US: It’s time Ohio’s laws reflected our new understanding of the science of HIV

Ohio’s HIV laws should be based on science, not hysteria

Even if you weren’t a fan of the National Basketball Association in 1991, you probably remember the day in November that Earvin “Magic” Johnson, the dazzling point-guard of the Los Angeles Lakers announced he was retiring from the game after testing HIV-positive. How many more years did you give Magic? Three, four, maybe five?

Over the last 28 years, we’ve watched Magic briefly return to the NBA, coach the Lakers, announce NBA games, host a talk show, open movie theaters and coffee shops, buy a stake in the L.A. Dodgers and serve as Lakers president.

It would have been impossible in 1991 to conceive of Magic cycling through all those career choices because we couldn’t have imagined him having the time. But now, it’s fairly common to hear of people who’ve lived for decades after a positive diagnosis.

Their longevity shouldn’t be used to minimize the seriousness of the virus. If left untreated, HIV will cause AIDS, and AIDS will kill. But the advancements in treatment and prevention are reason enough to reconsider some of the decades-old laws that were drafted to punish people who sleep with others without informing them that they’re HIV-positive. Those laws were largely based on the belief that there was nothing on the other side of an HIV diagnosis but sickness and death.

In Ohio, a person who is HIV-positive can be sentenced up to eight years in prison and made to register as a sex offender for engaging in sexual conduct without disclosing their status.

What if that person uses a condom?

It doesn’t matter.

What if the person is faithfully taking pre-exposure prophylaxis, or PReP, which, according to the Centers for Disease Control and Prevention, “reduces the risk of getting HIV from sex by about 99%

That doesn’t matter, either.

What if long after the fact, the partner tests negative for the virus?

Not even that matters. The offense, according to the law, is not telling. The crime isn’t the transmission. The crime isn’t even the likelihood of transmission. Just the not telling. Even if the person is reasonably trusting the science that says transmitting the virus is virtually impossible.

Greg Cote told Columbus radio station WOSU last month that he has made himself into a walking billboard proclaiming that he’s HIV-positive. As a policy, everybody should be as honest as he is. Even so, Cote hasn’t been intimate with anybody, he said, because if a bitter lover claims they weren’t informed, it can be difficult for people with HIV to prove to the satisfaction of jurors that they were, indeed, honest and forthcoming about their status.

A 2004 episode of The Chappelle Show included a sketch about “The Love Contract,” which was described as a way that people engaged in casual sex could prove in court that their partners consented. As absurd as the idea of a pre-coital contract sounds, advocates for Ohio’s HIV-positive residents say that or something close to that is required for them to prove that they haven’t been dishonest with their partners.

The Ohio Health Modernization Movement advises sexually active HIV-positive people to do one of the following things: save email or text messages that indicate that a potential partner has been informed of the person’s status; take that potential partner to a doctor’s visit or a caseworker’s visit so a third-party can confirm a disclosure was made; discuss one’s status in front of a third-party who can attest that a disclosure was made; video a conversation of a disclosure or, lastly, do what Chappelle did in that comedy sketch and have a potential partner sign a document. This document would acknowledge the partner’s awareness of the positive person’s status.

The best way for a HIV-positive people to protect themselves from criminal prosecution for consensual sex is to not getting tested. After all, Ohio law doesn’t allow people who don’t know that they’re HIV-positive to be charged with not telling their partners that they are. And this, advocates say, provides a regrettable incentive for people to avoid finding out if they’re carrying the virus.

The advocates’ position lines up with the federal government’s. In a 2014 report, the Civil Rights Division of the U.S. Department of Justice cited a CDC finding that the stigma associated with an HIV diagnosis discourages many from learning their status. That DOJ report notes that “intentional HIV transmission is atypical and uncommon” and suggests that states rewrite their laws to focus on two types of offenders: HIV-positive rapists whose crimes put their victims at risk of contracting the virus and people who intend to transmit HIV through behavior that carries a “significant risk of transmission.”

