China: Supreme Court publishes new measures to severely punish wilful transmission of HIV through prostitution, even when a condom was used

New Supreme Court Standards Address Prostitution, HIV

Judicial authorities hope new measure will better protect China’s women, children, and marginalized communities.

China’s highest court and public prosecutor have outlined a series of standards to mete out punishment for crimes relating to prostitution and the transmission of HIV.

The joint legal interpretation, released Sunday and effective since Tuesday, aims to strengthen the protection of children, women, and other vulnerable groups. It stipulates that forcing girls under age 14 into prostitution is categorized as a “serious violation” under the crime of coercing others into prostitution, and is punishable by a minimum of 10 years to life in prison.

The stipulation emphasizes that individuals do not need to have coerced more than one child into prostitution or committed the crime multiple times to be charged with a “serious violation.” Recruiting more than 10 people into prostitution, or more than five people from vulnerable groups — including minors, pregnant women, and the mentally disabled — also constitutes a “serious violation.”

Another significant point highlighted in the new interpretation is that people with HIV who knowingly transmit the virus to others through prostitution — as either buyers or sellers of sex — will face severe punishment for intentionally causing injury, even in cases where barrier contraception, such as a condom or diaphragm, was used. Punishments for those who transmit HIV through sexual conduct other than prostitution, however, will be considered on the basis of whether individuals are deemed to have intentionally neglected to take precautionary measures.

“The primary consideration is that those with HIV should be able to lead a normal life, that they should not encounter discrimination in making friends, and that their dignity should be respected,” an official at the Supreme People’s Court told ChinaCourt.org, a state-run website for judicial affairs.

“AIDS patients face discrimination in society generally,” Lü Xiaoquan, a women’s legal aid lawyer at Qianqian Law Firm in Beijing, told Sixth Tone. “The disease causes them to suffer not only physical harm, but also mental harm.” Lü added that in his view, the new guidelines are clearly intended to protect potential victims rather than further stigmatize carriers.

The interpretation also mentions that using social networks to sell sex is punishable by law, and that those who lure people into prostitution, provide premises for the sale and purchase of sex, or solicit sex themselves can be convicted of the crime even if they have not profited from it.

The previous interpretation on prohibiting prostitution was published by the same judicial authorities in 1992. Lü believes the fact that the former interpretation lagged behind the practical need to fight crime today is what led to this new interpretation, based on the ninth amendment to the country’s penal code, passed in 2015.

“The interpretation provides clear and unified standards for fighting crime, and this has the potential to eradicate random enforcement and unfair penalties,” Lü said. “However, good legislation is not enough — fair judgment and strict enforcement of the law are also needed.”

Published on July 26, 2017 in Sixth Tone

Jamaica: Office of the Director of Public Prosecutions recommends legislation making wilful transmission of STIs a crime

Prosecutors want Law making wilful transmission of sexual disease a crime

Jovan Johnson, Parliamentary Reporter

The Office of the Director of Public Prosecutions has recommended that the Parliament make it clear in law that knowingly transmitting a sexual disease is a crime.

Assistant DPP, Adley Duncan, said the offence exists at common law but there is no legislation explicitly stating that the act is illegal.

He made the recommendation this afternoon during a parliamentary committee reviewing Jamaica’s sex laws.

Duncan said the position of the Office of the DPP stemmed from last year’s case involving George Flowers, who was ordered extradited from Jamaica to Canada on allegations he knowingly transmitted HIV to four women in the North American country between 1996 and 2012.

Flowers reportedly fled to Jamaica in 2012, the same year Canadian police issued an arrest warrant and later an extradition request.

Jamaica and Canada have an extradition treaty, which has the DPP’s office as the central authority or the representative of the requesting foreign state.

Duncan said an issue developed following the request in 2013 as Flowers argued that the offence was in Canadian law but not in Jamaica’s and therefore by the rules, he could not be extradited.

The assistant DPP said prosecutors successfully argued that the offence is recognised at common law and the courts upheld the order.

He also noted that under Jamaica’s marital rape law, knowingly or recklessly transmitting a sexual offence is a crime.

But Duncan said, making it clear in law that such an action is a criminal offence would remove any doubt.

Mexico: Organisations call for the withdrawal of initiative aiming to criminalise HIV-transmission in Quintana Roo

Call ATTENTION TO A MEMBER of the legislative body Congresswoman BERISTAIN: STOP CRIMINALIZATION OF HIV INITIATIVE

NOTICARIBE

POSTED ON JUNE 08, 2017, 11:44 PM 6 MINS POST Views: 1,135

By Leslie Gordillo

CANCUN, MX,- Members of associations called for the commissions of Justice, Human Rights, Development and Family groups in situations of vulnerability and of the Great Commission, in particular Mrs Laura Esther Beristain Navarrete, to reconsider the criminalization of HIV and to lower this initiative, which aims to put people with HIV under a status of potential criminals.

