Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV.  Although the reports do not state under which general law he was prosecuted, it is likely to be Article 149 of the Criminal Code, grievous bodily harm.

According to a recent analysis of all previous cases that reached Provincial or Supreme Courts (1996-2012), Article 149 has used for similar cases, using the ‘state of mind’ of ‘dolus eventualis’ similar to concept of ‘recklessness.’ The nine year sentence is similar to two previous cases for alleged HIV transmission during otherwise consensual sex in Spain. (Sixteen sentences and 9 writs belonging to 19 cases were included in the analysis; 17 judged by criminal and two by civil jurisdictions – full text at the bottom of the page).

The Court’s judgment, dated December 4, 2014 but published last week, noted that that  the Cantabria Provincial Court’s ruling was “sufficiently motivated” and dismissed ABM’s appeal which cited a violation of his right to the presumption of innocence and lack of credibility of his accuser, with whom he maintains a dispute over ownership of property.

The Supreme Court upheld the Provincial Court’s sentence of nine years in prison. He also has to pay his former partner compensation of 70,000 euros.

According to the judgment, cited in several Spanish language media reports (the most detailed of which was in 20 minutos), ABM was diagnosed in April 2000. In 2007 he began a romantic relationship with the complainant which lasted until 2012. It was alleged that ABM did not disclose to her that he was living with HIV despite having condomless sex. In 2011, she began to suspect that her partner may be living with HIV.

The Court found there was nothing to suggest that she was already HIV-positive when she arrived in Spain (from Peru), based on her own testimony, her medical history and her GP, although there is no mention of phylogenetic analysis being used to attempt to show a link between the viruses. The Court also noted that the woman is asymptomatic and on antiretroviral treatment.

BBC report and analysis

On Friday, BBC Mundo (the BBC’s Spanish language BBC World website) published a longer analysis of the implications of overly broad HIV criminalisation in Spanish-speaking countries.  I was interviewed for the piece, and am delighted to report that the journalist, Leire Ventas, produced a very good, balanced report.

Below is an approximate English translation of the Spanish language original.

Should knowing transmission of HIV be a crime?

January 30, 2015

A jail sentence in Spain rekindles debate over whether criminal law should apply to people who transmit the human immunodeficiency virus.Spain’s Supreme Court upheld the sentence of nine years in prison for a man who hid his HIV positive status from partner, infecting her with HIV.

The Court did not admit the appeal filed by the defendant.

This appeal had alleged violation of the right to presumption of innocence and lack of credibility of the victim, who maintains a dispute over ownership of a property.

According to the facts in the case, the convicted man was diagnosed HIV-positive in April 2000 and began a relationship with the woman in 2007.

They were together until 2012.

According to the Court, during those five years the defendant hid that he was HIV-positive from his partner and had sex without protection.

In 2011, woman began to suspect that her partner may have the virus and subjected to analysis, which confirmed infection.

“Intentional transmission”

Given this statement of facts, the Court found that the defendant had deliberately concealed his condition and that was the reason it upheld the ruling.

In the same vein, intentional transmission is the only case in which the Joint United Nations Programme on HIV / AIDS, UNAIDS, considers appropriate to apply the criminal law to people who transmit HIV or expose others to the virus.

“That is, when the person knows their HIV-positive serostatus and acts with intent to transmit or indeed does transmit,” says the report Criminalization of HIV Transmission, 2008 and its revision in 2013 the agency told the BBC.

“If a person known to be HIV-positive acts with the intention of transmitting the virus and transmits it (…), the damage justifies punishment,” it adds.

“In other cases, legislators, prosecutors and judges should reject the application of criminal law”.

Other cases

According to UNAIDS, the law should not apply to cases where there is no “significant risk” of transmission or where the person did not know they were HIV-positive, did not understand how HIV is transmitted, disclosed their status to the person at risk, or did not for fear of violence.

And neither should the law be used against someone who took “reasonable steps” of protection to reduce the risk of transmission or who previously agreed with the other person “a level of mutually acceptable risk”.

Thus, the agency recommends that governments legislate specifically to prevent HIV and only apply general criminal law to cases of intentional transmission.

They should also “develop guidelines to limit the discretion of the police and prosecutors in the application” of criminal law.

And UNAIDS believes that the latter creates “a real risk” of increasing stigma and discrimination.

