US: New report by the Williams Institute finds that Florida’s HIV criminal laws undermine pubic health efforts

Florida’s HIV criminal laws undermine public health efforts

For Immediate Release
March 12, 2020

Media Contact
Rachel Dowd
dowd@law.ucla.edu
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The laws deter testing, disclosure, and other HIV prevention strategies

Florida’s HIV criminal laws may undermine the state’s public health efforts by deterring people from seeking HIV testing and treatment, stigmatizing those with HIV, and disproportionately affecting the communities most impacted by HIV, including people of color, women, LGBTQ people, and the formerly incarcerated, according to a new report by the Williams Institute at UCLA School of Law.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. Florida has four HIV-specific criminal laws.

Using data from the Criminal Justice Information Services at the Florida Department of Law Enforcement, researchers found that from 1986 to 2017, there were 266 convictions under Florida’s HIV criminal laws—approximately eight convictions per year.

None of the convictions required intent to transmit HIV as an element of the crime, and none required actual transmission of HIV.

“HIV is treatable, preventable, and harder to transmit than was thought in the early years of the AIDS epidemic when Florida’s HIV criminal laws were passed,” said lead author Brad Sears, the David Sanders Distinguished Scholar of Law and Policy at the Williams Institute. “Enforcement of these laws disproportionately stigmatizes the very communities Florida needs to engage to combat HIV.”

This research was generously funded by a grant from the Elton John AIDS Foundation.

Read the report

Russia: 23 year-old Kazakh woman, who has lived in Russia since she was 3, expelled because she was diagnosed with HIV

Kazakh woman expelled from Russia due to HIV

Kazakh woman expelled from Russia due to HIV

She will have to leave her husband, home and work in the Sverdlovsk region to get a chance for free therapy and life.

A native of Kazakhstan, who has been living in Russia for 20 years, is being expelled from the country due to HIV, e1.ru reports .

Svetlana is 23 years old. 20 of them she lived in a small town near Yekaterinburg. And was born in Kazakhstan. And the passport is also a citizen of Kazakhstan. This fall, for the first time in many years, she was not able to extend RVP (temporary residence permit in Russia), because she was diagnosed with HIV during the routine testing of these papers.

– In our country, Federal Law No. 38 “On Preventing the Spread of HIV in Russia” is in force, it contains article 11, which states that all foreigners who have been diagnosed with HIV should be immediately deported from the country. They “carry a danger to humanity,” this law says. There is a chance to stay in the country, but it is very small. If the parents, children or the spouse of the foreigner are citizens of the Russian Federation, and the foreigner himself can prove that he will not constitute a threat of spreading the infection, then the court can guarantee yourself the right to life in Russia, ”commented the lawyer of the New Life Foundation (NPO, which helps people living with HIV in the Urals) Marina Chukavina.

However, as they say in the fund itself, most often the situation is different. Migrants simply go into an illegal situation, and they buy drugs that they need to take for life and which the government provides to Russian citizens for free, at the pharmacy. On average, illegal immigrants have to spend 7-10 thousand rubles a month on antiretroviral therapy.

– Deportation is pointless in the economic, and even in the epidemiological sense. Obviously, in most cases, foreigners do not bring HIV, but become infected here. The highest HIV prevalence across the entire region of Eastern Europe and Central Asia today is in Russia. Why this norm today is not clear at all. But for migrants with HIV, it makes life difficult. If we talk about the citizens of Central Asia, many of them cannot return to their native village, because there they will simply be killed. And so it turns out that from the moment the decision was made, the person is nowhere: he has no way back home and here he is outside the law. As a result, someone forges documents, buys certificates, someone hides all his life, ”says Kirill Barsky, program manager for the Steps AIDS Foundation.

Kirill is a member of the regional expert group on migrant health, which collects stories from all over the country and requires a review of outdated legislation. The fact that the expulsion norm is morally outdated is also indicated by the infectious disease doctor from Yekaterinburg, Mark Aganin.

– It’s the same as if we today began to live according to the laws of the 19th or 18th centuries. The law was passed in 1995 when HIV was feared like fire and did not really understand how to work with it. But if then this fear was normal, then today everything has changed. Everything except this discriminatory law, says the doctor.


