US: REPEAL HIV Discrimination Act reintroduced by Congresswoman Barbara Lee even as some US states propose new HIV-specific criminal laws

The past month or so has seen a huge amount of activity around overly broad HIV criminalisation in the United States, culminating the reintroduction of the REPEAL HIV Discrimination Act by Congresswoman Barbara Lee.

As well as on-going arrests and prosecutions of individuals for alleged non-disclosure (and some excellent reporting on certain cases, such as that of Michael ‘Tiger Mandingo’ Johnson in Missouri or of two new cases on the same day in Michigan) new problematic HIV-related criminal laws have been proposed in Alabama, Missouri, Rhode Island and Texas.

Fortunately, most of these bills have been stopped due to rapid responses from well networked grass roots advocates (many of whom are connected via the Sero Project’s listserv) as well as state and national HIV legal and policy organisations, including the Positive Justice Project.

REPEAL HIV Discrimination Act

On March 24th, Congresswoman Barbara Lee reintroduced a new iteration of the REPEAL HIV Discrimination Act (H.R.1586), “to modernize laws, and eliminate discrimination, with respect to people living with HIV/AIDS, and for other purposes”.

The full text of the bill can be found here.

The last time the REPEAL Act was introduced, in 2013, it had 45 co-sponsors before dying in committee.  The first iteration, introduced in 2011, achieved 41 co-sponsors.

As of April 15th, the 2015 iteration has three co-sponsors, two Democrats – Jim McDermott and Adam B Schiff – and one Republican, Ileana Ros-Lehtinen.

As in 2011 and 2013, the bill has been referred to three House Committees: Judiciary, Energy and Commerce, and Armed Services.

Back in 2013, the Positive Justice Project produced an excellent toolkit that provides advocates with resources which “can be used in outreach efforts, including a guide for letter writing campaigns, calling your representative’s state and Washington D.C. offices, or meeting with your representative or the representative’s legislative staff.”

If you’re in the US, you can also show Congress that you support this bill at: https://www.popvox.com/bills/us/114/hr1586

Alabama

On April 1, 2015 the House Judiciary Committee of the Alabama Legislature held a hearing on HB 50, proposed by Democrat Representative Juandalynn Givan, that would increase the penalty for exposure or transmission of a sexually transmitted infection from a class C misdemeanour (punishable by up to 3 months in jail and a $500 fine) to a class C felony (punishable by up to 10 years in prison).

Representative Givan was apparently inspired to propose the bill after reading about a pastor in Montgomery, Alabama, who admitted in an October 2014 sermon that he was living with HIV and engaging in sex with women in his congregation without having disclosed his status.  (He wasn’t prosecuted, but appears to have lost his job, as of the last news report in December 2014.)

In an interview in March 2015, she told AL.com that Alabama is one of only 16 states in the nation where it is a misdemeanour rather than a felony to ‘knowingly expose another person to a sexually transmitted disease’.

“What this bill is about is responsibility and accountability…The aim of this bill is not to punish those people with a sexually transmitted disease but to hold those people accountable,” that knowingly transmit dangerous illnesses to other people.

Some of the testimony before the House Judiciary Committee – most of it against the bill – is reported (rather poorly) in the Alabama Political Reporter.

Before the hearing began, the Positive Justice Project Steering Committee sent a powerful letter to the members of the House Judiciary Committee, voicing their strong opposition to the bill.

Medical experts and public health officials agree that criminalizing the conduct of people living with HIV does nothing to decrease the rates of infection, and may actually deter conduct and decisions that reduce disease transmission. Consequently, the American Medical Association, HIVMA, ANAC, and NASTAD have issued statements urging an end to the criminalization of HIV and other infectious diseases. Notably, the U.S. Department of Justice recently issued “Best Practices Guide to Reform HIV-Specific Criminal Laws,” which counsels states to end felony prosecutions of people living with HIV as contrary to the relevant science and national HIV prevention goals.

The bill remains with the House Judiciary Committee, but seems unlikely to be passed given that there are no co-sponsors.

Missouri

On March 10th, Republican Representative Travis Fitzwater introduced HB 1181, which proposed adding ‘spitting whilst HIV-positive’ to Missouri’s (already overly draconian) current HIV-specific criminal statute.

It is unclear what caused Rep Fitzwater to introduce the bill.  However, advocacy against it was swift, with the local chapters of both ACLU and Human Rights Campaign, and Missouri-based HIV advocate, Aaron Laxton, planning to testify against it within days of it being introduced.

Although the bill was scheduled for a public hearing before the Civil and Criminal Proceedings Committee on April 7th, the community’s quick response meant the bill was not heard. According to Laxton, “within a matter of hours every member of the Civil and Criminal Proceedings Committee has received calls, emails, tweets and messages from many people” against the bill.

The proposed bill now appears to be dead, and advocacy in Missouri is now focused on modernising the existing HIV-specific law (which includes criminalising biting whilst HIV-positive) to take into account the latest science around HIV risk and harm.

Rhode Island

On February 24th, Republican Representative Robert Nardolillo introduced a new HIV-specific criminal law (H 5245) that would have criminalised HIV non-disclosure in the state for the first time.

