Livestream: Beyond Blame – Challenging HIV Criminalisation: Plenary 2 (HJN, 2018)

Welcome to BEYOND BLAME – Challenging HIV Criminalisation, live from De Balie in Amsterdam, 23 July 2018.

11:2012:10 What About Human Rights? The Benefits and Pitfalls of Using Science in Our Advocacy to End HIV Criminalisation Facilitator: Laurel Sprague (UNAIDS) With: Chris Beyrer (John Hopkins Bloomberg School of Public Health), Edwin Cameron (Constitutional Court of South Africa), Richard Elliott (Canadian HIV/AIDS Legal Network), Lynette Mabote (ARASA), Paula Munderi (IAPAC)

12:1013:00 Women and HIV Criminalisation: Feminist Perspectives Facilitator: Naina Khanna (Positive Women’s Network – USA) With: Sarai Chisala-Tempelhoff (Women’s Lawyers Association, Malawi), Michaela Clayton (ARASA), Kristin Dunn (AIDS Saskatoon), Deon Haywood (Women With A Vision)

UK: Avon & Somerset police withdraw untrue claims that HIV could be contracted through spitting

Police finally change false HIV claims after being accused of ‘preying on people’s prejudices’ 

Avon and Somerset Police falsely claimed that HIV could be transferred through saliva

Bristol’s police force has finally changed untrue claims it made about HIV, eight months after it was accused of “preying on people’s prejudices.”

Avon and Somerset Police announced last November that it would be rolling out controversial spit hoods to be used on suspects to protect officers.

But during the announcement, the force made untrue claims that HIV could be contracted through spitting, causing outrage amongst campaign groups.

The force did apologise for “any offence caused” to anyone living with HIV, but then repeated the claim that Human Immunodeficiency Virus (HIV) can be transferred through spit.

Now eight months after police made the claim, Avon and Somerset Constabulary has now confirmed that HIV will not be used as a reason to introduce spit guards after national guidance was changed.

Assistant Chief Constable Steve Cullen said: “I’d like to thank both charities and our communities for the advice and feedback they gave us following our announcement last year.

“We apologised unreservedly at the time if we caused any offence to people living with HIV.

“It has never been our intention to reinforce stigma. Every day we work to reduce stigma and discrimination experienced by communities and individuals who are victims of hate crime in all its guises.”

In January, 2018 Bristol Live reported that Avon and Somerset Police said the false claims about the transfer of HIV were taken from national guidlines.

The Bristol wing of the HIV advocacy group ACTup! Launched a petition calling for the force to retract the statement.

A spokesperson for the group said officers deserve not to be spat at while working and the group is not calling for the recall of spit hoods but raised issues with the “poorly researched” press announcement.

ACC Cullen added: “Our aim has never been to focus attention on people living with health conditions, but to target people who use spit as a weapon.

“We assured our communities we would seek to ensure that we learn from this and would share our learnings across the police service, providing clarity and direction.

“We also invited Brigstowe to help support our training for officers and staff

“I’m delighted that this has now been done.”

The National Police Chiefs Council, which issues guidance to police forces across the UK, said in January the advice on spit guards has not changed since it published a report in March 2017, but specific guidance on HIV was sent to police forces after feedback was received by Avon and Somerset.

The police chiefs’ council guidance on spit guards released in March last year said the national picture for blood-borne viruses like HIV affecting officers was “unclear “.

HIV is found in many bodily fluids of a sufferer including semen, vaginal and anal fluids, blood and breast milk.

The disease is most commonly contracted through unprotected sex and the sharing of needles. NHS England states HIV cannot be contracted through saliva.

Spit hoods made of mesh are shaped like a plastic bag and are put over the heads of suspects who had threatened to spit, have attempted to spit or have spat before.


US: Kentucky bill making it a felony to expose police officers to bodily fluids goes to full House for consideration after being approved by House Committee

KENTUCKY (2/15/18) — A bill that would make it a felony to intentionally expose a law enforcement officer to bodily fluids or bodily waste was approved yesterday by the House Judiciary Committee.

Kentucky jailers and some other officials are protected against someone intentionally causing them to come into contact with bodily fluids and waste, but that “there’s a gap in the law that doesn’t protect our police officers,” said Rep. Stan Lee, R-Lexington, the sponsor of House Bill 193.

