The Women’s Legal Education and Action Fund (LEAF) has written a position paper proposing a feminist approach to law reform on HIV non-disclosure.
LEAF supports the federal government’s recent prosecutorial directive intended to reduce the over-criminalization of those living with HIV/AIDS. Canadian law currently criminalizes HIV non-disclosure where a person who is HIV-positive exposes their sexual partner to a significant risk of serious bodily harm—which in law includes a realistic possibility of HIV transmission. Most cases are prosecuted as aggravated sexual assaults, which is punishable by a maximum life sentence. As of December 2018, the Attorney General of Canada will not prosecute charges of HIV non-disclosure if a person living with HIV has maintained a suppressed viral load, used condoms, or engaged only in oral sex.
Women’s rights are also engaged by this area of law. Women are often complainants in these cases—nearly 20% of women with HIV report having acquired the virus through sexually coercive experiences. And HIV non-disclosure prosecutions have led to an increase in women, particularly marginalized women, being convicted of aggravated sexual assault. Almost 80% of women living with HIV are Indigenous or racialized, and they already face serious over-criminalization. Prosecuting HIV non-disclosure as a sexual offence has distorted concepts about sex and consent that are foundational to women’s equality – in an attempt to fit HIV non-disclosure into sexual assault law, courts have narrowed the scope of sexual activity that requires consent in law and risked introducing discriminatory myths and stereotypes into the criminal trial.
This is why LEAF is recommending further reforms that will ensure meaningful protections for women’s equality rights—especially for marginalized women. Most importantly, HIV non-disclosure should not be treated as a sexual offence. This would protect the equality-enhancing purpose of sexual assault law by affirming a concept of consent that is rooted in sexual autonomy. Where HIV non-disclosure results in actual transmission of the virus, prosecution may be appropriate under non-sexual Criminal Code offences. This would reduce the punitive over-criminalization of people living with HIV, while protecting women who contract HIV from partners who take no care to prevent transmission. There are no Canadian cases where an accused responsibly used a condom or had an undetectable viral load and the virus was nonetheless transmitted. Finally, prosecutorial guidelines should ensure that HIV positive women who are victims of violence, coercion or sexual assault are not prosecuted for their failure to disclose their HIV status when that failure is a result of the violence or threats of violence committed against them.
“In addition to raising significant concerns for the equality and dignity of those living with HIV, the law of HIV non-disclosure also impacts women’s equality rights,” says Karen Segal, LEAF Counsel. “LEAF seeks to ensure that women’s equality is specifically attended to in any future law reform initiatives, so that women are protected from sexual violence and from punitive over-criminalization, and so that the right to bodily and sexual autonomy remains the foundational concept in the law of sexual offences.”
- Read LEAF’s position paper here
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. For more information, please visit www.leaf.ca.
For media inquiries, please contact:
Karen Segal, Counsel
Women’s Legal Education and Action Fund
Source Michigan Coalition for HIV Health and Safety – Press release January 9, 2019
MICHIGAN MAKES STRIDES IN MODERNIZING HIV DISCLOSURE LAW
January 8, 2019 — LANSING, MI. After five years of work by the Michigan Coalition for HIV Health and Safety with the Michigan Department of Health and Human Services (MDHHS), advocates living with HIV and other national and local partners, Michigan’s HIV disclosure law has been modernized.
The new legislation, HB 6020 and HB 6021, was introduced by State House Representative Jon Hoadley (D-Kalamazoo) and was supported by the Republican majorities in the House and Senate. After passing both chambers, the bill was presented to Governor Snyder who signed the bill December 27, 2018.
Previously, a person living with HIV (PLHIV) could face a felony up to 4 years in prison for not disclosing their HIV status prior to any type of sexual penetration. The degree of risk of HIV transmission was not a factor in the statute; including circumstances where there was no HIV transmission, nor even any risk of HIV transmission.
The amended law removes those living with HIV who are on treatment and virally suppressed-posing no risk of transmitting HIV-from being subject to prosecution. It also narrows the scope of sexual activities subject to prosecution, from “any type of sexual penetration to only “vaginal and anal sex.” Oral sex, which poses no or negligible risk of transmission regardless of whether the person with HIV is on treatment or virally suppressed, is no longer subject to prosecution.