In an interview with Zack Ford on thinkprogress.org, Rep Nardolillo said that as a survivor of sexual abuse he was surprised to discover that Rhode Island law does not allow for harsh enough penalties if HIV is passed on during a sexual assault.

However, although his proposed bill created a felony when someone with HIV “forcibly engages in sexual intercourse,” it also criminalised when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

The entire hearing before the Rhode Island House Judiciary Committee was captured on video, and an excellent blog post by Steve Ahlquist on RIFuture.org highlighted both Rep Nardolillo’s ignorance of the potential harms of the bill, and the sustained and powerful testimonies against the bill from public health experts, people living with HIV and HIV NGOs alike.

Ahlquist concludes, “In the face of such strong opposition, it seems extremely unlikely that this legislation will advance out of committee.”

All testimonies are available to view in short video clips on the blog. You can also read the written testimony of the AIDS Law Project of the Gay & Lesbian Advocates & Defenders (GLAD) here.

Texas

On February 25, Republican Senator Joan Huffman introduced SB 779, which would essentially have created an HIV-specific criminal law by the back door.

Texas repealed its previous HIV-specific criminal law in 1994 and uses general criminal statutes, including attempted murder and aggravated assault, for potential or perceived HIV exposure and alleged HIV transmission cases.

According to the Advocacy Without Borders blog, “SB 779  proposes to amend the state Health and Safety Code to allow for HIV test results (which are currently confidential) to be subpoenaed during grand jury proceedings – and for a defendant’s medical records to be accessed without their consent to establish guilt/innocence and also potentially to be used to determine sentencing. Essentially, this bill proposes to criminalize having HIV.”

The proposed law, and a number of other proposed HIV-related laws, was also critiqued in a Dallas Voice article highlighting the opinion of Januari Leo, who works with Legacy Community Health Service.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem…These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Although it was considered in a public hearing before the State Affairs Committee on April 16, it now appears to be dead.

 

 

 

 

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos.

The amendement, draft Bill No. 198, 2015, would add to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – individuals who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

The bill has considerable support thanks to an outbreak of moral panic that began with an article in the daily newspaper, O Estado de S. Paulo, published on February 22nd, that uncovered the gay ‘barebacking’ subculture and further suggested that some men were deliberately passing on HIV to unsuspecting partners.

Two days later, it was reported in a blog of the weekly magazine, Veja, that police were now looking into the allegations.

According to [Secretary of Justice and Defence and Citizenship, Aloysius Toledo Caesar], [Secretary of Public Security, Alexandre de Moraes] has guided teams of the Department of Civil Police Intelligence (Dipol) to act covertly to identify the groups. Chat rooms will be analyzed, websites, blogs and even clubs and sex saunas. “We agreed to encourage all actions that may prevent persons continue to criminally transmit the virus,” said Toledo. “When the transmission is done intentionally, our understanding of the law is that the legal concept is configured to be like an assassination attempt, a more serious penalty,” he added. Under Article 130 of the Penal Code, the penalty for transmitting the virus without the partner’s consent is up to 4 years in prison.

On February 27th, the Brazilian country office of UNAIDS issued a press release expressing concern about the “impact [of these media reports] on increasing stigma and prejudice related to HIV and people living with the virus.” It went to explain that condoms, treatment, PEP and PrEP are all effective HIV prevention tools, and concluded:

UNAIDS also highlights that there is no evidence that the use of criminal laws for HIV is an effective tool to prevent and response to the epidemic. On the other hand, there are strong indications that the fear of being arrested or imprisoned may discourage people to test for HIV or to stay on therapy.

The moral panic became a full blown media frenzy on March 15 (and again on March 22) when the top-rated Sunday news TV programme, Fantástico, on TV Globo, aired a sensationalised two-part investigation into the ‘barebacking’ phenomeon, repeating the same allegations. The reports (in Portuguese) can be viewed here and here.

In reaction to this, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health issued a strong statement of its own on March 21, and three Brazilian civil society organizations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) – also issued press releases or statements noting that these reports stigmatise gay men living with HIV; that the idea of deliberately infecting someone is primarily a fantasy; and that in the extremely rare case of malcious, intentional transmisison the current general law is sufficient.

This isn’t the first time that there has been a media frenzy and moral panic around criminal HIV transmission. Two high profile cases in 2009 led to a strong statement from the Ministry of Health against the use of the criminal law unless transmisison was intentional.

According to the Global Criminalisation Scan, a number of laws can be used to prosecute alleged HIV non-disclosure, exposure or transmission, and there have been at least five prosecutions since the first recorded criminal case in 1995.

Follow the progress of bill PL 198/2015 here.

Update: On May 19th, former President Fernando Henrique Cardoso, who chaired the Global Commission on HIV and the Law, published a clear statement against the law on his Facebook page.