“It is very likely that prosecutions and convictions fall on members of marginalized groups such as sex workers, men who have sex with men and people who inject drugs,” it says.

Obligation to disclose

For that reason, the agency also recommends repealing the legal obligation to disclose one’s HIV status or that of others, in the case of health workers, that exist in some countries.

“Everyone has the right to privacy regarding their health and should not be required by law to disclose such information, especially when it may cause serious stigma and discrimination and possible violence.”

It considers inappropriate to enact laws criminalising mother-to-child transmission of the virus.

“Everyone has the right to have children, including women living with HIV,” said UNAIDS.

It adds: “When pregnant women are advised on the benefits of antiretroviral therapy, almost all access treatment”.

The position of Edwin Bernard, co-ordinator of HIV Justice Network, a network of advocates providing information and international legal policy advice on HIV criminalisation, is not far from the recommendations of the UN programme.

“The only cases where it is appropriate to apply the criminal law is when there has been intent and these are usually very rare,” he tells the BBC.

He stressed that “not disclosing you have the virus, and keeping it a secret is not the same as wanting to spread it.”

There are several reasons not to tell, according to the activist: stigma, violence, even denying the condition itself.

Awareness, not persecution

Therefore he believes that laws around HIV in countries should be aimed at raising awareness and support for the eradication of the disease, and not the prosecution.

Latin America is a region particularly aware of this, he says.

“It has a good record of understanding that with regard to HIV the law should support and not persecute”.

“There have been very few known cases of prosecution for HIV transmission in Latin America. Most have taken place in Brazil and under a general, not specific, criminal law”.

In Spain, by contrast, between 1996 and 2012, 19 legal [or civil] cases were recorded.

This is registered in the report Temporal trends, characteristics and evidence of scientific progress in legal complaints for alleged sexual HIV transmission: 1996-2012.

However, the country with the most prosecutions is the United States, where 30 states have specific legislation on HIV.

“After eight years following up the issue, I can say that judicial systems, prosecutors and judges do not understand how the science has advanced, how the life expectancy of those with the virus has increased. They should know that the risk of transmission is very low “, says Bernard.

For the activist, the ideal situation would be to only have one or two lawsuits per year related to the topic.

“The law should be used, for example, in cases of rape. But when sex is consensual and those involved are aware of the risks, responsibility should also be shared.”

 

F. Bolúmar-Montero, M.J. Fuster-Ruiz de Apodaca, M. Weait, J. Alventosa & J. Del Amo (2015) Time trends, c…

Australia: Western Australia implements unscientific new law mandating HIV and hepatitis testing for spitting at, or biting, cops

Spitters and biters beware.  From January 1 anyone caught biting or spitting at a police officer in Western Australia will be ordered to undergo blood tests for infectious diseases.

The new law, coming in at midnight on the busiest night of the year, has been introduced to streamline the testing process for officers who are injured by a potentially infected offender.

WA Police Minister Liza Harvey said officers’ concerns would be eased by immediately testing the blood of an attacker for infectious diseases.

“Previously a police officer has had an agonising three to six-month wait before they get results from their own blood testing to confirm if they have contracted a disease,” she said.

“So for those people who do decide to get on the wrong side of police and decide to bite them or spit at them we will be compelling those offenders to provide a blood sample.

“They [police] will have an idea of whether they’ll have contracted HIV or hep C or hep B and we can give the police officers peace of mind early in the piece as to whether they’ve been exposed to those diseases. ”

Ms Harvey said 147 police in 2013 were exposed to bodily fluids in a way that they could contract an infectious disease.

“This legislation will allow for the taking of blood samples from the offender which helps in diagnosis, clinical management and treatment of the exposed police officer,” she said.

She said the testing would only take place if transfer of an infectious disease, such as bodily fluid through broken skin, was possible.

“We are deeply committed to protecting our officers on the frontline, who are committed to protecting us,” Mrs Harvey said.

Under the new law, approval for the blood test must come from an inspector or higher rank and a court order is needed if the offender is a child or is impaired.

Test will check for HIV, hepatitis B and C.