“We cannot allow actions that criminalise and punish and much less from a party that supposedly embraces the causes and unveiled an agenda where you will work with at-risk groups, then it is not being consistent, much less the party and its members in this case, the member of the Commission on Health,” said Roberto Guzman, Network Posithiva of Quintana Roo AC, which joined ICW Mexico and UNAYAC.

This call was made through a letter delivered in the city of Chetumal to groups already mentioned, where the points for consideration, knowing that these commissions are responsible for determining the initiative of “Decree amending Article 113 and is added in the third section, crimes against society, the seventh title, crimes against public health”, which seeks to amend article 113 of the criminal code and the punishment of 5 to 25 years with imprisonment from spreading or becoming infected with dangerous viruses to other people.

Before this, expressed in the letter some clarifications requested were taken into account to avoid an initiative “that violates the dignity and promotes stigma toward people living with HIV”, among which are: the importance of promoting actions in favour of the recognition of the human rights of women in the international order of the various instruments in this field has signed and ratified the Mexican State; not to seek punishment for behaviour that is perceived as wilful misconduct in relation to HIV and other sexually transmitted infections, because the scientific evidence indicates that HIV prevention is not achieved with punitive measures, but with public health policies that facilitate actions that promote changes at the structural level.

Also mentioned that the criminalization stigma and discrimination toward people living with HIV, including girls, children, adolescents and women, so that it is contradictory to promote actions that are contrary to the dignity of these vulnerable groups; the difficulty of determining causality, fraud, the intentionality as a number of factors in HIV transmission, such as: the possibility of the transmission, the type of exposure, the use or not of the condom, the stage of the infection, if you take your antiretroviral treatment or not, if you have a detectable load or not, if there are concomitant diseases, the status of the receiving partner and agreements established between couples.

They emphasized that the punitive measures, such as which is intended to legislate, could hinder and affect the various multisectoral action in the field of prevention, detection and care in our state. Could influence that people perceive HIV risk factors, to bypass an early detection in order not to know their status, in virtue of preventing a possible criminal proceedings.

In addition to the specific content of this initiative of “danger of contagion” could cause the legal responsibility of the HIV prevention falls only on those living with HIV, and this could be invisibilizarse the public health message that sexual partners have shared responsibility about their sexual health. And that this type of adjustments to the Criminal Code will promote higher levels of stigma and discrimination toward the various populations with HIV and their families.

Contrary to this, recounted in the Charter, should label resources to prevent, detect and respond in a timely manner HIV; to improve the quality and comprehensiveness of care services provided from the capasits and hospitals in the health sector; and reduce stigma and discrimination toward the populations affected by HIV and other STIS.

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Le Llaman la atención a Diputada Beristain: Piden asociaciones detener iniciativa de penalización del VIH

Leslie Gordillo

CANCÚN, MX,- Integrantes de asociaciones exhortaron a las comisiones de Justicia, Derechos Humanos, Desarrollo Familiar y Grupos en Situación de Vulnerabilidad y de la Gran Comisión, en particular a la diputada Laura Esther Beristaín Navarrete, a reconsiderar la penalización del VIH y a bajar esta iniciativa, que pretende colocar a las personas con VIH bajo un estatus de posibles criminales.

“No podemos permitir acciones que criminalidad y penalicen y mucho menos a partir de un partido que supuestamente abraza las causas y dieron a conocer una agenda donde va trabajar con los grupos de riesgo, entonces no está siendo congruente el partido y mucho menos sus integrantes en este caso la diputada de la comisión de salud”, expresó Roberto Guzmán, de Red + Posithiva de Quintana Roo AC, organismo que se unió a ICW México y UNAYAC.

Este llamado se hizo a través de una carta entregada en la ciudad de Chetumal a los grupos ya mencionados, en donde expresan los puntos a consideración, a sabiendas que estas comisiones son responsables de dictaminar la iniciativa de “Decreto por el que se reforma el Artículo 113 y se adiciona dentro de la sección tercera delitos contra la sociedad, el titulo séptimo, delitos contra la salud pública”, la cual pretende reformar el artículo 113 del código penal y castigar de 5 a 25 años con prisión a quien contagie o infecte con virus peligrosos a otras personas.

Ante esto, manifestaron en la carta algunas precisiones que pidieron fueran tomadas en cuenta para evitar así una iniciativa “que atenta contra la dignidad y promueve el estigma hacia las personas con VIH”, entre las que destacan:

La importancia de impulsar acciones a favor del reconocimiento de los derechos humanos de las mujeres en el orden internacional de los diversos instrumentos que en esta materia ha suscrito y ratificado el Estado mexicano; no buscar castigo para las conductas que se perciben como dolosas en relación al VIH y otras infecciones sexuales, ya que la evidencia científica  señala que la prevención del VIH no se logra con medidas punitivas, sino con políticas en salud pública que faciliten acciones que promuevan cambios a nivel estructural.

