Positive Lite editor Bob Leahy talks to Edwin J Bernard, co-ordinator of the HIV Justice Network, about HIV non-disclosure and the criminal law, particularly as it relates to the Canadian context where non-disclosure of known HIV-positive status prior to sex that may lead to a ‘significant risk’ of HIV transmission is considered aggravated sexual assault. The interview took place in Toronto, in May 2012, prior to the Supreme Court of Canada’s decision on the issue.
Mark S King: HIV Criminalization Face-Off
(7 min, My Fabulous Disease, USA, 2012)
What if you could witness a face-to-face confrontation between a man living with HIV and the sex partner accusing him of not revealing his status? Wouldn’t you like to be a fly on that wall? The fireworks could be mighty, as emotions raged between the furious accuser and the positive person trying to defend his actions. What might that meeting look like, exactly?
In this video, you’re about to find out.
Read more at Mark’s brilliant blog, My Fabulous Disease.
Perpetuating Stigma (In The Life Media, US, 2012)
Public television stations across the United States aired Perpetuating Stigma, an episode from the award-winning documentary series In The Life, in February 2012. This special report investigates the injustices that arise when a person’s HIV status becomes a crime, with a focus on how women have been stigmatized and prosecuted under these laws.
Perpetuating Stigma features HIV positive women whose personal stories challenge the theory behind HIV criminalization laws and expose the reality of their impact.
“In The Life’s decision to continue coverage of HIV criminalization, specifically with a report on women, is motivated by the lack of a fair media perspective on this issue,” stated Michelle Kristel, executive director of In The Life Media.
The Impact of Legalizing Stigma (In The Life Media, US, 2011)
In The Life’s 2011 report, Legalizing Stigma, was the first on a national US TV channel (PBS) to look at the issue of HIV criminalization from the perspective of people targeted by criminal laws. The segment led to public education efforts, beginning with the first ever Congressional Briefing on this issue.
Verdict on a Virus (IPPF, UK, 2011)
This short film produced by The International Planned Parenthood Federation is a commentary from a selection of experts about the criminalisation of HIV transmission in England and Wales. It brings together a selection of policy makers, programmers, advocates, academics and people living with HIV to inform the public debate.
UK: The return of the “HIV Monster”
The British tabloid press had a field day yesterday following the sentencing of Nkosinati Mabanda, 44, at Wolverhampton Crown Court for ‘reckless’ HIV transmission. He received a four year prison sentence; was also given an anti-social behaviour order (ASBO) ordering him not to have sex without first revealing his HIV status (unclear if this also covers his time in prison); and will be considered for deportation following his release.
Of note, the only successful prosecutions for ‘reckless’ HIV transmission in England & Wales since 2004 have taken place when the defendant pleaded guilty. (See this table of all UK cases from NAT – an additional heterosexual case in Wood Green, London, was dismissed in March 2011 due to lack of evidence).
In fact, Mr Mabanda had tried to change his guilty plea (and his legal representation) when he realised how difficult it was to prove the charges he’d already pleaded guilty to. He was not only unsuccessful, but did himself no favours by having a further sexual relationship with another woman (who did not test HIV-positive) in the two years he was out on bail. (The first report of his case, from December 2009, is here.)
Since Mr Mabanda’s country of birth is Zimbabwe (he apparently migrated to the UK in 2004), the two right-wing tabloids, The Sun and The Daily Mail pandered to their readers’ prejudices and characterised this human being who had make mistakes (as human beings do) as an ‘HIV Monster’.
The term “HIV Monster” and its variant, “HIV Avenger”, has been around since the late-1980s. The idea that a person with HIV is no longer human but a “monster” was established by the myth of “Patient Zero,” a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On. “Patient Zero” was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective. This myth has since been replayed many times worldwide and is often the impetus for calls for new HIV-specific laws and/or tougher sentencing.
Certainly, readers’ comments suggest the tabloids did their job of dehumanising Mr Mabanda – many calling for his death, castration or, at the very least, immediate deportation to what they hope will be a certain and painful death in the absence of HIV treatment in his native Zimbabwe. Anti-immigration (and anti-African) sentiment is also widely expressed. The comment below is illustrative of all of the above, and yet also alludes to the difficulties of disclosure due to HIV stigma. (Of course, having children if you are HIV-positive is neither “off the cards” nor “selfish” – it is possible to conceive and give birth with minimal risk to a sexual partner or infant and many people with HIV can, and do, have children with the full support of their doctors, partners and families.)
