A well-meaning law that created stricter penalties for people who knowingly spread HIV to others should be revised to destigmatize those with the illness, says state Rep. Jim Moeller, D-Vancouver. Moeller has introduced a bill to remove references to HIV in the state’s criminal assault laws while also preserving the tough penalties for criminals who intentionally infect another person with a serious disease.
US: Interview with Senator Matt McCoy on modernising Iowa's HIV criminal law
“We have a situation in Iowa where the law did not differentiate between exposure and transmission,” says Sen. Matt McCoy. He’s introducing a bill that he says will modernize the law and recognize that people with HIV can lead healthy lives. “What we wanted to do was de-stigmatize HIV,” says McCoy. ”We have a separate statute for HIV. We don’t have a separate statute for tuberculosis or other contagious diseases.”
The Register's Editorial: It's time to rethink Iowa's HIV sex law
When you look at the size of the Iowa Code, it’s obvious state officials excel at creating new laws. They are champing at the bit to add more this legislative session. If their goal is really to make Iowa a better place to live, our elected officials should muster as much enthusiasm for repealing problematic statutes.
Des Moines Democratic Senator Matt McCoy wants to change Iowa's HIV disclosure law
DES MOINES, Iowa (AP) – A Des Moines lawmaker plans to introduce legislation that would reduce penalties for HIV-positive people who have sex without disclosing their health condition. Des Moines Democratic Sen. Matt McCoy says he wants to change the law to reduce penalties and focus on people who purposefully infect others with the virus.Under the current law, HIV-positive people who have sex without disclosing their condition can face up to 25 years in prison if convicted, regardless of whether someone is infected. “That is truly a Draconian punishment,” McCoy said. “Being diagnosed with HIV is no longer the death sentence it once was.”
McCoy wants to change the law so someone convicted of intentional or attempted transmission of the virus could be sentenced to a maximum of five years in prison and face a $750 to $7,500 fine. That would put HIV in the same criminal category as transmitting any other communicable disease, such as Hepatitis C. McCoy also wants to end a requirement that people convicted must be placed on a sex offender registry for life.
The Legislature unanimously approved the current law in 1998. The law was approved, in part, as a reaction to a 1996 case in New York where a man intentionally infected 13 women and girls with HIV. Among those voting for the Iowa law was McCoy, who is openly gay. McCoy said the current law made sense based on what was known about HIV and AIDS, but times have changed. “The fact that I’m gay has a real impact on my sensitivity to this issue,” McCoy said. “Clearly, I’m extremely impacted by the gay community and sensitive to people living with HIV. “I just feel it’s the right thing to do for this group of people that have been so stigmatized.”
The proposed changes to the law would take into account whether an HIV-positive person took steps to prevent transmission of the disease, such as using a condom and taking medication that makes it less likely that a sexual partner would be infected. Medications have dramatically improved over the decades, and with proper treatment HIV-positive people can greatly reduce the amount of virus in their blood and make transmission of the disease unlikely.
Randy Mayer, who heads an Iowa Department of Public Health bureau that oversees HIV, said the best way officials can reduce the spread of HIV is to encourage partners to disclose their HIV status to each other. That’s why he agrees with McCoy that the law should be changed. “The law was originally set up to encourage disclosure, but it’s doing the opposite,” he said. “The law is frequently cited by people we work with as something that creates stigma and distrust of the system. … It’s what’s creating stigma.”
McCoy has previously tried to change the law but his bills have become stuck in committees. This time, he said he has support from health care professionals, HIV/AIDS advocacy groups, law enforcement and the Iowa attorney general’s office. Since the Legislature approved the Iowa law, 25 people have been convicted, though only two of those infected partners with HIV. Of those 25, 12 people remain in prison, four are on parole, one is on probation and a trial for one person is pending.
Tami Haught, who became HIV-positive 19 years ago after being infected by her husband, said she supports McCoy’s proposal. Haught works with Community HIV/Hepatitis Advocates of Iowa, which helped draft McCoy’s bill. Haught’s husband became infected through a blood transfusion in the 1980s and died of AIDS in 1996. They married after he was infected. “It takes two people to talk about protection and disclosure. I never had the discussion with my fiance,” she said. “That’s why I hate this law because it puts the entire burden on the HIV person.”