Mencionaron también que la penalización favorece el estigma y la discriminación hacia personas con VIH, incluyendo a las niñas, niños, adolescentes y mujeres, por lo que resulta contradictorio impulsar acciones que contravienen a la dignidad de estos grupos vulnerables; la dificultad de determinar la causalidad, el dolo, la intencionalidad ya que intervienen diversos factores en la trasmisión del VIH, como: la posibilidad de la trasmisión, el tipo de exposición, el uso o no del condón, la etapa de la infección, sí lleva tratamiento antirretroviral o no, si tiene carga detectable o no, si existen enfermedades concomitantes, el estado de la pareja receptora y los acuerdos establecidos entre parejas.

Enfatizaron que las medidas punitivas como las que se pretende legislar, podrían obstaculizar y afectar las diversas acciones multisectoriales en materia de prevención, detección y atención del VIH en nuestro Estado. Podría influir a que las personas que se perciban con factores de riesgo ante el VIH, omitan realizarse una detección temprana a fin de no conocer su estado serológico en virtud de prevenir un posible proceso penal. 

Además de que el contenido en específico de esta iniciativa de “Peligro de contagio” podría provocar que la responsabilidad jurídica de la prevención del VIH recaiga solamente en quienes viven con VIH, y con ello podría invisibilizarse el mensaje de salud pública de que las parejas sexuales tienen responsabilidad compartida sobre su salud sexual. Y que este tipo de adecuaciones al Código Penal promoverán mayores niveles de estigma y discriminación hacia las diversas poblaciones con VIH y sus familias.

Contrario a esto, relataron en la carta, deberían etiquetar recursos para prevenir, detectar y atender oportunamente el VIH; mejorar la calidad e integralidad de los servicios de atención otorgados desde los CAPASITS y hospitales del sector salud; y disminuir el estigma y la discriminación hacia las poblaciones afectadas por el VIH y otras ITS. 

Mexico: Senator in Quintana Roo presents initiative to sentence people living with HIV to up to 25 years in prison in cases of alleged HIV transmission

PRD proposes 25 years of imprisonment to anyone who transmits HIV in Quintana Roo.

Laura Esther Beristáin Navarrete, a local senator from the PRD, presented an initiative to the Congress of Quintana Roo to sentence with up to 25 years in prison those who transmit HIV to another person.

The initiative has been described as stigmatising and a violation of the human rights of people living with the virus.

Faced with the proposal of the PRD, a group of civil organisations that fight against HIV, among them the Positive Network of Quintana Roo, ICW Mexico and Unayac, addressed a letter to the local congress in which they ask the Commission for Justice, Human Rights, Family Development and Vulnerable Groups to discard this initiative to criminalise people with HIV.

“We will not allow AIDS to be penalised by a party like the PRD, who claims to fight for the underprivileged and social causes” said Roberto Guzman, a member of the Positive Network of Quintana Roo.

The initiative seeks to reform Article 113 of the local Penal Code in order to include in the third section about “Crimes against Society”, a point that will detail crimes that threaten public health. In this way, those who transmit HIV to another person will be punished with a sentence of up to 5 to 25 years in prison.

The activists said that if this amendment to article 113 was approved, it would undermine the dignity of people living with HIV by listing them as alleged criminals, and warned that the initiative has as a background the promotion of stigma towards this population.

They also clarified that Mexico has signed international agreements in favour of the rights of people with the virus and against its criminalisation.

“The evidence points out that to prevent HIV, punitive measures are not recommended, but public health policies that promote structural changes are,” said Guzmán, who insisted that the penalty will directly affect other prevention strategies, as people will resist having an HIV test out of fear of stigma, which will interfere with the timely detection of the virus and its treatment.

In response to the demands of civil society, Beristaín defended her proposal and said that the initiative is not against people with HIV, but seeks to care for the health of the inhabitants of the state and punish those who pose a threat against it.

Finally she invited the activists to read the initiative in full. “The proposal has nothing against infected people. The only thing that seeks to take care of the health of the Quintana Roo society, it is not criminalising anyone, “said the deputy.

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Laura Esther Beristáin Navarrete, senadora local de la bancada del PRD, presentó una iniciativa ante el Congreso de Quintana Roo para castigar con hasta 25 años de prisión a quienes transmitan el VIH a otra persona. La iniciativa ha sido calificada de estigmatizadora y de ir en contra de los derechos humanos de las personas que viven con el virus.

Frente a la propuesta de la perredista, un grupo de organizaciones civiles que luchan en contra del VIH, entre las que se encuentra La Red Positiva de Quintana Roo, ICW México y Unayac, dirigieron una carta al congreso local en el que solicitan a las comisiones de Justicia, Derechos Humanos, Desarrollo Familiar y Grupos Vulnerables que descarten dicha iniciativa por criminalizar a las personas con VIH.