The content of the stories – if not the tabloids’ headlines – take their facts and their moral tone from a police press release, and the words of the complainant.
The press release states:
Superintendent Jan Thomas-West, from West Midlands Police, said: “The particularly disturbing element of this case is Mabanda’s blasé attitude towards his victim and his various other partners.
“Mabanda told officers that he had had sex with nine women in the UK and that seven of them had not know he was HIV positive. Unfortunately, these women were impossible to trace.
“He seems to have shown no regard for the health of others or the potential life sentence he may have passed on to anyone who had sex with him.
“His victim will remain on medication forever and her life expectancy has been reduced as a direct result of his actions.
“I am pleased that Mabanda has received a significant custodial sentence today.”
West Midlands police subsequently circulated a second email quoting the complainant, parts of which were used in the The Sun and Mail stories.
Further to this release, please find below a statement from his victim, who wishes to remain anonymous:
“I am pleased with the sentence given to Mabanda today and that the judge recognised the seriousness of what he has done.
“I feel a combination of anger and relief. Anger at what he has done to me and potentially other women and relief because he has been punished for his actions.
“I think he should have been given life because that’s the sentence he has given to me.
“What he did has had a devastating impact and will affect me every day for the rest of my life, but now I want to move on.
“If anyone else recognises him because of the media coverage and they have been infected, they should go to the police and I will be there for them.”
The complainant also gave interviews to the local paper, The Express and Star and to BBC Radio 5.
She said: “He should have been given life because that’s the sentence he has given to me. He’s just scum. I hope he’s deported because I hate him.
“I’m on medication now for the rest of my life.”
Couldn’t agree more, Krystle.
US: State public health officials condemn ‘stigmatising, harmful’ HIV-specific laws
This weekend, the National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement that signifies an extremely important development in the Positive Justice Project’s campaign to repeal HIV-specific criminal laws in the United States.
NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.
Its motto is: ‘Bridging Science, Policy, and Public Health’.
The message of their statement is simple: repeal these laws because
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.
In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will
advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Further, NASTAD encourages its members to:
- Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
- Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
- Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
Todd Heywood of the Michigan Messenger reports that US HIV advocates – including the National Association of People with AIDS (NAPWA) and the Positive Justice Project’s Senior Advisor, Sean Strub – have warmly welcomed NASTAD’s statement. Read his report at the Michigan Messenger here.
The full text of the statement, below, can also be downloaded as a pdf.
NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES
The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.
As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.
HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:
- A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;
- A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;
- A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.
In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.
HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:
- Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;
- Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;
- Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.
NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.
Approved by NASTAD’s Executive Committee: February 2011
US: Montana legislator’s HIV “ignorance in the first degree” exposed and denounced
Judicial ignorance is something I often highlight on my blog.
Sadly, it is most often (but not exclusively) seen in the United States – a place where a Michigan prosecutor believes that biting someone in self-defence is terrorism if the biter is HIV-positive; where a Texas defence lawyer believes people with HIV are potential “serial killers” if they don’t disclose before having unprotected sex because their HIV is a “deadly weapon”; and where a North Carolina judge believes that a man who attempts to bite a police officer on the ear is also a walking ‘deadly weapon’.
Today I’m adding a new label to my blog – political ignorance – inspired by two scary, crazy, and dangerous events in as many weeks.
On Tuesday, Montana Representative Janna Taylor (a Republican, of course) testified in favour of Montana keeping the death penalty by citing the example of the most heinous, murderous crime she could think of – prisoners with HIV aiming saliva and/or blood-soaked paper “blow darts” at prison guards in an attempt to kill them.
Yesterday, the video of Rep. Taylor’s comments, originally posted on YouTube by shitmyrepsaid went viral throughout the US bloggersphere – from Montana bloggers Don Pogreba and D Gregory Smith to more mainstream gay sites, Towleroad and Queerty.
[Update 11 February: LGBT health blog, Crowolf, features an email response from Rep. Taylor that states:
I have tried to answer every email, even the ones that were not professional, as you worded it. My words were very poorly chosen, and I apologize for them. Montanans with HIV are simply people living with a virus. I was intending to illustrate that there are scenarios we cannot currently conceive of that may warrant the death penalty, and to remove it from the available options for punishment at this time would be misguided. HIV transmission was not an appropriate example. Again, I sincerely apologize for my inappropriate and inelegant statement, and I encourage all Montanans to become better educated about HIV.