Казахстанку выдворяют из России из-за ВИЧ

Ей придется бросить мужа, дом и работу в Свердловской области, чтобы получить шанс на бесплатную терапию и жизнь.

Уроженку Казахстана, которая 20 лет живет в России, выдворяют из страны из-за ВИЧ, сообщает e1.ru.

Светлане 23 года. 20 из них она прожила в небольшом городе недалеко от Екатеринбурга. А родилась в Казахстане. И по паспорту тоже гражданка Казахстана. Этой осенью она впервые за много лет не смогла продлить РВП (разрешение на временное проживание в России), потому что во время традиционной для оформления этих бумаг сдачи анализов у нее обнаружили ВИЧ.

– В нашей стране действует ФЗ № 38 “О предупреждении распространения в России ВИЧ”, в нем есть статья 11, которая говорит о том, что все иностранцы, у которых обнаружен ВИЧ, должны быть немедленно депортированы из страны. Они “несут опасность для человечества”, говорит этот закон. Шанс остаться в стране есть, но он очень небольшой. Если родители, дети или супруг иностранца являются гражданами РФ, а сам иностранец сможет доказать, что не будет представлять собой угрозу распространения инфекции, то по суду можно гарантировать себе право на жизнь в России, — комментирует ситуацию юрист фонда “Новая жизнь” (НКО, которая помогает на Урале людям, живущим с ВИЧ) Марина Чукавина.

Впрочем, как говорят в самом фонде, чаще всего ситуация складывается другим образом. Мигранты просто переходят на нелегальное положение, а лекарства, которые нужно принимать пожизненно и которые гражданам России государство предоставляет бесплатно, покупают в аптеке. В среднем в месяц на антиретровирусную терапию иностранцам-нелегалам приходится тратить по 7–10 тысяч рублей.

– Депортация бессмысленна и в экономическом, и даже в эпидемиологическом смысле. Очевидно, что в большинстве случаев ВИЧ иностранцы не привозят, а инфицируются здесь. Наибольшая пораженность ВИЧ по всему региону Восточной Европы и Центральной Азии сегодня именно в России. Зачем эта норма сегодня, вообще непонятно. Но мигрантам с ВИЧ она серьезно осложняет жизнь. Если говорить про граждан Центральной Азии, многие из них не могут вернуться в родной аул, потому что там их просто убьют. И вот получается, что с момента, как вынесли решение, человек нигде: ему нет обратной дороги домой и здесь он вне закона. В итоге кто-то подделывает документы, покупает справки, кто-то всю жизнь прячется, — говорит Кирилл Барский, руководитель программ фонда борьбы со СПИДом “Шаги”.

Кирилл входит в региональную экспертную группу по здоровью мигрантов, которая собирает истории со всей страны и требует пересмотра устаревшего законодательства. О том, что норма о выдворении морально устарела, говорит и врач-инфекционист из Екатеринбурга Марк Аганин.

– Это все равно как если бы мы с вами сегодня начали жить по законам XIX или XVIII века. Закон был принят в 95-м, когда ВИЧ боялись как огня и толком не понимали, как с ним работать. Но если тогда этот страх был нормальным, то сегодня все изменилось. Все, кроме этого дискриминирующего закона, — говорит врач.

US: HIV criminalisation laws increase stigma and discrimination and impede effective treatment and prevention

These laws were meant to protect people from HIV. They’ve only increased stigma and abuse.

By 

Laws in many states make it a crime to have sex without disclosing your HIV status. Advocates say they may actually worsen the spread of the virus.

The policy: Criminal penalties for knowingly exposing someone to HIV

Where: Twenty-six states around the country

In place since: The 1980s

The problem:

In March 1981, an otherwise healthy Los Angeles man contracted a rare form of pneumonia usually seen only in people with severely compromised immune systems. Doctors treated him with antibiotics, but his condition worsened, and within two months, he was dead.

