A Maryland lawmaker and a handful of local advocates have started the course to repeal the state’s HIV-specific criminal law, and if other states’ efforts are any indication, Maryland’s path will likely be a long and winding one. Maryland Del. Shirley Nathan-Pulliam (D-Baltimore County) decided last week to withdraw a short-lived bill that would have repealed a state law that makes it a misdemeanor crime – punishable by a fine of up to $2,500 and/or three years in prison – for a person who has HIV to “knowingly transfer or attempt to transfer” the virus to another person. Nathan-Pulliam said she withdrew the bill after hearing from HIV advocates who feared a straight repeal of the state law might do more harm than good.
Kan. health dept. proposal could allow for quarantine of individuals with HIV
TOPEKA, Kan. – A proposed bill in the Kansas state legislature could allow the quarantine of people with AIDS or HIV , according to an LGBT advocacy group in testimony before a Kansas state Senate panel on Thursday.
Canada: Police training and guidelines in criminal HIV non-disclosure cases urgently required
The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (HALCO) have submitted a paper to the Ontario Association of Chiefs of Police Diversity Committee, informed by their extensive experience in working on the issue.
The paper includes concrete recommendations for police that could be addressed in a general Best Practice Manual, and recommend the development of specific guidelines in relation to non-disclosure of HIV (and possibly other sexually transmitted infections), in consultation with people living with HIV and the Ontario Working Group on Criminal Law and HIV Exposure (CLHE), as well as other relevant stakeholders.
The submission states
The Ontario Association of Chiefs of Police should engage in a dialogue with representatives of the community, including the Ontario Working Group on Criminal Law and HIV Exposure(CLHE) in order to develop:
- training for police about HIV transmission and the realities of living with HIV today; and
- guidelines for police handling matters of alleged HIV (and possibly other sexually transmitted infection) non-disclosure.
Indeed, both training and guidance on HIV-related issues are urgently required in the aftermath of last November’s Supreme Court ruling which has created a great deal of confusion regarding the exact circumstances when alleged HIV non-disclosure may be a crime.
As the submission notes
Guidelines can help ensure that complaints are handled in a fair, non-discriminatory and consistent manner across the province; criminal investigations are informed by current medical and scientific knowledge about HIV and the social contexts of living with HIV; criminal investigations do not reinforce societal prejudices, preconceptions, and irrational fears regarding HIV, or undermine public health efforts to prevent the spread of HIV; unnecessary investigations are not pursued; and the rights of people living with HIV and complainants are fully respected and preserved.
Guidance around confidentiality issues are needed now more than ever. Last month, Toronto police issued a press release stating they were looking for a gay man “who failed to notify his partner that he is HIV positive.” The following day, they withdrew the alert “after police probed the case, [because] investigators found that no criminal offence was committed.” Unusually in this case, however, no name or photo was released.
Specific recommendations from HALCO and the Legal Network on this issue state:
Police should consider the negative impacts of publicly disclosing a person’s HIV-positive status given the high level of stigma experienced by people living with HIV. Police must ensure that the privacy of HIV status and other medical information is respected to the greatest extent possible (applies to accused and complainants). Media releases including the name, picture and/or health information of an accused are extremely prejudicial for people living with HIV and should only be published in exceptional circumstances and under strict conditions. Police should be mindful that even where HIV is not specified on a police and/or media release, members of the general public and/or people associated with the accused may easily understand that the accused is HIV-positive because of general awareness of HIV non-disclosure prosecutions in Canada. Detailed guidance should be developed to assist police in making decisions to publish a police and/or a media release, and to assist police with the content of such releases. Guidance should be developed to assist police in communicating to the media and the public about cases involving HIV non-disclosure.
The campaign for police training and guidelines in Ontario runs in parallel with a similar campaign for prosecutorial guidelines. A recent article in Lawyers Weekly highlights how advocates have been pushing for such guidelines for several years, and are hopeful that some movement may now take place
That hope springs from two sources. First, Canadian provinces would not be the first to put such guidelines in place. England, Wales and Scotland already have related prosecutorial requirements. Second, Ontario’s justice ministry had previously indicated a willingness to do this before the recent SCC decisions were handed down.
The full submission can be read below or downloaded here.
The criminalization of HIV non-disclosure: Recommendations for police
Germany: National AIDS Council releases powerful policy statement on HIV criminalisation
The German National AIDS Council – an independent advisory body of the Ministry of Health consisting of experts from the fields of research, medical care, public health services, ethics, law, social sciences, as well as people from the civil society – has produced a consensus statement on HIV criminalisation during consensual sex.
A press release issued yesterday by the Federal Ministry of Health states (unnofficial translation from German)
HIV infection has become a treatable chronic disease. In Germany, life expectancy with appropriate medical care is nearly normal. However, people with HIV still experience limitations, especially in everyday social life. They are often stigmatised and discriminated against in both the workplace and in the home environment. Criminal court judgments and their public perception play in a crucial role in this context.
