIV: Prosecution or Prevention? HIV Is Not a Crime

A chapter from the book The War on Sex edited by David M. Halperin and Trevor Hoppe.

Iowan Nick Rhoades is HIV-positive and has had an undetectable viral load for many years, making it virtually impossible for him to sexually transmit the virus. When he had sex with a man he met online in 2008, he also used a condom. Despite these protective measures, Rhoades was prosecuted and convicted for not disclosing his HIV status to his partner before they had sex. He was sentenced to 25 years in prison and lifetime sex offender registration.

Willy Campbell is serving 35 years in Texas for spitting at a police officer; David Plunkett served over six years in a New York state prison before an appeals court ruled that saliva could not be considered a “deadly weapon” in New York State. Monique Howell Moree was charged by the U.S. Army for failing to disclosure her HIV-positive status to a partner in South Carolina before having sex with him, even though the partner said he didn’t want her charged and that she told him to use a condom. Kerry Thomas is serving 30 years in Idaho, even though his accuser agrees that he always used a condom.

All over the United States — and in much of the world — people living with HIV/AIDS (PLHIV) are facing criminal penalties for nondisclosure of their HIV status prior to having sex or for perceived or possible exposure to, or transmission of, HIV. About two-thirds of U.S. states have HIV-specific criminal statutes, laws that only apply to PLHIV.

Most people believe the law should apply equally to all and that creating different statutes for different parts of society based on immutable characteristics — whether it is gender, sexual orientation, race, physical ability, or genetic makeup — is a bad idea. Yet here we are doing exactly that, creating a viral underclass in the law with one group singled out for different treatment.

Sero Project, a network of PLHIV combating HIV criminalization, has documented more than 1,300 instances of charges led under HIV-specific statutes. But HIV criminalization isn’t constrained by geography; in every state, regardless of whether there is an HIV-specific statute, PLHIV can and often do face more serious charges or harsher sentencing under regular criminal statutes than do HIV-negative individuals accused of the same crimes. Texas and New York do not have HIV-specific statutes, but as mentioned, have incarcerated PLHIV because they considered their saliva dangerous.

These statutes and prosecutions create an illusion of safety for those who do not have HIV or do not know their HIV status, putting the entire burden of HIV prevention on those who have been tested and know they have HIV. The statutes undercut the fundamental public health message that HIV prevention is a shared responsibility and that everyone should act in such a way as to maintain their own health and protect themselves from contracting HIV or other sexually transmitted infections.

Decades-long sentencing and required sex offender registration are not unusual punishments for HIV-related crimes in the United States, even though actual HIV transmission is seldom (less than 5 percent of cases) a factor in these prosecutions. Many cases boil down to whether the PLHIV can prove they disclosed their status to their partners in advance of intimate physical contact; it doesn’t matter whether there was even a risk of HIV transmission. People living with HIV charged under prostitution or assault statutes frequently face significantly more severe penalties solely because they have HIV. They sometimes face charges for spitting, scratching, or biting that are “pile-on” charges, driven by accusations made by law enforcement, first responders, or prison guards.

The first HIV criminalization laws in the United States were passed in the late 1980s and early ’90s, largely in response to a provision of the Ryan White Care Act that required states, in order to qualify for funding, to demonstrate an ability to prosecute what was then labeled “intentional transmission.” At the time many considered any intimate contact with an HIV-positive person a life-threatening risk; contracting HIV was believed by many to be tantamount to a death sentence.

A second wave of statutes was enacted after the introduction of combination therapy in the mid-1990s, which fundamentally changed what an HIV-positive diagnosis meant. What was once thought a death sentence had become a chronic but manageable long-term health condition.

As it became understood that PLHIV were surviving much longer, the public’s perception of PLHIV also changed. Rather than objects of pity facing a “death sentence,” PLHIV became seen as viral vectors, potential infectors — an inherent threat to society. Living longer meant PLHIV would be around longer to infect others.

The criminal justice and public health systems began to define and treat PLHIV as a dangerous population, one that needed to be sought out, tracked down, tested, reported, listed, tagged, monitored, regulated, and, increasingly, criminalized.

While the statutes were used in the early years disproportionately often against heterosexual African American men (often in conjunction with other criminal charges), today they are used more broadly, typically in circumstances where there was no intent to harm, often when there was no other crime involved, and frequently for behaviors that pose no or little risk of HIV transmission.

