US: Relying on modern medicine as the basis for reforming HIV criminalization laws overlooks these laws' underlying problems

Focusing on ‘Treatment As Prevention’ for HIV Criminal Law Reform Fails Marginalized Populations

By Victoria Law

From TheBody.com

AUGUST 3, 2017

“There is increasing agreement that risk of HIV transmission from a person living with HIV (PLHIV) who is on antiretroviral therapy (ART) and has a continuously undetectable viral load is effectively zero.”

This statement has been widely acknowledged by people living with HIV and advocates fighting HIV criminalization laws. However, in many states, the legal system has yet to catch up and continues to criminalize and imprison people for years, if not decades, under outdated laws. According to the Centers for Disease Control and Prevention (CDC), 24 states have laws requiring people living with HIV to disclose their status to sexual partners, 14 states have laws requiring them to disclose to needle-sharing partners, and 25 states have laws criminalizing “one or more behaviors that pose a low or negligible risk for HIV transmission.”

In pushing for the repeal — or at least the drastic reform — of these HIV criminalization laws, advocates have pointed to the strides made in modern medicine. The CDC has agreed with this approach, noting, “The majority of laws identified … were passed before studies showed that ART reduces HIV transmission risk[,] and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP).” Therefore, the CDC has “encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.”

But does reliance on modern medicine merely continue the exclusion and condemnation of those with the least access to health care? And, given the Congress’s efforts to repeal the Affordable Care Act (ACA), what might such reliance mean for those most at risk for losing access to health care?

In July, 10 organizations came out with the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform. The statement recognizes the strides made by modern medicine but notes that relying solely on prevention through medical treatment overlooks the two underlying problems with HIV criminalization laws: First, current laws focus on a person’s failure to disclose their HIV status rather than their intention to do harm. Second, current laws treat any risk of HIV infection as the equivalent of murder or manslaughter and impose severe sentences.

Sometimes the sentence for HIV exposure or transmission is even more severe than one for murder or manslaughter. This was the case for Michael Johnson, a black college student in Missouri who was convicted of four counts of failing to disclose his HIV status and one count of HIV transmission. Though no one was killed, he was sentenced to 30 years in prison. (In April, the state supreme court upheld Johnson’s right to a new trial, though no new trial date has yet been announced.)

In contrast, Missouri’s sentencing guidelines for voluntary manslaughter call for five to 15 years in prison, and its guidelines for second degree murder call for 10 to 30 years.

Relying medical tools as the basis for reforming HIV criminalization laws overlooks these laws’ underlying problems. If prevention through receiving medical treatment and having an undetectable viral load becomes the basis for reform, prosecutors and the legal system will then have another tool in their arsenal: a person’s inability or failure to access health care. It could also lead policymakers and prosecutors to argue that people living with HIV who are not virally suppressed pose a significant risk to their sexual partners. This ignores the CDC’s findings that, even without treatment and condom use during receptive anal sex (the sex act most likely to result in HIV transmission), the transmission rate is less than 2%, or two in 100.

Furthermore, the focus on viral load and medical treatment detracts from the fact that HIV is now a chronic, manageable disease, similar to type 2 diabetes. “To treat it otherwise by making its transmission a felony with a long sentence reinforces what likely is the most serious source of HIV stigma, discrimination, and violence against PLHIV,” declares the Consensus Statement.

Finally, focusing solely on medical advances continues to ignore the ways in which criminalization targets people who are most marginalized, specifically people of color who lack the resources to access continued treatment. “You cannot talk about one form of criminalization without talking about the others,” Deon Haywood, director of Women With a Vision, told TheBody.com in January 2016. “You can’t talk about HIV criminalization without talking about race, without talking about access and without talking about privilege.”

