How criminalization laws regress the gains in HIV research
US: Sero Project to present new data on harm of HIV criminalisation to Presidential Advisory Council on HIV/AIDS (PACHA)
Tomorrow, Thursday October 25th, the Sero Project, a human rights organisation comprised of people living with HIV who seek to end inappropriate criminal prosecutions for HIV non-disclosure or for potential or perceived HIV exposure or transmission, will present new data to the Presidential Advisory Council on HIV/AIDS (PACHA) showing the harm of HIV criminalisation.
Preliminary data from the Sero Project’s national criminalisation survey were presented at the International AIDS Conference in Washington, D.C. last July. Among the latest survey findings to be released on Thursday:
● 46 percent of respondents reported that they were not clear about what is required under state laws to protect themselves from prosecution. Another 32 percent were only somewhat clear about the legal requirements.
● 59 percent of young gay, bisexual, and other men who have sex with men (MSM) of color reported that they were not clear about what behaviors related to HIV-positive status put them at risk for arrest, compared to 48 percent of all other men.
● Despite the fact that female respondents were the most likely to indicate complete clarity, only slightly more than 1 in 4 women (26%) said they felt completely clear about what behaviors put them at risk for arrest.
● 49 percent of male respondents, 46 percent of female respondents, and over 57 percent of transgender respondents said that it was “very” or “somewhat” reasonable for people to refuse to take an HIV test for fear of prosecution resulting from a positive test.
● 42 percent of male and female respondents, and 47 percent of transgender respondents, said that it was “very” or “somewhat” reasonable for PLHIV to refuse treatment for fear of prosecution resulting from others discovering their HIV status.
● A full 24 percent of respondents reported knowing at least one person who declined to take an HIV test for fear of prosecution.
● 10 percent of young gay, bisexual, or other MSM living with HIV, and 13 percent of transgender PLHIV, said that they might advise someone to avoid HIV testing because of the possibility of prosecution.
Notes Sero’s executive director, Sean Strub: “We need stronger leadership from PACHA and the federal government to stop the creation of a viral underclass in the law. Most efforts to combat stigma and discrimination are long and arduous and take many years; but by repealing HIV criminalisation statutes, government can take a big step all at once. We need our federal government’s effort to reflect the urgency the criminalisation crisis requires.”
In addition, five survivors of HIV criminalisation prosecutions from around the United States will speak to the panel, as well as the mother and sister of a sixth person prosecuted. “We believe this is the first time any official forum of the federal government has heard directly from a group of people with HIV who have been criminalised,” says Strub. “They are helping to make history and Sero is proud to have brought them to Washington for this important meeting.”
The entire Sero Project press release is republished below.
NEW DATA ON HARM OF HIV CRIMINALIZATION TO BE PRESENTED, SURVIVORS OF CRIMINALIZATION PROSECUTIONS TO SPEAK TO PRESIDENTIAL AIDS COUNCIL
WHAT: On Thursday, October 25, at the Washington Marriott at Metro Center (775 12th St NW), The Sero Project, a human rights organization comprised of people with HIV who seek to end inappropriate criminal prosecutions of people living with HIV (PLHIV) for non-disclosure of their HIV status or for potential or perceived HIV exposure or transmission, will present to the Presidential Advisory Council on HIV/AIDS (PACHA).
Sero will reveal highlights of findings from their survey of over 2,000 people living with HIV (PLHIV) and 800 people from affected communities in the U.S., illustrating how the impact of HIV criminalization drives stigma, discourages HIV testing, disclosure and access to treatment, and disproportionately impacts young people, as well as gay, bisexual and other men who have sex with men (MSM) of color. At the PACHA meeting, Sero will screen HIV Is Not a Crimea short film about the harm criminalization does to PLHIV and HIV prevention.
Five survivors of HIV criminalization prosecutions from around the country (Louisiana, South Carolina, Arkansas, Iowa, and Washington) will speak to the panel, as well as the mother and sister of a sixth person prosecuted. Those charged faced prosecution, incarceration, and/or required sex offender registration for not disclosing their HIV positive status to a partner. None were accused of transmitting HIV.