Such a focus is warranted. Prosecutors shouldn’t be pursuing those who aren’t trying to infect their partners, especially those who’ve been made to believe that they can’t. The American Medical Association has called for a complete repeal of HIV criminalization laws, but the Ohio Health Modernization Movement favors changing a failure to disclose one’s status from a felony to a misdemeanor.

After retiring in 1991, Magic tried to return to the court in 1992, but many players expressed a fear of playing against him. But in 1996, Magic did return with hardly anybody objecting. Players had a better understanding, then, about how the virus is transmitted. And we have an even better understanding of things in 2019. It’s time our laws reflected that new understanding.

Jarvis DeBerry is a columnist at Cleveland.com and a member of the editorial board. Reach him at jdeberry@cleveland.com or on Twitter at @jarvisdeberry.

Australia: Northern Territory new sex industry bill decriminalises sex work

UNAIDS welcomes the decision by the Northern Territory of Australia to decriminalize sex work

GENEVA, 2 December 2019—UNAIDS applauds the decision by the parliament of Australia’s Northern Territory to decriminalize sex work. The Sex Industry Bill 2019 enhances the safety of sex workers and their clients by applying public health legislation to operators of sex service businesses and by allowing sex workers to work together. The legislation explicitly prohibits the exploitation of sex workers, supports their access to justice and outlaws any involvement of children.

“I commend this decision by Australia’s Northern Territory, which upholds the human rights of sex workers and means that they can operate within existing laws and regulations, including laws relating to employment, occupational health and safety, workers’ rights and discrimination,” said the UNAIDS Executive Director, Winnie Byanyima. “The decriminalization of sex work reduces the risk of HIV transmission for both sex workers and their clients.”

Globally, sex workers are 21 times more likely to acquire HIV than the general adult population. A 2014 study published in the Lancet indicated that the decriminalization of sex work is the single intervention that would have the greatest impact on the course of the HIV epidemic over 10 years, with reductions in new HIV infections among sex workers and their clients estimated at between 33% and 46%.

“This is a huge achievement built on the advocacy of sex workers and their supporters over many years and the result of best practice collaboration between the government and sex workers,” said the Chief Executive Officer of Scarlet Alliance, the Australian Sex Workers’ Association, Jules Kim. “Decriminalization means that sex workers in the Northern Territory are able to access justice in the event of a crime without fear of being arrested. We will also be able to implement occupational health and safety strategies and prioritize the health and safety of all those involved in sex work.”

Kenya: Advocates argue that HIV criminalisation law is impeding progress in Kenya’s response to the epidemic

Group criticises sexual offences law in war against HIV

In Summary

  • Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.
  • But the state argues that the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights

The government could be shooting itself in the foot in the ongoing efforts to contain the spread of HIV and Aids by allowing the Director of Public Prosecutions (DPP) to arrest and commence criminal trial against those suspected of spreading the virus.

The state has been calling on the public to come out openly and seek testing and treatment.

However, recent events where the DPP wants a 42-year-old woman in Nakuru jailed for breastfeeding and infecting her neighbour’s nine-month-old baby with HIV last year, could undo the gains already made in containing the spread of the virus.

It is feared that such prosecution may discourage others from going public about their status and seeking treatment among other state interventions aimed at curbing the virus.

The law under which the woman was charged, Section 26 of the Sexual Offences Act, is also the subject of litigation at the High Court by HIV positive persons (PLWHA) who want it repealed.

The woman’s lawyer, Ms Jenifer Mugweru, is appealing the orders issued by a magistrate on October 18, requiring her to provide her blood samples to be tested for HIV.

INFORMED CONSENT

The woman who is out on a Sh50,000 bond is said to have committed the offence on September 18, 2018 at Gichobo area in Njoro Sub-County.

The HIV and Aids Prevention and Control Act (Hapca), which has been in force since 2009, provides at Section 14 that, “No person shall undertake an HIV test in respect of another person except: (a) with the informed consent of that other person.”

Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.

“Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed,” the HIV and Aids Tribunal ruled in one of its decisions.