The Center for Disease Control, as it was then known, identified four similar cases — generally healthy young men who suddenly became very ill with the same rare lung disease — and in June 1981 published the first official report on the condition that would become known as AIDS. By the time the report was published, another of the men had died. By the end of the year, there were 337 reported cases of the condition, and 130 people had died.

Researchers discovered HIV, the virus that causes AIDS, in 1984. But the death toll kept rising, and the panic along with it. Fear and misunderstanding of the disease were such that when one student at a New York City school was thought to have the virus, 944 of the school’s 1,100 students stayed home, according to a Time magazine report. In one 1985 poll, 50 percent of people supported a quarantine of people with AIDS. Amid this panic, the idea emerged that “there were people who were intentionally spreading HIV,” Scott Schoettes, HIV project director at the LGBTQ civil rights group Lambda Legal, told Vox.

The idea may have been fueled by longstanding social prejudices, including homophobia. As journalist Steven Thrasher writes in a Guardian column on the now-debunked myth of a gay flight attendant as HIV’s “Patient Zero,” “we like to blame individuals (especially queer folks, women, immigrants and people of color) for diseases, particularly communicable ones that involve sex. Societally, it is far easier to blame them for disease rather than to deal with the complex medical, political and epidemiological causes.”

Nonetheless, states soon began instituting criminal penalties for knowingly exposing others to the virus — Florida, Washington, and Tennessee did so in 1986, Helen McDonald writes at Autostraddle. In 1990, the federal Ryan White Act, which provided funding for HIV treatment, required states to show they could prosecute people who exposed others to HIV. The laws began to proliferate, and by 2011, 33 states had one or more laws criminalizing HIV exposure. As of last year, such laws remained on the books in 26 states, according to the CDC.

How it worked:

The first problem with the laws was a simple one, according to Schoettes and others: The crime they were intended to combat didn’t actually exist. There is no evidence that a significant number of people were ever intentionally trying to infect other people with HIV.

But because many of the laws were broadly written, they were used to prosecute people who had never intended to harm anyone else — and, in some cases, who had done no harm.

Mark Hunter, for example, told Vox that he contracted HIV at the age of 7 through treatment for his hemophilia. Hunter led a healthy and active life — he had a six-figure job in Washington, DC, he said, when, in 2006, two ex-partners filed charges against him for failing to disclose his HIV status to them. Neither woman had contracted the virus, but nonetheless, he was sentenced to 12 years in prison in Arkansas, where the charges were filed.

Hunter ended up serving three years. Today, he is out on parole and living in Louisiana, but he still has to register as a sex offender. He is an outspoken advocate against laws of the kind that sent him to prison. “When we talk about criminalization, the base issue is stigma,” he told Vox. “That stigma comes from fear.”

Hunter’s is just one of many such stories. Perhaps the best-known case is that of Nick Rhoades, who had sex with another man in 2008 without disclosing his HIV status. The other man subsequently learned that Rhoades had HIV and went to a doctor for antiretroviral medication. The law in Iowa, where the men lived, required the doctor to notify police that a sex crime had occurred, according to the National Registry of Exonerations. The men had used a condom, and Rhoades’s partner had not contracted the virus. Nonetheless, Rhoades was arrested and sentenced to 25 years in prison.

Stories like these have also made people around the country afraid to get tested because “you can’t be prosecuted under one of these laws unless you know your HIV status,” Schoettes said. Testing and treatment are key ways of reducing HIV transmission, and by making people afraid to get tested, HIV criminalization laws may actually increase the spread of the virus.

study conducted in Toronto between 2010 and 2012 (laws criminalizing HIV exposure also exist in Canada) found that 7 percent of men who had sex with men were less likely to get an HIV test for fear of future prosecution — the study authors estimated that this fear could lead to an 18.5 percent increase in HIV transmission. And in general, HIV criminalization laws likely contribute to stigma and discrimination around HIV, which world health groups like UNAIDS have identified as some of the biggest barriers to effective treatment and prevention.