Screenshot 2015-06-01 12.15.07

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Conference Dates and Location:
February 23-26, 2015 | Seattle, Washington
Abstract Number:
129

Criminalizing HIV: Recent Experience in the United States and Africa to Update Laws and Policies to Promote the Public Health

Primary Author:

Jeffrey Crowley1

1 O’Neill Institute for National and Global Health Law, Georgetown University, Washington, District of Columbia, United States

Abstract Body:

Laws and policies have been used to protect people living with HIV and affected communities from stigma and discrimination. Indeed, the Americans with Disabilities Act (ADA) and the UN Convention on the Rights of Persons with Disabilities are just two legal instruments that help to create environments where people feel safe enough to come forward for HIV testing and to engage in care. Laws and policies also are used in ways that are highly stigmatizing and that hinder public health approaches to responding to HIV. In the United States, thirty-four states and territories have laws that criminalize the conduct of people living with HIV based on perceived exposure to HIV and without any evidence of intent to do harm. Far from representing a legacy of the past, people with HIV continue to be prosecuted and jailed for failure to disclose their HIV status prior to engaging in sex and for spitting and biting offenses, often in the context of arrest by law enforcement. Moreover, this is a challenge in countries across the globe. As of 2013, twenty-six African countries had overly broad and/ or vague HIV-specific criminal laws, most enacted over the past decade, with a further three countries considering new HIV-specific criminal laws. As governments, clinicians, researchers, and advocates seek to maximize population-level HIV viral suppression both to protect the health of people with HIV and also to reduce HIV transmission, these laws and policies could hinder our collective efforts. This talk will examine the current landscape of HIV criminal laws and policies in the US and selected African countries, will examine available data on the effectiveness of such laws at deterring behaviors such as failure to disclose HIV status prior to sexual encounters, and will look for common lessons from both Africa and the US to suggest a path forward for promoting effective evidence-based approaches to reducing HIV transmission.

Session Number:
S-5
Session Title:
Advancing HIV Prevention: Lessons from Biology, Medicine, and Public Health Law
Presenting Author:
Crowley, Jeffrey
Presenter Institution:
Georgetown University

Criminal Law Not Effective Against HIV

THE CONFESSIONS of the 40-year-old man who went on a “deliberate spree to infect as many other people as possible” in 2002 (The Namibian, 14 January 2015) sparked a series of media reports in the past few weeks, which featured calls from the public for the enactment of an HIV-specific crime of intentional transmission of HIV.

The push to apply criminal law to HIV exposure and transmission is often driven by the wish to respond to serious concerns about the ongoing spread of HIV, coupled by what is perceived to be a failure of existing HIV prevention efforts.

No one suggests that a person who, knowing he has HIV, sets out intending to infect another, and achieves his aim, ought to escape prosecution. In these cases, as infrequent as they may be, the victims and their society seek justice because harm was caused with clear intention.

There is, however, no need to enact a new HIV-specific law to address this situation. We have existing common law crimes that can be applied. Where we seek to apply these, we must ensure that the use of criminal law in relation to HIV should be guided by the current best available scientific and medical evidence.

Two key scientific and medical developments in the past five years call for a reconsideration of the application of criminal law in the context of HIV. The first is that we know that effective HIV treatment has significantly reduced AIDS-related deaths and has transformed HIV infection from a condition that inevitably resulted in early death to a chronic manageable condition.

In Namibia the treatment programme has been a flagship of the response, achieving 2010 Universal Access target 2009, and has since continued to register remarkable achievements. By March 2014, an estimated coverage of over 81% of eligible adults and 54% of eligible children were on anti-retroviral therapy (ART).

Secondly we now know that effective HIV treatment significantly reduces the risk of HIV transmission from people living with HIV to their sexual partners.

Since HIV is now a chronic treatable health condition, it is thus no longer appropriate for criminal prosecution for HIV transmission to involve charges of murder, attempted murder or assault with intent to cause grievous bodily harm.

Based on current evidence, the harm of HIV infection should not be treated differently from that of other serious sexually transmitted infections like hepatitis B or C. Transmission of these infections is, however, seldom if ever subject to criminal prosecution.

In addition, the effectiveness of criminal law as a tool for reducing the spread of HIV is questionable. Criminal law is traditionally used to incapacitate, rehabilitate or deter offenders.

Why then should we treat HIV differently?

In order to slow the spread of the HIV epidemic, vast numbers of people would have to be prevented from having unsafe sex or engaging in other risk behaviours, which no criminal law could possibly do.

Indeed, imprisoning a person with HIV does not prevent the transmission of HIV. HIV risk behaviours are prevalent in prisons, yet correctional services authorities continue to reject the introduction of evidence-informed prevention measures such as condoms and fail to address sexual violence in prisons.

There is little evidence to suggest that criminal penalties for conduct that transmits HIV will “rehabilitate” a person such that they avoid future conduct that carries the risk of HIV transmission. Most cases of HIV transmission are related to sexual activity – human behaviour that is complex and very difficult to change through the blunt tool of criminal penalties.

There is no scientific data to support the claim that criminal prosecution, or the threat thereof, has any appreciable effect in encouraging disclosure to sexual partners by people living with HIV or deterring conduct that poses a risk of transmission.

What nearly 30 years of addressing AIDS has taught us is that key to preventing the spread of HIV is the reduction of stigma and discrimination on the basis of HIV status, real or perceived, the fear of which deters many people from seeking HIV testing and knowing their status as an entry point to accessing HIV treatment and other related services.

Applying criminal law to HIV exposure or transmission, except in very limited circumstances, does the opposite. It reinforces the stereotype that people living with HIV are immoral and dangerous criminals, rather than, like everyone else, people endowed with responsibility, dignity and human rights.

