US: Positive Justice Project publishes essential new advocacy resource

The Center for HIV Law and Policy has released the first comprehensive analysis of HIV-specific criminal laws and prosecutions in the United States. The publication, Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, covers policies and cases in all fifty states, the military, federal prisons and U.S. territories.

Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions is intended as a resource for lawyers and community advocates on the laws, cases, and trends that define HIV criminalization in the United States. Thirty-four states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least eighty such prosecutions have occurred in the last two years alone.

People are being imprisoned for decades, and in many cases have to register as sex offenders, as a consequence of exaggerated fears about HIV. Most of these cases involve consensual sex or conduct such as spitting and biting that has only a remote possibility of HIV exposure. For example, a number of states have laws that make it a felony for someone who has had a positive HIV test to spit on or touch another person with blood or saliva. Some examples of recent prosecutions discussed in CHLP’s manual include:

• A man with HIV in Texas is serving thirty-five years for spitting at a police officer;

• A man with HIV in Iowa, who had an undetectable viral load, received a twenty-five year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex-offender and is not allowed unsupervised contact with his nieces, nephews and other young children;

• A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status;

• A man with HIV in Michigan was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after he allegedly bit his neighbor.

The catalog of state and federal laws and cases is the first volume of a multi-part manual that CHLP’s Positive Justice Project is developing for legal and community advocates. The goal of the Positive Justice Project is to bring an end to laws and policies that subject people with HIV to arrest and increased punishment on the basis of gross ignorance about the nature and transmission of HIV, without consideration of the actual risks of HIV exposure.

The manual’s completion was supported by grants for CHLP’s anti-criminalization work and Positive Justice Project from the MAC AIDS Fund and Broadway Cares/Equity Fights AIDS.

Download the manual here (2.3MB)

Nigeria: Oh the irony – “aggressive dissemination” of HIV-specific law both increases and punishes stigma

It was passed three years ago, but only now has the Lagos State AIDS Control Agency (LSACA), in collaboration with Enhancing Nigerian HIV Response (ENR) and the Lagos State Ministry of Justice begun “aggressive dissemination” of the Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos state and for other Concerned Matters.

According to the Daily Independent, the law’s prime aim is to protect the rights of people with HIV by punishing HIV-related stigma.

Any form of prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV and AIDS amounts to stigma. However, not so known to many people is the fact that committing any of these acts now amount to committing serious legal sins against HIV positive persons, for which some of the punishments are almost as grave as criminal offences.

There are, indeed, some positive provisions in the law which punishes breaches in healthcare worker-patient confidentiality and employer and landlord discrimination of people with HIV. It also criminalises bogus claims of HIV ‘cures’.

To make this law work effectively, a Justice and Human Rights Watch Group is to be established. The group, which shall be under the control of the Lagos AIDS Control Agency, would be responsible, by law, for the monitoring and implementation of provisions of the law.

Ibirogba said, “Part of the policy which informed the drafting and subsequent passage of the law was the fact that Lagos state is most concerned about the plight of the affected persons, especially in terms of discrimination and stigmatization in hospitals, their neighbourhood and places of work.

Head of LSACA’s project Office, Dr. Olusegun Ogboye, said the agency would do everything possible to ensure the law is disseminated across as many Nigerians in Lagos.

ENR coordinator in Lagos, Dr. Olusegun Oyedeji, however cautions that HIV positive people should not take advantage of the law to ‘stigma people who are HIV negative or make unprincipled demands.’

“It will not make sense for any person to demand for special attention or ask for more than what he or she deserves because he or she is HIV positive,” Oyedeji said at the dissemination forum, which also had People Living With HIV/AIDS in attendance.

However, and without a hint of irony, it notes that – in my opinion – a poorly-written, vague and problematic statute in the law

makes an offence punishable with various jail terms up to 10 years imprisonment and fines for anyone who intentionally infects others with the Human Immunodeficiency Virus (HIV) that causes the Acquired Immune Deficiency Syndrome (AIDS).