The legislation would carry stiffer penalties if the bodily fluids or waste carry—or could carry—a communicable disease, including hepatitis C virus or HIV. Both crimes would be considered felony assault under the proposal.

Fraternal Order of Police Bluegrass Lodge # 4 President Jason Rothermund told the committee creating a crime for intentionally forcing bodily fluids or waste onto a police or other law enforcement officer, with the increased penalty for communicable disease, will help prosecution of such acts. Current statutes for disorderly conduct and wanton endangerment are not adequate for prosecution, he said.

“We don’t want them (the officers) to have to go find some obscure charge,” said Rothermund, but instead want behavior specifically addressed in law.

Lee said he would be willing to consider floor amendments that would ratchet down some of the bill’s penalties to misdemeanors after some lawmakers, including Rep. Jason Nemes, R-Louisville, expressed concern with the felony provisions.

Nemes, who has a brother who is a peace officer, said he believes more protection is needed but that he believes the penalties proposed in HB 193 are too harsh.

Rep. McKenzie Cantrell, D-Louisville, had concerns that the scope of the bill is wider than it needs to be.

“Because there’s not a definition of what a communicable disease is and there’s no nexus between the exposure to the fluids and actual transmission of the disease, I’m going to have to vote no today,” she said.

Among those voting for the bill was Rep. Robert Benvenuti, R-Lexington, who said the risk of transmitting communicable disease through bodily fluids and waste is real and carries consequences.

“Clearly there should be a consequence to putting that officer in harm’s way and making that officer go through a battery of testing and unknown situations with their spouse, etc.,” he said.

HB 193 now goes to the full House for consideration.

Published in SurfKY News on February 15, 2018


Important new resource, SALC’s HIV Criminalisation Defence Case Compendium, published this week

An important new resource for lawyers defending clients and working on strategic litigation was published by the Southern Africa Litigation Centre (SALC) this week. SALC is one of the newest members of HIV JUSTICE WORLDWIDE Steering Committee.

The HIV Criminalisation Defence Case Compendium was developed to accompany a four-day training for lawyers on HIV and TB criminalisation, due to take place in Johannesburg, South Africa, later this month.

The Compendium aims to provide lawyers with a tool to successfully defend people living with HIV who are being prosecuted for alleged HIV non-disclosure, exposure, or transmission. It catalogues and analyses criminal cases from across the world where “strong defence arguments have resulted in an acquittal or reduced penalty”.

Cases range from prosecutions for spitting or biting to the landmark 2016 Malawi case of a woman successfully released on appeal after having been sentenced for breastfeeding.

To find pertinent cases quickly and effectively, the Compendium is split into three parts:

  • The first section outlines the key issues raised in the judgement, such as proof of intent, and classifies the cases accordingly in an easy to navigate table format.
  • The second section, organised by country, catalogues the categories of argument raised by the defence.
  • The third section summarises the facts of each case and the Court decisions, highlighting the key points.

The Lawyers for HIV and TB Justice: Strategic Litigation, Legal Defence and Advocacy Training will be streamed live on The Southern Africa Litigation Centre Facebook Page between 20-22 February.

The Compendium can be downloaded from the SALC website and is included as the newest resource in the HIV JUSTICE WORLDWIDE toolkit.


UK: Avon and Somerset police statement over risk of HIV from spitting allegedly based on National Police guidelines

Police say false HIV claims over spitting were taken from national guidelines

Avon and Somerset Police still have not retracted their statement despite pressure from campaigners

The police force for Bristol and the surrounding areas say false claims made about the transfer of HIV were taken from national guidelines.

Avon and Somerset Police announced last year it would be introducing the use of spit guards in 2018 to remove the risk of officers catching diseases like the human immunodeficiency virus or hepatitis.

However, campaign groups were quick to point out HIV cannot be passed on through saliva and accused the force of “praying on people’s prejudices.”

The force did apologise for “any offence caused” to people living with HIV or Hepatitis B or C but still has not retracted the statements despite calls from campaigners to do so.

In January 24, a Freedom of Information request revealed no Avon and Somerset Police officers had caught an infection disease after being spat at since 2012/13.