In Louisiana, where Women With a Vision organizes with low-income African-American women, many of whom are living with HIV, a focus on medical advances doesn’t address the ways in which HIV criminalization has been used a prosecutorial tool. Nia Weeks, Women With a Vision’s policy director, pointed out to TheBody.com that the New Orleans district attorney threatens to upcharge (or increase the criminal charges) or to use the state’s habitual offender laws to coerce people to plead guilty. Weeks, who previously worked as a public defender, described one client who was charged with domestic abuse and battery, including the accusation of a bite. The prosecutor’s office threatened to add the charge of intentional exposure to HIV if Weeks’ client did not plead guilty to the domestic abuse and battery charge. It did not matter that the man that she allegedly bit, her soon-to-be ex-husband, was also HIV positive. What mattered was that, under Louisiana law, if she were convicted of intentional exposure, she would face not only a 10-year prison sentence but also placement for life on the state’s sex offender registry. HIV criminalization is “part of a whole system of forcing pleas to not harm yourself more,” stated Weeks.

Furthermore, a focus on treatment and undetectable viral loads fails to address people’s precarious access to health care, access that may be further undercut as the GOP pushes to repeal or undermine the ACA.

Even with the ACA, Weeks noted, “people can very easily find themselves off the health care system in the blink of an eye.” All it takes is a missed bus or a family emergency that results in a missed Medicaid appointment, she explained. That missed appointment leads to the loss of Medicaid, leading to the loss of access to medications. In other words, health care access is already precarious. Cutting the ACA means that even fewer people will have access to the health care and medications that could make their viral loads undetectable.

“The ultimate goal is decriminalization, period,” declared Weeks. “There’s all the pieces that are helpful and steps forward, but it won’t be done until HIV is decriminalized.”

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

Published in the Body on August 3, 2017

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

New Supreme Court Standards Address Prostitution, HIV

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

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

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

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

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

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

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

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

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

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

Published on July 26, 2017 in Sixth Tone

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

Prosecutors want Law making wilful transmission of sexual disease a crime

Jovan Johnson, Parliamentary Reporter

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

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

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

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

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

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

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

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

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

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

Canada: The recent conviction of a woman living with HIV exemplifies the injustices of the current use of sexual assault laws against people living with HIV

When will justice department announce new approach to prosecuting cases of HIV non-disclosure?

Critics say that recent conviction of Indigenous woman is further proof that the use of sexual assault laws in cases of HIV non-disclosure continue to criminalize marginalized people and women of colour.

BY 

An Indigenous woman with HIV has had her appeal on an aggravated sexual assault conviction dismissed by the Manitoba Court of Appeal. The decision handed down on June 29 comes as a blow to the growing movement of lawyers and human rights advocates pushing to change laws that they say criminalize people with HIV, in particular vulnerable women.

Activists have been calling for a moratorium on all new prosecutions of HIV-non-disclosure cases.

The woman convicted in the most recent case is pregnant. She will serve nine months in a Manitoba prison. (NOW Magazine has decided not to publish her name out of respect for her privacy.)

She was convicted in 2014 for failing to disclose her HIV status to a friend she had unprotected sex with three times. They had both been drinking on each occasion. The friend later tested positive for HIV, but it’s not clear if he contracted the condition from the woman. It was never proven in court.

Testimony at her trial also revealed the woman’s own history of intergenerational sexual violence and her belief she had contracted HIV through coerced sex. But the appeal court decision did not take any of that into consideration as mitigating factors.

“Everyone is very shocked and saddened,” says Laverne Gervais, Project Coordinator of Sisters of Fire at Ka Ni Kanichihk, a support group for Indigenous women living with HIV attended regularly by the woman. “She did everything that the law wants people to do, she attended programming, bettering herself, and was working on starting a new family with her committed boyfriend.”

The conviction is considered by critics to exemplify the injustices of the current use of sexual assault laws against people living with HIV, including the stigma still attached to the condition even though it is now considered a chronic and manageable condition that can be rendered undetectable after treatment.