- The National AIDS Council points out that the following medical factors should be assessed in criminal proceedings: HIV is difficult infection to transmit compared to other sexually transmitted diseases. The transmissibility of HIV is primarily related to viral load. In the first weeks after infection this is particularly high, and can amount to several million viral copies per milliliter of blood. After a few weeks or months, however, the immune system, usually controls the infection. Once viral load drops the body can keep viral load low for months or years before medication needs to be taken. During this time, the risk of infection is much lower than in the early phase of infection. Once the immune system weakens, generally antiretroviral therapy commences. With effective treatment, the viral load falls below the detection limit (viral load less than 50 viral copies / ml blood). If viral replication is permanently suppressed completely, according to current medical knowledge, HIV is not sexually transmitted. The risk reduction of successful antiretroviral therapy is at least comparable to the correct use of condoms. It is assumed that a large proportion of HIV transmission takes place during the early stages of HIV infection, i.e. at a time, when those who are infected are not aware of their infection, because an HIV antibody test can only show infection after a few weeks.
- Against this background, the National AIDS Council emphasises: A criminal examination of HIV exposure or transmission related to consensual sexual intercourse must be consistent with the medical facts. The decision whether or not the criminal liability of onward transmission can be assigned to the person with HIV cannot be made as a matter of routine. In fact, the determining factor are the circumstances of each individual case, especially the legitimate expectations of both sexual partners. In any case, in a short-term, consensual sexual encounter both partners are responsible for the application of protective measures, regardless of the knowledge or the acceptance of one’s own status and the status of the other person. Attributing either partner as perpetrator or victim is not appropriate.
Criminal proceedings regarding the transmission of HIV from consensual sexual intercourse do not contribute to HIV prevention. They can even be counterproductive in terms of the willingness of an individual to take an HIV test and in terms of open communication of sexual partners. In contrast, it is in the interest of the individual and society to increase willingness to take an HIV test.”
The full text of the statement (in German) can be found here.
UK: New research calls for better guidance for HIV service providers on criminal law, confidentiality and ethics
Yesterday saw the release of an important new UK study, Keeping Confidence: HIV and the criminal law from service provider perspectives, which explores how HIV criminalisation impacts those who deliver health and social care services for people with HIV.
The report’s lead author, Dr Catherine Dodds, from Sigma Research at the London School of Hygiene & Tropical Medicine, said: “Although HIV health and social care professionals expressed diverse views about their potential role in such cases, they gave a clear sense that criminal prosecutions for the transmission of HIV would not improve public health. Instead, it was most common to hear descriptions of such cases leading to increased stigma, reduced trust between service users and providers, and traumatic consequences for those involved in such cases.”
Study co-investigator, Matthew Weait, Professor of Law and Policy at Birkbeck, Univerisity of London, said: “This important and innovative research demonstrates both the problems that HIV criminalisation creates for clinical and social care providers and the need for solutions at both national and regional level. Care providers working in HIV and sexual health are concerned primarily with the health and wellbeing of their service users – which is of course as it should be; but there is also evidence that criminalisation is compromising their work. Increased awareness and understanding of, and inter-organisational communication about, legal issues is critical, and Keeping Confidence makes practical recommendations as to how that work might be taken forward for the benefit of prevention and support.”
Roger Pebody from aidsmap.com does an excellent job of summarising the study and its findings in this news report:
The study explored how criminal prosecutions for HIV transmission in England and Wales are handled by those who deliver clinical, psychosocial and community support for people with HIV. The report paints a picture of professionals grappling with the difficulties of communicating complex legal information in an appropriate way for each individual. They must weigh up competing concerns and responsibilities, including their own patient’s health and wellbeing, the health of unidentified sexual partners and the legal liability of their own organisation.
The report was launched in central London yesterday at a one-day meeting attended by around 70 HIV service providers, representatives of most of the UK’s community-based HIV organisations, and people living with HIV.
Following presentations of the report’s main findings, a panel consisting of a health adviser, and representatives of community-based organisaton and a people living with HIV discussed the implications for them.
Ceri Evans, Senior Health Adviser at the West London Centre for Sexual Health, Chelsea and Westminster Hospital, highlighted that there may not be a ‘best time’ to inform a newly diagnosed individual of their new legal obligations. Athough she agreed that the post-testing counselling session may not be ideal, she noted that since the criminal law potentially covers all sexually transmissable infections, including genital herpes, and there is usually only a single oppportunity to provide counselling following a new herpes diagnosis, that information about the law might need to be provided to some patients sooner rather than later.
Of note, the report’s fieldwork, involving 75 providers of HIV health and social care services in England and Wales, was undertaken in the latter half of 2012. Since then, the British HIV Association (BHIVA) and the British Association for Sexual Health and HIV (BASHH) have released an updated position statement on HIV Transmission, the Law and the Work of the Clinical Team which provides clinicians with information and guidance on managing many of the issues highglighted as problematic in the research. Lead author, Dr Mary Poulton, Consultant and Clinical Lad, Sexual Health and HIV, Kings College Hospital, London, outlined the main recommendations and provided case studies that illustrated how the decision-guiding algorithm regarding third-party disclosure might be particularly useful.