In their application challenging Section 26 of the Sexual Offences Act, and its subsections, people living with HIV and Aids argue that it could undermine government efforts to eradicate or contain HIV and Aids spread.

They have interpreted section 26 of the Sexual Offences Act to imply that a person living with the disease is a potential criminal, who needs to be prosecuted and jailed, should it be established that he or she is “spreading” HIV/Aids.

POTENTIAL CRIMINAL

Section 26(1) of the Sexual Offences Act provides that “any person who, having actual knowledge that he or she is infected with HIV or any other ‘life threatening’ sexually transmitted disease, intentionally, knowingly and wilfully does anything or permits the doing of anything which he or she knows ….

“ … (a) Will infect another with HIV or any other ‘life threatening’ sexually transmitted disease … Shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life.”

The effect of this section and its subsidiary sections is that it perpetuates discrimination, stigma and fear against persons with HIV/Aids.

Living with the disease makes a person a criminal waiting to be arrested, prosecuted and visited with a lengthy jail term.

“It therefore discourages people from testing for HIV, seeking treatment and disclosing their status,” the litigants said in court papers.

According to people living with HIV and Aids, knowledge of one’s HIV status is important because it allows one to seek treatment and greatly reduces if not eliminates the risk of further transmission.

It also makes it possible to employ a range of other transmission prevention strategies and can improve expansion of HIV diagnosis and treatment, therefore a necessary condition for a successful HIV response.

“Section 26 of the Act thereby threatens progress gained and severely constrains further progress in Kenya’s response to the HIV epidemic,” the PLWHA argue.

PRIVACY

The section, according to the group, also intrudes on the privacy of marriage between consenting parties, it creates stigma and discrimination against couples in which one partner has HIV and the other does not (discordant couples).

It criminalises consensual physical intimacy between partners, threatens to separate families by removing a parent or partner from the family to be incarcerated (it criminalises procreation between discordant couples).

The group says the section creates stigma and discrimination against breastfeeding whereas this is the means by which most people in Kenya nourish their infants, and the only practical means by which to do so for many as well as the medically suggested means including people with HIV.

“And in that it threatens to separate children from their parents by removing the parent from the child to be incarcerated for lengthy periods on the basis of their HIV status, whereas it is in the presumptive interest of the child to be raised by both parents,” said PLWHA in court papers.

The group also takes issue with the meaning of the term “life-threatening sexually transmitted disease” or what constitutes it, saying it has not been explained in the Act, and the law is therefore vague in that respect.

VICTIM’S INTENTION

The state in defending the law disagrees with the arguments being advanced by the group, saying the challenged provisions are clear, precise, unambiguous, and do not disclose any infringement of their constitutional rights.

The group wants the court to declare Section 26 of the Sexual Offences Act unlawful. The case is still pending in the high court.

Further, that it is important to appreciate why section 26 of the Sexual Offences Act was enacted.

“While examining whether a particular law is unconstitutional, the court must have regard not only to its purpose but also its effect. The purpose of section 26 of the Sexual Offences Act was to address the intentional spread of HIV and Aids,” state counsel Anne Wanjiku Mwangi in court papers.

Despite the opposition from the State, persons living with HIV and Aids want the courts to declare section 26 of the Sexual Offences Act unlawful.

US: Growing number of Ohio public health experts and advocates call for reform of HIV criminalisation law

Experts: Ohio law on HIV status disclosure hurts public health

COLUMBUS, Ohio — A growing number of Ohio public health experts and advocates are now working to stop what they call the criminalization of HIV.

Daphne Kackloudis, Chief Public Policy Officer at Equitas Health, told News 5 Ohio’s current law charging someone who fails to disclose their HIV status with a felony in all cases is hurting public health.

Kackloudis said the threat of up to eight years in prison is causing too many people to avoid getting tested, because according the current law if someone doesn’t get tested, and isn’t aware of their status they can’t be prosecuted.

“It is a disincentive for someone to get tested, and that’s not good for an individuals health and the public health,” Kackloudis said.