It’s all well and good to respond to individual emails, but there’s nothing yet on Rep. Taylor’s own website making her HIV u-turn clear to her constituents and rest of the America.]
The idea that HIV could be transmitted in this way, and that this could be considered not just murderous intent, but worthy of the death penalty, is a point of view so dripping in HIV-phobic ignorance that at first I thought it wasn’t worth blogging about. After all, it’s so scarily out-of-step with science that surely no-one would take her comments seriously. Why give her poisonous ideology any further oxygen?
But during a lengthy email discussion yesterday with Sean Strub, senior advisor to the Positive Justice Project (PJP) and Catherine Hanssens, executive director of the Centre of HIV Law and Policy which hosts the PJP, I was persuaded that this lawmaker’s ignorance provided an excellent opportunity to highlight exactly how HIV-related ignorance plays its part in the further stigmatisation – and criminalisation – of people with HIV.
More of that in a moment.
Now this wasn’t the only recent case of a US politician furthering HIV-related stigma in the name of ‘justice’. Just last week, as highlighted in my blog post here, Nebraska State Senator Mike Gloor introduced a bill into the Nebraska State Legislature that would especially criminalise people with HIV (and viral hepatitis) who assaulted a peace officer through body fluids – notably by spitting, or throwing urine at them. (Neither of these risk HIV exposure.)
In both cases, PJP reacted swiftly to the threat. They worked closely with advocates in Nebraska to fight against the proposed body fluids assault bill and despite local media coverage that appeared to suggest strong support for the bill, local advocates reported (in a private email to the various PJP workgroups – full disclosure, I’m a member of the media workgroup) that because of opposition testimony from ACLU-NE and Nebraska AIDS Project, good questions were raised by some Senators on the committee that may lead to them to seriously consider blocking this bill’s passage.
And last night, PJP put out a press release that highlights Rep. Taylor’s “ignorance in the first degree”.
When HIV-related ignorance and stigma emanates from the mouths of politicians and lawmakers, this becomes state-sponsored ignorance and stigma – the most dangerous kind, the kind that can lead to HIV-specific criminal laws, or provisions that turn misdemeanours into felonies resulting in significantly longer sentences for people living with HIV than those without.
Treating people with HIV as potential criminals when in fact we pose no real threat with the kind of behaviour politicians believe is ‘dangerous and criminal’, takes away our human and civil rights and furthers the public’s and media’s perception that people with HIV are something to be feared or hated.
PJP’s powerful and co-ordinated response is the kind of advocacy in action that needs to be replicated wherever the rights of people with HIV are threatened by ignorance and stigma.
The full text of the press release is below. It can also be downloaded as a pdf here.
Positive Justice ProjectDenounces Montana Legislator’s Uninformed Comments“…ignorance in the first degree…”
Contact:Catherine Hanssens, 347.622.1400chanssens (at) hivlawandpolicy.orgSean Strub, 646-642-4915sstrub (at) hivlawandpolicy.orgNew York, February 9, 2010 – Leading public health officials and advocates for people with HIV responded swiftly to news that a Montana state legislator, while testifying in favor of retaining the state’s death penalty statute, suggested that prisoners with HIV make paper “blow darts”, put their blood or saliva on them and throw them at prison guards in an attempt to kill them.
A video of the legislator’s comments was posted earlier today by blogger Don Pogreba at the Montana-based website intelligentdiscontent.com.
According to the federal Centers for Disease Control, HIV is not transmitted by saliva, and HIV in blood dies quickly after being exposed to air. HIV-infected blood does not survive outside the body long enough to cause harm, unless it penetrates mucus membranes.
The Positive Justice Project, a program of the New York-based Center for HIV Law & Policy, is a coalition of more than 40 public health, civil liberties and HIV/AIDS organizations combating HIV criminalization and the creation of a “viral underclass”; they oppose laws that treat people with HIV different from how those who do not have HIV, or who do not know their HIV status, are treated.
The Center’s executive director, Catherine Hanssens, said “Rep. Janna Taylor’s remark is ignorance in the first degree. Quite frankly, it is typical of the ignorance we had to deal with decades ago, early in the epidemic, when little was known about how the virus was transmitted. It is astonishing that an elected official today could be so fundamentally uninformed.”