The trial and appeal had been widely publicized in sensational articles. The woman’s high school graduation photo was leaked to the media shortly after her arrest.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, says the fact she is HIV-positive completely changed how she was viewed by the court. “The judge presumptively saw her as a sexual assailant.”

The judge who presided over her original trial, Justice Colleen Suche, noted in her decision that the woman’s behaviour was not predatory “or part of a pattern of dangerous behaviour. Rather, her silence [in not disclosing her HIV status] was the result of fear” – namely, as a result of her own history of sexual abuse.

However, Suche instructed the jury to disregard testimony related to her intoxication.

Says Elliott: “Had she been HIV-negative, her intoxication would have been relevant in her ability to consent or not to the sex. But it was not understood as relevant in her ability to disclose her HIV status. The distinction is biased. This is clearly not a sexual assault, and the application of that law in this case does a disservice to those laws.”

It was alleged by the Crown that the accused may have transmitted HIV to her friend, but Suche indicated in her decision that “the question was not relevant” and, therefore, not before the jury. There was also no HIV phylogenetic analysis done, a test to determine if the same strain of HIV was transmitted from one person to another. The woman reportedly gave him a condom during one of the sexual encounters but he didn’t use it.

Due to the conviction on aggravated sexual assault, she is now a registered sex offender. She was allowed to volunteer at her daughter’s daycare program, but will now be barred from doing similar volunteer work because of her conviction.

She faces a challenging time in jail. People incarcerated for sexual assault because of HIV non-disclosure face stigma, discrimination and violence behind bars. They are often housed in protective custody as a result, which can mean being held in administrative segregation 24/7.

On World AIDS Day December 1, 2016, the Federal Minister of Justice Jody Wilson-Raybould promised “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Wilson-Raybould also acknowledged in her statement that the Canadian criminal justice system “must adapt to better reflect the current scientific evidence on the realities of this disease.”

But the hoped-for immediate moratorium on new HIV non-disclosure cases that activists have been lobbying for is not happening. And a new approach to prosecuting such cases is now not expected until the fall.

Until then, the law will continue to be applied in ways, critics say, that create more vulnerability and insecurity for already marginalized people in society, especially women of colour.

“We can’t be living in fear of the criminal law any longer,” says Jeff Potts, of the Canadian Positive People Network, a national organization representing people living with HIV.  “HIV is not a crime.”

Brazil: UN Working Group on HIV/AIDS states its opposition to Brazilian bill aiming to criminalise HIV transmission

Working group criticizes bill criminalizing HIV transmission (For article in Portuguese please scroll below)

The United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) met on Monday (3) to discuss the current outlook for the AIDS epidemic in Brazil and to articulate opposition to Bill 198/2015, which would make it a heinous crime to deliberately transmit the virus. This was the first meeting of the group chaired by the United Nations Population Fund (UNFPA) .For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

According to her, the goal of the UN System in Brazil is for all people to be tested for the virus and, if necessary, treated – the opposite of what would happen if the bill was approved.

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favors the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

Brazilian legislation

Law 12.984 defines as a crime the discrimination of people living with HIV / AIDS in Brazil. Institutions and persons who deny education, health or employment to HIV-positive persons, as well as those who promote their segregation or disclose their serostatus in order to offend them, are punishable.

For the director of the Department of Surveillance, Prevention and Control of STIs, HIV / AIDS and Viral Hepatitis, Adele Benzaken, it is important to discuss not only discrimination but about mortality caused by late diagnosis, irregularities and treatment abandonment.

Caio Oliveira, of the United Nations Children’s Fund (UNICEF), stressed that article 130 of the Brazilian Penal Code already criminalizes the exposure of people to serious illnesses. In this way, it would not be necessary for the bill to make the transmission of the virus a heinous crime. “We need to make sure that the people who need them do not have any problems,” he said.

State and civil society

In addition to representatives of the UN System, leaders of social movements, non-governmental organizations and representatives of the public power participated in the meeting.