When asked by the Bristol Post if the force would retract the statements about HIV, a spokesman said on January 25: “The information we used previously in the roll-out of spit guards was based on National Police Chiefs Council (NPCC) guidance.

“Following feedback from the public and consultation with local charities, Assistant Chief Constable Stephen Cullen asked the NPCC to seek medical opinion. As a result of ACC Cullen’s representations the NPCC has altered its guidance to forces.”

The Bristol wing of the HIV advocacy group ACTup! Launched a petition calling for the force to retract the statement.

A spokesperson for the group said officers deserve not to be spat at while working and the group is not calling for the recall of spit hoods but raised issues with the “poorly researched” press announcement.

On November 17 Avon and Somerset Police announced it would be introducing the use of ‘spit hoods’ across the force area from next year. The hoods made of mesh are shaped like a plastic bag and are put over the heads of suspects who had threatened to spit, have attempted to spit or have spat before.

The National Police Chiefs Council, which issues guidance to police forces across the UK, said the advice on spit guards has not changed since it published a report in March 2017, but specific guidance on HIV was sent to police forces after feedback was received by Avon and Somerset.

A spokesperson said: “Our position paper on this was published back in March last year and our overall position on this has not changed. However, after receiving feedback from colleagues in Avon and Somerset we wrote to forces to give specific guidance on HIV and spit guards – entirely in line with our position.”

The police chief’s council guidance on spit guards released in March last year says the national picture for blood-borne viruses like HIV affecting officers is “unclear “.

It adds: “There are annually a very significant number of officers who are receiving precautionary treatment to prevent blood-borne viruses initial following spitting and biting incidents. Some of this treatment is intrusive, debilitating and can have a significant impact on officers’ personal lives.”

The conclusion reads: “The NPCC position is that the risk of transfer of blood-borne viruses through spitting or biting is very low, however the impact of infection would be extremely high.”

HIV is found in many bodily fluids of a sufferer including semen, vaginal and anal fluids, blood and breast milk.

The disease is most commonly contracted through unprotected sex and the sharing of needles. NHS England states HIV cannot be contracted through saliva.

Published in the Bristol Post on Jan 30, 2018

Canada: Lawyers are asking for current cases and past convictions of non-disclosure to be revisited in light of federal justice department report

Lawyers urge second look at HIV non-disclosure cases, convictions following report

Monday, December 11, 2017 @ 9:25 AM | By Terry Davidson

Lawyers are urging Crown attorneys to re-examine HIV non-disclosure cases past and present following a federal report calling for a curbing of criminal prosecutions in light of evolving science around risk of transmission.

Various Canadian criminal lawyers are saying current cases and past convictions of non-disclosure should be revisited by provincial prosecutors and their attorneys general against the backdrop of the new report, which lays out various scenarios which would involve a low — or even non-existent — possibility of transmission, even if a condom is not used.

The Criminal Justice System’s Response to Non-Disclosure of HIV warns of the overcriminalization of infected people who don’t disclose their condition but are on treatment, have a low viral load and pose a “negligible” risk to a non-infected sex partner.

It goes on to classify HIV as “first and foremost a public health issue.”

After the report’s release, Ontario Attorney General Yasir Naqvi and Health Minister Eric Hoskins announced they would tell their Crowns to now limit non-disclosure prosecutions, particularly in cases where the infected person “is on antiretroviral therapy” and “where an individual has a supressed viral load for six months.”

Toronto criminal lawyer Michael Lacy, a partner with Brauti Thorning Zibarras and president of the Criminal Lawyers’ Association, said the report should give “guidance” to Crown prosecutors.

“From a legal perspective, the report provides guidance that should eliminate criminal prosecution in those cases,” said Lacy. “Non-disclosure alone will not vitiate consent. Non-criminal responses are being recommended for the vast majority of cases involving public health authorities. At the same time, the report recognizes that there will be some, now hopefully limited, circumstances where the blunt instrument of the criminal law will be the appropriate way to respond to deliberately high-risk behaviour.”

Current standards used to prosecute non-disclosure cases need to catch up with evolving science, the report states.

“Sexual activity, regardless of condom use, with an HIV positive person who is taking HIV treatment as prescribed and has maintained a suppressed viral load … poses a negligible risk of transmission,” it reads.