Instead of focusing our attention on passing more criminal laws that provide for an HIV-specific crime, we should rather be putting our energies into creating an enabling legal environment in which the social and legal constructs that place some people more at risk of HIV infection than others are addressed. In particular we should ensure that the laws in place protect women’s equal rights and that their right to be free from violence are enforced.

We should promote access to comprehensive, age-appropriate sex education and sexual and reproductive health services and other evidence-based strategies designed to reduce HIV risks. We should adopt a comprehensive anti-discrimination law that protects people against discrimination on the basis of real or perceived HIV status or on the basis of sexual orientation and gender identity and we should repeal laws that criminalise or further marginalise vulnerable groups such as sex workers, people who use drugs, and men who have sex with men, which create barriers to access to effective HIV prevention and treatment services by these groups.

Our response must be based on the best scientific and medical evidence rather than misguided fears and stigma.

• Michaela Clayton is a human rights lawyer who has worked on HIV and human rights in Namibia and internationally since 1989. She is Director of the AIDS and Rights Alliance for Southern Africa, based in Windhoek and serves as the co-chair of the UNAIDS Reference Group on HIV and Human Rights as well as co-chair of the Human Rights Reference Group of the Global Fund to Fight AIDS, Tuberculosis and Malaria. – See more at: http://www.namibian.com.na/indexx.php?id=23584&page_type=story_detail#sthash.kMTUAWlM.dpuf

Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV.  Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that  the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries.  I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

 

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…

[Feature] Beyond Blame: Challenging HIV Criminalisation

Beyond Blame: Challenging HIV Criminalisation

A pre-conference meeting for AIDS 2014

In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together to discuss the overly broad use of the criminal law to control and punish people living with HIV – otherwise known as ‘HIV criminalisation’.

The meeting was hosted by Living Positive Victoria, Victorian AIDS Council/Gay Men’s Health Centre, National Association of People Living with HIV Australia and the Australian Federation of AIDS Organisations, with the support of AIDS and Rights Alliance of Southern Africa, Canadian HIV/AIDS Legal Network, Global Network of People Living with HIV, HIV Justice Network, International Community of Women Living with HIV, Sero Project and UNAIDS.

The meeting was financially supported by the Victorian Department of Health and UNAIDS.

This highlights video (12 mins, 50 secs) was directed, filmed and edited by Nicholas Feustel, with interviews and narration by Edwin J Bernard.  The video was produced by georgetown media for the HIV Justice Network.

Download the highlights video from:http://vimeo.com/hivjustice/beyondblame

Below is a feature story based on the transcript of the highlights video, with additional links and information. You can also read Felicita Hikuam’s excellent (and remarkably quickly-written) summary of the day in ‘Mujeres Adelante’ and Daniel Reeders’s impressive collection of tweets from the meeting.

FEATURE STORY

A day to come together, find solutions, and move forward

Paul Kidd: On behalf of Living Positive Victoria, the Victorian AIDS Council, Australian Federation of AIDS Organisations, and the National Association of People with HIV Australia, welcome to Beyond Blame: Challenging HIV Criminalisation. We hope today’s event is inspiring and productive and that it kicks off the discussion about HIV criminalisation that will continue through the week and beyond.

Edwin Bernard: I think this is the largest HIV Criminalisation Pre-Conference to date at an International AIDS Conference. So the idea of the meeting is to bring people together. People who are working on this issue, who are interested in learning more about it, and we’re going to really work hard to come together, find solutions, and move forward.

Julian Hows: GNP+ has been involved in this issue of criminalisation since 2002, 2003, when we noticed an increase in the rates of prosecution in Europe effectively and started the first scan of the 53 signatory countries of the European Convention on Human Rights.

This has since become the Global Criminalisation Scan, an international ‘clearing-house’ of resources, research, and initiatives on punitive laws and policies impacting people living with HIV.

Jessica Whitbread: And ICW are really, really excited to be here and part of this. Criminalisation is a huge issue for us. Over 50% of people living with HIV are women and many of these laws initially and still continue to be created as a way to protect women when actually they put us more at risk.

Getting the criminal law changed and out of the HIV response

The meeting began with a surprise announcement by the Minister of Health for Victoria, David Davis, about Australia’s only HIV-specific criminal law, Section 19A of the Victorian Crimes Act. Read more about the campaign to reform the law here.

David Davis: And as a further step in our efforts to reduce the impact of HIV and reduce stigma and discrimination, the coalition government will amend section 19A of the Crimes Act 1958 to ensure that it is non-discriminatory.

Following the announcement Victoria’s Shadow Health Minister, Gavin Jennings, committed to removing (and not just amending) Section 19A within the next 12 months, should Labor win the state election in November.

A keynote address by the Honourable Michael Kirby, a former Justice of the High Court of Australia, and a member of the Global Commission on HIV and the Law, reminded us why an overly broad criminal justice apporach to prevention does more harm than good.

Michael Kirby: In the big picture of this great world epidemic, the criminal law has a trivial role to play. What is most important is getting the law changed and out, not getting the law into the struggle against HIV and AIDS.

The Iowa example: laws are subject to change and should be subject to change

The meeting then focused on Iowa in the United States where both law reform and judicial rulings have limited the overly broad use of the criminal law.