For PLHIV who are not on treatment and not virally suppressed, it remains a felony if they do not disclose and do transmit HIV sexually. If they do not disclose and do not transmit, the penalty has been reduced to a misdemeanor in the amended statute. Any person with a “specific intent” to infect another person also remains subject to prosecution.
“The Michigan Coalition for HIV Health and Safety (The Coalition) salutes and applauds Rep. Hoadley’s effort in progressing a decades old law and thanks our partners in the coalition, the Sero Project for their guidance and MDHHS for leading the effort,” states Kelly Doyle, Executive Director of CARES (Community AIDS Resource and Education Services of Southwest Michigan). “Rep. Hoadley has worked with coalition partners to seek advice and leadership from PLWH and those who provide care for PLWH throughout the state.”
“I’m encouraged that the legislature understands the advances in HIV science and look forward to continuing efforts that support PLWH,” states Pat Clark, advocate living with HIV.
“The previous law needed immediate attention and updating from its inception 30 years ago,” said Curtis Lipscomb of LGBT Detroit. “As a partner of The Coalition, modernizing Michigan’s HIV disclosure law significantly impacts our state’s residents who are affected by HIV and AIDS. Although the new law doesn’t wave the magic wand to solves all immediate concerns, we have made progress that makes Michigan safer and smarter.”
The new law reflects the significant advances in HIV science, particularly concerning how viral suppression impacts transmission risks. Viral load tests measure the amount of HIV in the blood of a person living with HIV; effective HIV treatment can suppress the level to below the limits of detectability by contemporary technology. When the viral load cannot be detected, the person with HIV is not at risk of transmitting HIV to their sexual partners.
“My hope is that The Whitmer Administration invests in educating Michiganders living with HIV about the modernized law and the importance for getting tested for HIV,” Lipscomb adds. “The work of The Coalition will continue to modernize and improve this bill to include PrEP and condom usage as well as work towards eliminating racial disparities in HIV healthcare.
Contact Kelly Doyle for further information at (269) 806-3970.
The Michigan Coalition for HIV Health and Safety, founded in 2013, works to modernize Michigan’s HIV response to increase the health outcomes and safety of all Michiganders. The Coalition includes more than 30 Michigan non-profit organizations.
CARES was founded in 1985 and supports 10 counties in Michigan. Its mission is to maximize the quality of life for people living with HIV and to minimize the transmission.
LGBT Detroit, founded in 1994, commits to furthering its mission, increasing the prominence and visibility of Detroit’s LGBT culture, and building a strong, healthy and vibrant community, with a focus on youth and young adult development, sexual orientation and gender identity education and advocacy, and emotional and physical well-being.
Rahmon introduced criminal liability for hairdressers to HIV infection (Google translation from Russian)
In Tajikistan, the liability of doctors, beauty salons, hairdressers and other service enterprises for HIV infection has been strengthened. The President of the Republic, Emomali Rakhmon, has signed amendments to the Criminal and Administrative Codes made and supported by the Parliament, the Khovar agency reports .
Responsibility, according to the law, is provided for those employees who “due to non-compliance with sanitary and hygienic, sanitary and anti-epidemic rules and regulations have become the cause of the HIV / AIDS virus.” The punishment is also tightened for those who are engaged in the import and production of low-quality or counterfeit medicines that do not meet established standards, or sells expired medicines.
Other amendments made to the Criminal Code strengthened the responsibility for intentional infection with the HIV / AIDS virus and human trafficking. For how long the penalties are tightened, it is not reported, it says only that “the full text of the adopted laws will be published in the official press of the country in the coming days.”
The first, which became known to the media, the case of accountability in Tajikistan of a person guilty of mass infection of the disease, occurred in August 2018. A court in the Sharuz district of the Khatlon region sentenced a local woman who engaged in prostitution and thus infected 10 men with HIV, to one year’s imprisonment.
Later began “sanitary” raids on hairdressing and dental clinics. In the Khatlon region, several barber shops, beauty salons and dental clinics were closed, and in the Sughd region, dozens of dental offices and beauty salons closed for violation of sanitary and hygienic standards.