Still, it stresses “criminal law applies to HIV-positive persons where they fail to disclose, or misrepresent, their HIV status prior to sexual activity that poses a realistic possibility of transmission.”

Criminal law, it states, should not apply to non-disclosing infected people as long as they’ve maintained a suppressed viral load of under 200 copies per millilitre of blood, and that “a person living with HIV who takes their treatment as prescribed is acting responsibly.”

Also, the law should not apply to those who are not on treatment but use condoms or to those who engage only in oral sex, “because the realistic possibility of transmission test is likely not met in these circumstances.”

Instances where risk increases, it states, includes “multiple acts of sexual intercourse,” particularly when condoms are not used, and oral sex involving ejaculation with an untreated infected partner.

It also states that “persons from marginalized backgrounds,” such as gay, Indigenous and black people, are disproportionately impacted.

Released Dec. 1, the federal paper could potentially trigger a new legal chapter in this issue.

In 2012, the Supreme Court ruled in R. v. Mabior [2012] SCC 47 that an infected person was not legally required to disclose their HIV-positive status to a sex partner if the former carried a low viral load and used a condom. But the SCC also left room for tweaking should laws need to adapt with scientific findings and shifting risk factors.

This report instructs all Crown attorneys that they need to examine the science underlying their individual prosecutions and decide whether or not it is still in the public interest to prosecute the cases, and whether or not there is still a reasonable prospect of conviction,” said Toronto lawyer Daniel Brown, head of Daniel Brown Law and author of Prosecuting and Defending Sexual Assault Offence Cases: A Practitioner’s Handbook. “Because the science has evolved so quickly and so much … our perceptions of what created a realistic possibility of transmission, even five years ago, has changed to where we’re at today, and we have to re-examine all of the cases in the court system to determine whether or not they still meet that standard.”

Provincial attorneys general should turn their eyes toward past convictions, he said.

“We can see that there was a substantial amount — not just those who were convicted after a trial — but many people who pled guilty perhaps to minimize the type of punishment that could come to them had they proceeded to a trial … and it is uncertain whether or not they pled guilty in the face of evidence that would no longer withstand scrutiny,” said Brown. “Were these cases where there was a realistic possibility of transmission, or were these cases where the law hadn’t caught up with the science?”

Alberta criminal lawyer Markham Silver also talked about revisiting non-disclosure convictions, using as an example the launching of a coroner’s inquiry into years of botched examinations by disgraced child pathologist Charles Smith.

“Realistically, the attorney general or the ministry of justice of any province can engage in reviews as they see fit,” said Silver. “When they had the situation … in Ontario with Smith … the Crown reviewed a whole rack of cases that dealt with his evidence and made determinations based on new information they had obviously received. … So it’s certainly open to the Crown to do as the Crown sees fit … in any particular provinces.”

Vancouver lawyer Troy Anderson, who recently acted in a non-disclosure case, agrees.

“If you’re looking at the science that says it is essentially no risk of HIV transmission if you are being treated and acting responsibly, then yes, I agree with that absolutely,” he said. “The prosecution services vary from province to province … [but] I think it is absolutely going to follow. I think there is will be a drop in the number of people being prosecuted for this.”

Malawi: Police officers urged to stop criminalising sex-workers due to their HIV status

Malawi law enforcers urged to desist from criminalizing sex-workers over HIV/AIDS status

LILONGWE-(MaraviPost)-The Malawi Police Services’ (MPS) officers have been urged to desist from criminalizing sex-workers due to their HIV and AIDS status when they come to conflict with the law.

This reduce cases of defaulting the drug prolonged-life, ARVs when are on remand cell as they become uncooperative with the law-enforcers

The call will also enhance cordial relationship men in uniform they have with sex-worker as they harbor criminals when playing their trade.

In an exclusive interview with The Maravi Post in the sidelines of World AIDSDAY that falls on December 1st yearly, Priest Mpemba, Kanengo Police Model station HIV/AIDS Coordinator, said time was ripe for officers handle sex-workers in line with human rights principles.

Mpemba who is also DNA Forensic Investigator observed that some law-enforcers criminalize sex-workers during sweeping exercises due to their serial status.

The HIV/AIDS coordinator added that the laws of land do not criminalize sex-work but the act of being conflict with the constitution including robbery and violence among others.

