US: LA Times publishes editorial in favour of REPEAL Act, highlights spitting and biting prosecutions

By The Times editorial board

A bipartisan bill introduced in the House calls for a review of state laws that criminalize behavior by people with HIV, including many laws that seem anachronistic or inappropriate given what has been learned during the last three decades about the transmission and treatment of the virus that causes AIDS. The bill should be passed.

The Repeal HIV Discrimination Act of 2013, introduced by Reps. Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Fla.), would not by itself repeal any state laws. The federal government can’t do that. But the bill would encourage state governments to repeal laws that are based on outdated fears. It is backed by the Presidential Advisory Council on HIV/AIDS and is in line with the UN’s stand that criminalization should be limited to cases in which a person knows he or she has HIV, intends to transmit it and successfully does so.

There are HIV-specific criminal statutes on the books in 32 states, and some are fairly common sense. In California, which has one of the better laws, people who know they are HIV positive must disclose that fact to their sex partners before having unprotected sex. If they do not, and if they “act with intent to infect,” they may be charged with a felony.

But 13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others. That might have seemed reasonable at the height of the panic over AIDS, but we now know it is not. According to the Centers for Disease Control and Prevention, only blood, semen, vaginal secretions and breast milk can transmit the virus. And to do so, they must come in contact with a mucous membrane or damaged tissue or be injected into the bloodstream. Saliva does not transmit HIV. It is extraordinarily rare for a human bite to transmit HIV.

In the last few years, there have been dozens of cases documented by the Center for HIV Law and Policy in which people have been charged with criminally transmitting HIV by biting or spitting (even though no transmission occurred) or convicted of failing to disclose to a sexual partner that they were HIV positive (even if the virus was not transmitted). In some states, people with these convictions have to register as sex offenders.

Though treatment has come a long way, HIV is still an extremely serious and basically incurable virus, and the House bill would not stop the prosecution of people who deliberately (and successfully) infect others. It is certainly wrong for infected people to cavalierly or maliciously have sex without disclosing their HIV-positive status and without taking precautions against transmitting the virus. But there is no reason to keep the laws against spitting and biting on the books. They are based on fears that have since been disproved by science.

US: Poorly argued editorial against REPEAL HIV Discrimination Act

(The Root ) — It’s every parent’s worst nightmare. You raise your child to be cautious about strangers, only to discover that an adult you entrusted with his or her care is the one you should have feared most.

US: Excellent article by Ari Ezra Waldman explaining why US HIV criminalisation laws are unjust and how to move forward

In Georgia, a woman was sentenced to eight years in jail for failing to disclose her HIV status to a male partner, despite witnesses’ statements that he already knew she was HIV positive. There’s a man in Ohio who is serving 40 years for failing to tell his ex-girlfriend that he was HIV positive, even though the case was motivated by an ex-lover’s jealous rage.

Canada: Male Call study finds more than half of gay men with HIV fear being prosecuted for not disclosing their HIV status

Two-thirds of men who have sex with men believe that people with HIV-AIDS should face criminal charges if they fail to disclose their status to a sexual partner. But that number varied a lot depending on circumstance, with 83 per cent saying non-disclosure before anal sex should be a crime, and 42 per cent saying failure to disclose HIV status before oral sex was a criminal act. Only 17 per cent said failing to disclose should never be criminalized. “The consensus is there should be legal measures in place related to disclosure,” Dan Allman, an assistant professor in the Dalla Lana School of Public Health at the University of Toronto, said in an interview. “At the same time, there is a feeling that legal measures won’t have an impact. There’s an innate understanding that disclosing your HIV status is hard and criminal laws aren’t going to make it easier,” he said.

The survey, dubbed Male Call involved 1,235 detailed interviews with men who have sex with men. The research shows that 26.2 per cent of respondents did not know their HIV status because they had not been tested recently; that number jumped to 50.6 per cent among bisexual men. Overall, 67.2 per cent of the men surveyed were HIV-negative, and 6.6 per cent HIV-positive.

Most of those who had not been tested said they were confident they were HIV-negative because their sexual practices put them at low risk. But a significant minority, 17 per cent, said they did not want to know their status, either because they could not deal with being infected or out of fear it could cause legal problems.

The fear associated with being HIV-positive was pervasive. The poll showed that 83 per cent of men worry about being stigmatized because of HIV, while 68 per cent fear being rejected by other gay/bisexual men, and 51 per cent fear being prosecuted for not disclosing their HIV status. 17.8% agreed that in the current legal climate it was better not to know your HIV status.

Full report available here: http://www.malecall.ca/technical-report/

US: Todd Heywood's analytical history of how the US developed HIV-specific criminal statutes and why there's now a movement to modernise or repeal these laws

In the late fall of 1988, state lawmakers and representatives from major insurance and pharmaceutical companies were hard at work addressing the looming AIDS crisis for the American Legislative Exchange Council, a conservative-leaning think tank that produces state-based business-friendly model legislation.

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

US: Fake NBC news website claimed NY police wanted man for intentional HIV transmission

Friday, a news report from an NBC affiliate in New York circulated the web via blogs claiming that police were searching for a man named Isaac Don Burks for intentionally spreading HIV in the NY Tri-State area. On Monday, the original source was called into question when the link being shared redirected to an Augusta news site.

The original source came from a fake site made to look like the NBC New York 4 website. The slight difference was in the domain. The real NBC affiliate’s domain is www.nbcnewyork.com the fake site used www.nbcnewyork4.com. The original story url still shows up in Google search as http://nbcnewyork4.com/news/local/fugitive-wanted-for-intentionally-spre… yet you no longer go to the original report. Instead, when you click on the link you are directed to an Augusta story about the same man, but for a different incident in 2010 involving identity fraud and forgery.

Greek HIV case – Interview with Zoe Mavroudi from Radiobubble

We’re working to support Radiobubble to produce a documentary about the Greek HIV case – the women who were arrested and imprisoned after forced HIV tests. Zoe Mavroudi is directing the documentary. Here Radiobubble interviews her about the progress of the case and the making of the documentary.

The Register's Editorial: It's time to rethink Iowa's HIV sex law

When you look at the size of the Iowa Code, it’s obvious state officials excel at creating new laws. They are champing at the bit to add more this legislative session. If their goal is really to make Iowa a better place to live, our elected officials should muster as much enthusiasm for repealing problematic statutes.

Nondisclosure prosecutions and population health outcomes: examining HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following nondisclosure prosecution media releases in Ottawa, Canada

This study was designed to examine HIV testing, HIV diagnoses, and the attitudes of men who have sex with men following media releases about a local nondisclosure prosecution in Ottawa, Canada. The authors first reviewed the trends in HIV testing and HIV diagnoses from 2008 through 2011 in Ottawa, Canada. They went on to explore the attitudes and beliefs of local MSM about HIV, HIV prevention, HIV serostatus disclosure, nondisclosure prosecutions, and public health.

Researchers found that, statistically speaking, HIV testing and HIV diagnoses among men who have sex with men did not significantly change after the media releases about a local nondisclosure prosecution. However, qualitatively, a subgroup of 27 men who have sex with men (12 HIV-positive, 15 HIV-negative) expressed their belief that the local public health department openly shares information about people living with HIV with the police. Some HIV-positive participants stated that this perceived association between the local public health department and police services caused them to not access public health department services. The authors conclude that nondisclosure prosecutions do likely undermine HIV prevention efforts.