Matt McCoy: You know, in Iowa, we had a very bad law on the books, but it’s not unlike a lot of other places in the country in the United States and in the world. So there was no need for transmission, and with it, the penalty was so extreme, a mandatory lifetime sex offender registry and 25 years in prison.

Watch the video that Senator McCoy showed at the meeting explaning how law reform in Iowa happened.

Sean Strub: Iowa is a conservative farm-belt state. And the effort there began with a small group of people with HIV who started organising others with HIV and educating their own communities and then educating public health officials and reframing the issue in terms of a public health issue rather than simply an issue of justice for people with HIV. Last month, we held a conference at Grinnell College in Grinnell, Iowa. It was the first national conference on HIV criminalisation in the US. The Friday before our conference began, Governor Branstad in Iowa signed a criminalisation reform measure and made Iowa the first state in the United States to subtantively reform and modernise their statute.

Two videos of the HIV Is Not A Crime conference (also known as the Grinnell Gathering) are available.  One shows the opening ceremony and can be viewed on the Sero website.  A second video highlights the voices of US HIV criminalisation survivors featured at the meeting, and can be viewed on the Sero website.

Nick Rhoades: About a week after the conference was over, the timing was just a little bit off, nonetheless, it’s fantastic. My conviction was overturned by the Iowa Supreme Court. Yeah. Thank you… It’s kinda groundbreaking, their decision, and I, first of all, think that it’s going to have an effect beyond Iowa’s borders, but it basically said that there has to be more than a theoretical chance of transmission to be prosecuted under the law. And previously, that’s not been the case. Basically, it was just if you didn’t disclose, and you had sex, that that would be enough to convict someone. So, for the first time, they basically said that factors such as using protection, being on antiretroviral medication, having an undetectable viral load specifically, should affect whether or not prosecution is able to happen.

Senator McCoy took the opportunity to urge parliamentarians to rethink how they treat HIV in a criminal context.

Matt McCoy: Many of these laws went into effect in the United States during the AIDS crisis and the scares that society had around the issue, and in many cases they were put into effect using a one-size-fits-all measure. And so this is a great opportunity to go back and to revisit that and to realise that our laws are subject to change and should be subject to change.

Science can change laws and limit prosecutions

A number of countries in Europe have also recently revisited their criminal laws, policies or practices. A poster, Developments in criminal law following increased knowledge and awareness of the additional prevention benefit of antiretroviral therapy, presented at AIDS 2014 by the HIV Justice Network, showed where and how this has taken place.

Edwin Bernard: We have to salute the Netherlands, the very first place in the world that actually, way before the Swiss statement, between 2004 and 2007, managed to change the application of the law through a variety of Supreme Court rulings, but also because of advocacy that happened with advocates and healthcare workers and people in the community who limited the role of the criminal law to only intentional exposure or transmission. Denmark was the only country in Western Europe that had an HIV-specific criminal law, and a huge amount of advocacy went on behind the scenes and that law was suspended in 2011 based on the fact that the law was about a serious, life-threatening illness, and the reality was that in Denmark, people living with HIV have exactly the same life expectancy as people without HIV. And so the law just couldn’t apply anymore. And so, we hope that the places like Denmark and the Netherlands will provide inspiration for the rest of us.

Urgent need to focus on global South

But with two-thirds of all HIV-specific criminal laws enacted in the global South, there is now an urgent need to re-focus our efforts.

Patrick Eba: For a long time, we have been saying that there is no prosecution happening in the Global South, particularly in Africa, because we were lacking the information to be able to point to those instances of criminalisation. In fact, there is a lot of prosecution that is happening, and in the past year, if you look at the data that is being maintained by the HIV Justice Network, it is clear. We’ve seen the case in Uganda. We know of a decision that came out some time late last year in South Africa. We know of a number of cases in Kenya, in Gabon, in Cameroon [and especially in Zimbabwe]; and these really show that where we celebrate and are able today to know what is happening in the Global North, our lack of understanding of the situation in the Global South is one that requires more attention.

Dora Musinguzi: Uganda is right now grappling with lots of human rights and legal issues, and it’s going to be such a high climb to really convince our governments, our people, government agencies to make sure that we really have this reform of looking at HIV from a human rights angle, public [health] angle, gender justice angle, if we are going to achieve the gains that we have known to achieve as a country. …But we stand strong in this, we are not giving up. We are looking to a future where we shall challenge this criminalisation, and we hope to come back with a positive story.

Workshops on advocacy messages, science and alternatives to a punitive criminal justice approach

After the morning plenary sessions, participants then attended one of three workshops. The first workshop explored how to get advocacy messages right, in terms of what arguments need to be delivered by whom and to whom.

Laurel Sprague: We talked about the importance of stories. In particular, the stories of people who have been prosecuted, both because of the dignity it gives them to be able to share their own experience, and also because what we’re seeing is so broadly understood to be disproportionate once the details come out.

Laurel’s rapporteur notes can be downloaded in full here.  For an example of advocacy messagaging aimed at communities impacted by HIV see this video from Queensland Positive People.

A second workshop highlighted the way that up-to-date science on HIV-related risks has limited the application of the criminal law in Sweden and Canada.

David Mejia-Canales: Really mobilising their scientists, their researchers and really connecting with the lawyers, the judiciary, the prosecutors and putting to them the best evidence that they have.