Director at Citizens Rights directorate of Lagos state ministry of Justice, Mrs. Omotilewa Ibirobga, who gave insights on the law during the dissemination meeting at Cheers Hotel, Ikeja, Lagos , said “Section (18) subsection (1) is clear about this.”

The section reads; “Any person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding 10 years or both fine and imprisonment.”

Across the continent in Uganda, international civil society Organisations, academics and HIV professionals met with the social service committee of the Parliament of Uganda last month to argue that similarly worded criminalisation statutes in the HIV/AIDS Prevention and Control Bill will increase HIV-related stigma.

[We] are of the view that crucial provisions of this law constitute a step back to the pre-1987 time when ignorance, fear, stigma and discrimination were the hallmarks of national engagement with the crisis. Namely mandatory testing, that is to say testing of a person for HIV without their knowledge and informed consent; mandatory disclosure, that is to say disclosure of a person’s HIV status without their knowledge and informed consent; and criminalization of intentional transmission of HIV.

Ukraine: Revised HIV law may no longer mandate disclosure

A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may risk exposure.

According to a press release from the International AIDS Society, the following changes will be implemented:

  • People living with HIV will no longer be barred from entering, staying or seeking residence in Ukraine based solely on HIV positive status;
  • NGOs providing HIV treatment, prevention and care services will have the right to apply for state contracts
  • People living with HIV will have the right to seek compensation for the unlawful disclosure of their HIV status
  • HIV-positive injecting drug users (IDUs) and other IDUs will have the right to receive Opioid Substitution Therapy (OST)
  • People living with HIV will be encouraged to disclose information about the risk of HIV transmission, however they will no longer be required by law to disclose their status to partners

WHO Europe notes

The revised law is the result of two years intensive and collaborative work, including the involvement of non-governmental sector, especially All-Ukrainian Network of People living with HIV, the support from the USAID-funded HIV/AIDS Service Capacity Project in Ukraine and the United Nations Team Group on HIV/AIDS. The change would not have been successful without a close collaboration with the Parliamentarian Committee on Public Health and its chair Dr Tatyana Bakhteeva who was very much committed to the issue.

Dr Volodymyr Kurpita, Executive Director of All-Ukrainian Network of People living with HIV told me in an email that since the final version of the revised Prevention of AIDS and Social Protection of Population Act is still awaiting parliamentary approval in the second hearing, the final wording of the law on HIV disclosure is still not known, but “we can highlight it is more progressive and less restrictive as previous one.”  

In Ukraine, newly diagnosed individuals must undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this 1998 disclosure law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is also subject to prosecution, with a maximum penalty of ten years’ imprisonment. There have been at least six prosecutions and four convictions under these laws.

South Africa: Opposition leader Helen Zille says HIV exposure is ‘attempted murder’, cites Nadja Benaissa case as example

South Africa’s leader of the Democratic Alliance opposition party, Western Cape Premier Helen Zille has said that HIV-positive people who knowingly have unprotected sex without disclosing their status, should be charged with attempted murder. She also cited the recent case of German pop star, Nadja Benaissa, as an example for South Africa to follow.

Her remarks, reported in the Cape Times, were made during an address to the South African Institute of International Affairs last week.

She said the lack of personal responsibility contributed to some of the greatest social ills in the country.

“Social pathologies are complex, but I think we must all agree that promoting a culture of personal responsibility is essential to addressing all these things. We also need to take action against people who are HIV-positive and knowingly have unprotected sex without disclosing their status. This, I believe, is an offence on a par with attempted murder. This is complex and difficult, and requires enormous courage from the wronged sexual partner to lay a charge and give evidence,” Zille said.

[…]

Zille said the recent court case against a German pop star for failing to disclose her HIV-positive status was an example to emulate. German singer Nadja Benaissa, a member of No Angels, was found guilty of causing grievous bodily harm to her ex-boyfriend by having unprotected sex with him despite knowing she had HIV. The 28-year-old was given a two-year suspended prison sentence and 300 hours’ community service. Zille said the lack of personal responsibility contributed to some of the greatest social problems facing the country, such as HIV/Aids, alcoholism, drug abuse, teenage pregnancy, foetal alcohol syndrome, and absentee fathers who did not pay maintenance.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that “an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified.”