Sero’s survey was conducted under the direction of principal investigator Laurel Sprague, with the oversight of the institutional review board (IRB) at Eastern Michigan University. Sprague is the regional coordinator for the North American chapter of the Global Network of People with HIV and Sero’s research director, and has herself lived with HIV for more than 20 years.
Sero’s survey shows a profoundly disabling legal environment for people with HIV in the U.S., with many PLHIV uncertain about what is required of them in terms of disclosure and uncertain what behaviors put them at risk of arrest. Many PLHIV and members of affected communities believe that fear of prosecution makes it reasonable for people to refuse to get tested for HIV, disclose their status or access treatment. Nearly a quarter report knowing one or more people who told them that they did not want to get tested for fear of being criminalized.
Among the survey findings to be released on Thursday:
● 46 percent of respondents reported that they were not clear about what is required under state laws to protect themselves from prosecution. Another 32 percent were only somewhat clear about the legal requirements.
● 59 percent of young gay, bisexual, and other men who have sex with men (MSM) of color reported that they were not clear about what behaviors related to HIV-positive status put them at risk for arrest, compared to 48 percent of all other men.
● Despite the fact that female respondents were the most likely to indicate complete clarity, only slightly more than 1 in 4 women (26%) said they felt completely clear about what behaviors put them at risk for arrest.
● 49 percent of male respondents, 46 percent of female respondents, and over 57 percent of transgender respondents said that it was “very” or “somewhat” reasonable for people to refuse to take an HIV test for fear of prosecution resulting from a positive test.
● 42 percent of male and female respondents, and 47 percent of transgender respondents, said that it was “very” or “somewhat” reasonable for PLHIV to refuse treatment for fear of prosecution resulting from others discovering their HIV status.
● A full 24 percent of respondents reported knowing at least one person who declined to take an HIV test for fear of prosecution.
● 10 percent of young gay, bisexual, or other MSM living with HIV, and 13 percent of transgender PLHIV, said that they might advise someone to avoid HIV testing because of the possibility of prosecution.
Sean Strub, Sero’s executive director, said: “We need stronger leadership from PACHA and the federal government to stop the creation of a viral underclass in the law. Most efforts to combat stigma and discrimination are long and arduous and take many years; but by repealing HIV criminalization statutes, government can take a big step all at once. We need our federal government’s effort to reflect the urgency the criminalization crisis requires.”
Continued Strub: “We believe this is the first time any official forum of the federal government has heard directly from a group of people with HIV who have been criminalized. They are helping to make history and Sero is proud to have brought them to Washington for this important meeting.”
Said Monique Moree, Sero Advisory Board member, director of Monique’s Hope for Cure Outreach Service in Holly Hill, SC, and a criminalization survivor: “Criminalization is wrong and it hurts women. A lot of women can’t disclose because it invites violence, or because it jeopardizes their housing, employment, family situation or custody of their children. I told my boyfriend he had to use a condom; that’s how I said I had HIV. But I got prosecuted anyway.
“Even though the charges were eventually dropped, they made me feel like a criminal even though I knew I wasn’t. We are treated like monsters instead of human beings. If someone maliciously and intentionally harms someone else, then there should be consequences, but those circumstances are rare and to put everyone with HIV who can’t prove they disclosed in the same category is wrong. HIV criminalization needs to change.”
Said Laurel Sprague, Sero’s Research Director: “There is a clear mismatch between the intention to reduce HIV transmission and deaths and the laws that criminalize HIV non-disclosure or exposure. Instead of working to create a social and legal environment within which people can safely disclose, the laws make people living with HIV deeply vulnerable to violations by the legal system and by partners or former partners. The laws send a message that people living with HIV cannot be trusted to make the right decisions about disclosure on their own and that legal coercion is required. Yet the responses given by people living with HIV to describe their motivations for disclosing their status to a partner indicate that they choose to disclose for fundamentally moral reasons, not because of the existence of the law.”