“No permitiremos que se penalice el Sida por un partido como el PRD, que afirma luchar por los desvalidos y las causas sociales, anunciaron que la propia sociedad de Cancún trabajará por los grupos de riesgo”, declaró Roberto Guzmán, integrante de la Red Positiva de Quintana Roo.

La iniciativa busca reformar el artículo 113 del Código Penal local con el fin de incluir en la tercera sección los “Delitos contra la Sociedad”, punto en el que se detallarán los crímenes que atentan contra la salud pública. De esta forma, se castigará con una pena de 5 a 25 años de cárcel a quienes transmitan el VIH a otra persona.

Los activistas señalaron que de ser aprobada esta reforma al artículo 113 se atentaría contra la dignidad de las personas que viven con VIH al catalogarlas como presuntos criminales, además, alertaron que la iniciativa tiene como trasfondo la promoción del estigma hacia este sector poblacional. Asimismo, aclararon que México ha firmado convenios internacionales a favor de los derechos de las personas con el virus y en contra de su criminalización.

“Las pruebas señalan que para que la prevención del VIH no se recomiendan medidas punitivas, sino políticas de salud pública que promuevan cambios estructurales”, comentó Guzmán, quien insistió en que la penalización afectará de forma directa otras acciones de prevención, pues las personas se resistirán a hacerse una prueba de VIH por temor al estigma, lo cual se interpondrá en la detección oportuna del virus y en su tratamiento.

Ante los reclamos de la sociedad civil, Beristaín defendió su propuesta y dijo que la iniciativa no está en contra de las personas con VIH, sino que busca cuidar la salud de los habitantes del estado y castigar a quienes atenten contra ella. Finalmente invitó a los activistas a leer de forma completa la iniciativa.

“La propuesta no tiene nada en contra de las personas infectadas. Lo único que busca es cuidar la salud de la sociedad quintanarroense, no se está criminalizando a nadie”, señaló la diputada.

Con información de Milenio y Noticaribe. Imagen tomada del Congreso del Estado de Quintana Roo.

US: California State Senate votes to make HIV-exposure a misdemeanour instead of a felony, in line with other communicable diseases

Knowingly exposing others to HIV should no longer be a felony, state Senate says

The state Senate on Wednesday voted to no longer make it a felony for someone infected with HIV to knowingly expose others to the disease by having unprotected sex without telling his or her partner about the infection.

The crime would be downgraded to a misdemeanor, and the bill would also apply to people who donate blood or semen without telling the blood or semen bank that they have acquired immunodeficiency syndrome, or AIDS, or have tested positive for human immunodeficiency virus, or HIV, the precursor to AIDS.

The measure, which next goes to the Assembly for consideration, was introduced by Sen. Scott Wiener (D-San Francisco), who said it is unfair to make HIV/AIDS the only communicable disease given such harsh treatment by prosecutors.

“These laws are irrational and discriminatory,” Wiener told the Senate, adding that the current felony status is “creating an incentive not to be tested, because if you don’t know your status you can’t be guilty of a felony.”

The measure was widely opposed by Republican lawmakers including Sen. Joel Anderson of San Diego.  “If you intentionally transmit something that is fundamentally life-threatening to the victim, you should be charged and go to jail,” he said.

Sen. Jeff Stone (R-Murrieta) said, “My friends, it’s not a gay issue. It’s a public health issue. We shouldn’t allow someone to play Russian roulette with other people’s lives.”

Sen. Richard Pan (D-Sacramento), a physician, voted for the bill and argued that it undermines public health to imprison those with HIV under the current law.

US: Lambda Legal describes California Senate Bill purpose to update HIV criminalisation laws

SB 239: A Long-Overdue Update of CA’s Discriminatory HIV Criminalization Laws

Lambda Legal | Scott Schoettes – California Senate Bill 239 is a long-overdue update of California’s outdated and discriminatory criminal laws targeting people living with HIV. As a co-sponsor of this important legislation, Lambda Legal wants to correct some misperceptions and clarify the purpose of this bill.

SB 239 was introduced to improve public health by creating an environment in which more people are willing to get tested for HIV, to obtain the medical treatment they need to protect their own health and the health of others and to discuss their HIV status with sexual partners.

By singling out people who know they are HIV-positive for severe criminal punishment as a result of sexual activity, regardless whether there was any real risk of transmission or any harm actually occurred, current law inhibits rather than encourages the exact practices that will help combat HIV/AIDS.

Let’s get the biggest misperception about SB 239 out of the way first.

SB 239 does not change California law with respect to disclosure of a person’s HIV status.

Current law does not require disclosure of one’s HIV-positive status prior to sexual activity. While it is true that the current HIV exposure statute applies only if the person did not disclose their HIV-positive status; mere nondisclosure isn’t a violation of the law. Rather, the person must also act with the specific intent to transmit HIV.

