Germany: National AIDS Council releases powerful policy statement on HIV criminalisation

The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.

A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)

HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.

  1. The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.
  2. Against this background, the National AIDS Council emphasisesA criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.

    Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”

The full text of the statement (in German) can be found here.

US: Journalist Todd Heywood discovers that Michigan health department have been secretly collecting HIV testing information for the past decade

Since 2003, the Michigan Department of Community Health has been secretly collecting the names, dates of birth, risk categories, and other demographic information of people submitting for confidential HIV testing at grant-funded locations throughout the state and storing them in a massive database, a months-long investigation by The American Independent has discovered.

US: President’s AIDS council calls on feds to help states repeal HIV criminalisation laws

Advisory group says these statutes are ‘unjust’ and fuel the epidemic

BY TODD HEYWOOD, AMERICAN INDEPENDENT

 

The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution last week that calls for an end to federal and state HIV-specific criminal laws and prosecutions.

While the resolution is only advisory, it recommends that the departments of Justice and Health and Human Services issue guidance and offer incentives to state attorneys general and state health departments to eliminate HIV-specific laws. The advisory group also asks these federal agencies to develop guidelines for how to approach HIV within criminal and civil justice systems that are “consistent with the treatment of similar health and safety risks.”

As the resolution notes, 32 states and two territories have laws criminalizing people living with HIV.

In explaining the reason to repeal these laws, the resolution reads:

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons. Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.

PACHA is also requesting that state and federal authorities review the cases of persons convicted under such laws and overturn convictions if deemed appropriate. The group is calling on the Centers for Disease Control and Prevention to “issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.”

“Today’s announcement is an important advancement in our collective effort to modernize unjust and discriminatory HIV criminalization laws,” said Rep. Barbara Lee (D-Calif.), co-chair of the Congressional HIV/AIDS Caucus in a statement last week. Lee introduced the REPEAL HIV Discrimination Act in 2011, which never passed, and served on the United Nations’ Global Commission on HIV and the Law.

“I join the President’s Advisory Council on AIDS in calling on the Department of Justice and the Centers of Disease Control and Prevention to issue clear guidance to states and public health departments on the counterproductive effects of HIV criminalization policies; we must end this clear discrimination against people living with HIV,” Lee continued. “Criminalization laws breed fear, discrimination, distrust and hatred, and we must end them.”

The White House declined to comment on the resolution, but the National HIV/AIDS Strategy adopted by the Obama administration in July 2010 does call for state legislatures to “consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.”

Policymakers at the state level also welcomed the resolution. Randy Mayer, chief of the Bureau of HIV, STD, and Hepatitis for the Iowa Department of Public Health, said the resolution was a new tool in advocates’ fight to repeal Iowa’s HIV-specific law.

“This resolution came at an excellent time for Iowa,” Mayer said in an email to The American Independent.

State activists and public health officials, including Mayer, have laid out a strategy to repeal the state’s law.

“The advocates in Iowa have also aligned their efforts with a public health perspective, so the resolution was a reinforcement of their justification,” Mayer said. “I think the more public health entities that weigh in on this discussion the better.”

But while policymakers praise the resolution, activists urge cautious optimism.

Sean Strub, executive director of the anti-HIV-criminalization organization Sero Project, said the resolution was appreciated, but the “real test will be in whether federal agencies and the administration responds with the necessary urgency.”

Catherine Hanssens, executive director of the Center for HIV Law and Policy, which runs the Positive Justice Project, echoed Strub’s sentiment, noting that while the resolution is important, PACHA “has no power to order anyone to do anything.”

“[HHS] Secretary [Kathleen] Sebelius and President Obama both have the discretion to ignore the resolution’s recommendations.”

Regardless, Hanssens said the resolution is an important milestone in the battle to repeal HIV criminal laws in the U.S.

“The work of advocates who pushed for passage of the resolution is not over,” she said. “But we have passed a major marker on the road to reform, and justice, for many people and communities affected by HIV.”

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

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

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

US: New Study Questions Michigan’s “Health Threat” Law (Press Release)

Michigan health officials are using HIV surveillance technologies to assist in enforcing a “health threat” law that makes it illegal for HIV-positive people to have sex without disclosing their status.

A new University of Michigan study reveals that health officials employ the state’s names reporting database, alongside partner services referrals, for law enforcement purposes. However, this is bad social policy for a variety of reasons, says Trevor Hoppe, the study’s author and a doctoral candidate in sociology and women’s studies.

When clients visit publicly funded health clinics in Michigan to be tested for HIV, they can expect more than just a finger prick or blood draw. Counselors also ask clients extensive questions about their sexual practices and partners. If the client tests positive for HIV or other sexually transmitted diseases, the counselor will provide treatment referrals. They are also legally mandated to ask clients to report the names of sexual partners, which health officials attempt to contact to recommend that they be tested.

Hoppe found that some health officials also ask their clients if any of their partners reported to them that they were HIV-positive. Officials then attempt to cross-reference the reported name against the state’s database of everyone in the state who has been diagnosed as HIV-positive. If an individual reported as a partner is identified by the state as HIV-positive and the client did not report that they disclosed, an investigation would be launched that could have legal ramifications.

At least 24 states have laws making it a misdemeanor or felony for HIV-positive people to have sex without first disclosing their status. In Michigan, failing to disclose is a felony punishable by up to four years in prison—whether or not the person was ever at risk of contracting the disease from their partner.

“The evidence is mounting that these laws are bad public policy and certainly bad public health policy, yet Michigan health officials are helping to enforce them,” Hoppe said.

At the minimum, there is little transparency in how health officials use epidemiological data for law enforcement purposes, he says.

“Health officials in some local jurisdictions are using data they collect for public health purposes to help enforce the law, but they’re not telling their clients how their personal information could be used,” Hoppe said.

From an ethical perspective, the question is whether it is reasonable for health officials to use confidential medical information to enforce the law.

Hoppe interviewed 25 local health officials who manage “health threat” cases from 14 jurisdictions across Michigan. His research also reveals that how local health officials interpret what qualifies as a “health threat” varies. In some cases, local officials suggested that an HIV-positive woman who became pregnant or contracted another STI might be labeled a “health threat.”

“These systems were not intended for legal surveillance, yet data collected by them are susceptible to being used for criminal proceedings,” Hoppe said.

Whether this practice should be continued must be discussed among policymakers, advocates and stakeholders, including those in the HIV-positive and –negative community, he said.

The findings appear in the February issue of the journal Social Problems.

Social Problems – Controlling Sex in the Name of Public Health (2013)