WHEN/WHERE
October 25, 2012
9:30 to 5:00 pm
Late morning (TBD): Screening of HIV is Not a Crime late morning
3:30 PM: HIV criminalization survivors to speak
Meeting of the Presidential Advisory Council on HIV/AIDS (PACHA)
Washington Marriott
775 12th Street NW
Washington, DC 20005
WHO:
Sean Strub, Executive Director and founder of Sero. Strub is a writer and long-time activist who has lived with HIV for more than 30 years. He founded POZ Magazine, co-chairs the North American regional affiliate of the Global Network of People Living with HIV (GNP+/NA) and co-founded and is a member of the Positive Justice Project. He has been engaged in HIV-related stigma, discrimination, criminalization and empowerment issues since the earliest days of the epidemic.
Laurel Sprague, Research Director of Sero. Laurel Sprague is Sero’s Research Director and works with grassroots and community-based organizations to conduct qualitative and quantitative program evaluation to support participatory, community-based research projects. She has provided technical assistance to local, national, and global organizations and to networks of people living with HIV throughout the US and Canada, as well as in Sub-Saharan Africa, Central and Eastern Europe, and Central Asia. She teaches in the Department of Political Science at Eastern Michigan University and is a PhD candidate at Wayne State University in Detroit, Michigan. Her research focuses on the resiliency and capability of HIV-positive people, particularly when faced with HIV stigma and discrimination, criminalization, human rights abuses. She is the Regional Coordinator for GNP+NA and has lived with HIV for 20+ years.
In addition, the presentation will feature testimony from the following individuals, all of whom have been prosecuted as a result of HIV criminalization, despite not being accused of transmitting HIV:
● Nick Rhoades, an Iowan, used a condom, had an undetectable viral load and was convicted on a non-disclosure charge and sentenced to 25 years in prison. Advocates helped get the judge to reconsider the sentence and he was released after a year, but is subject to lifetime sex offender registration. Lambda Legal Defense is representing him in an appeal to the Iowa Supreme Court.
● Robert Suttle served six months in a Louisiana prison and is required to register as a sex offender for 15 years. He was in a contentious relationship; after it ended, the former partner pressed charges against Robert for not initially disclosing his HIV-positive status. Robert is the assistant director of the Sero Project and has worked as an HIV prevention outreach worker, focused on African American MSM.
● Monique Moree, of South Carolina, was in the Army and pregnant when she found out she was positive. When the Army found out she had a relationship with another soldier, they prosecuted her, despite the other soldier reporting that she told him to use a condom. She faced up to 12 years; although the charges were dropped, Monique had to leave the Army.
● Edward Casto, of Washington State, was born with HIV and was recently released from prison after serving a year and nine-months on an HIV-related charge.
● Mark Hunter and his brother, Michael, were born with hemophilia and acquired HIV as children from blood products. Michael died of AIDS in the early 90s; Mark was prosecuted after he and his fiancee broke up. He served 2 1/2 years in an Arkansas prison. He is represented at the PACHA meeting by his mother, Hazel, and his sister, Faith.
● Donald Bogardus was charged with non-disclosure in Iowa and is presently on a pre-trial release program. He faces up 25 years in prison and lifetime sex offender registration.
About The Sero Project
Sero is a not-for-profit human rights organization comprised of people with HIV who promote the empowerment of people with HIV, combat HIV-related stigma, discrimination and criminalization and advocate for sound public health and HIV prevention policies based on science and epidemiology rather than ignorance and fear.
Sero’s HIV criminalization work includes research, raising awareness and outreach to people with HIV who have been criminalized to create a network of advocates to speak first-hand about the effects of criminalization on their lives. Sero seeks to build a grassroots movement to mobilize the advocacy necessary to end HIV criminalization and promote a human rights-based approach to end the HIV epidemic. Sero is a member of the Positive Justice Project, a national collaboration of activists, professionals and policy leaders combating HIV criminalization, and the HIV Justice Network, a global network of anti-criminalization advocates.
Sero is supported by the Elton John AIDS Foundation, Broadway Cares/Equity Fights AIDS, the H. van Ameringen Foundation and the Global Forum on MSM & HIV.
For more information, see www.seroproject.com.