Meanwhile, “these laws were used to manipulate and coerce people to stay in abusive relationships,” Tami Haught, organizing and training coordinator for the SERO Project, a group that works to end HIV criminalization, told Vox. In Iowa, where Haught lives, it was difficult for people with HIV to definitively prove they had disclosed their status to their partners as the law required. Haught recalls a woman living with HIV whose abusive boyfriend told her, “if you call the cops or leave me I will tell them you didn’t disclose your status.” If that happened, the woman, not her abuser, could go to prison.

People with HIV were even afraid to report being raped, Haught said, for fear that they could be prosecuted for failing to disclose their status during the rape.

Those sentenced under the law, meanwhile, could face decades in prison even if they had used condoms. Once released, they were often forced to register as sex offenders. In Iowa, that meant having their HIV status disclosed publicly, sometimes with a mug shot in the newspaper, Haught said. They were subject to curfews and computer searches, had to submit to twice-yearly lie detector tests, and needed permission from authorities to leave the county, she added: “They were treated as if they were these dangerous predators rather than having a consensual sexual experience with another adult.”

In recent years, though, states have begun changing their laws. Iowa was the most high-profile example. Rhoades challenged his conviction in court in 2010, and around the same time, activists began lobbying state legislators to reform the law.

Rhoades and many others fought for years to get the Iowa law changed. Finally, in 2014, then-Gov. Terry Branstad signed a new law significantly reducing the penalties for exposing others to HIV. Under the new law, if someone intentionally infects someone else with HIV, the person can still face up to 25 years in prison. But if a person with HIV only acts with “reckless disregard” in exposing someone else to the virus — for example, by not using protection — that person can face one to five years in prison, depending on whether the other party actually contracts the virus. Meanwhile, taking “practical measures to prevent transmission” of the virus makes someone exempt from prosecution, according to the Center for HIV Law and Policy.

The law also removed the requirement that people convicted of exposing others to HIV register as sex offenders, and allowed previously convicted people to be removed from the sex offender registry. After the law was signed, two Iowans who had been forced to register as sex offenders under the old law had their ankle monitors publicly removed in celebration, Haught said. That year, Rhoades won his court case, and his conviction was set aside.

Many critics have argued the changes to Iowa’s law don’t go far enough. “HIV transmission should not be criminalized—ever,” wrote Mark Joseph Stern at Slate. “HIV criminalization laws do absolutely nothing to prevent the spread of the virus.”

But in general, Schoettes said, it’s been very difficult to convince state legislators to remove penalties completely. Also, “our concern is if you get rid of the law, prosecutors may just proceed under general criminal laws without parameters or guidance” — in some states, for example, people with HIV have been prosecuted for reckless endangerment or even assault with a deadly weapon. For that reason, Lambda Legal has backed reforming rather than removing these laws.

These efforts have had success in California, where in 2017 then-Gov. Jerry Brown signed a law ensuring that people cannot be prosecuted based on HIV status unless they actually intend to transmit the virus and do so. Colorado, Michigan, and North Carolina have also reformed their laws or regulations around HIV, Haught said. And according to Schoettes, advocates are also working to repeal or reform HIV criminalization laws in Florida, Illinois, Ohio, Indiana, and elsewhere.

Today, Mark Hunter is “in a good place,” he said. He is married, and has adopted his wife’s son from a previous relationship. He has a job with the state of Louisiana, he’s a deacon in his church, and he has started an HIV/AIDS foundation named after his brother. He will be off parole in April 2020.

But his driver’s license still has the words “sex offender” printed on it. And around the country, he still sees a lot of stigma around HIV.

“Change is coming,” he said, “but it’s coming slow.”


Anna North covers gender issues, reproductive rights, workplace discrimination, LGBTQ rights, and more for Vox. Previously, she worked for The New York Times.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV. 

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we 

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

  • Sixty-nine countries still criminalize same-sex sexual relationships.
  • More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
  • One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
  • Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk. 