A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007. Rather, the legislation requires HIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.

Canada: British Columbia man guilty again following retrial (update)

Update August 24th 2010


Adrian Nduwayo, has been found guilty again of five charges of aggravated sexual assault involving five women, three of whom subsequently tested HIV-positive, following a retrial at the BC Supreme Court.

He was oringally guilty of the same charges, plus one of attempted aggravated sexual assault and one of sexual assault in 2005 and sentenced in 2006 to 15 years in prison.  This time, he was acquitted of those two other charges.

Details of the reasons for the original appeal are in my original post, below.

According to the report in Vancouver’s mid-market tabloid, The Province, the retrial hinged on the issue of lack of consent due to non-disclosure.

Justice James Williams said that, although the sexual relations were “ostensibly consensual,” that consent was taken away when Nduwayo failed to tell the women that he was HIV positive. “The issue of consent is not as simple as yes or no,” Williams said. “It’s more complicated than that.” In the five cases where Nduwayo was convicted, Williams said he believed that each woman would not have had sex with Nduwayo if they had known about his HIV. He was also satisfied that their lives were endangered by Nduwayo’s actions.

In the reports of the original trial, below, Mr Nduwayo testified he always used condoms and didn’t need to disclose. The complainants said that he didn’t always use condoms. It is unclear whether Justice Williams considered the issue of condom use as reducing the risk of HIV transmission to below Cuerrier’s threshold ‘significant risk’. If not, there’s may well be further confusion regarding condom use and obligations to disclose in Canada that can only be satisfied with the production of police and prosecutorial guidance.

Sentencing submissions will take place on September 10.


Original post June 23rd 2008

An HIV-positive British Columbia man who was found guilty in 2005 on five counts of aggravated sexual assault (for HIV exposure), one of attempted aggravated sexual assault and one of sexual assault, and sentenced in 2006 to 15 years in prison, has won an appeal against his original trial and will be retried.

According to the report in the Bugle-Observer, Adrian Nduwayo’s lawyer successfully argued that the jury was not properly instructed to consider each count separately and not to use evidence from one count when deciding guilt on others, compromising his right to a fair trial.

I have also reprinted a couple of articles published at the time of Mr Nduwayo’s original guilty verdict and sentencing, for background, below. Interestingly, although three of the complainants subsequently tested HIV-positive, Mr Nduwayo was not tried for criminal HIV transmission – and it’s not clear from the reports why that was the case.

Appeal court orders new trial for HIV-positive B.C. man convicted of sex assaults
Wednesday June 18th, 2008
THE CANADIAN PRESS

VANCOUVER – The B.C. Court of Appeal has ordered a new trial for an HIV-positive man who was convicted of sexually assaulting several women for having unprotected sex with them.
Adrian Nduwayo was given a 15-year sentence in 2005 for five counts of aggravated sexual assault, one of attempted aggravated sexual assault and one of sexual assault.
The incidents involved seven different women who said Nduwayo had sex with them without telling them he was HIV-positive and without a condom, while he insisted he did use protection.
But Nduwayo appealed his convictions, arguing that the jury was not properly instructed to consider each count separately and not use evidence from one count when deciding guilt on others.
The court of appeal agreed, saying the trial judge’s charge to the jury didn’t include adequate cautions on that issue.
The court says the fairness of the trail was compromised and has ordered a new trial.