Video: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)
This international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission took place at the Rotes Rathaus in Berlin on 20th September 2012. HIV advocates, law and human rights experts and other concerned stakeholders – including parliamentarians, prosecutors, clinicians and representatives of UNAIDS and UNDP – shared information regarding the current legal situation in Europe and Central Asia and explored ways to ensure a more appropriate, rational, fair and just response.
Video produced by Nicholas Feustel, georgetown media, for the HIV Justice Network.
Europe is second only to North America as the region with the most convictions. In recent years, some countries such as Denmark, Norway and Switzerland have started to revise their legislation. “These are encouraging signs“, says Edwin Bernard, project leader of the seminar, co-ordinator of the international HIV Justice Network and a member of the European AIDS Treatment Group. “In contrast, we are very concerned about developments in countries like Romania, which recently enacted an HIV-specific criminal law, or in Belgium, where new legal precedents were created allowing prosecutions for the first time. We are also hearing news about absurd and problematic trials for perceived HIV exposure in Austria. The conference was designed to help advocates move forward in these particularly repressive countries.”
|
|
|
Professor Matthew Weait presents his initial analysis of advocacy against HIV criminalisation in Scandinavian and Nordic countries |
The conference took place on the occasion of the twentieth anniversary of the European AIDS Treatment Group (EATG). The meeting was co-organised with Deutsche AIDS-Hilfe (DAH), the International Planned Parenthood Federation (IPPF), and HIV in Europe, a multi-stakeholder initiative exchange on activities to improve early diagnosis and earlier care of HIV across Europe.
- Watch the video on the HIV Justice Network Vimeo site here.
- Download the agenda here.
- Download the concept note here.
- The meeting report is available here.
Guilty of illness: Milford man, a convicted sex offender, seeks to educate: HIV is not a crime
When sex offender Robert Suttle moved to town, police went door to door to warn Milford business owners and residents. His crime? See full article text Suttle, who is HIV-positive, had sex with his partner. Though consensual, it was an act that landed him in a hard-labor prison, branded him a sex offender and changed his life.
Monday Magazine – Living with HIV: 'We are not criminals'
Imagine a world where you have to save condoms in the freezer every time you are intimate. One where you have every potential lover sign a form stating you disclosed your HIV status before things got serious, or where you run to the doctor every time you want to have sex, just so you can get a printout of your viral loads.
UNDP report looks at links between sex work, HIV and the law
New UN report takes a stark look at links between sex work, HIV and the law in Asia and the Pacific 18 October, Bangkok — Nearly all countries of Asia and the Pacific criminalize some aspects of sex work.
US: Public health experts and politicians support advocacy to modernise Iowa’s HIV law
Activism to modernise the unscientific, unjust and stigmatising HIV-specific criminal statute in Iowa is heating up. Last month, the Iowa HIV Community Planning Group voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalisation statute.
Next Monday, October 15th in the state capital, Des Moines, there will be another of a series of planned CHAIN/Sero Project community forums highlighting these efforts. All Iowa legislators within a 30 mile radius of Des Moines have been invited and Iowa Senator Matt McCoy (Democrat), who earlier this year introduced a bill to repeal and modernise the law, will be in attendance. Although the bill didn’t make it out of subcommittee, he plans to reintroduce another in the legislative session that begins in January.
|
|
|
HIV is not a crime: Monday 15 Oct, 6:30pm at the First Unitarian Church of Des Moines,1800 Bell Ave, Des Moines, Iowa. |
Globegazzette.com covered the last community forum, held in Mason City in September, in their story, ‘Groups call for revising HIV disclosure statute.’
The state of Iowa currently has one of the strictest HIV laws in the nation, making the lack of disclosure a Class B felony, punishable by up to 25 years in prison and a lifetime of sex offender status.
The statute makes no exception for lack of transmission of the HIV virus, nor does it take into account the fact that a person infected with HIV is taking the prescribed medication and has very little or no chance of passing it on.
Gay rights groups and others, including the Iowa Department of Public Health, are calling for modernization of the 1998 statute to focus penalties only on intentional or documented transmission of the HIV virus.