Switzerland: New Law on Epidemics delayed due to referendum, change in HIV law still likely
The road to law reform can be long and rocky, especially in a direct democracy like Switzerland. The proposed changes (for the better) to a law that has been used to prosecute people with HIV for potential exposure even when their partner consented to unprotected sex, and/or when there was no risk, first agreed upon last March will now be put to a popular vote.
The revised Law on Epidemics will only criminalise the intentional spread of a communicable disease.
Last week, the initiative committee for a referendum on the new Law on Epidemics brought to the Federal Chancellery over 80,000 signatures from Swiss citizens unhappy with the law.
According to my sources in Switzerland, the public debate has not been about the change in the law relating to prosecutions for HIV exposure or transmission. In fact, the majority of political parties, the government, all the health institutions, and all the Cantons favour the new law.
Rather, the referendum demand was a result of strong opinions over those parts of the law dealing with mandatory vaccinations and sex education in schools.
The date for the referendum is not yet clear, although it is possible that it will take place before the end of 2013. Last November, the same group behind this referendum forced a similar vote on the new law on animal medicine and lost by a large majority (68%), which is encouraging.
Another encouraging sign is that earlier this month, the German-language Tages Anzeiger (Daily Gazette) published a broadly positive article explaining the changes in the law that relate to HIV. I have (unofficially) translated the into English, and it is reproduced below.
The federal government plans to decriminalise the transmission of AIDS
Claudia Blumer, Daily Gazette, 01/11/2013
Switzerland treats HIV-positive people who infect a sexual partner especially harshly. Following international criticism, it will change the criminal code.
Today someone who negligently, willfully or maliciously infects someone with the AIDS virus is punished by up to five years in prison. In the future only transmission of the virus with “malice aforethought” will punishable. The terms “willfully” and “negligently” have been deleted from the revised Law on Epidemics, which includes an amendment to Article 231 of the the Criminal Code. The law was supposed to come into force in early 2013. Due to the referendum, voters are now expected to decide in June.
Parliament adopted the Law on Epidemics in the autumn of 2012. The change in the criminal code was a resul of long debate in the lower houses. Senator Urs Schwaller (CDP) explains why he agreed to change the provision only to “malice aforethought”: “The offender, in this case, would have acted with intent to harm. If they had merely been negligent, this could be prosecuted under general criminal statutes for personal injury. ”
A relaxation of the criminal law also makes sense for preventive-medical reasons, notes Ticino MP Dr Ignazio Cassis (FDP). According to current scientific knowledge prosecuting HIV-positive people is counter-productive because it stigmatises the disease and those affected by it. This may result in greater harm to public health if we do not dare speak openly about the disease. “The general sense of justice collides at this point with the pragmatic preventive medical approach,” says Cassis.
36 convictions since 1990
The Swiss law on HIV transmission has become more restrictive over the past 20 years. At the beginning of the 90s, Article 231 – which covers the spread of disease – was used for the first time in connection with AIDS. Since then, according to Aids-Hilfe Switzerland, there have been 36 guilty verdicts based on actual or attempted transmission of HIV through sexual contact. A federal court ruling from 2008 states that an HIV-positive person can be punished even if they knew nothing of their infection.
The number of convictions in relation to the number of HIV-positive people is higher in Switzerland than in most other European countries. In this country, sometimes even people living with HIV have been punished even if the unprotected sexual intercourse took place with the partner’s full knowledge and consent to the risk of infection, or when no one was infected, or if the HIV-positive person was rendered uninfectious by antiretroviral therapy. The reason for the legal interest is because Article 231 is about “public health”: it does not protect individual interests, but those of the community. The consent of the partner therefore doesn’t protect the HIV-positive person from prosecution. Neighbouring European countries apply laws relating to personal injury or death, resulting in fewer convictions. But many countries are in the process of revising their criminal provisions, says Marcel Niggli, professor of criminal law at the University of Freiburg. The trend is towards decriminalisation.