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

UNAIDS and UNDP urge countries to lift all forms of HIV-related travel restrictions

UNAIDS and UNDP call on 48* countries and territories to remove all HIV-related travel restrictions

New data show that in 2019 around 48* countries and territories still have restrictions that include mandatory HIV testing and disclosure as part of requirements for entry, residence, work and/or study permits

GENEVA, 27 June 2019—UNAIDS and the United Nations Development Programme (UNDP) are urging countries to keep the promises made in the 2016 United Nations Political Declaration on Ending AIDS to remove all forms of HIV-related travel restrictions. Travel restrictions based on real or perceived HIV status are discriminatory, prevent people from accessing HIV services and propagate stigma and discrimination. Since 2015, four countries have taken steps to lift their HIV-related travel restrictions—Belarus, Lithuania, the Republic of Korea and Uzbekistan.

“Travel restrictions on the basis of HIV status violate human rights and are not effective in achieving the public health goal of preventing HIV transmission,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS calls on all countries that still have HIV-related travel restrictions to remove them.”

“HIV-related travel restrictions fuel exclusion and intolerance by fostering the dangerous and false idea that people on the move spread disease,” said Mandeep Dhaliwal, Director of UNDP’s HIV, Health and Development Group. “The 2018 Supplement of the Global Commission on HIV and the Law was unequivocal in its findings that these policies are counterproductive to effective AIDS responses.”

Out of the 48 countries and territories that maintain restrictions, at least 30 still impose bans on entry or stay and residence based on HIV status and 19 deport non-nationals on the grounds of their HIV status. Other countries and territories may require an HIV test or diagnosis as a requirement for a study, work or entry visa. The majority of countries that retain travel restrictions are in the Middle East and North Africa, but many countries in Asia and the Pacific and eastern Europe and central Asia also impose restrictions.

“HIV-related travel restrictions violate human rights and stimulate stigma and discrimination. They do not decrease the transmission of HIV and are based on moralistic notions of people living with HIV and key populations. It is truly incomprehensible that HIV-related entry and residency restrictions still exist,” said Rico Gustav, Executive Director of the Global Network of People Living with HIV.

The Human Rights Council, meeting in Geneva, Switzerland, this week for its 41st session, has consistently drawn the attention of the international community to, and raised awareness on, the importance of promoting human rights in the response to HIV, most recently in its 5 July 2018 resolution on human rights in the context of HIV.

“Policies requiring compulsory tests for HIV to impose travel restrictions are not based on scientific evidence, are harmful to the enjoyment of human rights and perpetuate discrimination and stigma,” said Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. “They are a direct barrier to accessing health care and therefore ineffective in terms of public health. I call on states to abolish discriminatory policies that require mandatory testing and impose travel restrictions based on HIV status.”

The new data compiled by UNAIDS include for the first time an analysis of the kinds of travel restrictions imposed by countries and territories and include cases in which people are forced to take a test to renew a residency permit. The data were validated with Member States through their permanent missions to the United Nations.

UNAIDS and UNDP, as the convenor of the Joint Programme’s work on human rights, stigma and discrimination, are continuing to work with partners, governments and civil society organizations to change all laws that restrict travel based on HIV status as part of the Global Partnership for Action to Eliminate all Forms of HIV-Related Stigma and Discrimination. This is a partnership of United Nations Member States, United Nations entities, civil society and the private and academic sectors for catalysing efforts in countries to implement and scale up programmes and improve shared responsibility and accountability for ending HIV-related stigma and discrimination.

*The 48 countries and territories that still have some form of HIV related travel restriction are: Angola, Aruba, Australia, Azerbaijan, Bahrain, Belize, Bosnia and Herzegovina, Brunei Darussalam, Cayman Islands, Cook Islands, Cuba, Dominican Republic, Egypt, Indonesia, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Malaysia, Maldives, Marshall Islands, Mauritius, New Zealand, Oman, Palau, Papua New Guinea, Paraguay, Qatar, Russian Federation, Saint Kitts and Nevis, Samoa, Saudi Arabia, Saint Vincent and the Grenadines, Singapore, Solomon Islands, Sudan, Syrian Arab Republic, Tonga, Tunisia, Turkmenistan, Turks and Caicos, Tuvalu, Ukraine, United Arab Emirates and Yemen.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on FacebookTwitterInstagram and YouTube.

US: Black/queer communities bear the grunt of HIV criminalisation laws

How HIV Stigma Leads To The Criminalization Of Black Queer Communities

After the 1990s, many black and queer people have been charged with crimes related to stigma.

