Czech Republic: Prague Public Health Authority initiates criminal prosecutions of 30 gay men living with HIV following an STI diagnosis

Late last month, Prague’s Public Health Authority initiated criminal investigations against 30 gay men living with HIV that had been diagnosed with a sexually transmitted infection (STI) during the previous year.

The Public Health Authority appear to believe that since these men acquired an STI this is proof that they must have practiced condomless sex and have therefore violated Sections 152 and 153 of the Czech Criminal Code, which a 2005 Supreme Court ruling confirmed could be used to prosecute any act of condomless sex (including oral sex) by a person living with HIV as “spread of infectious diseases”.

There are no individual complainants in these cases.

The Czech AIDS Society responded to the publication of initial media reports on January 26th, with a press release that highlighted:

  • They have already begun to provide legal counseling to several of these men.
  • Most of them have an undetectable viral load and/or only have sex only with other men living with HIV (known as ‘serosorting’).
  • Being diagnosed with an STI does not, in and of itself, prove that condomless sex took place because most STIs can be acquired even when condoms are used.
  • Fear of punishment will lead to people living with HIV and at risk of a sexually transmitted infection not getting tested or treated.

“Czech AIDS Society has long struggled against the criminalisation of the private life of people living with HIV in cases where there is no HIV transmission. We believe that the HIV epidemic must be fought not through repression, but through the treatment which, in most cases, reduces the viral load of HIV-positive patients to undetectable levels thus eliminating the risk of transmission.”

They went on to make a number of media appearances pointing out that applying criminal law to potential HIV exposure does not reduce the spread of HIV, undermines HIV prevention efforts, promotes fear and stigma, punishes behaviour that is not blameworthy and ignores the real challenges of HIV prevention in the Czech Republic.

They also published a second press release, entitled “Professional failure of public health officials” on February 10th that was strongly critical of the actions of Prague’s Public Health Authority, noting that they have greatly undermined trust in the confidentiality of the public health system which will likely lead to an increase in new HIV infections.

On February 12th, the head of Prague’s Public Health Authority, Ms. Zdenka Jagrova (pictured above), issued a statement in response, suggesting that the Authority is legally obliged to initiate such criminal complaints and that “it would be a professional failure if [we] did not do so…

[We] did not check sexual orientation of HIV-positive people who got infected with another contagious, sexually transmitted disease. It is not an attack on the gay community, but in 2014 no HIV-positive woman in Prague was diagnosed with a sexually transmitted disease. A public health authority is obliged to protect the public health of the population and must act in the same manner as in case of other infectious diseases, for instance TB….This campaign aiming at questioning our practices is clearly intended to assert alleged rights of a minority at the expense of the rights of the majority, i.e. in particular the right to health, irrespective of who and how threatens the health. We consider attempts to create a privileged group that would be excluded from generally defined responsibilities very dangerous.”

A number of organisations representing communities of people living with and affected by HIV are now working together with UNAIDS to support the Czech AIDS Society, including the circulation of a petition.

It appears that none of the cases have yet been passed to the Public Prosecution office for formal prosecution.  However, the investigation has set a dangerous precedent and we understand that public health departments in other regions of the Czech Republic are now considering following the Prague example.

Canada: Academic article explores problematic police and media practices relating to allegations of HIV non-disclosure, proposes solutions

Kyle Kirkup explores Canadian police and media practices that stigmatize people living with HIV (PLWH) and facilitate the public’s belief that HIV and PLWH are dangerous. In support, Kirkup analyzes the 2010 case of an Ottawa man living with HIV arrested for sexual assault, which involved the public release of the man’s identity, photo, sexual health, and sexual encounters in an article headlined “Have you had sex with this man?”

The ensuing discourse of gay male sexuality using tropes from the HIV epidemic in the 80s illustrates, Kirkup argues, how a lack of police and media regulation and education continue to produce a punitive and isolating environment for PLWH.