On legalization of sex work in the country, the DNA Forensic Investigators said the matter was a policy issue which the county’s leadership must trade carefully regarding to how the society perceives sex workers.

With extensive sensitization the station is taking on HIV/AIDS, Mpemba expects a cordial relationship between the police and the public in ending the HIV/AIDS pandemic in the country.

On skills handling suspects living with HIV and AIDS, the coordinator said that the station expects fewer lawsuits.

“This year’s World AIDS DAY commemoration must focus as well on how sex-workers are being treated in the society. They are into that trade with various reasons but their rights must be respected as human beings. This is the reason the station using its own resources has been into intensive sensitization on the virus.

“Our officers should also treat suspects especially those living with the virus with dignity as human that they continue taking medication when are on remand. This will reduce drug defaulters and ease lawsuits the station receives,” says Mpemba.

Speaking Friday on World AIDS Day, at the Blantyre Youth Centre The Minister of Health and Population, Atupele Muluzi said that right to health is a fundamental human right, everybody has the right to the enjoyment of the highest attainable standard of physical and mental health.

This year’s commemoration was under the theme ‘Right to Health: Access to Quality HIV Prevention and Treatment Services”.

Before the function, the Minister opened Umodzi Family Centre at Queen Elizabeth Central Hospital. The centre will help facilitate HIV testing and treatment, TB screaming and offer reproductive health services.

AIDS is no longer the high-profile public health menace it once was thanks to the discovery in 2011 that antiretroviral treatment can not only suppress HIV in the bloodstream and reduce the risk of spreading the virus, but also, some experts predict, eventually end the epidemic.

Published in the Maravi Post on Dec 3, 2017

US: HIV Criminalisation Webinar on Dec 7 for criminal defense attorneys about the current state of medicine

2017 FREE Webinar: HIV Criminalization Webinar

On December 7, 2017, the National Association of Criminal Defense Lawyers (NACDL) and The Center for HIV Law & Policy (CHLP), will co-host a webinar on HIV Criminalization that will provide participants with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer, geared toward criminal defense attorneys, but open to all, will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases. See attached event flyer.

Date:   Thursday, December 7, 2017

When:  1:30 p.m. – 3:00 p.m. ET

Cost:   FREE

CLE credit:  Available for up to *1.5 hours of CLE (general) where self-study credit authorized and approved.

Register:  Click here to register.

* Registrants will be sent a link to the written CLE materials in advance of the webinar.


US: Exploring the link between HIV criminalisation, the threat of long prison sentences, racial inequalities and plea bargains

Michael Johnson, HIV Disclosure, and the Coercive Nature of Plea Bargains

On Sept. 21, 2017, Michael Johnson, a former college wrestler, entered a no-contest plea in the St. Charles Circuit Court in Missouri. He was sentenced to 10 years in prison, which includes time served for the four years he has already spent behind bars.

As readers might remember, Johnson was arrested in 2013 and charged with non-disclosure of his HIV status to six sexual partners. Johnson said that he had disclosed; the prosecution argued that he hadn’t and that one of Johnson’s partners later tested positive for HIV.

In a trial rife with racism and homophobia, the young black gay college student was convicted and sentenced to 30 years in prison. He appealed and, in April 2017, the state supreme court upheld his right to a new trial.

However, Missouri’s laws around HIV non-disclosure are among the harsher in the country. Under the state’s statute, originally passed in 1988 and made harsher in 1997 and 2002, HIV non-disclosure before sex is a felony. So is HIV transmission. It doesn’t matter whether a condom was used; what matters is whether defendants can prove that they told their partner before having sex.

If he had taken his chances at a new trial, Johnson risked a 100-year prison sentence if another jury of twelve found him guilty.

Johnson’s experience, complete with the threat of a century in prison, might seem shocking, but the reality is that plea bargains are extremely common.

Plea Bargains: An Everyday Occurrence

Nearly all felony convictions — 94% at the state level and 97% at the federal level — are the result of plea bargains.