Download the Powerpoint presentation given by Cecile Kazatchine of the Canadian HIV/AIDS Legal Network here.

The third workshop examined alternatives to a punitive criminal justice system approach, and the risks and benefits of using, for example, public health law or restorative justice.

Daniel Reeders: So if someone shows up at a police station or talks to their doctor about being exposed or infected with HIV, a restorative justice approach would talk about giving them an opportunity to work that issue through with the person who they are otherwise trying to report, either for criminal prosecution or public health management. It acknowledges that people experience HIV infection as an injury and that there is a lack of a process offering them an opportunity to heal.

Daniel’s entire rapporteur report can be read on his blog.

Going home with more ideas and tools and inspiration to continue our work

As the meeting came to a close participants appreciated the day as a rare and much needed opportunity to discuss advocacy strategies.

Paul Kidd: What a day! It is just so amazing to be in this room with all of these incredible people and the sense you have of how much passion and energy and commitment there is around this issue.

Richard Elliott: Even as we face numerous setbacks in our own context sometimes, we see that in fact people are making breakthroughs elsewhere and then that helps us put pressure domestically on decision makers, on legislators, on judges.

Michaela Clayton: It’s important to learn from how people have achieved successes and what have been peoples’ problems in achieving successes in different countries in addressing criminalisation. So for us it’s a wonderful opportunity to learn from others.

Dora Musinguzi: I was encouraged to know that the struggle is not only for us in Africa, in Uganda, and I was also encouraged to know that our colleagues have made progress, and so we can.

Sean Strub: I think everywhere that there is an effort for this advocacy for reform, it is a constantly evolving effort. And the fact that the HIV Justice Network and others brought together this global community which is incredibly mutually supportive. I think of any aspect of the epidemic, I can’t think of an area where there is more collegiality and mutual respect than those of us who’ve centered our work around criminalisation reform. That’s what we’re seeing here in Melbourne, just an expansion of that, and all of us going home with more ideas and tools and inspiration to continue our work.

To remain connected with the global advocacy movement against overly broad HIV criminalisation, like us on Facebook, follow us on Twitter and sign the Oslo Declaration on HIV Criminalisation to join our mailing list.

Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal

cannot be considered indicative. Instead, the Supreme Court judgment of

2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 

The Supreme Court had a chance to make up with the judiciary outdated

views on HIV. But a new decision means, unfortunately, that people

will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man

living with HIV and who had had unprotected sex with four different

women [all of whom] did not become infected.

The district court had sentenced him to one year in prison, but the

Court of Appeal brought in the opinion of the [Swedish] Centre for

Disease Control and allowed a professor to testify.

According to both the CDC's expert statement and the professor,

the [HIV transmission] risk during vaginal sex is very low.

The Court of Appeal found that since the man was well-managed on

medication  "the probability that the intercourse to which the charge

relates would result in the transmission of HIV was so small that

no real danger can not be considered to have existed."

Thus, there was not any crime.

Courageous verdict

The verdict was courageous and progressive: the lawyers listened to

some of the world's most skilled and knowledgeable researchers

in the field and took a decision that could lead to scientific

criteria forming the basis of when prosecutions should be instituted

in cases related to HIV.

The Prosecutor appealed to the Supreme Court to see if it would

stand up and be the guide. Now the Supreme Court's curt decision

has been reached, the case is not addressed. This means on one

hand that the Court of Appeal's ruling is upheld.

The man is innocent.

But the Supreme Court writes, in addition, that a ruling from

2004 still applies in practice.

Very unfortunate

That case concerned a man who had had a significant number of sex

with ten men [all of ] whom were not infected. He was sentenced

to one year in prison for reckless endangerment.

That this judgment will in the future be the guiding principle

is very unfortunate. It was reasonable when it was delivered,

but in the ten years that have passed since then, research has

made great progress.

Today's medicine allows those living with HIV on successful

treatment are simply not infectious. In addition there is now

much better knowledge of the risks than then.

In other words, its no sensation that Jan Albert, Professor of

Infectious Disease at the Karolinska Institute, is surprised

that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 

What, then, will be the consequence of the decision?

The 1980s horror of AIDS will live on in the courtrooms

and help maintain the future stigmatisation of those with HIV.

It is perfectly understandable that people become terrified

when they find out that they have had unprotected sex with

someone with HIV.

But this fear that is based on ignorance.

No need to disclose

In its recommendations, the National Board writes that a doctor

can now make their own judgment about whether their patient need

to inform their [sexual] partner that they are living with the virus.

Of course it will still be a crime to not adhere to treatment and,

therefore, expose others to risk. But those who take their HIV

seriously, which a substantial majority do, for obvious reasons,

do not commit a crime when they have sex.

That people may be sent to jail for something they have not

done wrong is deeply offensive.

Something tells me that the judgement also means that

the huge amount of legitimate international criticism that

has been leveled against Sweden, as one of the countries with

the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex

with a man was acquitted entirely in the District Court.

A divided Court of Appeals has now made a somewhat different

assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had

unprotected sex with him without telling him that she was infected

with HIV. The woman was charged with attempted aggravated assault

as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about

the woman's HIV infection before the first sexual intercourse,

but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse

there had been some, but not significant, risk of HIV transmission.