“Another major problem … is the confidentiality of medical records. Why? Because you will only be able to get this information if in any way these medical records come to the public domain, come to the justice system, “warned federal prosecutor for Citizen Rights, Deborah Duprat. The prosecutor also stressed that this issue may reach mainly socially stigmatized groups, which hide the infection to their families and society to avoid discrimination.

Pétala Brandão, from Conectas Human Rights, said that the bill is a result of human rights setbacks in Brazil. “It is a manifestation of a punitive ideology, of criminal recrudescence, which creates stigma and vulnerability,” he said.

She stressed that the participation of the United Nations is fundamental to guarantee the rights of all people, but that there must be, in essence, an articulation with civil society and social movements.

Erika Kokay (PT-DF) endorsed the argument of the Conectas specialist. “This culture of fear turns into hate and creates intolerance. The project creates invisible social differences, “said the deputy.

UNFPA chairs working group

With a strong focus on the sexual and reproductive rights agenda, UNFPA is one of 11 UN agencies to be part of the HIV / AIDS working group. The agency has assumed the presidency of the group for the 2017-2018 biennium.

UNFPA works to promote universal quality health services, including the prevention and treatment of reproductive tract infections and sexually transmitted infections, including HIV / AIDS.

Created in 1997 through a multisectoral approach, the working group seeks to support the response to the HIV / AIDS epidemic in the country. This mobilization places HIV among the priority themes of joint action of the UN System for several years.

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Grupo de trabalho critica projeto de lei que criminaliza transmissão do HIV

O Grupo Temático Ampliado das Nações Unidas sobre HIV/AIDS (GT/UNAIDS) reuniu-se na segunda-feira (3) para discutir o atual panorama da epidemia de AIDS no Brasil e articular a oposição ao Projeto de Lei 198/2015, que torna crime hediondo a transmissão deliberada do vírus. Este foi o primeiro encontro do grupo presidido pelo Fundo de População das Nações Unidas (UNFPA).

Para o representante do UNFPA no Brasil, Jaime Nadal, o projeto de lei vai contra os ideais e propostas das Nações Unidas referentes à epidemia de HIV/AIDS. A criminalização da transmissão do HIV, além de reforçar a estigmatização das pessoas que vivem com o vírus, pode desencorajar as pessoas a realizarem a testagem e o tratamento, uma vez que estariam sob a ameaça de se tornarem criminosas, afirmou.

O projeto de lei desconsidera os avanços científicos em HIV/AIDS, que comprovam que tratamentos antirretrovirais reduzem em até 96% as chances de transmissão do vírus em relações sexuais. “Muitos países, em todo o mundo, estão reformando suas leis que criminalizam a transmissão do HIV”, lembrou Nadal, completando que o projeto vai na contramão da tendência mundial.

A diretora do UNAIDS no Brasil, Georgiana Braga-Orillard, reforçou a fala do representante do UNFPA. Segundo ela, o projeto de lei vulnerabiliza ainda mais as populações com estado sorológico positivo, já que “considera as mais de 800 mil pessoas vivendo com HIV no Brasil como criminosos em potencial”.

Segundo ela, a meta do Sistema ONU no Brasil é que todas as pessoas realizem o teste para o vírus e, se necessário, façam o tratamento — o oposto do que aconteceria se o projeto de lei for aprovado.

Em nota técnica, o UNAIDS salientou seis argumentos contrários ao projeto de lei: ele penaliza os mais vulneráveis; promove medo e discriminação; favorece a aplicação seletiva da lei; desconsidera as evidências científicas sobre HIV; põe em risco a privacidade e a confidencialidade; e faz com que o Brasil perca o protagonismo na resposta ao HIV/AIDS.

A legislação brasileira

A Lei 12.984 define como crime a discriminação contra pessoas que vivem com HIV/AIDS no Brasil. São passíveis de punição instituições e pessoas que negarem educação, saúde ou emprego às pessoas soropositivas, bem como as que promoverem sua segregação ou divulgarem seu estado sorológico com o intuito de ofendê-las.