Laws easing “overdue”
The Swiss law on HIV transmission has been repeatedly criticized by international organisations. However, Switzerland has not been put under political pressure, says Ignazio Cassis. Yet he has heard informal criticism from abroad, for example, at international AIDS conferences. He has been exposed to, among other things, calls from UNAIDS, an agency of the United Nations, for the decriminalization of HIV transmission. In a position paper it calls on governments not to create HIV-specific laws. Switzerland has also been criticized by the UN Human Rights Council. As part of the Universal Periodic Review it criticized Switzerland in an October 2012 report, for punishing HIV-positive people regardless of the specific situation. This is contrary to the prevention strategies. The criminalization of HIV transmission is ineffective and causes only the stigmatization of those affected.
The amendment was not informed by the Federal Health Office, or by a long-standing demand by the Federal Commission for Sexual Health and Aids-Hilfe Switzerland Switzerland. Federal Commission for Sexual Health President Pietro Vernazza has said that the decriminalization of unprotected sex for people with HIV has been overdue since the late Nineties, especially if they were successfully treated with antiretroviral therapy: “Studies have proven the effectiveness of the therapy. During treatment, an HIV-positive is not contagious.”
Judge Orders Alabama to Stop Segregation of HIV Prisoners in Alabama
Decision from ACLU Lawsuit Paves Way for HIV Prisoners to Have Access to Services, Classes and Training Available to Other Prisoners FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org MONTGOMERY, Ala. — A federal judge today ordered Alabama to stop segregating prisoners living with HIV, ruling that the practice violates the Americans with Disabilities Act (ADA).
Australian Government buries report on laws and policies that negatively impact the HIV response, including HIV criminalisation
Federal Health Minister Tanya Plibersek has refused to release a report which HIV advocates and health professionals say is vital to meeting a target to reduce HIV infections in Australia. The report is the result of three years of work by a Ministerial Advisory Committee set up to examine legal issues, discrimination and stigma in different states arising from laws such as criminalisation of non-disclosure of a person’s HIV status. The report, which has the lengthy title of the Ministerial Advisory Committee on Blood Borne Viruses and STIs (MACBBVS) Legal Working Group Report, was finalised earlier this year and sent to the minister for final consideration.
Reagan AIDS Commission member, Dr Colleen Conway-Welch, recommends modernisation of US HIV-specific laws
“Most of the criminal laws were put into place in the early 90s because people were scared, and it would make sense to recommend that they go back,” said Dr Colleen Conway-Welch in a phone interview with The American Independent. “In medicine now, there is a real push for evidence-based interventions, and I think that for those laws that were not evidence-based, I think it would be time to go back.”
Conway-Welch’s statements are being received with praise by anti-criminalization advocates. Rep. Barbara Lee (D-Calif.) — who has sponsored legislation that would encourage reform of state and federal HIV policies — said: “I’m very please she has taken this bold step to join us. It is a very important step. I look forward to working with her.”
US: Anti-criminalisation advocacy goes mainstream for World AIDS Day
World AIDS Day saw unprecedented media attention on advocacy against HIV criminalisation in the United States.
Following on from the flurry of media interest stemming from advocacy at the International AIDS Conference held in Washington DC this summer, including a major piece on CNN’s website, CNN’s Dr. Sanjay Gupta interviewed Nick Rhoades and Robert Suttle.
In case the video disappears in the future: here’s the transcript.
Coming up, when sex, even consensual sex becomes a crime. We’ll explain.
(COMMERCIAL BREAK)
GUPTA: This weekend marks World AIDS Day, and this weekend, we got some, what I would consider, extremely troubling news, perhaps surprising as well.
Listen to this closely: more than a quarter of all new HIV infections in this country are in 13 to 24-year-olds. And most of those young people don’t even know that they are infected.
Now, as you know, there’s always been secrecy around HIV/AIDS. But it also brings up a tough issue. More than half of the United States’ states have laws that make it a crime for people with HIV to not disclose it when they have sex. Now, some say that’s only fair, but others say making this crime not just scares people and keeps them from being tested or seeking care.
(BEGIN VIDEOTAPE)
GUPTA (voice-over): Four years ago, Nick Rhoades, an HIV positive, 34- year-old, living in Iowa, met a younger man. They hit it off, and had sex.
NICK RHOADES, CONVICTED OF CRIMINAL TRANSMISSION OF HIV: My viral load is undetectable. I wore a condom. I did everything I could to protect him and myself.