SB 239 would not change that.

Instead, SB 239 updates the law to incorporate the current scientific understanding of HIV.

For example, we now know that people living with HIV who are taking HIV medications—and therefore have a suppressed viral load—cannot transmit HIV to their sexual partners. With that in mind, SB 239 clarifies that activities undertaken to reduce the risk of transmission—such as using a condom or being on treatment—demonstrate a lack of intent to transmit HIV (or, for that matter, any other disease).

These refinements of the law help define the limited circumstances under which it is appropriate to penalize disease transmission.

SB 239 also eliminates the injustice in California criminal law for people living with HIV.

Under current law, HIV is the only medical condition that can result in a felony conviction. And individuals with HIV can be subject to a longer potential sentence than for certain types of manslaughter.

Exposure to all other infectious or communicable diseases—several of them also incurable or potentially fatal if untreated—would result in at most a misdemeanor conviction.

Given that HIV is now a manageable condition for people with access to care, it is time to stop putting it in a class all by itself. SB 239 would pull HIV out of its own separate statute and include it in the law that applies to every other serious communicable disease.

Eliminating this type of discrimination against people living with HIV is an important step in achieving the public health goals of SB 239.

Thanks to modern medical science, we now have the tools needed to make AIDS a thing of the past.

People who are diagnosed with HIV in a timely fashion and receive the necessary medical care can expect to lead long, healthy lives. But currently, approximately one in seven people living with HIV in the United States is unaware of their HIV-positive status, and only 40% of people living with HIV are engaged in medical care and have a suppressed viral load.

We must increase the number of people who know their HIV status and are on treatment, and SB 239 will help achieve that.

There is a tremendous amount of work to be done to eliminate public misconceptions about HIV, the routes and relative risks of transmission and the stigma that stems from these misconceptions.

But one thing California can do immediately is remove the discrimination in the law against people with HIV.

That is what SB 239 is designed to do and that’s why over 100 organizations support the bill, including APLA Health, the Black AIDS Institute, Equality California, Positive Women’s Network-USA, ACLU of California, National Alliance of State and Territorial AIDS Directors (NASTAD), HIV Medicine Association, SF AIDS Foundation, Bienestar, Planned Parenthood of California, Transgender Law Center and Human Rights Watch.

Together, we can make California law on this subject a model for the whole country.

US: HIV criminalisation laws are outdated, stigmatising and applied unfairly and it’s time to end the cycle says Erika D. Smith

The AIDS crisis is over. Why are people still going to jail over HIV? 

BY ERIKA D. SMITH

I’m not in the habit of quoting Ronald Reagan. But on Monday, as legislation that would greatly reduce the criminal penalties for transmitting HIV moved one step closer to a vote in the California Senate, I couldn’t help but think of words penned by the former president.

The year was 1990 and my teacher handed out a Washington Post article for the class to read.

“We owe it to Ryan to make sure that the fear and ignorance that chased him from his home and his school will be eliminated,” Reagan wrote. “We owe it to Ryan to open our hearts and our minds to those with AIDS. We owe it to Ryan to be compassionate, caring and tolerant toward those with AIDS, their families and friends.”

He was reacting to the death of Ryan White, a blond-haired boy from the Midwest who had contracted HIV during a blood transfusion for hemophilia and was diagnosed with AIDS. White wasn’t like the then-mysterious gay men in California and New York, or even the IV drug users in inner cities, who had been falling ill and dying by the thousands. He was an “innocent” victim.

At 13 years old, he got thrust into the national spotlight because he wanted to go to school with his friends. But because it was the height of the AIDS epidemic, an era when fear and willful ignorance regularly trumped facts, the school district fought his family at every turn.

As a 13-year-old girl in a Midwestern suburb, I identified with him.

Over time, that vague fear of AIDS that I once had has been replaced with an understanding that HIV is a chronic illness that can be easily managed with medication. It’s no longer a death sentence. What’s more, it’s highly unlikely that someone with an undetectable level of HIV in his or her blood, which is pretty common these days for undergoing treatment, will transmit the virus to anyone else.

Heck, hepatitis C kills three times as many people as HIV does.

But in California and more than 30 other states, dozens of laws remain on the books to punish people who willfully expose others to the virus. To this day, people still get charged with felonies over HIV and go to prison for five, 10 or even 20 years. In some states, those convicted must register as a sex offender for life.

These laws aren’t “compassionate,” “caring” or “tolerant” toward people with HIV or AIDS. They’re fear-based holdovers from the days of the “gay plague,” which in many ways, the Reagan administration callously let happen by ignoring the disease and its victims for far too long. Back in the 1980s, Reagan wasn’t “compassionate,” “caring” or “tolerant.”