This happened after September 1 at the State Medical University Rakhmon criticized the activities of private dental clinics, expressed concern about the growth of infectious diseases, instructing the Ministry of Health and other specialized departments to “take action”, and also proposed criminal liability for dentists and hairdressers customers are infected with any kind of infection.
Source: Fergana News, January 3, 2019
Рахмон ввел ответственность для парикмахеров за заражение ВИЧ
В Таджикистане усилена ответственность врачей, работников салонов красоты, парикмахерских и других предприятий сферы обслуживания за заражение ВИЧ. Президент республики Эмомали Рахмон подписал внесенные и поддержанные парламентом поправки в Уголовный и административный кодексы, сообщает агентство «Ховар».
Ответственность, говорится в законе, предусмотрена для тех сотрудников, которые «из-за несоблюдения санитарно-гигиенических, санитарно-противоэпидемических правил и норм стали причиной заражения вирусом ВИЧ/СПИД». Наказание ужесточено также для тех, кто занимается ввозом и производством низкокачественных или поддельных медикаментов, не отвечающих установленным стандартам, или продает просроченные лекарства.
Другими изменениями, внесенными в УК, усилена ответственность за умышленное заражение вирусом ВИЧ/СПИД и торговлю людьми. На какие сроки ужесточены наказания, не сообщается, говорится только, что «полный текст принятых законов в ближайшие дни будет опубликован в официальной прессе страны».
Первый, ставший известным СМИ, случай привлечения к ответственности в Таджикистане лица, виновного в массовом заражении болезнью, произошел в августе 2018 года. Суд Шаартузского района Хатлонской области приговорил местную жительницу, занимавшуюся проституцией и заразившую таким образом ВИЧ-инфекцией 10 мужчин, к одному году лишения свободы.
Позже начались «санитарные» рейды на парикмахерские и стоматологические клиники. В Хатлонской области были закрыты несколько парикмахерских, салонов красоты и стоматологических клиник, а в Согдийской области за нарушение санитарно-гигиенических норм закрыли десятки стоматологических кабинетов и салонов красоты.
Это произошло после того, как 1 сентября в Государственном медуниверситете Рахмон раскритиковал деятельность частных стоматологических клиник, выразил обеспокоенность ростом инфекционных заболеваний, поручив Минздраву и другим профильным ведомствам «принять меры», а также предложил ввести уголовную ответственность для стоматологов и парикмахеров, если по их вине клиенты заражаются какой-либо инфекцией.
Senate HIV Bills Package Explained
A package of bills is moving through the Michigan Senate that could change the way Michigan health officials monitor and address the HIV epidemic. Introduced last May in the Michigan House of Representatives, the eight-bill package contains HIV-specific bills that are aimed at updating Michigan’s existing laws that contain outdated language regarding issues like the spread of HIV, the role of local health departments in the virus’ treatment and criminal punishment for those who do not inform their sexual partner of their HIV-positive status.
Criminalization and Spread of HIV
Two bills within the package, 6020 and 6021, have come under extra scrutiny by some HIV advocacy organization around Michigan since they were amended from their original form to pass through the House. They were proposed by Democratic State Rep. Jon Hoadley of Kalamazoo who intended to “modernize our outdated HIV criminalization statute” by reducing the sentence for non-disclosure of one’s HIV status to a sexual partner from a felony to a misdemeanor, and to provide a change “to the sentencing guidelines” that currently exist.
“But the legislative process is never a linear line and there were still concerns that folks had around disclosure, around folks who are intentionally trying to transmit HIV without discussions and a number of other issues,” Hoadley said. “So, working in a bipartisan way to get as much as we could in the 99th legislative session, Dr. Canfield and I worked together with other stakeholders to put together a version of a bill that was able to then move.”
In a Dec. 11 Senate health policy committee, Republican State Rep. Edward Canfield said that the emphasis of the bill’s changes are on promoting treatment for HIV.
“I believe that what we’ve come up with in this package as it’s presented to you today really does bring the state of this health condition forward and helps people realize that getting treated is the best pathway,” he said. “… So it not only helps people live lives, but it protects our public health as well.”