Julie M. Scofield, executive director of the National Association of State and Territorial AIDS Directors (NASTAD), said “My plea to Rep. Taylor and legislators at all levels concerned about HIV is to do your homework, talk with public health officials and get the facts. Spreading fear about HIV transmission will only set us back in the response to the HIV/AIDS epidemic in Montana and every other state in the U.S.”
Other experts from Montana and national organizations also commented on Rep. Taylor’s remarks:
“Ms Taylor’s statement just shows the need for greater support and funding for HIV education and prevention in the State of Montana. Unfortunately, misinformation such as this is all too prevalent, leading to pointless discrimination and myth-based fears and policies. After 30 years of dealing with HIV, the public should be much better informed about its transmission. No wonder HIV infection rates haven’t stopped.”
— Gregory Smith, co-chair of the Montana HIV/AIDS Community Planning Group, a licensed mental health counselor and a person living with HIV
“I am disturbed and disappointed to hear such misinformation coming from a local government official, but sadly I am not especially surprised. As we enter the 30th year of this worldwide epidemic I am frequently reminded of the need for continued education and outreach, the facts are still not clearly understood by the general masses. Perhaps if we were more willing as a society to discuss more openly the risk behaviors that transmit the virus we would not find ourselves responding to such an insensitive and false statement.”
— Christa Weathers, Executive Director, Missoula AIDS Council, missoulaaidscouncil.org
“HIV infected blood cannot infect someone through contact with intact skin or clothing if the skin underneath is intact.”
— Kathy Hall, PA-C, retired American Academy of HIV Medicine-certified HIV Specialist, Billings, MT
“The comments made by the Montana Legislator really demonstrate total ignorance about how HIV is transmitted. If elected officials don’t understand the basic facts, how can we expect young people and those at greatest risk to understand them?”
— Frank J. Oldham, Jr., President, National Association of People with HIV/AIDS, napwa.org
“This is an example of people with HIV, especially those who are incarcerated, being stigmatized and used as fear-fodder by politicians whose ignorance and quickness to demonize people with HIV outweighs common sense and two minutes of Google research. Even when someone is exposed to HIV, a 28-day course of anti-HIV drugs used as post-exposure prophylaxis is effective in preventing HIV infection. It also isn’t a death sentence; those who acquire HIV today and have access to treatment generally don’t die from AIDS.”
— Sean Strub, founder of POZ Magazine, a 30 year HIV survivor and senior advisor to the Positive Justice Project.
****
The Positive Justice Project is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so. HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.For more information on the Center for HIV Law and Policy’s Positive Justice Project, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.
To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2
The Positive Justice Project has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the van Ameringen Foundation and the Elton John AIDS Foundation. To learn more or join one of the Positive Justice Project working groups, email: pjp (at) hivlawandpolicy.org
US: Michigan bite man charged under anti-terrorism laws gets 11 months probation in plea deal (update-4)
Update: Dec 8th 2010
Macomb County Circuit Court Judge Peter Maceroni today sentenced the 46 year-old Michigan man once charged under terrorism laws for allegedly biting his neighbour to eleven months on probation after pleading guilty to a single assault charge.
“This was nothing more than gay-bashing,” attorney James L. Galen Jr. told Fox 2. “The only reason my client took a plea deal was because of his health, and one of the witnesses didn’t show up for the defense.”
Mlive.com’s headline, ‘All bark, small bite: Probation for Clinton Twp man with HIV once charged with bioterrorism’ can only hint at the ridiculousness of the charges and the pain and financial cost suffered by this man. In the end, probation is still too much of a penalty, and it is far too late to repair the damaged reputations of both the man accused and HIV itself.
Update: Nov 5th 2010
Todd A Heywood of the Michigan Messenger, who has been following the case of the 46-year-old Michigan man who was charged with terrorism after biting his neighbour in October 2009, reports that the man has reached a plea deal on the two felony charges that remained following the rejection of the bioterrorism charges in June 2010.
Daniel Allen was originally charged with one count of bioterrorism, one count of assault with intent to maim and one count of assault with intent to do great bodily harm less than murder. Macomb County Circuit Court Judge Peter Maceroni rejected the bioterrorism charges in June, leaving Allen facing the two, ten-year felonies.