After the HIV/AIDS epidemic in the 1990s, many black and queer people have lived with the stigma attached to their communities. 

The association between the disease and queerness began when many of the first cases involving HIV concerns were found among gay men in 1981. Though it has been proven having sex with queer folks doesn’t constitute transmission of HIV, many remain less informed on the topic. 

This belief has filtered into the criminal justice system, where queer people have been targeted as the culprits of HIV and AIDS transmission. According to Centers for Disease Control and Prevention, 60 percent of black people who receive HIV diagnoses are queer, black men. 

They say 90 percent of black heterosexual women have received a positive HIV diagnosis. Those who are infected with HIV often receive proper care, wear condoms, or have successfully suppressed the virus. Yet, black queer folks tend to have more encounters with the criminal justice system regarding possible HIV exposure, transmission, and disclosure. 

In 2015, a black gay man named Michael Johnson was charged with reckless exposure in Missouri, for not disclosing his HIV positive status with his partners. Missouri’s law states partners must disclose their HIV positive status, even if they are practicing safe sex. 

He was later portrayed by media and prosecutors as a predator, and often referred to as the screen name he used to meet potential partners: “Tiger Mandigo.” Because his accusers were white gay men, who possibly saw Johnson as a threat, he was sentenced to 30 years in prison. 

HIV criminalization laws, like the one in Missouri, refuse to look at advances in HIV prevention and care. Instead, they look to lock up folks to stop the spread of what the law constitutes as a HIV epidemic. 

Science has proven HIV criminalization laws are not reducing the transmission of HIV. They are actually scaring folks, especially in black/queer communities, from going in for a HIV screening. If their diagnosis comes back positive, and they don’t share that information with partners — for fear of abandonment by their partners due to the stigma that HIV holds — they are subject to criminal prosecution. 

Since their formation, state laws have not been revised to reflect the advances in HIV treatment and prevention. Many HIV positive folks use condoms, ask for consent prior to sex, and receive treatment such as PreP. Some folks living with HIV are virally suppressed. 

Science has also shown the likelihood of HIV transmission is rare even if it is intentional. Some state laws even criminalize those with HIV for spitting or biting during sex, when science has shown saliva is not a method of HIV transmission. 

HIV criminalization laws specifically refuse to look at the evidence and use the stigma to target black queer communities for punishment, and exclude them from society. Southern states house 21 of the areas with the highest likelihood of transmission among black queer men. 

The South also has the highest mass incarceration rates, with states like Louisiana and Mississippi locking up black people the most. 

The logic, possibly, is if we lock away all those who are HIV positive for possibly transferring the virus to their partners, then the spread will be controlled and all risk will be eliminated. But, some rates of transmission have not changed despite HIV criminalization laws currently in place. 

For example, between 2012 and 2016, the rate of black, gay, and bisexual men with HIV diagnoses remained the same.

However, black/queer folks bear the grunt of these laws as they are often the target of incarceration. A total of 38 states have laws that punish people for having potential to expose someone to a STD, which includes HIV. 

Those laws include sentence enhancement if the case pertains to possible HIV exposure, transmission, or lack of disclosure. A total of 28 states have criminalization laws that are HIV specific. Then, 19 states specifically require those who are HIV positive to disclose their status to their sexual partners. 

Two-thirds of those with HIV, who are facing prosecution in states with HIV specific laws, are black. In almost every case of HIV specific prosecution, the accused have been convicted and sentenced to prison. 

Charging black queer people who are HIV positive with carceral punishment is another way of shaming them for enjoying pleasure in the guise of disease containment. If the point of ensuring safety from transmission is to contain the virus, then putting black queer folks in prison isn’t the answer. 

It instead reinstates more violence onto black/queer folks, and disregards their safety in a justice system stacked against them. It has been proven placing those who are HIV positive into prisons doesn’t de-escalate the epidemic. It only delays the process of getting everyone infected the care they need. 

It also continues to stigmatize black/queer communities who already have enough to worry about. States need to eliminate these HIV specific criminal laws and let black/queer communities live in peace.