“We want them to get on antiretroviral therapy to get as healthy as possible, and be virally suppressed so they can not transmit HIV.”

Kackloudis believes the potential penalty should be moved back to a misdemeanor in cases where those charged are on HIV medication and are a far less infection risk.

She said the current law allows someone to file charges against an HIV-positive partner, even if they didn’t get the virus from that partner.

Kackloudis is a member of the Ohio Health Modernization Movement , which is also making an effort to change Ohio law.

She also made it clear she fully understands why the law was created, and said the proposed change in the law would still allow for full prosecution of those who willingly give others HIV.

Graig Cote of Columbus, who has been HIV positive for 33 years, told News 5 changes in the law are needed because it’s too difficult to prove if someone made proper disclosure of their status or not, unless there was a witness or if it was in writing or recorded.

“If we don’t change the laws, people don’t get tested, if they don’t get tested they don’t know if they’re HIV positive,” Cote said.

“We’re not asking for a free ride, we’re just asking that the laws catch up with the science.”

Cote said he hopes the proposed change in Ohio law is ready to present at the statehouse in the first quarter of 2020, and again made it clear the effort would not keep those who willingly spread HIV from facing full prosecution.

“People who want to infect somebody need to be stopped, there’s no dispute about that,” Cote said.

Ireland: Review conducted by Law Reform Commission to look at how non-disclosure might influence consent

‘Should society criminalise intimate relations between people in their mid-teens?’

Conference hears age of consent is higher in Ireland than most European countries

The ways in which deception or pressure might negate consent are among the matters to be considered in a major review of sexual offences laws.

The review, being conducted by the Law Reform Commission, will also look at the age of consent, which is higher in Ireland than in most European countries.

NUI Galway lecturer in law, Tom O’Malley, who is a member of the commission, told its annual conference that the issue of consent remains a very contentious topic and one that many countries are trying to grapple with.

“When you have more subtle forms of pressure being applied, does that negate consent?”

He asked: What if a teacher or university lecturer told a student they would be failed unless the student slept with the lecturer, and the student did. “Is that rape?”

Suppose that a lecturer said a student would be given a first, rather than a 2.1, if the student slept with the lecturer, “would that be the absence of consent?”

“Those are the types of difficulties that are there and we have to grapple with them,” he said.

Speaking to The Irish Times, Mr O’Malley said that as part of its review, the commission would also be looking at how deception might influence consent.

For instance, he said, what if a man had not told a woman he was HIV positive prior to having sex with her. Would that affect the issue of consent and allow the man be charged with rape? Of if a man had promised a woman he would marry her, and then did not?

Another matter that will be looked at, he told the conference, is the age of consent. At the moment it is 17 years, and 18 years in cases where one of the parties is a person in authority.

“The real issue”, he told the conference, is whether society should criminalise intimate relations between people in their mid-teens.

While the age of consent is high in Ireland in comparison with most European countries, the Criminal Law (Sexual Offences) Act 2017 “mitigates the rigours of the law” by exempting a person who is younger or less than two years older than the child they had sex with, provided the child was between 15 and 17 at the time, and consented.

The commission will also look at the law on incest, which criminalises vaginal sexual intercourse between blood relatives.

Consenting intercourse between an adult brother and sister, even if there is no risk of pregnancy, is a crime. “One might question if such conduct should be criminal.”

As well as his work with the commission, Mr O’Malley is also the chairman of a working group set up by the Department of Justice and Equality which is reviewing the investigation and prosecution of sexual offences. It is due to report later this year, he said.

The chief executive of the Dublin Rape Crisis Centre, Noeline Blackwell, said sexual offences were different to most other types of crime as they involved activity that is normally seen as healthy and good. Sexual crimes are particularly “disruptive” for the victim, she said.

Victims are badly served by the criminal justice system and the fact that approximately 90 per cent of sexual offences are not reported damages the rule of law, she said.

From the point of view of victims, the criminal justice system remains “a lonely and a difficult and a hostile place.”