Uganda: HIV Prevention and Management Act should be seen in context with Anti-Pornography Act, Anti-Homosexuality Act and Narcotics Law says OSF

On November 20, Uganda’s parliament passed the Narcotic Drugs and Psychotropic Substances (Control) Bill, also known as the Narcotics Law. A draconian piece of legislation, the law purports to deter drug abuse by imposing inhumanely long prison sentences-a conviction for simple possession can land a person in a cell for 25 years.

Nepal: Draft criminal code prohibiting infectious disease transmission singles out people with HIV and hepatitis B

Lawmakers in Nepal are considering a draft law that singles out people with HIV and hepatitis B, contrary to recommendations from UNAIDS and the Global Commission on HIV and the Law.

According to the draft text, tweeted by IRIN Humanitarian News reporter Kyle Knight, Article 103 ‘Prohibition of transmission HIV’ of Chapter 5, Offenses against Public Interest, Health, Safety, Facilities and Morals, criminalises people who are “aware of knowledge of one’s own positive HIV or Hepatitis B status”, who “purposefully or knowingly commit acts that would transmit Hepatitis B or HIV, give blood or coerce to give blood or come into sexual contact without precautionary measures in place, or cause entry of blood, semen, saliva, or other bodily fluids into the body of another.”

 

There are two levels of mens rea (state of mind) for such acts.

If it is “determined that the offender has purposefully or knowingly committed such an offense” the penalty is “up to 10 years of incarceration” and a fine up to 100,000 Rupees (approx. US$1000).

“However, if determined that the transmission occurred without intent to purposefully transmit or determined that the transmission occurred out of carelessness it shall be punishable by up to 3 years of incarceration and” a 30,000 Rupee (approx. US$300) fine.”

If the complainant has “knowingly initiated sexual contact with someone with [a] positive HIV or Hepatitis B status out of their own volition, such an act shall not be considered an offense.”

Given that article 102, ‘Prohibition of transmission infectious diseases’ already criminalises anyone who should “commit acts that could endanger the lives of others through the transmission or the potential transmission of infectious diseases” it is unclear why people with and HIV and hepatitis B are singled out, unless it is to provide a consent defence, which is not allowed in article 102.

In addition, article 102 provides for three levels of mens rea: “purposefully or knowingly” (with a penalty of up to 10 years of incarceration and a Rs. 100,000 fine); “negligently or irresponsibly” (up to 5 years of incarceration and a Rs. 50,000 fine); and “carelessly or recklessly” (up to 3 years of incarceration and a Rs. 30,000 fine).

Guidance from UNAIDS recommends that the only state of mind that may warrant criminal prosecution for alleged HIV transmission is malicious intent, and that HIV should never be singled out for special treatment. 

It is unclear how a court (or the police or prosecutors) would be able to differentiate between the various states of mind outlined in this draft law.

And whilst it could be seen as a positive step to allow for a consent defence, the law is far too vague and broad in terms of defining the acts that “would” risk HIV exposure or transmission, potentially criminalising all sex (including kissing and oral sex) by a person living with HIV unless their partner consented, even if no exposure was possible and/or no transmission is alleged to have occurred.

This would result in people living with HIV or hepatitis B being vulnerable to arrest and prosecution which would increase stigma and make it more likely that testing, treatment and beneficial disclosure would not take place.

HIV advocates in Nepal are currently responding to the draft law by sensitising parliamentarians to the notion that such laws do more harm than good to public health.

Nepal Draft HIV/Hepatitis B Criminal Law

Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal

cannot be considered indicative. Instead, the Supreme Court judgment of

2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 

The Supreme Court had a chance to make up with the judiciary outdated

views on HIV. But a new decision means, unfortunately, that people

will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man

living with HIV and who had had unprotected sex with four different

women [all of whom] did not become infected.

The district court had sentenced him to one year in prison, but the

Court of Appeal brought in the opinion of the [Swedish] Centre for

Disease Control and allowed a professor to testify.

According to both the CDC's expert statement and the professor,

the [HIV transmission] risk during vaginal sex is very low.

The Court of Appeal found that since the man was well-managed on

medication  "the probability that the intercourse to which the charge

relates would result in the transmission of HIV was so small that

no real danger can not be considered to have existed."

Thus, there was not any crime.

Courageous verdict

The verdict was courageous and progressive: the lawyers listened to

some of the world's most skilled and knowledgeable researchers

in the field and took a decision that could lead to scientific

criteria forming the basis of when prosecutions should be instituted

in cases related to HIV.