Para a diretora do departamento de Vigilância, Prevenção e Controle das ISTs, HIV/Aids e Hepatites Virais, Adele Benzaken, é importante discutir não somente sobre discriminação, mas sobre a mortalidade causada pelo diagnóstico tardio, irregularidades e abandono do tratamento.

Caio Oliveira, do Fundo das Nações Unidas para a Infância (UNICEF), destacou que o artigo 130 do Código Penal brasileiro já tipifica como crime a exposição de pessoas a moléstias graves. Dessa maneira, não seria necessário que o projeto de lei tornasse a transmissão do vírus um crime hediondo. “Precisamos assegurar que as pessoas que precisam não tenham mais problemas”, finalizou.

Estado e sociedade civil

Além de representantes do Sistema ONU, participaram do encontro lideranças de movimentos sociais, organizações não governamentais e representantes do poder público.

“Outro grande problema (…) é a confidencialidade dos registros médicos. Como é que fica? Porque você só vai poder ter essa informação se de alguma maneira esses registros médicos vierem a público, vierem para o sistema de Justiça”, alertou a procuradora federal dos Direitos do Cidadão, Deborah Duprat. A procuradora ressaltou também que esse ponto pode atingir principalmente grupos socialmente estigmatizados, que escondem a infecção de suas famílias e da sociedade para evitar discriminação.

Pétala Brandão, da Conectas Direitos Humanos, afirmou que o projeto de lei é resultado dos retrocessos dos direitos humanos no Brasil. “Ele é uma manifestação de uma ideologia punitivista, de recrudescimento penal, que cria estigma e vulnerabilização”, declarou.

Ela ressaltou que a participação das Nações Unidas é fundamental para a garantia dos direitos de todas as pessoas, mas que deve haver, imprescindivelmente, articulação com a sociedade civil e movimentos sociais.

Para a deputada Erika Kokay (PT-DF) endossou o argumento da especialista da Conectas. “Esta cultura do medo se transforma em ódio e cria intolerâncias. O projeto invisibiliza as diversidades sociais”, disse a deputada.

UNFPA preside grupo de trabalho

Com forte atuação pela agenda de direitos sexuais e reprodutivos, o UNFPA é uma das 11 agências das Nações Unidas a fazer parte do grupo de trabalho sobre HIV/AIDS. A agência assumiu, este ano, a presidência do grupo para o biênio 2017-2018.

O UNFPA atua para a promoção do serviço de saúde de qualidade universal, incluindo a prevenção e tratamento das infecções do aparelho reprodutor e das infecções de transmissão sexual, incluindo o HIV/AIDS.

Criado em 1997 por meio de uma abordagem multissetorial, o grupo de trabalho busca apoiar a resposta à epidemia de HIV/AIDS no país. Essa mobilização coloca o HIV entre os temas prioritários de atuação conjunta do Sistema ONU há vários anos.

US: The Body reviews the latest development in HIV criminalisation in the United States

What’s New in HIV Criminalization in the United States: The Good, the Bad and the Ugly

By Victoria Law

From TheBody.com

June 15, 2017

Table of Contents

California Senate Passes Bill Modernizing HIV Criminalization Laws

HIV activists in California rejoiced when SB 239 passed the Senate on May 31.

The bill amends the state’s existing criminalization laws to incorporate current understanding of HIV and treatment. It reduces HIV transmission from a felony to a misdemeanor, meaning that people convicted face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV.

“There’s no evidence that criminalization inhibits HIV transmission,” stated Naina Khanna, the executive director of Positive Women’s Network-USA. Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment. Criminalization can be, and often is, used “as tools of coercion and control, particularly for women,” said Khanna. “The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships.” That fear is not unfounded: While women make up only 13% of Californians with HIV, they make up 43% of those criminalized under the state’s HIV laws.