San Francisco was ground zero, with three times as many AIDS cases per capita as New York and 10 times as many as Los Angeles. At one point, about half of San Francisco’s gay men were infected and most expected to die within 10 years. I’ve heard horror stories from gay men with gray hair, many of them tearing up just thinking about all the friends and partners they lost.

So it’s telling that it’s a gay man from San Francisco, Sen. Scott Wiener, who is pushing the bill that would greatly reduce the penalties for transmitting HIV.

Where California now has four felony offenses on the books for people who deliberately pass along the virus, Senate Bill 239 would repeal two of them and reduce two others to a misdemeanor, just like the intentional transmission of every other infectious or communicable disease.

The bill advanced out of the Senate Appropriations Committee on Monday and Wiener hopes to get it to the Senate floor by May or June.

So far, only the California Right to Life Committee has come out in opposition. Meanwhile, the list of groups in support is long, from the California Medical Association to Equality California to the ACLU.

Their reasoning is pretty plain. One is that threatening to punish people for transmitting HIV does absolutely nothing for public health. It only encourages people to hide their status or not get tested at all. You can’t be charged with infecting someone with something you didn’t know you had.

Another reason is that research shows that the laws are applied unfairly. White men, for example, make up 40 percent of the people diagnosed with HIV in California, but only 16 percent of the individuals who’ve had contact with law enforcement over it, according to the Williams Institute at UCLA.

Meanwhile, black women make up only 4 percent of the Californians diagnosed with HIV, but account for 21 percent of people who have gotten in trouble for it. A good number of them are sex workers, turning a potential misdemeanor prostitution charge into a felony.

Only about 1,260 people were accused of an HIV-related crime in California between 1988 and 2014. Of those who were convicted, 85 percent were sent to prison.

So far, only Iowa and Colorado have acted to repeal their laws. If California is next, it could potentially accelerate a fledgling national trend toward decriminalization.

There’s little hope of accomplishing change at the federal level, even though public health officials have been pushing for it for years. In Congress, Reps. Barbara Lee, D-Oakland, and Ileana Ros-Lehtinen, R-Fla., introduced the Repeal HIV Discrimination Act, but it’s likely to go nowhere. There has been resistance, particularly among Republicans.

Like the Reagan administration, red state lawmakers started paying attention to AIDS because of Ryan White, a boy unfairly marginalized by people who didn’t understand HIV or how it is contracted. Following an early provision in the Ryan White Comprehensive AIDS Resources Emergency Act, which provided funding for education and treatment, they passed misguided laws to prosecute people over HIV or AIDS.

California just beat middle America to the punch.

Now the remnants of those laws are being used to marginalize a whole new group of people with HIV, many of them opioid addicts in red states spreading the virus through dirty needles. It’s time to be “compassionate,” “caring” or “tolerant.” It’s time to end the cycle.

Published in the Sacramento Bee on April 24, 2017

US: Senate bill aiming to update existing HIV criminalisation laws in Florida progresses to next stage

Bill to Modernize HIV Criminalization Makes Progress

On March 21, the Criminal Justice Committee of the Florida Senate unanimously passed Senate Bill 628 (SB628). This bill would align Florida’s HIV criminalization laws with current science, modernizing them.

The Health Policy Committee of the Florida Senate will vote on this bill next. Three other Senate Committees and the Florida House still have to approve it, before it becomes law.

SB628 brings Florida’s HIV criminalization laws, written in the ‘80s, into this century. It requires proof of intent to infect and reduces the maximum sentence. Gender neutral, it replaces “sexual intercourse” with “sexual conduct.” SB628 treats HIV as one among many sexually transmitted infections.

A conviction under current law results in a felony with five-year maximum sentence. Under SB628, a conviction would result in a misdemeanor with a one-year maximum sentence.

SB628 requires proof of intent to infect. Use of a condom or compliance with a prescribed treatment would disprove intent to infect. As SB628 requires proof of “a substantial risk of transmission,” it would exclude spitting.

SB628 replaces the term “sexual intercourse” with the term “sexual conduct.” Sexual conduct would include both mixed- and same-sex sexual conduct. The bill defines sexual conduct to include anal intercourse, vaginal intercourse, and oral sex, including “rimming.”

This bill “normalizes” HIV as one of many bacterial, fungal, viral, or parasitic sexually transmitted infections. SB628 adds human papilloma virus and hepatitis to these infections.

Kamaria Laffrey, Florida Community Organizer for Sero Project, an HIV-criminalization reform group, defined modernization as “making the laws current.”  She referred to a growing consensus that people with a suppressed viral load cannot transmit the virus. She stressed the importance of keeping “your message clean and relatable to the legislators in your state.”

Some people associated with Black Lives Matter have criticized modernizing HIV Criminalization Laws. They charge that lawmakers, police, prosecutors, and judges target Black people for excessive punishment. They cite racial differences in mass incarceration and police violence as evidence. Even modernized HIV criminalization laws could still leave Black people vulnerable to police and prosecutorial excess. As a woman of color, Laffrey understands this criticism. She, however, remains focused on what can work to improve people’s lives now.