 

Colombia: Constitutional court to examine whether the law criminalising HIV transmission is discriminatory

Source: El Tiempo, April 27, 2019 – Google translation, for article in Spanish, please scroll down.

Is Penalising HIV infection discriminating?

Should a person who transmit HIV or hepatitis B go to jail for 6 years? That is the debate that the Constitutional Court will have to settle in the coming days, by resolving a lawsuit against the law that criminalizes the transmission of these diseases.

The plaintiff considers that Article 370 of the Criminal Code violates the rights to equality and restricts the free development of personality, in particular, sexual freedom. This law establishes that there will be imprisonment of 6 to 12 years for those who, knowing that they have HIV or hepatitis B, “perform practices through which they may contaminate another person, or donate blood, semen, organs or, in general, anatomical components”

According to the lawsuit, this penalizes the fact that a person living with these diseases has sex, and makes it a crime regardless of whether preventive measures, such as antiretroviral treatments and others, are taken that make the transmission of diseases unlikely.

Thus, the plaintiff says that although the purpose of this mechanism is to protect public health, this does not justify prohibiting a population group from freely expressing their sexuality, and adds that there would be no harm when there are consensual relationships in which measures are taken to prevent infections.

On the violation of equality, the plaintiff says that the article only refers and penalizes people with HIV or hepatitis B, and not others with potentially contagious and sensitive diseases.

The debate is broad, in total the Court received 15 statements of opinion from different organizations, ministries, universities, and even the Constitutional Court of South Africa, to feed its considerations. And there are almost as many arguments in favour as there are against.

For example, the Colombian Anti-AIDS League supported the demand because it considered that rights were violated, adding that laws that criminalize exposure to HIV leave the burden of prevention to the people who live with it and said that the real challenges are more education and better access to medical testing services and counselling

The statement sent by Edwin Cameron, magistrate of the Constitutional Court of South Africa and who lives with HIV since 1985, points out the harm of criminalizing people living with HIV, as it increases the stigma and makes it harder for them to dare to seek medical help and prevention information

He also said that to resort to norms that criminalize HIV, the UN recommends to governments that they address only those who intentionally spread the virus and concluded that if the goal is to safeguard public health, it is more effective to have better prevention and care programmes.

The statement sent by the Ministry of Justice gives the plaintiff reason that the rule is discriminatory because it is directed only to people with HIV – who have also been recognized as subjects of special constitutional protection – or hepatitis B and adds that there is no justification for the rule to be for people with these two diseases and not for others who are aware of having different infectious-contagious diseases

However, with regard to the restriction on sexual freedom, the Justice Department considered that the rule “does not violate the right to the free development of personality, but is limited to establishing the criminal consequences resulting from its abusive and harmful exercise against the rights of other people and the community “ For all this, it asks the Court to study the lawsuit and decide.

The Ministry of Health indicated, on the contrary, that the rule does not violate either the right to equality or the free development of the personality, but rather that the demand is based on an inference from the plaintiff that this restricts sexual freedom, and therefore asks to leave the rule as it is.

The Attorney General agrees that the plaintiff interpretation is that the law punishes the fact of having sex even when there is no transmission of the disease, which, says the Public Ministry, is not true. For the Attorney General’s Office, the rule is clear that in order for the offense to be established there must be an intention to cause harm by carrying out practices that could end in transmission. Because of this, the reasons for the claim are not valid and the Court is being asked not to study it and declare itself inhibited

In any case, the decision will be made by the Court, the lawsuit was handed over to Judge Cristina Pardo, who has already made a presentation that will be debated in the next few days by the Court’s full chamber.


¿Penalizar el contagio de VIH es discriminar?

Demanda dice que tipificar la propagación del virus discrimina a personas con VIH o hepatitis B.

Por: María Isabel Ortiz Fonnegra

27 de abril 2019 , 08:00 p.m.

¿Debe ir a la cárcel por 6 años una persona que contagie a otra de VIH o hepatitis B? Ese es el debate que deberá zanjar la Corte Constitucional en los próximos días, al resolver una demanda contra la ley que penaliza la propagación de estas enfermedades.