Furthermore, criminalization disproportionately targets people of color. Though blacks and Latinx people make up only 51% of Californians living with HIV, they are 67% of those prosecuted based on their HIV status. “These laws target the most vulnerable communities, pushing them back into the shadows,” said Khanna.

SB239 now moves on to the Assembly.

Missouri Supreme Court Upholds Michael Johnson’s Right to a New Trial

On April 4, the Missouri Supreme Court voted to uphold a lower court’s decision that Michael Johnson, a college wrestler sentenced to 30 years in prison, is entitled to a new trial.

In July 2015, Johnson was convicted on four counts of HIV exposure and one count of HIV transmission. HIV transmission is a Class A felony in Missouri. Johnson, a young black college student, was tried in a nearly all-white town. His race and sexuality were front and center throughout the entire court process. During jury selection, prosecutors asked prospective jurors whether they believed that being gay was a choice. During trial, graphic descriptions and images of Johnson’s penis were admitted as evidence. Most of Johnson’s partners were white.

Both in Missouri and across the country, advocates rallied to his defense, pointing to Johnson’s sentence as a collision of racism, homophobia and HIV criminalization. In December 2016, an appeals court ordered that Johnson receive a new trial. At issue was the fact that prosecutors withheld more than 24 hours of recordings of Johnson’s phone conversations from jail until the first day of trial. By then, it was too late for Johnson’s legal team to mount an appropriate defense. Calling the state’s violation “knowing and intentional,” the judge wrote that the prosecution’s actions were “part of a trial-by-ambush strategy that this Court does not condone.” The decision was upheld by the state’s Supreme Court.

Johnson, now age 25, has already spent four years behind bars. Two of those years were because Johnson and his family were unable to afford the $100,000 cash-only bail that would have enabled him to stay out of jail — and participate in his defense — while awaiting trial. He remains behind bars while he awaits his new day in court.

Florida Says “Sex” Can Be Non-Vaginal — When Prosecuting HIV Exposure

Under Florida law, it is a crime not to inform a sexual partner about HIV status before engaging in sexual intercourse. Until recently, another Florida law defined sex to be between a man and a woman. This is what 65-year-old Gary DeBaun used to overturn his conviction of unlawful sexual transmission of a disease after he created a false report for a partner stating that he was HIV-negative. Since DeBaun’s partner was another man, he and his lawyer argued that the criminalization statute did not apply to him. A lower court agreed and dismissed the case.

While the HIV criminalization law still stands, the law narrowly defining sexual intercourse does not. The Florida Supreme Court ruled that, for purposes of HIV criminalization, sexual intercourse also encompasses anal and oral sex. The prosecutor announced that charges would be brought against DeBaun.

SB 628, a bill that would update existing HIV criminalization laws to acknowledge treatment and prevention efforts, died in the Senate’s Health Policy committee in early May.

Pennsylvania Bills Would Slash Medical Confidentiality of Incarcerated People With HIV

In Pennsylvania, Representative Dom Costa has introduced HB305 and HB306, which expand the current laws criminalizing people living with HIV or suspected of having HIV in the state’s prison system.

HB305 circumvents medical confidentiality if a prison staff member has direct contact with the blood or bodily fluids of an incarcerated person. The bill allows the staff member to learn the incarcerated person’s HIV, hepatitis B and hepatitis C status. If the incarcerated person’s status is unknown, the staff member can request that the person’s blood be tested. If the incarcerated person does not agree to be tested, the prison is allowed to test the person’s available blood if a physician agrees that the staff member had significant exposure to the blood, that tests are needed to treat the staff member and the staff member requests that the blood be tested.

HB 305 defines prison staff members to include health care staff, correctional officers (or guards) and volunteers.

HB 306 amends the state’s Confidentiality of HIV-Related Information Act for people in prison. If passed, the state Department of Corrections must disclose an incarcerated person’s HIV, hepatitis B and hepatitis C status to all corrections officers required to interact with the person. While the bill prohibits corrections officers from disclosing this information to others, incarcerated people across the country have noted that staff members often gossip about medical and other confidential information they overhear or learn, often within earshot of others.