The Court also found that the defendant "harbored warm feelings"

for the man, supported by the fact that she completed intercourse,

trusting that any transmission of infection would not happen.

Therefore, it was not established that the woman had the

intent to transmit HIV infection, and the indictment for

attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District

Court held that the consent had an exonerating effect because the

risk of infection had not been as high. The Court stated that

the question of exonerating consent existed to be judged

by the severity of the risk and the risk that the danger would

be realised. The Court found that HIV infection is a very

serious disease. Unlike the District Court, the Court considers

that the risk of infection in this case was so high during

the period when the woman was untreated for HIV infection,

1 in 1000 through unprotected sexual intercourse, that the consent

did not have an exonerating effect. After the time woman began to

take antiretrovirals, there was a decreased risk of infection,

however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the

period when she was not on antiretroviral drugs. The penalty

was determined to be probation and a fine.

Criminal prosecution of HIV transmission – HIV Media Guide

Regardless of the merits of individual cases, criminal prosecution of people for exposure or transmission of HIV is considered by some commentators to be problematic because prosecutions:

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, harms not only human rights, but also the broader response to the HIV epidemic.

Curated by international HIV activist Edwin Bernard, co-ordinator of the HIV Justice Network, the Outrage HIV Justice Film Festival is presented in partnership with ACMI (Australian Centre for the Moving Image), Victorian AIDS Council and Living Positive Victoria.

The Outrage HIV Justice Film Festival includes four themed sessions: Women’s Injustices; Challenging HIV Criminalisation; Australian Responses to HIV Injustices; and Activism Against HIV Injustices.

“As the AIDS 2014 ‘Melbourne Declaration’ shines a spotlight on HIV injustices at the conference, the Outrage HIV Justice Film Festival‘s films, director Q&As, and panel discussions, will reveal the real stories behind the stigmatising mainstream media headlines, hopefully changing hearts and minds so that people understand why it’s important to advocate for change,” says the festival’s curator, Edwin Bernard, whose HIV Justice Network campaigns for an end to inappropriate uses of criminal laws to regulate and punish people living with HIV.

The Outrage HIV Justice Film Festival includes films never seen before in Australia and visits countries as diverse as Canada and Cambodia. “I hope that the sophisticated Melbourne cinema audience will be interested in challenging themselves to learn more about the forced HIV testing and imprisonment of a group of disenfranchised women in Greece, who were scapegoated by a cynical government trying to win votes in the 2012 election (in Zoe Mavroudi’s ‘Ruins: Chronicle of an HIV Witch-Hunt‘) or the harrowing impact of state-sponsored homophobia on the lives gay men and women in Jamaica (in Micah Fink’s ‘The Abominable Crime’),” says Edwin Bernard.

Other HIV criminalisation-related films include Positive Women: Exposing Injustice (Canada, 2012); Mark S King: HIV Criminalization Face-Off (US, 2012); HIV is Not a Crime (US, 2011); and How could she go on living as if weren’t there (Sweden, 2010).

“After each screening we’ll also be hearing from the film-makers themselves, many of whom are coming to Melbourne to talk about why they were outraged enough by these HIV injustices to make these films,” notes Bernard, whose own film ‘More Harm Than Good‘ is showing alongside three other short films that explore why a criminal justice approach to HIV prevention is hurting the HIV response.

“The moving image is a powerful expression of human experience. Through a diversity of perspectives, opinion, ideas, stories and images, the moving image helps us make sense of ourselves and our world through dynamic social, cultural and creative exchange. We’re delighted to have worked with our partners to present a compelling programme of cinema and talks focused on such a critical and important issue”. Helen Simondson, ACMI Public Programs Manager.

“This festival will, for the first time in Melbourne, bring together activist voices from around the world showing powerful work that highlights the injustice of HIV related discrimination,” says Simon Ruth, Chief Executive Officer of the Victorian AIDS Council. “Through documentary and drama, the diversity of the films is compelling, moving and ultimately inspiring.”

Punitive laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, is a hot topic and central theme of AIDS 2014, the much anticipated meeting of the International AIDS Society and largest international conference ever to be held in Melbourne.

“HIV justice is a key issue for people living with HIV in Melbourne as it is in many places around the world where even worse laws exist. Victoria still has punitive laws in place that we are fighting to have repealed. Outrage HIV Justice Film Festival takes advantage of AIDS 2014 to bring broader awareness of the damaging impact of unfair laws about HIV,” says Brent Alan, Executive Officer of Living Positive Victoria. “I hope as many Victorians as possible take advantage of the marvellous programme Edwin has curated to be presented in Melbourne’s home of cinema, ACMI.”

For more information and bookings visit www.outragefilmfestival.com or http://www.acmi.net.au/justice-film-festival-2014.aspx.

MEDIA ANNOUNCEMENT – Outrage HIV Justice Film Festival 18-21 July 2014

US: Will Donald Bogardus be the last person to be convicted under Iowa’s overly draconian HIV-specific law?

Earlier this month, Donald Bogardus, 42, was given the lightest-ever sentence for HIV non-disclosure in Iowa.  He had faced up to 25 years in prison but was given a suspended sentence with two to five years of probation. However, he will also have to register as a sex offender and will likely lose his job as a certified nursing assistant as a result.