Jury finds B.C. man guilty of spreading HIV
Wed. Dec. 14 2005

CTV.ca News Staff

An HIV-positive B.C. man was found guilty Tuesday night of committing sex crimes for having unprotected sex with women to whom he did not reveal his condition.
A jury in Westminster, B.C. convicted Adrien Nduwayo, 36, of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
“The message this sends I think is when you are HIV-positive you have a positive duty to disclose that fact to any perspective partners that you have,” Crown counsel Andrew MacDonald said, minutes after the verdict was released.
He said that all of the women who testified against their former lover showed “tremendous amounts of courage and fortitude.”
The charges relate to Nduwayo’s failure to disclose his virus and engage in unprotected sex with seven women between 2000 and 2003.
Three of those women now have HIV, the virus that causes AIDS.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn’t have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them — and that even then he often did not.
Defence lawyer Paul McMurray said outside the court that Nduwayo’s defence was that all of his sexual partners in question were willing partners and that the fact he used a condom was sufficient in law to maintain their consent.
Nduwayo has said he didn’t tell some of his lovers that he was HIV-positive because they didn’t ask.
Some of them found out about Nduwayo’s condition when they saw news reports that the police were looking for him for allegedly spreading the virus, court heard.
“I think we’re dealing with an area where there was, and is, some uncertainty,” McMurray said outside court.
“Everybody I think accepts that you’re supposed to disclose and you’re supposed to wear condoms but this falls short of that and that’s the difficulty here.”
No date has been set for a sentencing hearing.

B.C. man sentenced to 15 years for spreading HIV

Fri. Mar. 3 2006
CTV.ca News Staff

An HIV-positive man was sentenced to 15 years in prison for having unprotected sex with seven women to whom he did not reveal his condition.
Before he was sentenced in B.C. Supreme Court in New Westminster, Nduwayo was permitted to address the court.
When he stood up, he went on a lengthy tirade — speaking directly to his accusers and reducing some to tears.
“I feel very bad for these girlfriends who were infected. I did not mean to infect them,” Nduwayo said.
Later, he added: “One day I will prove my innocence.”
Justice John Truscott sentenced Nduwayo to 15 years after deducting two years for time already served.
In December, Nduwayo was found guilty of five counts of aggravated sexual assault, one count of attempted aggravated sexual assault and one count of sexual assault.
“The combined effect of the number of counts that we were dealing with in this case, resulted in the sentence being longer than any others that have been previously been imposed,” Crown counsel Andrew MacDonald told CTV Vancouver.
Nduwayo was accused of deceiving sexual partners about his HIV status and deliberately engaging in unprotected sex between 2000 and 2003. Three of those women now have HIV, the virus that causes AIDS.
“Clearly the complainants who have been infected with the HIV virus have had a serious and devastating toll taken on their lives,” MacDonald said.
During the trial, court heard that Nduwayo carried on affairs, and slept with more than one woman at the same time.
Nduwayo contends he always wore condoms to protect his sexual partners and that he didn’t have a legal obligation to disclose his condition to his partners.
But some of his former lovers said they had to insist that he wear them — and that even then he often did not.
Meanwhile, some AIDS groups argue that cases like Nduwayo’s should not be criminalized.
“We feel that criminalization has the potential to deter people from testing,” said Wayne Campbell, with the British Columbia Persons with AIDS Society. “We encourage people to get tested, every sexually active adult, should be tested every six months.”
With a report from CTV Vancouver’s Michele Brunoro

Guyana: Lawmakers debate HIV-specific criminal law

A newly proposed law for the South American country of Guyana, entitled ‘Criminal Responsibility of HIV Infected Individuals’ was recently debated in the country’s  National Assembly. (Thanks to Lucy Reynolds from the London School of Hygiene and Tropical Medicine for alerting me).

Two news reports published on July 30th – on Caribbean 360 and Stabroek News – cover the debate and outcome.

Everall Franklin, member of the Guyana Action Party-Rise Organise and Rebuild (GAP-ROAR) proposed the law, seconded by Latchmin Punalall from Alliance For Change (AFC). Both cited their belief that the law would deter HIV-related risk-taking behaviour and/or force individuals to disclose their status.

While speaking on the motion, Franklin said that the stigma and discrimination associated with the virus is being propelled by ignorance and noted that the intention of the motion was, while not to remove or dilute existing laws, to ensure that certain obligations of individuals are kept in tact while others enjoy their rights. He said that the motion should be considered from the perspective of a person being tested positive as having contracted HIV having the responsibility of informing partners of his/her status. In addition, a person being raped by someone who is infected with the virus as well as women who become pregnant year after year, and who have tested positive for the virus, should be considered, he said.