They say Iowa’s law is having the unintended effect of discouraging individuals from undergoing HIV testing and from obtaining access to medications that could save their lives and the lives of everyone with whom they may have intimate contact.
Iowa, which has a relatively low HIV incidence rate, ranks second in the nation in prosecutions for nondisclosure.
|
|
|
Pictured Left to Right: Iowa State Representative Sharon Steckman and State Senator Amanda Ragan, CHAIN community organizer and Sero Advisory Board Member, Tami Haught leading Iowa’s campaign to modernize the HIV criminalization law and Sero Advisory Board Member and Activist, Nick Rhoades at a community forum in Mason City on Iowa’s HIV Criminalization Law on Monday, September 10, 2012. (Picture courtesy of The Sero Project) |
Reproduced below is the press release from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network) announcing the Iowa HIV Community Planning Group vote and providing background to their advocacy.
HIV Community Planning Group Supports Repeal of Iowa HIV Criminlization Statute
Des Moines, September 25, 2012
In an historic move, the Iowa HIV Community Planning Group has voted to support advocacy efforts to have HIV treated like other similar conditions and threats to public health. To accomplish this, they have called for the repeal of Iowa’s HIV criminalization statute.
Iowa, like most states, has a law that prohibits intentional transmission of communicable diseases. This statute, Iowa Code 139A.20 is part of public health code. HIV, however, is covered by a separate criminal code, Iowa Code 709C, which makes exposing someone to HIV without their consent a felony punishable by up to 25 years in prison. Repeal of 709C would allow HIV to be covered by the same public health code that governs other infectious diseases.
The National HIV/AIDS Strategy and the National Alliance of State and Territorial AIDS Directors has called for review of HIV criminalization statutes to bring them in line with contemporary science and knowledge about the real routes, risks, and consequences of HIV transmission. The Iowa Department of Public Health has echoed the call for review of the statute. In a letter to the editor of The Des Moines Register on July 29, Randy Mayer, Chief of the Bureau of HIV, STD, and Hepatitis, asked that HIV be treated in the same way as other serious infectious diseases.
“Testing and treatment are our best tools for fighting the epidemic in Iowa Research has now demonstrated that the statutes haven’t had the intended effect of promoting disclosure. We believe that our public health efforts will be more successful without having to fight the stigma that these statutes can create,” said Mayer.
“Having the prestige and expertise of the HIV Community Planning Group working to repeal Iowa’s criminalization statute is vitally important,” said Tami Haught, an HIV+ Nashua resident who is coordinating CHAIN’s statewide campaign to reform the Iowa statute. “The members of the CPG include some of the best-informed and most respected public health professionals and community advocates combating HIV We believe their recognition that the criminalization statute is hurting the public health will be persuasive with legislators.”
Iowa’s statute 709C imposes harsh penalties on persons with HIV who cannot prove they disclosed their HIV status in advance to sex partners. About 25 Iowans with HIV have been charged to date, with some convictions resulting in lengthy sentencing and lifetime sex offender registration requirements, even though HIV was not transmitted and there was little or no risk of it being transmitted.
The statute has been criticized by public health officials, legal experts, and patient advocates in Iowa and across the country as counter-productive, discriminatory, and contributing to further stigmatization of people with HIV. About 36 U.S. states and territories have HIV-specific criminal statutes Originally intended to slow HIV transmission, these laws were typically passed years ago when much less was known about HIV transmission A growing body of research shows how these statutes drive stigma, discourage testing, and are making the epidemic worse.
“HIV criminalization discourages people from getting tested—you can’t be prosecuted if you don’t know your HIV status—yet we know that most new infections are transmitted by people who have not yet gotten tested,” said Jordan Selha, co-chair of Iowa’s Community Planning Group “It’s time we treat HIV like other communicable diseases and use public health science rather than criminal law to guide our approaches to prevention No other disease is singled out as a criminal threat in this way.”
CHAIN has coordinated a statewide campaign to educate and mobilize communities to lobby lawmakers to review the statute when the legislature goes into session in January 2013. They have held community forums in Mason City and Ames.