Watch Donald tell his story to the SERO Project.

Donald, who was diagnosed in 2007, was arrested in 2009 for having consensual unprotected sex three times with a male partner (who remained HIV-negative) without disclosing that he was HIV positive.

He was charged under Iowa Code § 709C.1, which states: “a person commits criminal transmission of [HIV] if the person, knowing that the person’s [HIV] status is positive … [e]ngages in intimate contact with another person.” The statute defines “intimate contact” as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”

As recently as July 2013, the Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague and upheld the conviction of Adam Musser, who was sentenced to 50 years for not disclosing his HIV-positive status to four women.

Donald was supported through this ordeal by fellow criminalisation survivor, Nick Rhoades, who used a condom, had an undetectable viral load and did not transmit HIV but was sentenced to 25 years by an Iowa court for not disclosing his HIV-positive status to his male partner.  Later reduced to a year served, he now must register as a sex offender for the rest of his life.

(Nick’s story has been covered sympathetically by mainstream news outlets, including CNN, and formed the basis of a major ProPublica investigation, published last December 1st.)

Last September, the Iowa Court of Appeals upheld Nick’s conviction, finding that because he did not use a condom during oral sex there was stll a chance of transmission.

However, Rhoades and his attorneys at Lambda Legal will have another opportunity to argue that the charge and conviction is not based on current science, and the case will soon be heard at the Iowa Supreme Court.

These three cases are the tip of the iceberg, however. There are only 2000 people living with diagnosed HIV in Iowa and yet

Between January 1999 and June 2011, 25 people were charged and 15 were convicted. In 2012, Iowans were paying for the prison sentences of eight Iowans because of this law.

This quote comes from one of two editorials published this week in Iowa newspapers that are supporting a change in the law. The Des Moines Register‘s editorial, entitled ‘Lawmakers should correct Iowa’s HIV mistake‘ begins

During an election year, Iowa lawmakers are reluctant to do anything that could be construed as remotely controversial. it should not be controversial for them to fix a mistake they made 15 years ago that is ruining the lives of innocent Iowans. Lawmakers and Gov. Terry Branstad should repeal a statute that criminalizes the actions of Iowans who are HIV-positive when they have harmed no one.

Meanwhile the Press-Citizen argues that there is ‘Still time to fix Iowa’s HIV law this session’. It covers both Nick’s appeal and the law reform process.

We can only hope the Iowa Supreme Court will be more inclined than the lower court to take new scientific evidence into consideration and move away from past rulings. But whatever the state Supreme Court decides, it’s time for state lawmakers to fix the law. At the very least, lawmakers need to clarify that both intention to transmit and actual transmission is needed for prosecution. They also should specify that the type of sex act, condom usage and the defendant’s viral load need to be taken into account for decisions on prosecution and sentencing. At best, they could repeal the misguided law completely.

These editorials are the result of extremely hard work undertaken by a broad coalition of local and national advocates, and were timed to coincide with yesterday’s “Day on the Hill” when HIV advocates in Iowa visited the Capitol in Des Moines to talk with State legislators about modernising Iowa’s HIV specific legislation.

According to Tami Haught, of CHAIN (the Community HIV/Hepatitis Advocates of Iowa Network) they were able to speak with half of all state Representatives and nearly two thirds of all Iowa Senators.  This may create the final push for law reform this legislative session (which ends in April).

Immediately following Donald Bogardus’ sentencing, according to the Waterloo Cedar Falls Courier

Sen. Steve Sodders, a Democrat from State Center, proposed changes to “modernize the draconian law.” The bill has been referred to the Senate Judiciary Committee, causing a ripple of Capitol support. “It’s important that we decriminalize some of the effects of this old law. It’s just outdated, and we have to keep up with modern medicine,” Sodders said.

Sen. Charles Schneider, a Republican from West Des Moines and ranking member on that committee, said GOP members in both chambers agree there should be changes to the law. “What I think we need to do is just educate people that the current penalty is more punitive than it needs to be for people who are treating effectively the transmittable disease that they have,” he said.

Attorney General Tom Miller, who supported changes to the law last year, reaffirmed his support this session. Miller said he’s “firmly convinced the statute needs to be changed” and that his office is working with lawmakers to update the statute.

The full text of Senate File 2086, which would create a new law, The Contagious or Infectious Disease Transmission Act, can be found here.

This is a summary what they are proposing.

The proposed Contagious or Infectious Disease Transmission Act would try people who transmit diseases like HIV, Hepatitis C and tuberculosis under the same statute.

It aims to delineate between someone with a criminal intent to infect and simply failing to disclose their status, taking into account whether an infected person used protection or is taking medications to limit the risk of transmission.

Under the new law, a person does not act with criminal intent necessary for a conviction simply by knowing their status and having sex.

Offenders who knew their status would get up to 10 years incarceration — a class C felony — for intentionally transmitting a disease. If they didn’t infect their partner, the sentence would drop to a class D felony or 5 years in prison.

If a person who knew their status and didn’t intend to infect their partner, but acted with a reckless disregard for their health, the violation becomes an aggravated misdemeanor.

The bill eliminates the requirement to register as a sex offender.

With a groundswell of support for modernisation, it seems very likely that Iowa will soon become the first state in the United States to achieve HIV criminalisation law reform.