AFC MP Latchmin Punalall, who seconded the motion, said that her party  stands for the sanctity of humanity and according to her the time is right to pass critical legislation to prevent the spread of HIV by “reckless” persons. Against this backdrop, she noted that when such individuals know before hand that a “stiff penalty is in place …they will think twice.”

Strong opposing arguments came from Health Minister Dr Leslie Ramsammy, supported by Volda Lawrence of  the main opposition People’s National Congress Reform (PNCR). 

“Stigma and discrimination have proven to be the powerful drives of the HIV epidemic. Most people living with HIV and know their status are taking measures to protect themselves and others,” [Ramsammy] said, insisting that any motion that sets criminal penalties for HIV transmission and to force public disclosure of a person’s status is counter to the objectives of public health. “The fact is that criminalisation of HIV exposure risks undermining public health and human rights and as such it is not a solution,” the Health Minister maintained.

He emphasised that in the instance where a person willfully transmits HIV with intent to cause harm, the matter calls for a comprehensive national dialogue, which can be deliberated at the level of the parliamentary special select committee.

Of particular interest was Mr Franklin’s referral to precents set in the Global North

adding that nations, including the US and Australia, have passed laws making the wilful spread of HIV a criminal offence.

Ms Lawrence countered that

criminal procedures have been implemented in countries where addressing the issue is concerned but according to her such measures have not been effective.

All Members of Parliament have agreed that the motion be taken to a special select committee to be discussed further.

US: Obama administration calls for end to HIV-specific criminal laws

Fantastic news from the United States, courtesy of Todd Heywood at the Michigan Messenger. His article is reproduced in full below.

On Thursday I present my poster at AIDS 2010 analysing two years of US arrests and prosecutions, so this is extremely timely, and very exciting. It is also the first time I have added a ‘decriminalisation’ label to my keywords – a significant milestone!

From the National HIV/AIDS Strategy for the United States, July 2010.

An important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV. At least 32 states have HIV-specific laws that criminalize behavior by people living with HIV. Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility. Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist. While we understand the intent behind such laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.

Recommendation 3.3 Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.

Obama administration calls for end to HIV-specific criminal laws
Advocates call new strategy a ‘wonderful development’

By Todd A. Heywood
Michigan Messenger
7/20/10

Many HIV experts and advocates are applauding the nation’s first comprehensive National HIV/AIDS Strategy, issued on July 13 by the White House, because it calls for an end to state laws that criminalize the transmission of HIV.

Those laws date back to the late 1980s and early 90s, when the death toll from HIV infection was mounting and no medications were readily available to treat the viral infection.

“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says, after acknowledging the rationale behind passage of such laws. “CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”

Michigan is one of 32 states with HIV-specific criminal laws. In Michigan, it is a felony for a person with HIV infection to engage in sexual penetration “however slight” without first disclosing their HIV-positive status to the sex partner. The law includes the use of sex toys, which have never been shown to be a route of transmission for HIV. It does not, however, include sharing needles, which is an extremely effective way to transmit the virus, experts say.

National experts weigh in

“It is the first truly meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP (Office of National AIDS Policy) staff to respond substantively and decisively,” Catherine Hanssens, executive Director of the HIV Law and Policy Center in New York.

Hanssens pointed out how the strategy’s implementation plan — which is a companion document to the strategy — goes beyond merely advising legislatures to re-visit their HIV-specific laws and contains specific goals to address HIV criminalization, including study by the Department of Justice.

“Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals; subject people with HIV to irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, and also consequently represent a violation of federal antidiscrimination laws created to protect those affected by HIV,” said Hanssens.

Bebe Anderson, director of the Lambda Legal Defense and Education Fund’s HIV Project, echoed Hanssens, calling the strategy and its implementation plan a “wonderful development.”

But she says individual states may struggle with addressing the laws.

“I think it will depend on each state and the political environment,” she noted.

Michigan lawmakers divided on HIV-specific criminal law

Anderson’s statement is reflective of the political reality in Michigan today. With the state House controlled by Democrats and the state Senate controlled by Republicans, lawmakers say that while these changes might be necessary, they will be difficult to achieve.