GUPTA: What Rhoades didn’t do was tell his friend about having HIV. And when the friend out later, he sought treatment at a local hospital. And the hospital employee called the police.
Rhodes was arrested, charged with criminal transmission of HIV and after pleading guilty on the advice of his lawyer, he was sentenced to 25 years in prison.
RHOADES: I served over a year locked up, some of it in maximum security and some of it in solitary confinement. And I still have to register as a sex offender for the rest of my life. GUPTA: Scott Schoettes, an the attorney for Lambda Legal, is Rhoades new lawyer. He is asking the Iowa Supreme Court to overturn Rhoades conviction.
SCOTT SCHOETTES, HIV PROJECT DIRECTOR, LAMBDA LEGAL: This case in particular was compelling, it really was a good example of the ways in which these laws are misused by the justice system to punish people in very severe ways for things that should not even be crimes.
GUPTA: About a thousand miles away in Louisiana, a similar case.
Robert Suttle said his partner knew Suttle had HIV, but after a messy break-up, his ex went to the police. Suttle was charged of intentionally exposing the man to the AIDS virus.
ROBERT SUTTLE, CONVICTED OF INTENTIONAL EXPOSURE TO AIDS VIRUS: I was arrested at work and I was booked.
GUPTA: To avoid a possible 10-year sentence, Suttle entered a plea. And he spent six months in jail.
Under the picture on his driver’s license in bold red capital letters, it says “sex offender”. He has to carry that tag for 15 years.
SUTTLE: There are a lot of good people in the world that are HIV positive, but that doesn’t mean that they are criminals. It doesn’t mean they have malicious intent to hurt anybody. They’re just trying to deal and cope with having this disease. And yet, there’s these laws that make us look like we’re criminals.
GUPTA: At least 34 states and two U.S. territories have laws that criminalize activities of people with HIV. Not disclosing your status to a sexual partner, that can land you in jail. So can spitting on somebody or biting them if you have the disease.
Often, it doesn’t matter if you actually transmit the virus. In fact, the man that slept with Rhoades never got HIV.
REP. BARBARA LEE (D), CALIFORNIA: Jail time is not warranted in these cases.
GUPTA: Last year, Congresswoman Barbara Lee introduced legislation to get rid of these state laws.
LEE: Many offenses receive a lesser sentence than the transmission of HIV. And these laws, again, they’re archaic. They’re wrong. They are unjust. And they need to be looked at and taken off of the books.
GUPTA: Prosecutor Scott Burns agrees that the laws need updating, but he also says repeal would be a mistake.
SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL DISTRICT ATTORNEYS ASSOCIATION: Any time that someone knows they have HIV or AIDS doesn’t disclose that to the other party, I think, is wrong. I think there should be a sanction. I just don’t think you do that in America. And I think most prosecutors would agree with me. GUPTA: Rhoades and Suttle now work for the Sero Project. It’s a group that fights stigma and discrimination, trying to make the case that what happened to them should never happen to others.
SUTTLE: We cannot sit and ignore the fact that this is happening.
RHOADES: I have to fight for this, and I think there are a lot of people that are fighting, as well.
(END VIDEOTAPE)
GUPTA: Now, I should say the accuser in Nick’s case didn’t want to talk to us. And the identity of Robert’s accuser is sealed as well by court order.
In addition, a local Iowa TV station, KWWL, in the county where Nick Rhoades was prosecuted, led with this fantastic interview with Tami Haught from CHAIN (Community HIV/Hepatitis Advocates of Iowa Network), who is leading Iowa’s campaign to modernize the HIV criminalization law.
Finally, yesterday saw the US National Dialogue on the Criminalization of HIV Transmission, Exposure and Non-disclosure: The role of the States and the Federal Government, on Capitol Hill in Washington DC. I’m sure there will be more written about this, but I’m including below a collection of all the tweets and images created live to give you an idea of the richness of the conversation, who was there, and who wasn’t. Thanks especially to Darby Hickey for summarising the dialogue so well.
HIV/AIDS Rally: Iowans Speak Out Against 709-C
Since the 1990’s, Iowa Code 709-C has made failing to disclose your HIV status a class “B” felony, punishable by up to 25 years in prison. It’s a law that HIV and AIDS advocates hope legislators change in 2013. Laura Friest has lived with HIV for more than 13 years.