The Prosecutor appealed to the Supreme Court to see if it would

stand up and be the guide. Now the Supreme Court's curt decision

has been reached, the case is not addressed. This means on one

hand that the Court of Appeal's ruling is upheld.

The man is innocent.

But the Supreme Court writes, in addition, that a ruling from

2004 still applies in practice.

Very unfortunate

That case concerned a man who had had a significant number of sex

with ten men [all of ] whom were not infected. He was sentenced

to one year in prison for reckless endangerment.

That this judgment will in the future be the guiding principle

is very unfortunate. It was reasonable when it was delivered,

but in the ten years that have passed since then, research has

made great progress.

Today's medicine allows those living with HIV on successful

treatment are simply not infectious. In addition there is now

much better knowledge of the risks than then.

In other words, its no sensation that Jan Albert, Professor of

Infectious Disease at the Karolinska Institute, is surprised

that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 

What, then, will be the consequence of the decision?

The 1980s horror of AIDS will live on in the courtrooms

and help maintain the future stigmatisation of those with HIV.

It is perfectly understandable that people become terrified

when they find out that they have had unprotected sex with

someone with HIV.

But this fear that is based on ignorance.

No need to disclose

In its recommendations, the National Board writes that a doctor

can now make their own judgment about whether their patient need

to inform their [sexual] partner that they are living with the virus.

Of course it will still be a crime to not adhere to treatment and,

therefore, expose others to risk. But those who take their HIV

seriously, which a substantial majority do, for obvious reasons,

do not commit a crime when they have sex.

That people may be sent to jail for something they have not

done wrong is deeply offensive.

Something tells me that the judgement also means that

the huge amount of legitimate international criticism that

has been leveled against Sweden, as one of the countries with

the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex

with a man was acquitted entirely in the District Court.

A divided Court of Appeals has now made a somewhat different

assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had

unprotected sex with him without telling him that she was infected

with HIV. The woman was charged with attempted aggravated assault

as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about

the woman's HIV infection before the first sexual intercourse,

but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse

there had been some, but not significant, risk of HIV transmission.

The Court also found that the defendant "harbored warm feelings"

for the man, supported by the fact that she completed intercourse,

trusting that any transmission of infection would not happen.

Therefore, it was not established that the woman had the

intent to transmit HIV infection, and the indictment for

attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District

Court held that the consent had an exonerating effect because the

risk of infection had not been as high. The Court stated that

the question of exonerating consent existed to be judged

by the severity of the risk and the risk that the danger would

be realised. The Court found that HIV infection is a very

serious disease. Unlike the District Court, the Court considers

that the risk of infection in this case was so high during

the period when the woman was untreated for HIV infection,

1 in 1000 through unprotected sexual intercourse, that the consent

did not have an exonerating effect. After the time woman began to

take antiretrovirals, there was a decreased risk of infection,

however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the

period when she was not on antiretroviral drugs. The penalty

was determined to be probation and a fine.

Malawi: Delay in presenting draft HIV/AIDS bill to Parliament over "contentious" statutes that would criminalise 'wilful' HIV transmission and mandate HIV testing for pregnant women

Lilongwe – In a bid to address some contentious issues in the draft HIV and AIDS Prevention and Management Bill, Capital Hill has said it will not submit the bill to Parliament during the September meeting as was expected. Instead, Secretary for HIV/AIDS and Nutrition, Edith Mkawa said the bill will be presented during the next sitting of parliament.

Speaking to Malawi News Agency (Mana) on the sidelines of a Malawi Network of People Living with HIV/AIDS-MANET+ policy dialogue dinner meeting with parliamentarians on Wednesday, Mkawa said the draft bill was currently at the Ministry of Justice.

She said officials in her department would on Thursday, September 4, dialogue with their counterparts from the justice ministry on certain provisions before the bill is finally sent to the Cabinet and then parliament.

“There are legal issues like the criminalization of deliberate HIV transmission and mandatory testing for pregnant women that should be carefully addressed because they border on the rights of an individual. It is therefore important that we address them before we can comfortably say the bill is ready,” she said.

The PS also noted that most Members of Parliament needed to have adequate information before they deliberate on the bill in parliament.