The charges stem from an October 2009 altercation between Allen and his neighbor Winfred Fernandis, Jr. Fernandis alleges that Allen attacked him without provocation, while Allen says the incident was part of a long running series of anti-gay harassment by Fernandis and his family. Fernandis says Allen bit his lip during the fight.
Under the plea deal, Allen has agreed to plead no contest to assault with intent to maim. Under the deal, if Allen successfully concludes a probation period, the charge will be changed to a misdemeanor of aggravated assault and the second charge, assault with intent to maim would be dismissed.
But Fernadis, the victim, told the Daily that he might back out of the agreement. He specifically told the newspaper he would be OK with the deal if Allen moved from the home he owns in Clinton Township.
Allen faces a sentencing hearing in front of Maceroni Dec. 8.
Update: Nov 20th 2009
Journalist Todd A Heywood reports in another Michigan Messenger article that
HIV activists from the group Michigan Positive Action Coalition have issued a press statement encouraging people with infectious diseases, including H1N1, HIV or the common cold, to call the Macomb County prosecutor and “voluntarily turn themselves in” to be charged with terrorism. In the statement issued by Mark Peterson, a director for the group, activists called the charges leveled against 44-year-old Clinton Township resident Daniel Allen “ridiculous.”
Update: Nov 18th
Journalist Todd A Heywood has published a second article in the Michigan Messenger that includes an interview with the man’s lawyer, James Galen Jr.
The story has also been picked up by Michael Carter at aidsmap.com.
Original post: Nov 10th
Last week I reported on the case of an HIV-positive gay man in Michigan whose HIV status was revealed in a TV interview and who is now facing serious criminal charges for biting his neighbour during a fight.
Todd A Heywood of the Michigan Messenger has followed up on this story and discovered that one of the charges the man faces is a Kafkaesque terrorism charge – possession or use of a harmful device – that would create a legal precedent in Michigan if the charges actually stick.
The piece also includes an interview with a Republican State Rep. Rick Jones, who sits on the Judiciary Committee, and who believes that spitting should remain criminalised.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
The entire article is posted below, with Todd’s permission.
State lawmakers question terrorism charges for HIV-positive man
Bite during fight called use of a ‘harmful device’ under anti-terror lawBy Todd A Heywood, Michigan Messenger
An HIV-positive Macomb County man is facing charges created under Michigan’s 2004 terrorism laws for biting another man in a neighborhood scuffle. That, HIV advocates, state lawmakers and legal experts say is “cowardly” and “nonsense” and increases ignorance and stigma surrounding the virus.
State Rep. Mark Meadows, who chairs the House Judiciary Committee said in an interview he does not believe the legislature had the neighborhood fight situation in mind when it drafted the terrorism laws. The Democrat from East Lansing also said he thought the prosecution was “silly.”
“Is this a dangerous instrumentality? It’s like saying that because I breathed on you and I have tuberculosis and we are fighting, that somehow because I have this disease it suddenly becomes more than just that I have this disease,” said Meadows, a former assistant attorney general. “The other charges are more than sufficient to deal with the issues involved.”
In the end, Meadows believes that the circuit court judge will toss out the terrorism charge, which he said was “a stretch.”
A fight among neighbors
The case arose out of an Oct. 18 fight between 44-year-old Daniel Allen and his neighbor Winfred Fernandis Jr. What happened that day is disputed.
According to a report from Clinton Township Police Department, Fernandis said Allen jumped him without provocation when he went to retrieve a football neighborhood kids accidentally threw onto Allen’s yard. Fernandis, according to the police report, said Allen “hugged up” to him and began to bite him. Fernandis suffered a bite wound on the lip so severe, police say, it went all the way through the lip. Fernandis sought medical treatment and the wound was sewn shut.
Allen, however, alleges that Fernandis, his wife Denise and Fernandis’ father assaulted him, and he does not recall biting the younger Fernandis. He too sustained injuries during the incident, and his lawyer during a Nov. 2 hearing presented 37 photographs of injuries, including bite marks to Allen’s body. Allen and his attorney maintain Allen was the victim of a hate crime because Allen is gay. Since the incident, Allen has filed a personal protection order against the Fernadis family and a criminal complaint with the township police.
Following the incident, police were called in and after a brief investigation, placed Allen under arrest and charged him with two crimes: aggravated assault, a misdemeanor charge which carries a punishment of up to one year in jail and/or $1,000 fine and assault with intent to maim, a 10-year felony.