This has even been acknowledged by the U.S. Supreme Court, coincidentally in a case that originated in Missouri. In August 2007, college student Galin Frye was arrested and charged with driving with a revoked license. Because he had been convicted of the same offense three times before, the state of Missouri charged him with a class D felony, which carried a maximum sentence of four years. Three months later, the prosecutor sent Frye’s attorney a letter offering two plea bargains. If Frye pled guilty to the felony charge, the prosecutor would recommend that Frye serve only 10 days of a three-year sentence. This still meant that Frye would be saddled with a felony record (and have to spend 10 days in jail). The second offer reduced the charge to a misdemeanor, which carried a maximum sentence of one year behind bars; the prosecutor would recommend that Frye serve only 90 days. These offers, the letter continued, would expire on Dec. 28, one week before Frye’s Jan. 4 court hearing.

But Frye’s attorney didn’t bother to tell his client about the letter or the plea offers. Two days after the offer had expired, on Dec. 30, 2007, Frye was again arrested for driving with a revoked license. Frye pled guilty and, though the prosecutor requested 10 days in jail, the judge sentenced Frye to three years in prison. It was only after he had been sentenced that Frye learned about these plea offers. He filed for post-conviction relief, arguing that, had his attorney told him about the letter, he would have accepted the misdemeanor plea bargain.

His case made it to the Supreme Court, which, in 2012, sided with him. Writing for the majority, Justice Anthony Kennedy acknowledged the overwhelming significance of the plea bargain: “‘[H]orse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.'” But, by the time the decision was issued, Frye had already served his sentence.

When he was arrested in 2013, a year after the Missouri v. Frye decision, Michael Johnson had no prior criminal record. However, he was a black gay man being tried in St. Charles, a county that is 90% white and among the country’s top 100 conservative counties. During his summation, the prosecutor freely admitted to intentionally including prospective jurors who considered gay sex a sin. The jury deliberated for just over two hours before convicting Johnson of five of the six counts and recommended 30 years in prison.

“Pleas Are the Norm and Trials Are Not”

Even those facing charges for the first time have a high incentive to accept a plea rather than wait (and wait and wait) for their constitutional day in court.

Mariame Kaba is the director and founder of Project NIA, a nonprofit organization based in Chicago that works toward ending youth criminalization and incarceration. She told that in her years working with criminalized youth, less than a quarter of those facing criminal charges have ever taken their case to trial. “Pleas are the norm,” she said, “Trials are not.” The threat hanging over each defendant’s head is that, if he or she exercises the constitutional right to a trial and loses, the prosecutor will demand the highest possible penalty. If people plea bargain, they can receive a more lenient sentence.

In 2009, Robert Suttle pled guilty to HIV non-disclosure. In Louisiana, where Suttle had been arrested and was facing trial, intentional exposure to HIV carries a possible ten-year prison sentence. When his attorney told him that he could plead guilty and instead serve two years of probation, he decided to do just that. “They already have evidence that you are HIV positive,” he explained to “You know your status, which shouldn’t be a crime, but the burden is on you to prove that you did disclose.” Facing the chance that a guilty verdict would mean a decade in prison, Suttle opted for what he felt was the lesser punishment.

Like many defendants, Suttle was never in the room when his attorney and the prosecutor hashed out a possible plea bargain. In fact, he told The Body, he had already started working in another state by the time his attorney and the prosecutor began negotiations.. It was only after pleading guilty that he learned that he would not only spend two years on probation, but also six months behind bars and 15 years on the sex offender registry. “I pled to something not fully understanding the implications,” he reflected.

But it’s not simply the threatened sentence that pushes many towards plea bargains. Kaba noted that many youth, particularly those who are low-income youth of color, are assigned bail amounts that their families cannot afford, which results in them spending lengthy amounts of time in jail as they await their day in court. “And,” Kaba added, “Jail is hellish.” In addition, more often than not, they’re assigned public defenders who are overloaded with other cases and unable to provide any shadow of time-intensive, let alone zealous, representation.

At the same time, the hammer of the criminal justice system doesn’t fall equally on everyone. “Race is involved in the criminal punishment system at every level,” Kaba reminded Black people are up to ten times more likely to be arrested than people of other ethnicities. Black people are also 10% more likely than whites to be either remanded to jail before trial or unable to afford bail; they are also more likely to be offered pleas involving incarceration rather than probation.