The two bills now rest in the Senate, waiting on a decision before the lame duck session is over. Should they not come up for a vote, the bills will die and will need to be proposed again in the 100th legislative session in 2019. Hoadley said that despite the amendments the bills will provide two main benefits.
“The first is that we strike the very outdated definition that was used in the current law that criminalized behaviors, some of which can literally not transmit HIV. So, we’re really limiting the type of behaviors to vaginal and anal intercourse,” Hoadley said. “Second, we create a tiered system. So, if someone knows their status, does not disclose, acts with reckless disregard, and transmits HIV, that is treated at current felony level still. But, if they don’t transmit then that would potentially be a misdemeanor if all the other criteria are met.”
To illustrate his point, Hoadley said that currently there were 19 cases prosecuted under the current law that were considered felonies even though no transmission of the virus occurred.
“So, if this had been in the law, 19 people would have spent fewer of their years in prison,” he said.
Hoadley added that he feels the new bill will make current HIV transmission cases fairer because they will provide an extra level of defense for those who have been able to take medication and suppress their viral load — or literally reducing the function of the virus to undetectable levels within their system. People who have been medically suppressed for six months are “by definition not acting with reckless disregard, so they are not eligible for prosecution under the law.”
“So, for the first time in Michigan, as we work to continue making the criminal justice system fairer — there’s still a lot more to do there — people have a shield from accusations that they didn’t disclose or whatever the case may be, they have an affirmative defense,” Hoadley said. “That part is really groundbreaking as well.”
6020 and 6021’s Critics
But as groundbreaking as that defense is, it is only viable for those who can afford care to suppress their HIV. Critics of the bill’s changes like former BTL contributor Todd Heywood who is the chair of the Ingham Community Health Center board, testified against the legislation as an HIV expert. He said that this unfairly discriminates against people of color without access to treatment centers.
“There is already a racial disparity as it relates to the prosecution of people living with HIV. … Black men who have sex with women represented just 16 percent of the cases of people living with HIV (outside of Wayne County). They represented 36 percent of the prosecutions,” Heywood said. “We know in the state of Michigan and nationally that people of color have less access to medical care and have higher viral loads already. The way the current legislation is written will exacerbate this prosecution and create a deeper racial disparity that is unfair to people of color without addressing any of the other underlying issues.”
When asked about these racial disparities, Hoadley said he understands there is still much work to be done, but said he feels that this is a better alternative to the existing law on the books, citing it as “terrible about what it criminalizes.”
“I think we have to always be looking at race-based discrepancies in both our health system and our criminal justice system. One of the reasons I think the bill addresses a part of that is by eliminating many of the unscientific ways that someone could have gotten charged with these crimes previously, regardless of someone’s intent or not; everybody’s a little bit safer,” Hoadley said. “When we talk about discrepancies in the criminal justice system, this bill will, across the board, limit the number of folks who could even enter into eligibility of the law and also creates tiers. And part of that balancing act is that the current law captures so many more folks who could not even to some degree transmit HIV.”
In his testimony, Heywood also provided a numerical representation of the additional cost of maintaining a prisoner who has HIV using his own medication.
“Four bottles of one month’s worth of HIV drugs for me and I will tell you that that adds up to be between $62,000 and $67,000 a year to keep me alive,” Heywood said. “And we as taxpayers will then have to bear that burden when we put somebody in prison. That information is not in your fiscal analysis and I think that that needs to be taken into account. It is fiscally irresponsible when we have other options and ways to address this.”
Heywood’s reference to “other ways” refers to Michigan’s section of the public health code that addresses people infected with diseases that are “health threat[s] to others.” That statute does not criminalize those with contagious diseases, but rather puts them into immediate emergency treatment. His testimony suggested an amendment that would link the new bills to existing legislation.
“We could tie ‘health threat to others’ to this legislation which would then require that a person go through the probate process to address their HIV and the psychosocial issues that are involved in likely transmission behavior before they go through a criminal process,” Heywood said.
Hoadley said that he recognized the existing faults of the bill, but sees the currently rewritten legislation as a jumping off point to a more inclusive law.