“Most of these MPs are new and need to have as much information as possible, so we will be engaging them and various stakeholders so that we are on the same page. So, we will not be sending it to parliament now, it has to go through all the processes, ” added Mkawa.

Board Chairperson for MANET+ Joyce Mataya said the bill was one of the remedies that would effectively support the HIV response in the country.

“MANET+ has seen great improvement on the review process which led to some contentious provisions being removed and others revised. For instance if you talk about mandatory testing, and if I declare my status, how are people going to treat me?”

Mataya added, “There will be a lot of stigma and discrimination. So we need to create an environment which is friendly for this process. Any HIV testing should be by informed and truly voluntary consent; Similarly disclosure of HIV status to relations and partners should be at the discretion of the person living with the virus. ”

And, chairperson for the Parliamentary Committee on HIV/AIDS and Nutrition, Deus Gumba said they were ready to pass the bill once presented in parliament.

The HIV and AIDS Prevention and Management Bill was developed by the Malawi Law Commission-MLC in 2008 to among others, provide an institutional framework for effective regulation of the prevention and management the HIV and AIDS epidemic in Malawi.

Liberia: Law proposed to criminalise those who "knowingly or willfully infect" with any communicable disease, including HIV, Ebola, hepatitis B or gonorrhoea

The House of Representatives is reviewing a law to criminalize the concealing of information of persons with communicable or contiguous diseases in Liberia. Presenting the Draft Bill to the Plenary during the 54th Day sitting of the House, Lofa County Representative of District 5, Moses Kollie, proposed that if a person or group of persons knowingly or willfully infect another person or group of persons with any communicable disease that should be considered as a criminal Act.

The Bill titled “2014 Act Criminalizing Concealing Information of person (s) with Communicable/contiguous infectious Disease(s) in Liberia” named those communicable or contiguous diseases as Ebola, gonorrhea hepatitis B (Hep B), HIV/AIDS and Lassa fever.

Others include Leprosy, Measles, meningitis, smallpox, Tuberculosis, typhoid fever and yellow fever amongst others.

“If a person or group of persons knowingly, intentionally or willfully infect another person or groups of persons with any of the communicable/contiguous disease(s) as mentioned in section 3 of this Act shall be considered as a Criminal Offense, second degree felony punishment under the laws of the Republic of Liberia”. As stipulated in Section 4 of the bill.

The House Committees on Health and Social welfare and Judiciary have been mandated by plenary to review and advice that honorable body next Tuesday.

Ugandan President Signs Law Criminalizing HIV Transmission

Ugandan President Yoweri Museveni has signed a bill into law to criminalize HIV transmission and impose other measures public health activists say will make it even harder to get Uganda’s severe epidemic under control.

Uganda: Civil society coalition condemns President Museveni for signing HIV Prevention and Control Bill into law

[Press Statement from the Coalition for HIV/AIDS Prevention and Control Act]

Civil society organisations reacted harshly today to the assent by President Museveni on July 31 2014 to Uganda’s controversial HIV Bill, the HIV Prevention and Control Act of 2014, which was passed on May 13 2014 by Ugandan Parliament. This law has been publicly criticised by officials leading the HIV response in Uganda, such as the AIDS Control Programme of the Ministry of Health and the Uganda AIDS Commission, entities that repeatedly told media that this Act would take Uganda‟s AIDS response in “the wrong direction.”

“We are outraged that Uganda would willingly embrace backwards laws and policies,” said Lilian Mworeko of ICW East Africa. “How can we achieve the AIDS Free Generation that government has committed to when Uganda adopts such a law?”

The law has been assessed by experts in Uganda such as UNAIDS and the Ugandan Human Rights Commission, as discriminatory, with key provisions that will impede the fight against AIDS.The controversial provisions in the Act include: mandatory HIV testing for pregnant women and their partners, and allows medical providers to disclose a patient’s HIV status to others without consent. The bill also criminalises HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status.

“Why is Uganda avoiding evidence of what works in the AIDS response?” asked Kikonyogo Kivumbi of UHSPA. “It is founded on stigma and discrimination and based on outmoded and unnecessary approaches that have been condemned by health agencies as ineffective and violating the rights of people living with HIV.”

Mandatory HIV testing and the disclosure of medical information without consent are contrary to international best practices and violate fundamental human rights. The criminalization of HIV transmission, attempted transmission, and behaviour that might result in transmission by those who know their HIV status is overly broad, and difficult to enforce.