The rest of the meeting focused around discussing the report’s recommendations, which were as follows.
National recommendations
1. HIV service professionals will benefit from a single website or webpage that collates practical and accessible information about criminal prosecutions for the sexual transmission of HIV. It will need to be updated as new resources become available, and older ones are revised. New resources should be published as required in order to keep pace with clinical and scientific developments in the treatment of HIV that may impact on legal decision-making. The online resource can also identify the best sources of expert criminal legal advice where those are available.
2. A nation-wide programme of continuous professional development in the criminal law should be available to those who provide clinical and non-clinical HIV services. Topics covered should include: straightforward legal definitions and defence arguments, how and when to raise discussions about legal responsibilities, professional liability, communication skills development through the use of scenarios, and existing policy and practice models.
3. Key contacts with an interest in criminal prosecutions should be identified in each clinical and non-clinical HIV service organisation.This process should feed into the development of an updated list for the explicit use of disseminating information about information and training discussed in recommendations 1 and 2 above.The key contacts will also be utilised as the main organisational contact for the development and dissemination of resources to inform people with HIV about the law in this area.
Local recommendations
4. Existing professional guidance and associated documents should be discussed and adapted for local use. This will translate differently in specific settings, and it may lead to the development of local criminalisation policies or protocols, or values statements in some workplaces. At a minimum, such activities should strive for internal consistency on advice, facilitation and support.
5. Opportunities should be created for clinics and community-based organisations to exchange best practice as it relates to criminal prosecution for HIV transmission and to discuss where they agree and disagree on a conceptual level about the ethics of responsibility and public health in HIV prevention.
6. Alongside the development of local criminalisation protocols, all organisations will need to review their confidentiality policies, ensuring that they are accessible to service users, and compatible with internal agreements about criminalisation.
Whilst there was broad consenus regarding many of the recommendations, implementation will depend on various stakeholders collaborating, as well as sufficient funding.
Of note, currently only Australia has a website on HIV and the law aimed specifically at HIV healthcare professionals. The Australian Association of HIV Medicine (ASHM) online Guide to Australian HIV Laws and Policies for Healthcare Professionals covers civil, criminal and public health law, and also includes reference to national guidance on the Management of People with HIV who Place Others at Risk.
The entire day was filmed by the HIV Justice Network and video of the main presentations and final disussion outcomes will be available soon.
Iowa: HIV-specific criminal law reform moves out of committee to the Senate
DES MOINES — HIV-positive people who have sex without disclosing their status would face reduced penalties, similar to those for transmitting other communicable diseases, under a proposal advanced Tuesday in the Iowa Senate. The bill introduced by Sen. Matt McCoy would allow people who intentionally transmit the virus to their partner to be sentenced to a maximum of 10 years in prison. That’s more in line with punishments for transmitting other diseases, such as hepatitis C.
McCoy has introduced versions of the bill in past years, but this is the first time it made it to the floor. Sen. Herman Quirmbach, D-Ames, voted to move the measure out of committee, saying it is wrong to single out those with HIV. “I think it’s entirely appropriate to treat all diseases of a similar nature, chronic incurable diseases, in the same fashion, and the penalties of the current law are Draconian, to say the least,” he said. Despite supporting the bill, Quirmbach said he agreed with concerns raised by two Republicans, who said they opposed the measure because unlike the current law, it doesn’t require infected people to tell a partner of their illness.
HIV PJA Campaign Boosts Awareness and Endorsements of the PJP Consensus Statement on HIV Criminalization
The HIV Prevention Justice Alliance (HIV PJA), a Positive Justice Project organization, ran a successful outreach campaign to increase endorserment of the Positive Justice Project Consensus Statement on HIV Criminalization in the United States. The Consensus Statement now has nearly 500 individual and organizational endorsements.
hivandhepatitis.com – President's HIV/AIDS Council Responds to Unjust HIV Criminalization Laws | HIV Policy & Advocacy
The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution this month stating that punishments imposed for HIV non-disclosure or exposureareout of proportion to actual harm inflicted, and that HIV criminalization is bad public health policy that fuels the epidemic.
Iowa legislators introduce HIV de-criminalization bill – The Daily Iowan
State lawmakers introduced a bill this week that, if passed, would change the human immunodeficiency virus criminalization laws in Iowa. Sen. Steve Sodders, D-State Center, worked extensively on the bill with Sen. Matt McCoy, D-Des Moines. “[Iowa’s criminal HIV law] was put on the books when HIV and AIDS were first coming out and little was known about it,” Sodders said. “We have more information, better drugs, and we know more about the transmission of HIV so we also need to update our law to avoid being overly punitive in cases where they don’t need to be.”
Mo. Senate Passes Bill to Increase Tuberculosis Screenings and Penalize Spreading the Disease
On February 14, the Missouri Senate voted unanimously to approve a bill requiring TB screening for more people and allow prosecution of those who spread the disease. Sponsored by Republican Sen. David Sater, a pharmacist from Cassville, Mo., the legislation would direct universities and colleges to develop TB screenings for faculty and students who were considered at “high risk” of contracting the disease.