“I think we have to continue to tackle places where we see discrepancies in health care,” he said. “For me, this shows why this project is a step in the right direction but not a finishing line.”
Also included in the bills was a move to require women in their third trimester of pregnancy to get tested for HIV, Hepatitis B and syphilis. As written, the legislation would not allow a woman to opt out of such testing which essentially creates a system of mandatory testing. Currently, lawmakers are floating amendments that would allow a woman to opt out from the testing verbally. A second bill on testing would have mandated HIV testing consent be included in other general medical consents, and that a person not wishing to take an HIV test opt out in writing which presents a barrier to that process. Lawmakers are working on an amendment to allow people to verbally opt out of HIV testing.
Additional legislation would eliminate the 90-day record retention rule related to HIV partner services. The new legislation would allow the state to maintain those records indefinitely. Something they already do, in violation of Michigan law.
“Currently under Michigan law, the partner notification information that is solicited after somebody is diagnosed with HIV is only supposed to be kept for 90 days. What the state has not said publicly is that since 2003 they have been collecting that data,” Heywood said. “They currently have a database containing over 500,000 names and information of people at risk for HIV, living with HIV or tested for HIV. In addition to that, they shifted about three years ago to a federal database owned by the CDC not in the state of Michigan that all of that information is being stored on, in violation of Michigan law. ”
Lawmakers are working on an amendment which will allow the data to be maintained no longer that 365 calendar days.
An amendment related to partner services is also being considered which will prohibit local and state health officials from contacting a person identified as a sexual or needle-sharing partner of a person living with HIV, or the persons living with HIV when they have declined partner services.
“The problem with this is that there is nothing to stop me when I have a partner notification conversation with a health department official from saying — and I apologize Sen. Shirkey for identifying you — Sen. Shirkey and I shot needles of methamphetamine up and now Sen. Shirkey’s name is in a federal database as a methamphetamine user,” Heywood said. “Whether it is true or not, the senator would have no knowledge of that and no option to remove that from the database. That is deeply problematic.”
The lame-duck session is scheduled to end this week, Thursday. More updates about this legislation will come out as it moves through the Senate.
Published on December 19, 2018 in Pride Source
HIV JUSTICE WORLDWIDE along with our partners at The Eurasian Women’s Network on AIDS and Global Network of People Living with HIV (GNP+) welcome this week’s announcement of an amendment to Article 157 of the Criminal Code of the Republic of Belarus, which finally allows consent following disclosure to sexual partner as a defence. Whilst recognizing there is still a long way to go to remove all unjust criminal laws against people living with HIV in Belarus, we congratulate our partners and colleagues in Belarus People PLUS for this achievement!
Today, Parliamentarians of the House of Representatives of the National Assembly of the Republic of Belarus adopted in the second reading three bills, one of which was the law “On introducing amendments to some codes of the Republic of Belarus”. Among other changes, an amendment was adopted to article 157 of the Criminal Code of the Republic of Belarus (one of the most draconian HIV-specific criminal laws in the world), which now allows that people who have warned their partners will no longer be held criminally responsible for potential or perceived HIV exposure or transmission.
Until today, Article 157 states that people living with HIV are totally criminally liable for potential or perceived HIV exposure or transmission, even if the so-called injured party had no complaints against their partner, knew about the risks and consented. Prosecutions took place because infectious disease doctors informed police and many people were convicted (read Yana’s story here)
In 2017, 130 criminal cases were initiated under Article 157 of the Criminal Code of the Republic of Belarus, with another 48 in the first half of 2018. Now, it will be possible to revisit those cases.
Anatoly Leshenok, representative of the NGO, People Plus states: “The adopted changes are only the first step in achieving our goal of decriminalising HIV transmission. According to information received from the department for drafting bills, other, more fundamental changes to Article 157 of the Criminal Code of Belarus have not been approved. It is necessary to continue to work with these State structures and with public opinion in order to form a more tolerant attitude towards HIV-positive people. But those changes that have been adopted today – that’s a success for our team! ”
After approval by the Council of the Republic and the President, the amendments will make it possible to revisit previous sentences of the courts, and improve lives of people that were broken previously, as well it provide opportunity now and in the future for people living with HIV in serodiscordant partnerships to plan their lives without worrying if they are criminals every time they have sex.