The first step to viral suppression consists in knowing one’s HIV status. Laffrey described HIV criminalization as punishing “those that know their status and privileging those that are ignorant.” As such, these laws discourage HIV testing.

Laffrey lauded SB628 as a bi-partisan effort. Rene Garcia, a Miami-Dade Republican has sponsored this bill. Daphne Campbell, a Miami-Dade Democrat, has cosponsored it. Laffrey described Garcia as “very straightforward on what’s possible and what’s not.” They have been able to talk about necessary compromises, but have focused on modernization.

She said, “We really lucked out with Garcia.” He has a history of supporting HIV issues in Florida. Garcia also chairs the Miami-Dade “Getting to Zero” Task Force. That group advises that county how to control HIV.

Laffrey also praised the Florida HIV Justice Coalition, the activists behind SB628. She described them as, “A passionate bunch of people that are excited about this process happening in Florida. Watching reform happen in Iowa and Colorado, I was on the edge of my seat wondering when this would happen in Florida. They’re just an amazing group of people that are in it for the long haul.”

The Florida HIV Justice Coalition meets once per month via webinar. Between meetings, people communicate via email. If someone wants to know more about this group, they can email Laffrey at Kamaria.laffrey@seroproject.com. If they would like to join, they can ask Laffrey to add them to the listserv.

Published in SFGN on April 14, 2017

US: Michigan candidates for the governor's office call for State's HIV felony law to be repealed

Dem Gubernatorial Candidates Call for Reform of State’s HIV-Specific Law

Advocates Applaud Move, Encourage Legislative Action Before New Governor Takes Office in 2019

LANSING – Calling Michigan’s HIV-specific felony law “discriminatory” and “wrong to criminalize sickness,” the two declared candidates for the governor’s office say it’s time to reform the law.

“I’m a strong believer in science, and in the years this law has been on the books, significant strides have been made in HIV treatment and prevention,” said Gretchen Whitmer, the former State Senate Minority Leader and Ingham County Prosecutor. She’s declared her candidacy for the Democratic nomination for governor in 2018 earlier this year. “Yet prosecutions are often driven by fear and stigma, not science, just as the legislation itself was when it was passed. It’s wrong to criminalize sickness, which is what this law has effectively done. It absolutely should be revisited.”

Last month, Abdul El-Sayed, the former director of the City of Detroit’s Department of Health and Wellness Promotion, told Between The Lines that Michigan’s law “absolutely” should be repealed.

“You should not be criminalized for a disease,” he said. The 32-year-old doctor was a Rhoades Scholar and in his role as the director of Michigan’s most populous city’s health and wellness promotion, he dealt first hand with the ongoing HIV crisis in Detroit. “That is absolutely wrong. It’s hateful. It’s discriminatory, and we can, as a state, do better. You can count on me for that.”

Michigan passed the AIDS-Penetration with Uninformed Partner Law in 1988. Former lawmaker Susan Grimes Gilbert (formerly Grimes Munsell) lead the charge to pass Michigan’s law as well as participated in the American Legislative Exchange Council (ALEC) working group on the subject. That group recommended the development of HIV Assault laws in all 50 states

In an interview presented in a report in The Advocate and The American Independent News Network in 2013, she acknowledged that the law was driven by fear.

“At that time people were scared to death of [AIDS],” Grimes Munsell told the news outlets. She acknowledged much had changed since that time.

“I think it is time to repeal the [felony] law,” she said in 2013. “In fact, I don’t do this very often, but I am willing to lobby for that change.”

Her voice added to an already growing chorus calling for reform. Among them, the former staffer from ALEC who wrote the group’s draft legislation and policy recommendations and a member of President Ronald Reagan’s Commission on HIV, commonly called “The Watkins Commission.”

Social scientists and activists have criticized the laws for years as unfairly stigmatizing those living with HIV as people hell bent on transmitting their infection to others. They’ve noted the laws have little impact on behavior and at least one study has found that high profile prosecutions for HIV nondisclosure lead those most at risk of HIV infection to decline HIV testing and sexual health counseling from healthcare providers.

State Rep. Jon Hoadley (D-Kalamazoo) has been floating draft legislation for the last six months to modernize Michigan’s HIV law. Specifically, his proposal would eliminate the current felony law, and create in its stead two misdemeanor laws.

Both misdemeanor laws would require prosecutors prove beyond a reasonable doubt the accused not only had HIV, but intended to transmit the infection and took actions that had a likelihood of transmitting the virus. The lower of the two misdemeanors -which would carry up to 93 days in jail – would be used if there was no transmission. The one-year misdemeanor would be used if there was transmission of the virus.

The legislation garnered a number of co-sponsors last session, but Hoadley did not introduce it.