El demandante considera que el artículo 370 del Código Penal vulnera los derechos a la igualdad y restringe el libre desarrollo de la personalidad, en particular, la libertad sexual. Esta ley establece que habrá prisión de 6 a 12 años para quien, sabiendo que tiene VIH o hepatitis B, “realice prácticas mediante las cuales pueda contaminar a otra persona, o done sangre, semen, órganos o en general componentes anatómicos”.

De acuerdo con la demanda, esto penaliza el hecho de que una persona que viva con estas enfermedades tenga sexo, y lo convierte en delito sin importar si se toman las medidas preventivas que hacen improbable la transmisión de enfermedades, como tratamientos antirretrovirales y otros.

Así, el demandante dice que aunque el fin de esta media es proteger la salud pública, esto no justifica prohibirle a un grupo poblacional expresar libremente su sexualidad, y agrega que no habría afectación cuando se tienen relaciones consensuadas en las que se toman medidas para prevenir contagios.

Sobre la vulneración a la igualdad, dice que el artículo solo se refiere y penaliza a personas con VIH o hepatitis B, y no a otras con enfermedades también potencialmente contagiosas y delicadas.

El debate es amplio, en total la Corte recibió 15 conceptos de diferentes organizaciones, ministerios, universidades, e incluso de la Corte Constitucional de Sudáfrica, para alimentar sus consideraciones. Y hay casi tantos argumentos a favor como los hay en contra. 

Por ejemplo, la Liga Colombiana de Lucha contra el Sida apoyó la demanda pues consideró que sí se vulneran los derechos, agregó que leyes que penalizan la exposición al VIH dejan toda la carga de la prevención a las personas que viven con él y dijo que los verdaderos desafíos son más educación y mejor acceso a servicios de pruebas médicas y consejería.

El concepto enviado por Edwin Cameron, magistrado de la Corte Constitucional de Sudáfrica y quien vive con VIH desde 1985, señala los perjuicios de criminalizar a las personas que viven con esa enfermedad, pues incrementa el estigma y hace más difícil que se atrevan a buscar ayuda médica e información sobre prevención. 

También dijo que de recurrir a normas que criminalicen el VIH, la ONU recomienda a los gobiernos que estas se dirijan solo a quienes intencionalmente propagan el virus y concluyó que si el objetivo es salvaguardar la salud pública, es más efectivo tener mejores programas de prevención y atención.

El concepto enviado por el Ministerio de Justicia le da la razón al demandante en que la norma es discriminatoria pues está dirigida únicamente a personas con VIH –que además han sido reconocidas como sujetos de especial protección constitucional– o hepatitis B y agrega que no se advierte justificación para que la norma sea para personas con esas dos enfermedades y no para otras que son conscientes de tener enfermedades infectocontagiosas riesgosas distintas. 

Sin embargo, frente a la restricción a la libertad sexual, la cartera de Justicia consideró que la norma “no vulnera el derecho al libre desarrollo de la personalidad, sino que se limita a establecer las consecuencias penales que acarrea su ejercicio abusivo y lesivo frente a los derechos de las demás personas y la comunidad”. Por todo esto, le pide a la Corte que estudie la demanda y decida.

El Ministerio de Salud indicó, al contrario, que la norma demandada no vulnera ni el derecho a la igualdad ni el libre desarrollo de la personalidad, sino que la demanda se basa en una inferencia del accionante de que esto restringe la libertad sexual, por lo que pidió dejar la norma tal y como está.

La Procuraduría coincide en que el demandante interpreta que la norma castiga el hecho de tener sexo aun cuando no exista transmisión de la enfermedad, lo cual, dice el Ministerio Público, no es cierto. Para la Procuraduría, la norma es clara en que para que se configure el delito debe existir una intención de causar daño realizando prácticas que podrían terminar en contagio. Por esto, las razones para la demanda se caen y le pidió a la Corte no estudiarla y declararse inhibida.

En todo caso, la decisión será de la Corte, la demanda le correspondió por reparto a la magistrada Cristina Pardo, quien ya hizo una ponencia que será debatida en los próximos días por la sala plena de la Corte.