Committee recommends criminal offense for wilful transmission of STIs
KINGSTON − A Joint Select Committee of Parliament has recommended that amendments be made to the Offences Against the Person Act (OAPA), to make it a criminal offence for individuals who wilfully and knowingly transmit sexually transmitted infections (STIs), including HIV.
This is contained in the report of the Joint Select Committee appointed to complete the review of the Sexual Offences Act, the Offences Against the Person Act, the Domestic Violence Act and the Child Care and Protection Act.
The report, that was recently tabled in the House of Representatives by Justice Minister Delroy Chuck, said the Committee acknowledged that there was a deficiency in the law in relation to the deliberate or intentional spreading of HIV and other sexually transmitted diseases.
“We noted that this type of offence existed in other jurisdictions, such as Canada (grievous sexual assault under the Canadian Criminal Code) and the United Kingdom (grievous bodily harm under the United Kingdom (UK) Offences Against the Person Act), and referenced case law, such as Guerrier, 1998 and Mabior, 2014 from Canada,” the report noted.
“We also made reference to the George Flowers case involving a Jamaican who had infected a number of women with HIV while living in Canada, and fled to Jamaica, resulting in an extradition request being made to the Jamaican authorities for him to return to Canada to face charges. [The] Committee agreed that the Act should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner with any sexual transmissible disease that can inflict serious bodily harm to that partner,” the document adds.
In the meantime, while reviewing a suggestion that a new offence of stalking should be created in the OAPA, the Committee discovered that there was in fact no general, substantive offence of stalking in either the OAPA or the Sexual Offences Act (SOA).
“We felt that this omission should be addressed and, therefore, decided to insert a new, substantive offence of stalking in the OAPA, which should be formulated using the provision in the UK Protection from Harassment Act, 1997 as a guide,” the report said.
The Offences Against the Person Act was last amended in 2010. (CMC)
Published in Nation News
Overturn law criminalising deliberate transmission of HIV, say petitioners
Five people living with HIV have petitioned the judiciary to declare unconstitutional a law that makes it illegal to transmit the virus and other sexually transmitted infections.
The petitioners said the law makes it almost criminal for HIV-positive people to marry and for women living with the virus to give birth and raise children.
The petition targets Section 26 of the Sexual Offences Act, which criminalises intentional transmission of HIV even among married couples.
Those found guilty can be jailed a minimum 15 years or for life.
“Thousands of discordant couples and breastfeeding mothers living all over Kenya run the risk of being arrested and charged under this provision if they come forward for HIV testing,” said M.A, the fourth petitioner representing discordant couples.
The petition was filed at the High Court in Nairobi on Monday with the help of the Kenya Legal and Ethical Issues Network on HIV and Aids.
“The key to a successful HIV response and ending Aids is making sure everyone with HIV knows their status and gets on treatment. These laws make that impossible,” the petitioner said.
A growing global consensus amongst experts and institutions such the World Health Organisation and Unaids show that laws criminalising HIV transmission weaken the ability of governments to end the Aids epidemic.
The sexual offences Act section 26 says: “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 willfully transmits it… is liable upon conviction to imprisonment for a term of not less 15 years but which may be for life.”
Kelin boss Alan Maleche said this is one of the worst HIV criminalization laws in the world.
“This petition will not only safeguard the rights of those living with and affected by HIV and other sexually transmitted infections but also help alleviate the discrimination and stigma they face and help Kenya remain on track in achieving the 2020 UNAIDS Fast Track targets in ending Aids,” he said yesterday.
In 2015, the High Court declared section 24 of the HIV and Aids Prevention and Control Act unconstitutional.
The section also criminalised intentional spread of HIV, instituting a maximum jail-term of seven years with the option of a fine.
Nelson Otwoma, the Director at the National Empowerment Network of People living with HIV/AIDS in Kenya, said HIV criminalization laws are also notorious for abuse and arbitrary enforcement.
“Such abuse will always be targeted at persons living with, vulnerable to or believed to be living with HIV whether or not their actions were culpable and whether or not their actions exposed another to the risk of contracting HIV,” he said.