Mexico: People with HIV in Jalisco can now marry as long as couple sign letter confirming awareness of HIV status and attend training on risks

People with HIV can now get married in Jalisco

If the couple signs an agreement, where both parties are aware of the responsibilities, scope and effects of chronic or contagious diseases such as HIV, they can marry, as established by the laws in Jalisco.

The Congress of Jalisco approved Wednesday changes to the Civil Code and the Civil Registry Law so that couples with diseases can get married.

Medical exams will continue as a requirement to get married, but couples must attach a signed letter stating they know the extent of the disease. They will also have to present a letter, issued by a public health institution, attesting that the couple attended a training on the risks, symptoms and effects of the condition.

This reform seeks to guarantee the free development of personality and protect human rights in Jalisco.


Personas con VIH ya pueden casarse en Jalisco

Si la pareja firma un acuerdo, donde ambas partes estén conscientes de las responsabilidades, alcances y efectos de las enfermedades crónicas o contagiosas como el VIH, puede contraer matrimonio, así lo establecerá las leyes en Jalisco.  

El Congreso de Jalisco aprobó este miércoles cambios al Código Civil y la Ley del Registro Civil para que las parejas con enfermedades puedan casarse.

Los exámenes médicos continuarán como un requisito para contraer matrimonio, pero las parejas deberán anexar un escrito firmado donde afirmen conocer los alcances de la enfermedad. Además tendrán presentar una carta, emitida por una institución de salud pública, que dé fe que la pareja asistió a una capacitación sobre los riesgos, síntomas y efectos del padecimiento.

Esta reforma busca garantizar el libre desarrollo de la personalidad y proteger derechos humanos en Jalisco. 

Ukraine: The Ukrainian Helsinki Human Rights Union raises awareness on the need to decriminalise HIV-status

Valeria Rachynska: “We must finally stop the witch-hunting and decriminalize HIV-status”

On 18 October, 2019 in the premises of IA “Glavkom” UHHRU conducted the press-conference on the topic: “Why Ukraine must decriminalize HIV-status”. The main topics of the presentations included: raising awareness on actual HIV statistics in Ukraine, issues of overcoming stigma in relation to people living with HIV (PL HIV), and position of the lawyers regarding legal criminalization of HIV status (article 130 CC of Ukraine).

Oleksandr Pavlichenko, UHHRU Executive Director: “Despite the fact that recently we achieved significant success in treating HIV in Ukraine, obsolete legislative provisions are still in force – article 130 of the CC. This article treats all Ukrainian citizens with HIV+ status as potential criminals, envisages punishment of up to 3 years of imprisonment and gave base for dozens of court decisions each year. From the legal point of view of the European Convention on Human Rights the formulation incorporated in this article is vague, it cannot be considered as a law, and needs to be amended”.

Olena Stryzhak, Chairman of the Board of CO “Positive Women”: “Our organization for 5 years already advocates the amendments to the legislation and 3 years ago we submitted the package of amendments in which we insisted on decriminalization of HIV-status. All years of our work, both as service organization and as organization protecting human rights, prove that HIV stigma and criminalization lead to the situation where people are afraid of disclosing the status, which further hinders effective treatment and socialization of PL HIV”.

Valeriya Rachynska, Director of the Department for Work with the Regions, “All-Ukrainian Network of People Living with HIV/AIDS”: “First of all, I would like to mention that in addition to legislative problems there is one more problem – general indifference of mass media to highlighting the situation with HIV/AIDS. If that was not the case everybody would know that in July 2018 there was an official WHO Statement stressing that people having HIV status, who undergo antiretroviral therapy and have minimal viral load have practically no chances for HIV sexual transmission. The risk is equal to zero. In Ukraine, 92% of PL HIV, which take ART, have minimal viral load. It is the obsolete legislative provision that additionally stigmatize them and assaults their dignity. We must finally stop the witch-hunting and decriminalize HIV-status”.