Kirkup proposes several strategies for reform, including expanding publication bans and non-disclosure legislation, changing police ethics to keep private information out of the hands of journalists, educating journalists and public officials about the medial realities of HIV transmission risk and medical prognosis, and abandoning the “aggravated sexual assault” charge based on HIV status.

US : Mississippi lawmakers pass law mandating HIV testing for anyone arrested for sexual assault

Updated by Paul Boger at Law enforcement officers will soon be able to do mandatory AIDS testing on those arrested for sexual assault. House Bill 2-57 was passed by lawmakers with nearly unanimous support in Mississippi’s House and Senate. The measure gives law enforcement the right to test individuals arrested for sexually assaulting a minor for diseases such as HIV and AIDS.

Under current Mississippi law, testing can only be conducted after a person has been convicted of a crime. Proponents say the new law will help young victims know if they’ve been exposed to a terrible disease. Republican Representative Mark Formby of Picayune helped draft the law. He says the test would become part of the intake process.

“If you’re arrested and you get photographed; it is not any additional evasive behavior,” says Formby. “We are documenting that you were arrested, which means that there was some degree of evidence that implicated you in a crime.”

Despite the measure’s popularity among lawmakers, some groups like the ACLU of Mississippi believe the law is a slippery slope.

Keia Johnson is the organization’s legislative strategist. She says the law amounts to an unreasonable search and seizure.

“We believe that when you mandate that DNA is to be collected for HIV testing purposes or anything like that upon arrest, that you are violating the due process of law,” Johnson says.

According to Representative Formby, both the suspect and the victim will be given the results of the test 24 hours after it was taken. At that time, all other DNA samples would be destroyed.

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware.  From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.

Canada: Judge rules that police violated constitutional rights by disclosing man's HIV status in press release

An Oshawa judge’s decision to sentence a man to house arrest for Internet child luring rather than jail because police publicly revealed his HIV status is the latest example of judges finding creative ways to manoeuvre around mandatory minimum sentences.

Former youth pastor Kris Gowdy was given two years less one day house arrest and three years’ probation last week by Ontario Court Justice Michael Block rather than the mandatory minimum sentence of one year in jail. Justice Block found Durham Regional Police violated Mr. Gowdy’s constitutional rights when they indicated in a news release shortly after his arrest in August 2012 that he was HIV-positive.

The story of the “HIV-positive ex-youth pastor” made headlines around the world, causing significant emotional trauma to Mr. Gowdy, Justice Block wrote in his decision.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” he wrote. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”

US: Lambda Legal calls for halt to HIV-based criminal prosecutions in wake of Department of Justice guidance

[Press release from Lambda Legal]

“We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

(Washington, D.C. Thursday, July 17, 2014) – Lambda Legal today called for a moratorium on all HIV-based criminal prosecutions until state legislatures take action to implement the reforms recommended in the recent Department of Justice (DOJ) guidance advising states to eliminate such prosecutions absent clear evidence of an intent to harm and a significant risk of actual transmission.

“This is a watershed moment in the fight to decriminalize HIV. When the country’s leading law enforcement agency — working hand-in-hand with the country’s leading public health authority — reaches the conclusion that particular laws and criminal prosecutions are working at cross-purposes to our national strategy for ending the HIV/AIDS epidemic, it is time for those with the power to end these prosecutions to take immediate action,” said Scott Schoettes, HIV Project Director for Lambda Legal. “We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

Earlier this year, the DOJ co-authored an article with the Centers for Disease Control and Prevention (CDC) analyzing the current landscape with respect to HIV criminalization laws in the United States. As a follow-up, the DOJ this week published guidance (“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” [link]) noting that these laws are not based on a current understanding of HIV or the availability of biomedical techniques for preventing its transmission, were enacted when the prognosis of those with access to care was much different than it is today, and place unique and unnecessary additional burdens on people living with HIV.