Activists supporting modernizing Michigan law say they are pleased the two Democratic gubernatorial candidates are raising the issue.

“We are very pleased to see the issues related to the unjust, unscientific law criminalizing HIV being taken up by candidates for the top office in the state,” says Kelly Doyle, the coalition manager for the Michigan Coalition for HIV Health and Safety. “This is about fairness and reducing stigma, and having top candidates talking about this issue helps reduce the stigma and highlight the problems.”

She was joined in that praise by Curtis Lipscomb, executive director of LGBT Detroit. He released a statement to BTL saying his group was “pleased” that the candidates “reject Michigan’s outdated HIV criminalization laws and the notion of criminalizing disease.”

“We must get rid of stigma around HIV/AIDS, testing, prevention and treatment – and listening to science is the only way to do that,” Lipscomb said.

He said his group is eager to continue discussions with the legislature “to move to repeal this dangerous law.”

Doyle echoed that sentiment, “Of course, this legislature could check one item off the beginning of the 2019 gubernatorial term by passing legislation now which brings Michigan in line with common sense public health approaches which ensure of the safety of all Michiganders.”

Published in PrideSource on April 13, 2017

Canada: Top Canadian scientists release statement calling for measures to address the overly broad use of criminal charges in HIV non-disclosure cases

Canada’s top HIV researchers urge federal, provincial and territorial governments to act now to limit the use of the criminal law in HIV non-disclosure cases

MONTRÉAL, QC, April 6, 2017 — As the country’s premier national HIV research conference gets underway, the original co-signatories of the Canadian consensus statement on HIV and its transmission in the context of criminal law (2014) are releasing a statement expressing their deep concern about the ongoing, overly broad use of the criminal law in HIV non-disclosure cases, irrespective of the possibility of transmission or whether transmission actually occurred.

Used correctly, an unbroken condom offers 100% protection against HIV transmission. Several recent, large clinical trials have also found that effective antiretroviral therapy (ART) prevented HIV transmission to HIV-negative partners in both male same-sex and heterosexual sero-discordant couples.

“Now that we have data that clearly demonstrates people with HIV with undetectable viral loads are at basically zero risk of infecting their partners, it’s past time for the law to catch up with the science,” says Dr. Mona Loutfy, Women’s College Hospital, who is presenting at the annual Canadian Conference on HIV/AIDS Research.

“When taken and monitored consistently, the ability of ART to prevent HIV transmission has been repeatedly demonstrated. It is time that the criminal law recognizes this,” adds Dr. Rupert Kaul from the University of Toronto.

The Supreme Court of Canada ruled in 2012 that disclosure is required before sex that poses a “realistic possibility” of HIV transmission. However, since that ruling, individuals have been prosecuted regardless of whether transmission occurred and even in cases posing no realistic possibility of transmission. This has led to further fear and uncertainty in the HIV community regarding disclosure obligations. The federal Department of Justice is consulting with senior officials from provincial and territorial governments to review how HIV non-disclosure cases are prosecuted.

At the 2014 annual Canadian Conference on HIV/AIDS Research, nearly 80 scientific experts on HIV released a peer-reviewed consensus statement about the then-available science regarding HIV transmission possibilities associated with various acts, noting their concern that the criminal justice system was out of step with the science. Additional research results since then have further confirmed the conclusions in that statement. Last December, on World AIDS Day, the federal Minister of Justice acknowledged the need to take action to address the overly broad use of criminal charges.

The Board of Directors of the Canadian Association for HIV Research (CAHR), the host of CAHR 2017, supports the call for measures to limit the overly broad use of the criminal law, including developing prosecutorial guidelines that are informed by human rights and public health principles, and based on current scientific evidence regarding HIV transmission.

“In consultation with people living with HIV, public health and human rights experts, we urge the federal Minister of Justice and the provincial and territorial Attorneys General to develop prosecutorial guidelines that eliminate the serious adverse individual and public health impacts caused by the inappropriate use of the criminal law,” says Dr. Mark Tyndall, Executive Director of the British Columbia Centre for Disease Control.

 

About the British Columbia Centre for Excellence in HIV/AIDS

The BC Centre for Excellence in HIV/AIDS (BC-CfE—http://cfenet.ubc.ca) is Canada’s largest HIV/AIDS research, treatment and education facility and is internationally recognized as an innovative world leader in combating HIV/AIDS and related diseases. BC-CfE is based at St. Paul’s Hospital, Providence Health Care, a teaching hospital of the University of British Columbia. The BC-CfE works in close collaboration with key provincial stakeholders, including government, health authorities, health care providers, academics from other institutions, and the community to decrease the health burden of HIV and AIDS. By developing, monitoring and disseminating comprehensive research and treatment programs for HIV and related illnesses, the BC-CfE helps improve the health of British Columbians.

Published on BC Centre for Excellence in HIV/AIDS website on April 6, 2017