HIV criminalization follows that same pattern. The Williams Institute found that, in California, white men were significantly more likely to be released without charge (61% of HIV-specific criminalization cases). But black men, while making up 14% of people living with HIV in California, made up nearly one-fifth (19%) of those criminalized because of their HIV status. The disproportion for black women was even higher: Though they are only 4% of the state’s population living with HIV, they make up 21% of those who have had contact with the criminal justice system because of their status.

As reported previously, HIV criminalization has long been used as a prosecutorial threat, even if HIV-specific charges are never filed in court. In New Orleans, Women With a Vision organizes with low-income African-American women, many of whom are living with HIV. Policy director Nia Weeks, who previously worked as a public defender, noted that the city’s district attorney often threatens to upcharge (or increase criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty.

Race and Place Matter

When considering whether to take a chance at trial or to accept a plea bargain, race and place matter.

Kaba of Project NIA has co-founded campaigns to support abuse survivors criminalized for self-defense. She points to the case of Ky Peterson, a black trans man incarcerated in Georgia for shooting the man who raped him. When he was taken to a clinic for a rape exam, the woman conducting the exam told him that he didn’t look like a rape victim. The police and prosecutors didn’t believe him either, instead accusing Peterson, whom they assumed to be a woman, of luring the man into a trailer with promises of sex and setting him up to be robbed by his brothers.

After a year in jail, Peterson signed a plea agreement for what he thought was involuntary manslaughter and a ten-year sentence. (According to the court transcripts, however, Peterson actually pled guilty to voluntary manslaughter and was sentenced to 20 years.) “He knew that people were not going to believe him, that as a black trans man he was raped,” Kaba stated.

But it’s not just race and place. There’s also understanding — or a lack of understanding — about HIV. Suttle, a black man living in Shreveport, Louisiana, recalled that the prosecutor in his case was a black woman; the judge was a black man. “We have people in places of power prosecuting people based on their limited knowledge of HIV: that it is a death sentence,” he explained. At the same time, he recalled, he didn’t know anything about HIV criminalization — or resources to help him fight the charges. “People now have resources — the Sero Project, the Center for HIV Law and Policy, advocates to consult with, opportunities to reach out and get more information rather than relying on courts to be fair,” he reflected. At the same time, he realizes that many people remain unaware that such resources exist and, like him, sit in court feeling alone and desperate. “That means there’s a lot more work for us to do,” he said.

In Missouri, with the threat of a 100-year sentence hanging over his head, Michael Johnson, a black gay man living with HIV, might also have feared that a jury would not believe him.

“It takes a lot here for people to be open about their HIV status,” said Devin Hursey, a member of the steering committee for the U.S. People Living With HIV caucus and a member of the Missouri HIV Justice Coalition. Hursey lives in Kansas City, a three-hour drive across the state from St. Charles, where Johnson was tried and convicted. “Prevention workers are very progressive, but the average Missourian, unless they know about public health and the way that HIV is transmitted, is not.”

Hursey, now age 27, still remembers learning about HIV in 7th grade when the Dramatic Health Education Project through the Coterie Theater performed at his junior high. “They did two monologues,” he recounted. “The actors told stories of people living with HIV.” But, he acknowledges, that particular learning experience doesn’t happen in every school.

Symptoms of the System

The white, conservative suburb of St. Charles is approximately 15 miles from the suburb of Ferguson, where the police killing of 18-year-old Michael Brown sparked protests both locally and nationwide. St. Charles is also less than 25 miles from St. Louis, where police officer Jason Stockley was recently acquitted in the 2011 fatal shooting of Anthony Lamar Smith. His acquittal triggered weeks of protest, which were often met by police violence.

Not that Missouri’s racial tensions are restricted to St. Louis and its suburbs, Hursey reminded Last year, the state passed a law allowing prosecutors to charge schoolchildren, regardless of age, with a class E felony for a school fight in which someone is injured. Class E felonies carry a penalty of up to four years in prison. Missouri already has a high suspension rate — and the highest racial disparity among suspensions in the nation. During the 2011 to 2012 school year, the state suspended 14.3% of its black elementary schoolchildren at least once; in contrast, only 1.8% of white schoolchildren were suspended. Missouri elementary schools go from kindergarten to fifth grade, meaning that their students range from ages five to ten.