Schoettes added, “For years, Lambda Legal has been advocating for the repeal or reform of HIV criminalization laws, assisting defense attorneys from behind the scenes, and—when the opportunity arose and a solid legal argument could be made—fighting in court ourselves against the most egregious application of such laws. Along with a wide range of allies we have refined the arguments against these laws, made our case to audiences both gay and straight, and pressed others to join our cause. The growing drumbeat against these laws and unjust prosecutions finally has reached the ears of those in positions of authority. And this summer, the tide has finally turned in our favor.”

Within the criminal justice system, prosecutors have a significant degree of discretion and represent the most important safeguard against unjust applications of the criminal law. In this circumstance, any government attorney who is currently prosecuting a criminal case that turns upon the HIV status of the defendant is invested with the power to consider whether that prosecution conforms to the best practices set forth by the Department of Justice guidance and to discontinue prosecutions that are not in line it. In situations involving consensual sexual conduct between adults, a prosecution would not move forward under the parameters of this guidance unless there is clear evidence of both the intent to transmit the virus and a significant risk of transmission as a result of that person’s conduct.

“Right now, dozens of individuals in states all across the country face prosecutions that are not justifiable under the parameters set forth in the DOJ guidance,” said Schoettes. “No person who is in a position to halt such a prosecution should stand idly by while these individuals are subjected to such unwarranted persecution. We call upon those who have pledged themselves to pursue justice on behalf of the communities they serve to fulfill that pledge now, to end all prosecutions based on HIV status, and to return these individuals to their families and their lives.”

Last month, in a pivotal appeal litigated by Lambda Legal, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court questioned whether HIV-positive individuals who have a reduced viral load as a result of effective treatment can transmit HIV through sexual activity.

The DOJ guidance is available here

The Iowa Supreme Court ruling in Lambda Legal’s case Rhoades v. Iowa is available here

Australia: South Australia Government plans mandatory HIV testing following blood or saliva exposure to police

ANY offender whose blood or saliva comes into contact with a police officer will be compelled to undergo a mandatory blood test, under new laws to be introduced by the State Government. Premier Jay Weatherill will today outline the measure – and another significant community safety initiative involving police – at the Police Association of SA annual delegates conference.

The move will ensure any officer faced with the risk of contracting a communicable disease is made aware of the possible threat much faster, instead of having to rely on their own test results – often many months later. Mr Weatherill said police needed to be protected. “We know that there are some instances where police officers are exposed to infectious diseases, such as hepatitis C or HIV when an officer is arresting, restraining or detaining an offender,” he said.

“These laws mean that if an officer is exposed to a risk of contracting these diseases, the offender will be required to undertake a blood test. While officers are already blood-tested in these situations, some diseases are not detectable for months. This means officers can be left waiting for a considerable amount of time, which can be stressful for them and their families. Test results from the offender will provide early information to reduce the anxiety about risk of infection.”

Police say that over the past year, there were 279 incidents where officers came into contact with blood, 118 incidents involving officers being spat on and two occasions where an officer suffered a needle-stick injury.

US Public Health Service updates occupational PEP guidance

Healthcare workers exposed to HIV at work should immediately begin four weeks of post-exposure prophylaxis with three antiretroviral drugs, according to new recommendations. The three-drug guideline is a change from the 2005 recommendations of the U.S.

UK: NAT (National AIDS Trust) produces new guide for police on occupational exposure to HIV

NAT (National AIDS Trust) is calling on all UK police forces to ensure their guidance and policies on HIV are up-to-date – and to use NAT’s new resource ‘HIV: A guide for Police Forces’ for this purpose.

“HIV: A guide for police forces” is endorsed by BHIVA (the British HIV Association) and includes information about how HIV is and isn’t transmitted, what to do if you are exposed to HIV, how to respond to someone with HIV, and information about criminal prosecution for HIV transmission. It also includes an easy-to-use check-list to ensure blood borne virus training and occupational health policies are fit for purpose and up-to-date.