“If they don’t work, then we have to revisit them,” said House Speaker Andy Dillon of Redford Township of the HIV-specific criminal laws.

“Absolutely, we need to revisit them,” said Rep. Joan Bauer (D-Lansing). “I am open to looking at what is working and what is not.”

Mark Meadows (D-East Lansing) chairs the House Judiciary Committee and he too said he would revisit the laws. He said he felt it was still important to revisit Michigan’s bio-terrorism law to clarify it after a 45-year-old HIV-positive Clinton Township man was charged with the law for allegedly biting a neighbor during a fight. Those charges have since been dismissed by Macomb County Circuit Court Judge Peter Maceroni.

Meadows said prosecutions such as the Macomb case increase stigma against the HIV-positive community. He previously has called that prosecution “silly.”

But Republican law makers say not so quick.

State Sen. Tom George (R-Texas Township) chairs the Senate Health Policy Committee.

“I see these (calls to address specific laws– such as the HIV-specific criminal laws or nondiscrimination laws) as more of a political agenda and less of a public health issue,” George said. “I don’t think changing that or revisiting that is going to make a big difference like testing will.”

George, who is seeking the Republican nomination for governor and is a physician, is pushing legislation which will change Michigan’s law on HIV testing, which requires signed informed consent before an HIV test can be conducted. His legislation would make Michigan an opt-out state, meaning patients would give general consent for HIV testing when consenting for care and treatment. They could opt out of HIV testing, but only in writing.

Rep. Rick Jones (R-Grand Ledge) serves on the House Judiciary Committee. And while he has been a vocal critic of the HIV-as-terrorism prosecution, and previously said he was in favor of repealing the state criminal law on HIV disclosure, now says he no longer favors the move.

“After careful consideration and listening to the feelings of my constituents, I think you should have to disclose it,” says Jones. “Should it just be HIV? Absolutely not. It should include things that are much easier to transmit like Hepatitis and TB.”

Jones is the former sheriff of Eaton County and says he thinks that an HIV-positive person spitting at a police officer, and declaring the hope the officer is infected, should be criminalized, even though there is no known risk of infection from the act.

“It shows intent,” Jones said.

The National HIV/AIDS Strategy specifically cites criminalizing spitting as a concern.

“Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status,” the report states.

Jones admitted it is a crime already in Michigan to spit on a police officer, noting that he vividly recalled while a road officer having a suspect spit at him. That man, Jones said, ended up serving 30 days in jail for the incident.

Regardless of the how debate starts shaping up in Michigan, don’t expect the Michigan Department of Community Health to step into the fray anytime soon, says Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.

“Really, at this point in time, that is something the legislature will have to initiate,” Szwedja said.

US: Nushawn Williams “poster child” of newly proposed HIV-specific law faces a lifetime of civil confinement (update 2)

Update: July 20th
A New York Supreme Court judge in Buffalo has dismissed Nushawn Williams’s petition for release and ruled he could remain in jail while awaiting his October trial under New York’s Civil Confinement Law.

Update: May 11th
No big surprise, but a New York State Supreme Court judge has ruled that Nushawn Williams “poses a danger to society and as a result, must remain behind bars even though his sentence is complete.”

State Supreme Court Justice John Michalski said there is probable cause that Williams suffers from a “sexual abnormality” that would pose a danger to society.

With the ruling, Williams could now face a trial to determine his future status.

Both sides are due back in court next month as they hold arguments over a defense motion to dismiss the case.

Under a civil law, passed in 2007, the state can lock up a sex offender indefinitely if it proves the person has a mental abnormality and is likely to offend again.

Original post: April 23rd

The impact of the 1997 Nushawn Williams case continues to reverberate in New York. Following last year’s denied request for parole, there are now plans to keep him locked up forever by New York’s Attorney General Andrew M. Cuomo.

The New York Times reported on April 13th

Mr. Williams, 33, was due to be released on Tuesday after serving his maximum sentence of 12 years, but Mr. Cuomo’s office is seeking to keep him in custody under a three-year-old state law that permits the civil confinement of sex offenders. Last Friday, a state judge in Buffalo, near where Mr. Williams has been jailed, ordered that he remain in custody pending the outcome of a civil confinement proceeding.