You can help efforts to repeal the statute by contacting your state legislators and the governor’s office and asking that Iowa Code 709C be repealed. CHAIN will be holding an educational forum on October 15th at the First Unitarian Church of Des Moines and at Simpson College in Indianola on January 16, 2013.
The HIV Community Planning Group promotes, through an ongoing participatory process, effective HIV programming in Iowa in order to reduce the spread of HIV and to provide access to services for those infected. The Centers for Disease Control and Prevention (CDC) mandated community planning for HIV prevention in 1993. The process is designed to create a collaborative effort between public health and the communities they serve.
CHAIN is very excited to have the support of the Iowa HIV Community Planning Group. To join CHAIN’s listserve or get involved with CHAIN and the education and mobilization campaign, contact tami.haught2012(at)gmail.com, or follow CHAIN on Facebook.
Canada: Study finds HIV criminalisation creates uncertainty, fear, and vulnerability
Last week’s devastating ruling of the Supreme Court of Canada was quick to dismiss evidence that that HIV criminalisation was damaging to public health.
“The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”
And yet a few weeks earlier, a Canadian study was published that highlights exactly how the criminalisation of HIV non-disclosure is damaging public health. It may not be possible to prove that it deters testing, but it certainly creates all kinds of problems for people living with, and at risk of, HIV.
The lead author of the study, How criminalization is affecting people living with HIV in Ontario is Professor Barry D. Adam, University Professor of Sociology at the University of Windsor, Ontario, and Senior Scientist and Director of Prevention Research at the Ontario HIV Treatment Network, Canada.
 |
|
Download the report here |
Drawing on results from the Ontario HIV Treatment Network Cohort Study, the Positive Places Healthy Places Cohort Study, and in-depth interviews with 122 HIV-positive people, the report examines how people living with HIV in Ontario perceive the law and the legal obligation to disclose their HIV-positive status to prospective sexual partners, as well as their perceptions of the changing public climate affected by the increasing prominence of criminal discourses applied to HIV.
The report shows how the criminal justice system and media coverage have created a climate of anxiety (though not all feel equally affected), affected views on when disclosure is (and is not) necessary, shaped messages from health professionals, and affected disclosure practices. The legal and media framing of HIV as a responsibility to disclose potentially undermines HIV prevention messaging and places ever greater numbers of people living with HIV in jeopardy.
Most study participants believed that disclosure of HIV-positive status should not be a legal requirement if protected sex is practiced. There was no significant variation in opinion by age, gender, sexual orientation, or ethnicity, but more educated respondents showed less punitive views.
The study’s primary finding is that that HIV criminalisation has unfairly shifted the burden of proof so that people living with HIV are held to be guilty until proven innocent and that:
- People with HIV are now caught in a difficult he-said/(s)he-said situation of having to justify their actions;
- disgruntled partners now have a legal weapon to wield against them regardless of the facts; and
- the onus now falls on women whose male partners could ignore their wishes regarding safer sex.
In terms of general impact, many respondents reported a heightened sense of uncertainty, fear, or vulnerability, but others felt that the climate of acceptance is still better than in the early days of the epidemic, or that the prosecution of the high profile cases is justified and these people are giving all people with HIV a bad name.
To set the scene, in its introduction the report provides an extremely well-written exposition of why criminalisation HIV non-disclosure is problematic from a human rights, as well as a public health perspective. An edited version, below, provides you with a flavour of the insights.
The relationship between disclosure and HIV risk is complex at best… While some studies have found an association between disclosure and condom use, more have found no relationship…Disclosure poses a range of challenges in everyday social situations. The demand to disclose essentially requires HIV-positive people to place themselves in a situation to be rejected or stigmatized, a situation exacerbated in a climate of rising prosecution and media attention…
Ultimately reliance on disclosure makes sense as an HIV prevention measure only if both partners are certain of their serostatus, though epidemiologists point out that significant percentages of people who are HIV-positive do not know they are. In Canada, an estimated 26 percent of people infected with HIV are unaware of this fact. Indeed some researchers contend that transmission by those unaware of their infection accounts for a significant portion of new infections. Criminal prosecutions for non-disclosure encourage at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is no or minimal risk in the absence of positive serostatus disclosure, evident in complainants’ testimony at trial in such cases. Serostatus disclosure laws may thus foster a false sense of security among HIV-negative persons who may default to forgoing safer sex unless notified of their partners’ HIV-positive status. Reliance on disclosure, then, is a shaky foundation for HIV avoidance. By absolving people of responsibility for practising safer sex, it may even increase vulnerability to infection.