The guide was produced in response to a review of a sample of policies and guidelines from 15 police constabularies out of the 50 in the UK, revealed in a 2012 report. NAT found some forces wrongly cited spitting, scratching, urine, sharing toothbrushes and handling or lifting of people as routes to transmission and also found policies recommending the use of “spit hoods” to protect police from HIV transmission, or stating that people living with HIV and in custody should be held separately and that interviews should be conducted through cell doors or cell door hatches.

The guide is especially targeted at police occupational health trainers, health and safety officers and medical advisers in police forces to improve existing HIV training and guidance. Advocates working with police in jurisdictions around the world may also find this guide useful as a way to encourage the police to update their training and improve the way they treat people living with HIV.

“By producing this guidance we have given police forces the information and evidence they need to ensure their policies and procedures on dealing with HIV are up-to-date and non-stigmatising and to help reduce unnecessary worry about HIV transmission amongst police officers.  We are now calling on them to make sure it is put into practice.”

Deborah Jack, Chief Executive of NAT

HIV: A Guide For Police Forces

Law Enforcement and HIV Policy Groups Release Fact Sheet for Police on HIV Risks “Spit Does Not Transmit” Intended to Reduce Officer Anxiety and Needless “Exposure” Prosecutions (Press Release)

The Center for HIV Law and Policy (CHLP), the National Organization of Black Law Enforcement Executives (NOBLE) and the American Association of Prosecuting Attorneys (AAPA) today released a new fact sheet that they hope will bring law enforcement officers up to speed on the real risks of HIV that they face from possible exposure to the bodily fluids of those they police.

According to these organizations, every year people with HIV are the subject of felony criminal charges ranging from aggravated assault to intentional HIV transmission following police encounters in which defendants are accused of spitting at or biting police, usually in the course of a stop or arrest for a minor incident, such as disorderly conduct. Although the risk of transmission ranges from zero to far less than 1%, and there are no known cases of HIV transmission to a police or corrections officer from such events, spit and bite incidents have resulted in new or enhanced criminal charges and sentences of more than thirty years in prison. The fact sheet, Spit Does Not Transmit, provides current information, complete with citations to published experts, about transmission risks from non-sexual contact with a person’s bodily fluids.

“Accurate information is critical to law enforcement and corrections officers – In our line of work, our lives and the lives of others depend on it. Studies show just how much misinformation about HIV is transmitted among people in every part of the country, and every profession,” said Joseph Akers, Jr. NOBLE Interim Executive Director. “The nature of law enforcement is such that we encounter people from all walks of life with all sorts of problems. We are regularly exposed to risks; that’s the nature of the job.  It is important for officer safety that we understand the facts about HIV transmission, and it is also important that an arrest not turn into a more serious set of charges simply because the arrestee has HIV.”

Statistics show that of all the cases brought against people with HIV for so-called exposure offenses, twenty-five percent (25%) arise from incidents in which spitting or biting has been alleged, and almost all of these have been brought by law enforcement or corrections employees.  Law reform efforts that would eliminate the ability to prosecute people on the basis of their HIV or other disease status when they act without the intent or real ability to transmit – as is generally always the case with spitting and biting – are under discussion in multiple states, said Rashida Richardson, a staff attorney with CHLP.

“It is a waste of time and money to devote public safety resources to conduct that, while distasteful, poses no risk of harm,” observed David LaBahn, Executive Director of the American Association of Prosecuting Attorneys.  “Too many prosecutions are based on outdated notions of what HIV is and how it is transmitted. Information is the antidote, and this is a good place to start.”

[Although focused on the US, this factsheet will be useful anywhere police are inadequately trained on HIV-related risks during occupational exposure, including discarded needles.]

The fact sheet is available below and on The Center for HIV Law and Policy’s website.

Spit Does Not Transmit, The Center for HIV Law and Policy, the National Organization of Black Law Enforceme…