The organisations are exploring a legal challenge to the Act, considering these violations.

“We are gravely concerned that this Law will drive people at risk of HIV infection, in particular criminalised populations such as sex workers and gay men, further from life saving services they need,” said Asia Russell of Health GAP.

President Museveni‟s assent came despite criticism by the Ministry of Health’s AIDS Control Programme, and the Board Chair of the Uganda AIDS Commission, Professor Vinand Nantulya, along with many independent health rights groups in Uganda. They oppose the contentious clauses and called on Uganda to fight HIV with more effective legislation.

“For Uganda to address its HIV epidemic effectively, it needs to partner with people living with HIV, not blame them, criminalise them, and exclude them from policy making,” said Dorah Kiconco, executive director of Uganda Network on Law, Ethics & HIV/AIDS.

Signed Ugandan HIV and AIDS Prevention and Control Act 2014

US: Lambda Legal calls for halt to HIV-based criminal prosecutions in wake of Department of Justice guidance

[Press release from Lambda Legal]

“We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

(Washington, D.C. Thursday, July 17, 2014) – Lambda Legal today called for a moratorium on all HIV-based criminal prosecutions until state legislatures take action to implement the reforms recommended in the recent Department of Justice (DOJ) guidance advising states to eliminate such prosecutions absent clear evidence of an intent to harm and a significant risk of actual transmission.

“This is a watershed moment in the fight to decriminalize HIV. When the country’s leading law enforcement agency — working hand-in-hand with the country’s leading public health authority — reaches the conclusion that particular laws and criminal prosecutions are working at cross-purposes to our national strategy for ending the HIV/AIDS epidemic, it is time for those with the power to end these prosecutions to take immediate action,” said Scott Schoettes, HIV Project Director for Lambda Legal. “We call upon those charged with enforcing such laws—from governors to prosecutors to police detectives—to halt the criminal prosecution and resulting persecution of any individual based on HIV status.”

Earlier this year, the DOJ co-authored an article with the Centers for Disease Control and Prevention (CDC) analyzing the current landscape with respect to HIV criminalization laws in the United States. As a follow-up, the DOJ this week published guidance (“Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors” [link]) noting that these laws are not based on a current understanding of HIV or the availability of biomedical techniques for preventing its transmission, were enacted when the prognosis of those with access to care was much different than it is today, and place unique and unnecessary additional burdens on people living with HIV.

Schoettes added, “For years, Lambda Legal has been advocating for the repeal or reform of HIV criminalization laws, assisting defense attorneys from behind the scenes, and—when the opportunity arose and a solid legal argument could be made—fighting in court ourselves against the most egregious application of such laws. Along with a wide range of allies we have refined the arguments against these laws, made our case to audiences both gay and straight, and pressed others to join our cause. The growing drumbeat against these laws and unjust prosecutions finally has reached the ears of those in positions of authority. And this summer, the tide has finally turned in our favor.”

Within the criminal justice system, prosecutors have a significant degree of discretion and represent the most important safeguard against unjust applications of the criminal law. In this circumstance, any government attorney who is currently prosecuting a criminal case that turns upon the HIV status of the defendant is invested with the power to consider whether that prosecution conforms to the best practices set forth by the Department of Justice guidance and to discontinue prosecutions that are not in line it. In situations involving consensual sexual conduct between adults, a prosecution would not move forward under the parameters of this guidance unless there is clear evidence of both the intent to transmit the virus and a significant risk of transmission as a result of that person’s conduct.

“Right now, dozens of individuals in states all across the country face prosecutions that are not justifiable under the parameters set forth in the DOJ guidance,” said Schoettes. “No person who is in a position to halt such a prosecution should stand idly by while these individuals are subjected to such unwarranted persecution. We call upon those who have pledged themselves to pursue justice on behalf of the communities they serve to fulfill that pledge now, to end all prosecutions based on HIV status, and to return these individuals to their families and their lives.”

Last month, in a pivotal appeal litigated by Lambda Legal, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court questioned whether HIV-positive individuals who have a reduced viral load as a result of effective treatment can transmit HIV through sexual activity.

The DOJ guidance is available here

The Iowa Supreme Court ruling in Lambda Legal’s case Rhoades v. Iowa is available here