Both HB 305 and HB 306 have been in the state’s House Committee on Judiciary since February 3.

Ohio Supreme Court Hears Challenge to State’s HIV Criminalization Statute

In May, the Ohio Supreme Court heard arguments in State of Ohio v. Orlando Batista, challenging the legality of the state’s HIV criminalization statute. Under the state’s 2000 HIV law, which classifies non-disclosure as felonious assault, Batista was convicted of not disclosing his HIV status to his girlfriend before they had sex. She later tested HIV-positive. Batista was arrested and, after pleading no contest and admitting to transmitting HIV to at least two other women, was sentenced to eight years in prison.

Batista appealed, arguing that requiring a person to disclose his or her status to potential sexual partners is a violation of free speech and that, because HIV is the only disease that is criminalized, the law is also a violation of equal protection. He lost his appeal, but the Ohio Supreme Court agreed to review the issue.

Ohio had 356 HIV-related prosecutions and 59 convictions between 2003 and 2013, giving it the fourth highest HIV-related conviction rate in the U.S. As of 2015, more than 22,300 people in Ohio were living with HIV]].

HIV Is Not a Crime 2018 Conference Planning Has Begun

HIV advocates will be heading to Indiana next summer to share strategies, insights and best practices on repealing and modernizing HIV criminalization laws. The third HIV Is Not a Crime National Training Academy will be held at Indiana University-Purdue University (IUPUI) from June 3-6, 2018.

The conference will offer skills-building training, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning.

“The HIV Modernization Movement (HMM) is excited to welcome HIV Is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn’t kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic,” said Carrie Foote, Ph.D., HMM Chair and an associate professor at the university, in a press release.

“We hope that hosting the Training Academy in Indiana will highlight the archaic HIV-specific laws and empower advocates and allies to modernize Indiana’s statues,” added Tami Haight, conference coordinator with the Sero Project.

Interested in helping to organize the conference? Sign up here to participate in one of the conference’s planning work groups.

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women.

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

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

NOTICARIBE

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

By Leslie Gordillo

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

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

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

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

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

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

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

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

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

Leslie Gordillo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

US: Plus magazine journalist writes about the latest case of HIV criminalisation in Florida highlighting how the law discriminates against those living with HIV

Alcid Jean was charged with five felonies in the latest HIV criminalization overreach

By Desiree Guerrero
JUNE 07 2017 7:00 AM EDT

An Orlando, Fla. resident, Alcid Jean, was arrested last Thursday on five felony counts of an “unlawful act referencing sexual transmitted disease,” for allegedly not disclosing his HIV-positive status to sexual partners. Jean, 44, was arrested May 25th while working his shift at Walt Disney World’s Old Key West Resort, reports Orlando’s WKMG News 6.

Jean’s arrest highlights the ongoing controversy around laws that criminalize HIV or discriminate those living with HIV. The Florida law (penal code 384.24) that Jean was arrested under states that those with various other sexual transmitted infections—including syphilis—who do not disclose to their sexual partners can only be charged with a misdemeanor. The law singles out people with HIV by allowing them to be charged with a felony for not disclosing their status to partners.

Most of these types of laws were enacted decades ago when HIV was seen as a death sentence. They don’t reflect current medical and scientific realities and thus are discriminatory against people living with HIV. Especially since untreated syphilis can be equally harmful and potentially deadly (once curable, a strain of syphilis has emerged that is resistant to all current antibiotics).

Being able to charge HIV-positive people with a felony versus a misdemeanor under this law, means that much harsher sentencing applies. While first degree misdemeanors are punishable by up to one year in jail under Florida law; just one count of an unlawful act referencing sexual transmitted disease as a felony in the first degree in can result in a 30-year prison sentence. If convicted on all five counts, he would likely remain in jail for the rest of his life.