Published on December 13, 2018 in the Star
Successful HIV Criminalization Reform in California: Q and A with Sen. Scott Wiener
The majority of states have laws that criminalize activities engaged in by HIV-positive people that are not criminalized when engaged in by the rest of the population.
Many of these laws improperly single out HIV over other infectious diseases and reflect a lack of understanding of both how HIV spreads and how it can be treated.
In 2017, California passed legislation which modernized and improved California’s HIV criminalization law. One of the authors of the law was State Senator Scott Wiener. I recently had a chance to ask Sen. Wiener some questions about that process.
His responses are given here in hopes of supplying useful information for legislators, lobbyists, and activists in other states who are interested in starting the reform process in their own states or other jurisdictions around the world. This interview has been edited for clarity.
Mark Satta: You sponsored and helped author California Senate Bill 239, which in 2017 was signed into law by Governor Jerry Brown. Senate Bill 239 modernized HIV criminalization in California. Can you give us a brief overview of what California HIV criminalization law looked like before the passage of this new law and what the major changes are that passage of the new law brought about?
Sen. Scott Wiener: In the late 1980s and early 1990s, California, like many states, adopted very harsh felonies to punish HIV-positive people who engaged in sexual activity with other people without disclosing their HIV status.
California has a catchall misdemeanor for willfully exposing someone to an infectious disease, which has been on the books for many years. But HIV, of all the many serious, deadly infectious diseases, was singled out for especially harsh felony treatment. The laws didn’t require you to transmit HIV, and in fact didn’t even require any meaningful risk of infection. So if you were virally suppressed, for example, or if the other person was on PrEP, or if you were engaging in sexual activity that really didn’t create much of a risk, under the old laws, it didn’t matter. They were very broad, draconian laws.
There was one law specific to sex workers where there didn’t even have to be physical contact. If [a sex worker] solicited someone without telling them they were HIV-positive, even if they never actually had sex, they were guilty of a felony. The new law converts sex worker felonies into misdemeanors.
It was really women, and in particular African American women and sex workers, who were targeted. And really, the laws did nothing to actually reduce HIV infections — all it did was stigmatize people with HIV and encourage people to hide their status.
So they’re just terrible, horrible laws and that’s why we tried to reform them.
Satta: In writing the bill, what were the major sources of information that you and Assembly member Gloria consulted to determine the ways in which California’s criminalization of HIV failed to accord with our scientific and medical understanding of HIV/AIDS?
Sen. Wiener: Part of [our information was] based on data on how you reduce and eliminate HIV infections, and the whole concept of getting to zero, which I’m very familiar with. You do it by encouraging people to get tested regularly so they know their status, and then if they do test positive, they quickly go on medication to become virally suppressed. And the people who are negative have access to all preventative tools, including PrEP.
So when you criminalize and single out people with HIV, it encourages people not to get tested. Because if you don’t know your status then you can’t be guilty of a crime. It encourages people to be very secretive about their status. And being secretive about your status undermines public health. That’s not how you get people tested or into treatment. You want people to feel comfortable being very open about their status. So that was the bedrock of the science we relied on.
If our goal is to prevent HIV infections, to keep people negative, and to keep positive people healthy, we must do that through a public health approach, not through a criminalization approach. Criminalization does not reduce HIV infections — in fact, it does the opposite.
We also had plenty of data on who was being targeted by these laws. It was targeting specific demographics. So even if one were to believe that criminalization somehow reduces infection—which it doesn’t— why would almost half of arrests and prosecutions be of women when they’re only 12 percent of the HIV-positive population? We also worked extensively with a broad coalition that included many public health organizations, physicians, and people who really understand the science.
Satta: In advocating for the bill in the California state senate, what messages and information resonated most strongly with your colleagues?