Svitlana Moroz, Chairman of the Board of Eurasian Women’s Network on AIDS: “Our organization pays special attention to the problem of HIV-status criminalization. We are monitoring 12 countries in the region and have information of absolutely outrageous cases related to PL HIV criminalization. For example, when raped women is afraid to apply to court against the rapist, because she has positive status. Current legislation not only makes criminals out of HIV+ people, it shifts the blame for getting infected exclusively on PL HIV and creates wrong perception of the citizens’ protection. Following this logic, the state shall prohibit discordant couples and HIV+ women giving birth. Besides, Ukrainian criminal legislation contradicts the Law on AIDS where a lot is said about counteracting PL HIV stigmatization. Article 130 of the CC of Ukraine fosters stigma, hinders access to treatment, and in general does not takes into account scientific achievements in fighting HIV/AIDS during the recent 20 years”.

Justification of the legal position of CO “Positive Women” regarding immediate HIV status decriminalization can be found at the link.

Ukrainian Helsinki Human Rights Union implements the project the project “Development of the legal network for protection of the people living with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.

US: Florida HIV Criminal laws undermine public health goals and must be modernised

HIV in Florida is on the rise. Here’s how we can change that.

The state has mishandled the epidemic in the past, but lawmakers can get it right now

Published Sep. 19

Last week, Floridians learned that as governor, Rick Scott rejected $70 million in federal funding to fight the state’s HIV epidemic between 2013-2017. During those years, New York invested heavily in testing, treatment, and services for people living with HIV—and reduced its rate of new diagnoses by 30 percent. Of the 10 states with the most annual HIV diagnoses, only Florida saw an increase—a whopping 11 percent. 23,413 Floridians have had their lives altered as a result.

Florida’s new governor, Ron DeSantis, just announced that his administration will lead a “robust program” to reduce HIV and AIDS in the state. HIV advocates will work with him to fulfill this promise.

Yet ending the epidemic in Florida requires more than promises. Access to care and services for people living with HIV is key. Modern antiretroviral treatments reduce the amount of the virus in the body so low tests can’t detect it. After six months, the person cannot transmit HIV to their sexual partners as long as they stay undetectable. The CDC confirmed that maintaining an undetectable viral load is 100% effective at preventing HIV transmission, even without condoms. Ensuring every person with HIV is diagnosed and is linked to care and support to stay in care (stable housing, mental healthcare, transportation for medical appointments, etc.) keeps the person with HIV healthy and prevents transmission.

Further, Florida legislators must align our laws with modern science. Currently, outdated laws criminalize people with HIV for consensual sex. People can be convicted of a felony even when no transmission occurred or was possible. One accusation can ruin a life.

These laws are different from other criminal laws. The burden of proof lies on the person living with HIV to prove they told their partner. But intimate conversations rarely take place in writing. And no intent to “harm”–or actual harm–is required for conviction. Disputes about facts routinely work in favor of the accuser, ruining lives. Headlines about such cases further stigmatize HIV, driving people living with HIV back underground, afraid to disclose or sometimes even to get medication because of the legal and social consequences of criminalization and stigma.

These laws undermine the public health goals of testing and treatment. The National HIV/AIDS Strategy recommended that state governments review their criminal laws for this very reason. And a 2017 study authored by CDC staff found that laws criminalizing HIV have “no detectable prevention effect.”

Florida government can right this wrong by funding care and services and by modernizing the state’s criminalization laws. The Florida HIV Justice Coalition, a group of people living with HIV and organizations working with communities affected by HIV, formed to help legislators align our laws with science and public health.

Together, we can make Florida a state where no one is afraid to seek HIV testing or care.

Jennie Smith-Camejo, of Miami, is communications director for Positive Women’s Network, USA. Kamaria Laffrey, of Winter Haven, is the Southern engagement community coordinator for the Sero Project. Christine Hanavan, MSW, of Orlando, is a community organizer for Sex Workers Outreach Project Behind Bars. Alejandro Acosta, of Fort Lauderdale, is the HIV advocacy manager for Equality Florida.

 

Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.


À lire aussi : Why a fulfilling sexual life with HIV matters


“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.

US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Copyright © 2019 The Associated Press