Racial and sex discrimination are significant factors in HIV criminalization. Research shows that African Americans, sex workers, and women significantly higher rates of conviction and jail sentences. In fact, those who aren’t white men are more likely to see these types of charges proceed to court—and in California, for example, prosecutors have won nearly every case that has gone to trial.

According to a study from University of California Los Angeles School of Law’s Williams Institute, 95 percent of the state’s HIV criminalization arrests involved sex workers. Black and Latinx people make up two-thirds (67 percent) of those who came into contact with the criminal justice system around these statutes. Across all HIV-related arrests, white men were significantly more likely to be released and not charged (60 percent were released).

Florida and California are not the only states that carry these types of HIV criminalization laws. In an analysis by the Centers for Disease Control and Prevention and the Department of Justice, researchers found that, as of 2011, a total of 67 laws explicitly focused on persons living with HIV existed in 33 states.

Another disturbing factor of these laws is that many don’t specify a difference in charge or punishment even if the individual is unaware of their status, or if they have an undetectable viral load (which means one cannot transmit the virus). Partly, that’s because most of these laws were enacted during the 1980s and ‘90s, at the height of the epidemic in this country, when transmission was considered a death sentence.

The ideas that support these laws are grossly outdated in light of the advances in treatment and prevention options, such as antiretroviral therapy and the HIV prevention protocol, PrEP. Today, people living with HIV who are on ART can expect near-normal life expectancy rates, which supports the argument that these laws need serious reform. In February of this year, California has taken the first step in doing so, by introducing a bill to reform the state statutes that criminalize HIV.

Florida, however, has not taken similar steps. Although reports indicate Jean had “unprotected sex” it’s not yet known if he is on ART, or if his viral load is currently undetectable. Though Inside Edition reported that one of Jean’s past partners claims he transmitted HIV to her, but whether she is indeed positive hasn’t been officially confirmed. (It’s also very difficult to prove transmission has occurred between two people, even if both have the same strain of HIV.)

After several media outlets sensationalized the story by using headlines like, “Disney Worker Failed to Tell Women He Was HIV-Positive Before Sex: Cops” (thus connecting children, HIV, sex, and crime in readers’ minds), it should come as no surprise that a representative for Disney announced Jean has been placed on unpaid leave pending the outcome of the case.

US: Help stop criminalisation laws in Pennsylvania by signing petition to express your opposition to Bills proposing to expand the current laws criminalising people living with HIV

HIV Is a Medical Condition, Not a Crime. STOP HIV Criminalization Laws in Pennsylvania!

Target: PA Rep. Dom Costa and PA House Judiciary Committee

Dear Pennsylvania Community Members, Colleagues & Supporters:

We, the Positive Women’s Network-USA Pennsylvania Chapter, oppose all forms of criminalization against people living with HIV in our communities, including those who are currently incarcerated.

Two current PA House Bills, HB 305 & 306, if passed, will expand the current laws criminalizing people living with HIV or suspected of having HIV within the Pennsylvania Department of Corrections.

Please sign this petition to express your opposition to PA House Bills 305 & 306.

To: PA Rep. Dom Costa and PA House Judiciary Committee

From: [Your Name]

Pennsylvania House Bills PA-HB 305 and PA-HB 306, if passed, will expand the current laws criminalizing people living with HIV or suspected of having HIV within the Pennsylvania Department of Corrections. HIV is a medical condition, not a crime. Laws criminalizing perceived HIV exposure are extremely damaging to efforts at prevention and treatment, are stigmatizing to people living with HIV, and violate the human rights of people living with HIV.

Our communities stand united as Pennsylvanians in our view that criminalization of people living with HIV is wrong. We, the Positive Women’s Network-USA Pennsylvania Chapter and allies, oppose all forms of criminalization against people living with HIV in our communities, including those who are currently incarcerated.

We urge you to reject HB 305 and HB 306.