Disclosure, then, is often challenging to accomplish in everyday life and the research evidence shows that disclosure is far from reliable as a method of avoiding HIV. The accumulation and consolidation of a body of legal doctrine that rests primarily on an obligation to disclose by those who know they are HIV-positive raises a number of problems in the pursuit of effective public policy in HIV prevention. There is, then, a need to test the presuppositions underlying the legal obligation to disclose as an HIV prevention strategy and to examine the real effects of criminalizing non-disclosure on people living with HIV.
Towards the end of the report, the authors discuss the impact of criminalisation of HIV non-disclosure on public health. Again an edited version, below, provides you with a flavour of the insights.
In Canada in recent years, the state has been shifting resources from social services to law enforcement… In HIV, the prosecutorial arm of the state has expanded while support for ASOs and for HIV prevention has become increasingly tenuous. The move on the part of some attorneys general to press for more punitive solutions to HIV prevention has many pitfalls and unintended consequences that amount, in the long run, to a public policy with poor prospects for meaningful reduction in HIV transmission combined with real damage to the lives and well-being of [people living with HIV]. Indeed obsessive focus on disclosure may create the conditions of accelerated transmission if people abandon safe sex in favour of disclosure as the preferred method of HIV avoidance…
Criminalization, whether minimal or expansive in punitive scope, has little potential to slow the advance of the HIV epidemic and has considerable potential to undermine prevention efforts currently under way….At the same time, increasing reliance on the criminal justice system to enforce a principle of universal disclosure of HIV-positive status, regardless of the likelihood of transmission, presses [people living with HIV] into an untenable double bind: they must place themselves into the risky position of heightening the possibility of rejection, stigmatization, and prosecution. Double binds can scarcely be the foundation for realistic public policy or consistent practice among [people living with HIV]. Only decriminalization and destigmatization would begin to create the conditions to make disclosure of sero-status safe. But perhaps more importantly, disclosure has been shown to be an unreliable method of reducing HIV transmission. Obscured by the criminalization debates is the fact that protected sex, especially in a situation where treatment has succeeded in attaining an undetectable viral load in the HIV-positive partner, continues to be a much more reliable method of avoiding HIV (as well as several other sexually transmitted infections).
It is interesting to note that the Supreme Court has, at least, recognised this last observation. However, the reality of the ruling is that it states very clearly that disclosure alone is enough to negate criminal liability (notwithstanding difficulties of proving that this occurred). It also very worringly undermines safer sex messaging by stating that condoms alone (or low viral load alone) are not ‘safe’ enough.
The study concludes with the following recommendations:
- Among police and prosecutors to employ consistent evidence-informed principles in the laying of charges (i.e. by developing prosecutorial and police guidelines)
- Among journalists to employ a rigorous decision-making matrix that strictly minimizes the publication of the identity of people living with HIV, and
- In public health and AIDS service organisations to develop a consistent counseling policy that does not mistake universal disclosure for prevention but rather focuses on how best to engage the sexual cultures of at risk populations to advance safer sex practice.
HIV criminalisation activist Nick Rhoades writes about his life as a convicted sex offender
Nick Rhoades: “I had never cried the whole time I was in jail, prison or up to that point of my probation. But that day, I sat on the edge of the bed and sobbed … so far away from my friends and family.
Court's hiv clarification spurs troubling new questions
Sometimes a clarification just isn’t a clarification. Sometimes the “clarification” is no clearer than what it ostensibly clarifies, and sometimes it changes the meaning of what it claims to clarify. And sometimes it does both.