For Michael Johnson, pleading guilty means that parole is his next hope of an earlier release. But parole practices in Missouri have long been fraught with opportunities for parole board members to humiliate prisoners seeking early release. One parole commissioner, who was particularly known for humiliating and intimidating parole applicants, has since resigned, but Johnson will still face an uphill battle not only to obtain parole but also not to be returned to prison for a petty parole violation.

As they regroup and plan to continue supporting Johnson, HIV activists recognize that the struggle doesn’t end with Johnson or even the repeal or modernization of HIV criminalization statutes. Charles Stephens, executive director of the The Counter Narrative Project, which advocates around issues that impact black gay men, told “Racist sentencing practices in the criminal justice system have been a key tactic in the practice of white supremacy throughout history. Michael Johnson is very much a victim of this system. We must continue to recognize that the struggle against HIV criminalization is also connected to the struggle against mass incarceration and racism.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at

UK: Police accused of fear mongering by playing up the risks of HIV and hepatitis C transmission through spitting

Police accused of exaggerating risks of HIV to introduce spit guards

Force plans to issue guards to officers from January, saying people infected with blood-borne viruses use spitting as a weapon

A police force has been accused of fear mongering and stigmatising sufferers of hepatitis C and HIV by playing up the risks of transmission of blood-borne viruses as a reason to introduce spit guards.

Avon and Somerset police announced their plan to issue spit guards to all operational officers from January next year. “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis and the degrading assault can have a lasting psychological impact,” said Assistant Chief Constable Stephen Cullen.

Spit guards are tight mesh hoods that officers can pull over the heads of suspects resisting detention to stop them from spitting or biting. They are used by 25 forces but have been criticised by human rights groups.

Avon and Somerset’s announcement came with an account by an officer, named John, who said people infected with blood-borne viruses use spitting as a “weapon”. He described an incident in which he arrested a drunk woman who had hepatitis C after she attacked a paramedic.

“She was continually spitting, spit that was bloody. It was disgusting; she was trying to infect us,” he said, recounting how officers donned riot gear to protect themselves as they stripped the detainee for her safety. “After the shift we all went home to our kids wondering what we were taking home.”

Rachel Halford, the deputy chief executive of the Hepatitis C Trust, said she agreed that police should be protected from health risks, but rejected the force’s implication that the virus could be transmitted through spitting.

“Hepatitis C is a blood-borne virus and is therefore only transmitted through blood-to-blood contact. The virus cannot be transmitted via spit,” she said.

“Stigma and misinformation about hepatitis C and other blood-borne viruses is a key challenge faced by patients, who are already disproportionately from the most marginalised and disadvantaged groups in society. Many patients report feeling ‘dirty’ and experiencing social exclusion due to misinformation about transmission risks.”

Kat Smithson, the director of policy and campaigns at NAT (National Aids Trust), said Avon and Somerset’s claims about HIV and hepatitis C were wrong and stigmatised people with the conditions.

“HIV is irrelevant to the debate about spit hoods because spitting simply is not an HIV transmission route,” she said. “In the history of the epidemic, there has never been a case of HIV being passed on through spitting, even when the spit contains blood.”

According to Avon and Somerset police, the restraints will be used only when a person threatens to spit, has attempted to spit or has already spat, and only when officers’ body-worn cameras are switched on.

Despite those safeguards, Deborah Coles, the director of Inquest, raised concerns over their introduction to another police force. “There should be no doubt spit hoods are a use of force and have the potential to cause acute trauma and injury,” she said.

“We know from our work that mental health concerns or other difficulties often sit behind agitated behaviour. Our fear is spit hoods will become the default response and used against vulnerable detainees.

“We had hoped that after the restraint death of James Herbert, Avon and Somerset police would have prioritised safer, more humane policing methods with a focus on de-escalation and detainee welfare.”

Avon and Somerset’s police federation backed the decision, which the force said was in support of the national federation’s proposed assault on emergency workers (offences) bill.

Vince Howard, the chairman of Avon and Somerset police federation, said: “This option affords those officers, who are increasingly subject to this abhorrent act, the opportunity to protect themselves from the risks of serious communicable diseases.”

Data for spitting incidents reported on the Welfare Information Form shows there have been 79 spitting incidents out of 487 recorded assaults since April, which a force spokesman said was a sharp increase on previous reports.