Sen Wiener: It depended. When you explained about how criminalization doesn’t reduce infections, for a certain segment of colleagues, that was enough. But what really resonated with others was that HIV was being treated differently than other infectious diseases, and more harshly. I had one colleague—a moderate Democrat from a pretty conservative district—and I was not sure if we would get her vote. When I talked to her about it and told her that HIV was being treated differently, as a felony, while other infectious diseases were a misdemeanor. She said to me, “Wait, you’re telling me that Ebola and TB are a misdemeanor, but HIV is a felony, and you want to move HIV into the same category as TB and Ebola?” And I said, “Yes.” And she said, “That’s all I need to know. Whenever I’m asked about it, that’s how I’ll answer.” And she voted for the bill.
Satta: What advice would you give activists and legislators in other states or jurisdictions who are interested in advocating for legislative reform around HIV criminalization?
Sen. Wiener: First, build a very, very strong and broad coalition. The endorsement list for SB 239 was pages long. It included every reputable civil rights organization, public health organization, LGBT organization, immigrant organization — I mean, everything. You look at these incredibly well-respected organizations ranging from the ACLU, to Planned Parenthood, to respected healthcare advocacy organizations, and even before you delve into the facts, you say, “Look: if all these groups are supporting this, this is a bill I’m supporting.” This is especially true for Democrats.
Because of that broad coalition, lobbying for the bill was incredibly impactful. As an author, that made my life a lot easier. I talked to almost every member of the legislature about the bill one-on-one over the course of the year, but having the coalition aggressively lobbying made a big difference.
Then, really talk to legislators, colleague to colleague. Lots of people have this reaction where they think that if someone is trying to infect someone, they should be guilty of a felony. But you have to talk to them about the notion of the sociopath trying to infect people. Does that happen? Yes, but it’s extremely rare, and those are not the people being prosecuted under these laws.
You also have to indicate that this is a priority for LGBT civil rights organizations. That was very powerful, too. Equality California made the bill its number one priority of the year. For a number of Democrats, this is very compelling. Democrats, in California at least, want be on the right side of LGBT issues. And even though HIV goes beyond the LGBT community, obviously, there’s an enormous overlap.
Also, educate the reporters who are going to cover potential legislative reform. What we found was that there were a couple of publications in California—the San Francisco Chronicle and the Sacramento Bee in particular—that had reporters who really got it. For a number of other publications it was more hit and miss. And even when you had a good reporter, the editors would put clickbait headlines on. So other than some really good articles in the Bee and the Chronicle, we were never able to get accurate coverage. It would always be sensationalist. The headline would be something like, “Bill Proposes Making it Not a Felony to Intentionally Infect Someone with AIDS.” The Los Angeles Times was unfortunately notorious for clickbait headlines like that, which really flamed people up. We even got to the point where we did a call in and we invited the press just to talk about the basic facts of the bill and it didn’t work. So, before you even start you need to identify the reporters likely to report on this, sit down with them, and try to educate them about the facts.
Mark Satta is a 2018-2019 Petrie-Flom Center Student Fellow.
Published on December 11, 2018 in Bill of Health
Repeal law on transmission of HIV
HARARE – There are calls to repeal a law that imposes criminal penalties on people who know they have HIV and engage in behaviours that might transmit the virus to others, without disclosing their status.
Deputy director HIV/Aids and STIs in the Health and Child Care ministry, Tsitsi Apollo, told delegates this week at a Symposium on HIV and Law organised by Zimbabwe Lawyers for Human Rights and National Aids Council that Section 79 (1) of the Criminal Codification and Reform Act on deliberate transmission of HIV presents a barrier towards the country’s goal of reaching the 1st 90 by end of 2020.
She was referring to an ambitious goal set by UNAiDS, the UN agency dealing with the disease, to tackle the epidemic by 2020 by having 90 percent of people with HIV to know their status, 90 percent of diagnosed people to be on treatment, and 90 percent of those on treatment to have suppressed levels of the virus in their bodies.
“The law should be repealed as it violates the rights of recipients of care. The law should be grounded with scientific evidence to facilitate justice delivery” Apollo said.
She said the law draws conclusions on deliberate HIV transmission from the fact that one is on ARVs – a direct contradiction of science. “It is difficult to ascertain direction of HIV transmission. Phylogenic analysis of virus samples from defendant and complainant is pre-requisite. It is difficult to exclude other possible sources of infection, even with evidence of a negative status at start of relationship…”
Published in Daily News on December 1, 2018