Macomb County Prosecutor Eric Smith refused to return multiple messages left for him. Allen’s attorney, James Gallen, did not return calls.
HIV Becomes the Feature of the Story
The story, a man severely biting another man, drew the attention of the Detroit-area media, and Fox 2 News soon had Allen on video admitting he was HIV-positive.
That admission lead Smith, a Democrat, to say he would seek additional charges. On Nov. 2, Smith’s office amended its complaint to add a charge of possession or use of a harmful device. That law is a 25-year felony and was part of a 2004 package of terrorism laws created by the legislature in the wake of the Sept. 11, 2001, attacks.
The law makes it a crime to have a harmful device, which is defined as either biological, chemical, electronic or radioactive. Smith’s office is arguing that Allen being infected with HIV was “a device designed or intended to release a harmful biological substance,” and that his bite was thus an attempt to spread HIV.
Smith’s office is relying on a Michigan Court of Appeals ruling in a case of an HIV-positive, and hepatitis B infected prisoner who spit at prison guards during an altercation in the prison. In that case, People v. Antoine Deshaw Odom, the three judge panel found:
We therefore conclude that HIV infected blood is a ‘harmful biological substance,’ as defined by Michigan statute, because it is a substance produced by a human organism that contains a virus that can spread or cause disease in humans.
The three judge panel was silent on whether the hepatitis infection weighed in as a factor as a harmful biological substance. As a result of this finding, the court upheld a stricter sentencing score for Odom. In 2008, the Michigan Supreme Court refused to hear an appeal on the matter, upholding the Appeals Court decision.
On Nov. 2, District Court Judge Linda Davis concurred with Smith’s office and bound Allen over to Macomb Circuit Court to face the three charges.
According to The Macomb Daily, the judge said:
“[Allen] knew he was HIV-positive, and he bit the guy,” Davis said from the bench. “That on its own shows intent.”
Criminalizing HIV with traditional, non-HIV specific laws not new
HIV experts say it is a near impossibility to spread HIV through a human bite.
The Centers for Disease Control and Prevention in Atlanta said it has one case on record where it believes HIV was transmitted through a human bite. But the case, out of South Carolina, is of an older man who claims to have had no other risk factors except being bit by a sex worker who was infected with HIV. That sex worker claims the man refused to pay for her sexual services, and she bit him in an attempt to get her money.
But, even allowing for that case, experts say there are other factors to consider. In 2003, the most recent year available for statistics on the CDC website, about 1 million people in the United States were living with HIV/AIDS, putting the prevalence of HIV transmission via biting at .000000001 percent. In contrast, an online search of news reports finds hundreds of media reports of biting incidents involving HIV-positive people.
“Even if you accepted that as a transmission case,” said Catherine Hanssens, executive director of the New York City-based Center for HIV Law and Policy. The charges against Allen, she said, simply aren’t warranted. “It’s just nonsense. It’s cowardly. It’s the kind of thing that keeps kids [with HIV] out of day care and camps and allows kids [with HIV] to be kicked out of karate case.”
She said cases like Allen’s are proof that the nation is failing to address the epidemic with common sense. “It’s continuing the boogey-man characterization of people with HIV,” she said.
“This troubles me very much,” says Lambda Legal HIV Project Director Bebe Anderson. “I think it is a very dangerous thing for prosecution to proceed with a charge or an enhanced charge based on a person’s HIV status. Typically these prosecutions are based on ignorance about HIV transmission. These prosecutions add to ignorance in the general public about HIV transmission, and they certainly add to the stigmatization of people living with HIV.”
The move to charge Allen with terrorism-related charges, Anderson said, was deeply troubling.
“Its a very dangerous notion that somebody who has a physical condition such as H1N1 or HIV or some other virus, that, that person then can then be charged with having a harmful biological substance and then if they are out there in contact with other people and they are putting other people at risk it is troubling.” said Anderson. “That’s not something that is legitimately criminalized and these prosecutions start us in that direction in a very dangerous way, I think.”
Anderson said to her knowledge this is the first time she has seen a terrorism law used in connection with an HIV-infected persons prosecution. She said she believes the terrorism law is being misapplied, and that Allen’s defense is going to have to make basic information about HIV and its transmission clear to the courts.