Now, State Senator Cathy Young of Olean is not only urging Cuomo to keep Williams in civil confinement but also proposing a new HIV-specific law for New York using Williams as a “poster child”. Back in February 2009, Suffolk County District Attorney Thomas Spota teamed up with Parents for Megan’s Law to advocate for the same thing.

Here is Senator Young’s press release, featuring her proposed law in full.

Senator Cathy Young (R,I,C – Olean) today renewed her call for a law making it a crime to knowingly spread the deadly HIV/AIDS virus to other unsuspecting people. Senator Young’s announcement comes in the wake of news that Nushawn Williams, the man who caused an AIDS epidemic in Chautauqua County in the 1990s, had completed his prison sentence and could be released to the public.

Senator Young also called on New York State Attorney General Andrew Cuomo to rigorously fight to ensure that Williams remains confined in a psychiatric facility and is not let back out into the community.

“People who knowingly use HIV/AIDS as a deadly weapon by purposely exposing others to the disease should be severely punished. This proposed law would provide the appropriate penalties for those who callously put other people’s lives in jeopardy, and will help further prevent the transmission of HIV/AIDS by keeping victims and prison supervisors informed when inmates test positive for the virus.”

State Attorney General Andrew Cuomo has announced that he is seeking, under New York’s Sex Offender Management Act, to have Williams confined in a state-operated psychiatric facility.

Senator Young said, “Nushawn Williams is the poster child for why we need a civil confinement law in New York State. I urge Attorney General Cuomo to do everything in his power to ensure that Williams remains confined. This deadly predator must not be returned to society.”

Senator Young’s legislation would create the crimes of reckless endangerment of the public health in the 1st and 2nd degrees for people who test positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of HIV/AIDS to another unsuspecting person or puts that person at substantial risk of contracting HIV/AIDS.

The bill would also, among other provisions, required persons charged with a sex offense or reckless endangerment of the public health to be tested for HIV/AIDS and the results to be available to the victim (s) upon request.

The announcement in the fall of 1997, that Nushawn Williams had been informed of his HIV-positive status but continued to have unprotected sex with numerous women and underage girls in Chautauqua County, shocked the state and the nation. Williams was directly responsible for infecting thirteen victims statewide with HIV, two of whom passed on the virus to their children.

Williams completed his 12-year sentence for reckless endangerment and two counts of statutory rape last Tuesday, but continues to be held at Wende Correctional Facility in Alden.

While in prison, Williams tossed his HIV-tainted urine at another inmate, said he wanted to infect more women with HIV when he is released, fought with other prisoners, engaged in gang activity, and arranged to have drugs smuggled in and used them. He did not complete any sex offender or drug treatment programs.

In a required pre-release psychiatric evaluation, Williams was found to be antisocial, psychopathic, lacking in remorse and “prone to further sexual contact with underage individuals because of deficits in his emotional capacity to understand why this is wrong.”

Specifically, Senator Young’s legislation (S. 3407) would:

– Create the crime of reckless endangerment of the public health in the 1st degree, a class B felony, for those who are aware that they have tested positive for HIV/AIDS and then recklessly engage in conduct which results in transmission of the virus to another person who is unaware of the condition. Also creates the crime or reckless endangerment of the public health in the 2nd degree, a class C felony, for those who have tested positive and then engage in conduct which creates a substantial risk of the transmission of HIV/AIDS to another unwitting person;

– Create a class E felony for providing false information or statement regarding HIV status to a health care provider;

– Require all currently incarcerated persons and persons newly entering a correctional

facility be tested for the HIV virus;

– Provide that a person charged with a sex offense under article 130 of the State Penal Law or reckless endangerment in the 1st or 2nd degrees must be tested for HIV and the results of the test made available to the victim (s) and defendant upon request;

– Provide that upon the diagnosis of an inmate with HIV/AIDS, notice of the diagnosis must be provided to corrections personnel and others involved in the supervision and care of the inmate to that they can take appropriate measure to protect themselves and other inmates from exposure.

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