Beyond the blatant injustice, HIV criminalization is also horrible public health policy, because it discourages people at risk from getting tested for HIV and makes those who do test positive less trustful of public health authorities.

To be liable for prosecution, one must get tested for HIV and know one’s HIV status. Current HIV criminalization punishes this responsible behavior — getting tested — and privileges the ignorance of not knowing one’s HIV status. Yet new cases of HIV are transmitted in disproportionate numbers by those who have not been tested and do not know they have it; those who do get tested and know they have HIV are far less likely to transmit HIV than those with HIV who do not know it.

Although the HIV-specific statutes were passed by state legislatures with the intent to reduce HIV transmission, the evidence increasingly shows that the statutes may be having the reverse effect.

The Sero Project’s 2012 survey of more than 2,000 PLHIV in the United States revealed that at least 25 percent of the respondents knew one or more individuals who were afraid to get tested for fear of facing criminalization. Research has shown that HIV criminalization makes those who do test positive for HIV less likely to cooperate with traditional disease prevention measures, like partner notification programs, or with treatment adherence programs. Most recently, a study found that HIV-negative gay men who knew they lived in a state with an HIV criminalization statute were more likely to engage in unprotected intercourse.

Repeal of HIV criminalization statutes is necessary both to protect the rights of people with HIV and to reduce the transmission of HIV.

An individual who demonstrates a premeditated malicious intent to harm another person can be prosecuted under existing assault statutes, whether they use a gun, a baseball bat, their fists, or a virus. The HIV-specific statutes are unnecessary and, worse yet, they stigmatize people with HIV/AIDS, discourage people at risk from accessing testing and treatment services, and feed a public bloodlust for punishment. In short, they are worsening the epidemic.

The prevention of HIV — or preventing any sexually transmitted infection — is a shared responsibility, but that does not mean there is not harm inflicted when someone misleads another person and transmits an infectious disease. In those circumstances, the injured party may seek recourse in the civil courts or possibly through a restorative justice process.

In any case, incarceration of PLHIV does not necessarily prevent further HIV transmission, as there is significant HIV transmission within penal environments, where condoms are seldom available.

Advocacy to repeal HIV-specific statutes, modernize public health statutes concerning perceived or possible exposure to, or transmission of, HIV and other infectious diseases, and educate law enforcement, prosecutors, and other actors in the criminal justice system has been under way for several years.

A network of survivors of HIV criminalization prosecutions, launched in 2010, has helped to educate and mobilize affected communities. This HIV criminalization reform advocacy has received support from public health professionals and policy leaders, including the Presidential Advisory Council on HIV/AIDS, the National Alliance of State and Territorial AIDS Directors, UNAIDS, and the American Medical Association.

The first national conference on HIV criminalization in the United States was held in June 2014 at Grinnell College in Grinnell, Iowa. Organized primarily by PLHIV — including participation by a dozen PLHIV who had been prosecuted for “HIV crimes” — the conference included participants from 28 states. It focused on how HIV criminalization affects communities of color, transgender women, sex workers, and gay men. It also showed the impact of HIV criminalization on how members of those communities (and others) access HIV prevention, testing, and treatment and whether they decide to disclose their HIV status. Finally, the conference highlighted effective strategies for reform.

The only state, so far, to modernize their statute substantively in recent years has been Iowa, where the conference was held. After a four-year education and lobbying effort led by Nick Rhoades and other PLHIV in the state, the Iowa legislature repealed its HIV-specific statute in 2014. The legislature replaced it with a new statute that addressed several infectious diseases, required a higher standard of intent to harm, and established tiered punishments. Similar efforts are under way in about a dozen states. A few weeks later, the Iowa Supreme Court overturned Rhoades’s conviction and removed the sex offender registration requirement for all others previously convicted under the Iowa statute.

HIV criminalization is an extreme manifestation of stigma. That is particularly true of HIV-specific statutes that create a viral underclass in the law, establishing a different criminal law for one segment of society based on an immutable characteristic. Despite the biomedical advances in the treatment of HIV, HIV-related stigma remains stubborn, driven in significant part by HIV criminalization.

It is time we learned a basic lesson: HIV can be prevented or it can be prosecuted, but not both.