“I think it is very important to try to get in front of the judges and the prosecution accurate information about HIV,” Anderson said. “I think what happens is that these prosecutions are fueled by ignorance, then unfortunately that ignorance gets compounded because the judge makes a ruling or the jury makes a ruling based on fear and myths of HIV and not the actual risk posed by particular conduct.”
Hanssens and Anderson said that the trend of charging HIV-positive people with charges based on their HIV status is nothing new, but both say there has been an increase in cases in recent years.
“What seems new is there seems to be a sudden uptick in the number of these type of cases in the last year or so,” Anderson said.
HIV activist Mark Peterson, from Michigan POZ Action said he is also concerned about this case. In an email statement to Michigan Messenger, Peterson said:
“This sort of conflict is sad anytime it happens. At the same time, charging a person with possession or use of a harmful device simply because they have an infection, especially where the is NO scientific evidence of HIV ever being spread this way, is just another example of how our laws are based on fear and ignorance and not science…Its interesting to see how the impact of stigma and homophobia that still surrounds HIV shows up in our legal system.”And Meadows is not the only legislator sounding off on the case.
State Sen. Hansen Clarke, a Detroit Democrat and a vocal advocate on behalf of people living with HIV/AIDS, said in an interview that the charges are out of proportion.
“I think we need to put this in perspective in light of the tragic events at Fort Hood,” Clarke said. “That should be investigated as terrorism. The magnitude of the instances is not even similar.”
He said the impact of such a prosecution was “harmful” to addressing HIV stigma in the state.
“I don’t think our legal system should treat everyone that has a disease that could be communicated to some one else differently,” Clarke said.
State Rep. Rick Jones, a Republican from Grand Ledge who sits on the Judiciary Committee, said the terrorism charge was likely not appropriate.
“If it was a fight and people were biting each other I would not think that is an appropriate charge,” said Jones, a former Eaton County sheriff. “I think you should able to be charged with attempt to transfer HIV if it can be shown in a court of law you made a genuine attempt to transfer [it].”
Changes in law deemed necessary
While the use of non-specific HIV laws to criminalize those infected is not a new trend, neither are the laws to criminalize HIV. Michigan passed a law in 1988 which makes it a felony for a person who knows he or she is infected with HIV to engage in sexual penetration, however slight, without disclosing that status first.
In April, Michigan Messenger highlighted the story of Michael Holder who spent eight years in a Michigan prison for allegedly failing to disclose his HIV-status to his partner. The Iowa Independent, Michigan Messenger’s sibling site, has closely followed the criminal prosecution and conviction of Nick Rhoades, who was convicted of failing to disclose his HIV status and sentenced to 25 years in prison. He was released in September and is serving a five-year stint on probation after a judge reconsidered his harsh sentence.
Federal law mandated all states to certify each had a law in place to criminally prosecute people with HIV who did not disclose that to people before engaging in behavior which might spread the virus. That mandate was made in 1990 and by 2000 all 50 states had certified.
But two decades into the epidemic, with science getting a better understanding of HIV and how it is spread, lawmakers are beginning to say the current laws need to be revisited.
Jones said during an interview that if someone with HIV spits at a police officer while screaming ‘I hope you get AIDS,’ that that person should be charged with a crime, because that shows an intent, even if the mode of possible transmission via spitting “would be a very difficult way to transmit” the virus. He said the intent to spread the disease is the issue, not necessarily the mode.
Jones, who also once served as a jail administrator, was tasked with knowing universal precaution rules inside and out. He also added that the law should be expanded to include other diseases, such as tuberculous and hepatitis.
Jones discussed Michigan’s 20-year-old disclosure law which makes it a crime for an HIV-positive person to engage in sexual penetration, however slight, without first disclosing their HIV infection. He was surprised to learn the law did not address sharing needles, but including activities that cannot spread HIV, such as sex toys. Asked if he believed it was time to revisit the disclosure law, he said: “Yes. Yes, I would agree with that. But I might add things like needle sharing, and I might subtract things to make more of an intent crime.”
Legalizing Stigma (In The Life Media, US, 2010)
More than 30 US states have laws criminalizing HIV exposure, transmission or non-disclosure of an individual’s HIV status. IN THE LIFE looks at the stigma and misinformation embedded in laws meant to curb the spread of the disease and the human cost among those who are HIV positive. Includes footage from the New York launch of the Positive Justice Project.