Canada: Study highlights how the criminal law does not consider the gendered power unbalance of HIV disclosure

Positive sexuality: HIV disclosure, gender, violence and the law—A qualitative study

Abstract

While a growing body of research points to the shortcomings of the criminal law in governing HIV transmission, there is limited understanding of how cis and trans women living with HIV (WLWH) negotiate their sexuality and HIV disclosure in a criminalized environment. Given the ongoing criminalization of HIV non-disclosure and prevalence of gender-based violence, there is a critical need to better understand the dynamics of negotiating sexual relationships and HIV disclosure among WLWH. We conducted 64 qualitative interviews with cis and trans WLWH in Vancouver, Canada between 2015 and 2017. The interviews were conducted by three experienced researchers, including a cis and a trans WLWH using a semi-structured interview guide. Drawing on a feminist analytical framework and concepts of structural violence, the analysis sought to characterize the negotiation of sexual relationships and HIV disclosure among WLWH in a criminalized setting. For many participants their HIV diagnosis initially symbolized the end of their sexuality due to fear of rejection and potential legal consequences. WLWH recounted that disclosing their HIV status shifted the power dynamics in sexual relationships and many feared rejection, violence, and being outed as living with HIV. Participants’ narratives also highlighted that male condom refusal was common and WLWH were not only subjected to the gendered interpersonal violence of male condom refusal but also to the structural violence of legislation that requires condom use but fails to account for the gendered power imbalance that shapes condom negotiation. Despite frequently being represented as a law that ‘protects’ women, our findings indicate that the criminalization of HIV non-disclosure constitutes a form of gendered structural violence that exacerbates risk for interpersonal violence among WLWH. In line with recommendations by, the WHO and UNAIDS these findings demonstrate the negative impacts of regulating HIV prevention through the use of criminal law for WLWH.

Full study is available here

US: Study presented at IAS 2017 analyses HIV convictions under HIV criminalisation laws by race, gender and sexuality

HIV Disclosure Crime Convictions Differ by Race/Gender, Gay/Straight Status in the US

9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris

Mark Mascolini

Black women get convicted under US HIV disclosure laws half as often as white women, white men, or black men, according to results of a five-state analysis [1]. Men who have sex with men (MSM) get convicted at a rate about one-seventh that of men who have sex with women (MSW). The overall conviction rate for the five states is 13 per 10,000 HIV diagnoses. Missouri easily leads other analyzed states in conviction rate, with 98 per 10,000 diagnoses.

Thirty-two US states have laws criminalizing failure to disclose HIV status to a sex partner or exposing a partner to HIV without their consent. Previous research showed that black heterosexual men get convicted disproportionately under a Michigan law. To determine whether gender, race, or sexual preference affects conviction rates in five states, Trevor Hoppe of the University of Albany, SUNY, analyzed trends in Florida, Louisiana, Michigan, Missouri, and Tennessee. Gender analyses were possible only in Michigan, Missouri, and Tennessee.

Consulting state law enforcement and legal records and newspaper reports, Hoppe counted 387 HIV disclosure law convictions in the five states between 1992 and 2015, including 206 convictions in the three states with gender data available. The overall conviction rate for the five states came to 13 per 10,000 HIV diagnoses. That rate was by far highest in Missouri (98 per 10,000 diagnoses), followed by Tennessee (36 per 10,000), Michigan (33 per 10,000), Louisiana (21 per 10,000), and Florida (6 per 10,000).

The analysis showed no substantial conviction differences by gender or race. But when Hoppe considered gender and race simultaneously, he found a much lower conviction rate in black women (11 per 10,000 HIV diagnoses) than in black men (25 per 10,000), white men (24 per 10,000), or white women (22 per 10,000).

A gay/straight analysis found a much lower conviction rate in MSM than in MSW (20 versus 146 per 10,000). This difference held true for white MSM versus white MSW (9 versus 108 per 10,000) and black MSM versus black MSW (8 versus 47 per 10,000).

Hope speculated that the lower conviction rate for black women could mean black men are less likely to report HIV nondisclosure to the police because they do not trust the police or do not think it is a legal matter. In the same way, gay men may not report HIV non-disclosure because they distrust police or want to avoid a legal contest. Alternatively, the low conviction rate in gay men may reflect high HIV prevalence in US gay men and a resulting lack of shock at nondisclosure.

These findings presented at IAS 2017 are part of a larger project that will be published in November 2017 in a book by Trevor Hoppe, Punishing Disease.

Reference

1. Hoppe T. Victim impact: analyzing disparities by race, gender, and sexuality under U.S. HIV exposure and disclosure laws. 1992-2015. 9th IAS Conference on HIV Science (IAS 2017), July 23-26, 2017, Paris. Abstract MOPEC0719.

For more information see this link.

US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States.

The concern, as highlighted by Charles King, President and Chief Executive Officer, Housing Works, Inc, is that if HIV criminalisation reform focuses soley on changing laws so that those who are virally suppressed are not considered ‘a risk’ that this approach will not address the unjust disproportional impact of the US criminal legal system on people of colour, LGBTI people, sex workers, and the financially disadvantaged.

“Housing Works is a leading proponent of #UequalsU, and we believe public education about this scientific advance will lower stigma and thereby create a positive environment for HIV decriminalization. At the same time, it would be a travesty for #UEqualsU to be used to create a criminal class of people who are not durably virally suppressed. HIV criminalization in any form sets back efforts to end the AIDS epidemic, and is based on prejudice and not science.”

The creators and original endorsers of the Statement are: The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, National Association of Criminal Defense Lawyers, National Center for Transgender Equality, National LGBTQ Task Force, PFLAG, Treatment Action Group, U=U, and Women with a Vision.

In the preamble, they note that:

discussions among people working on the ground on HIV criminal law reform have reflected a mix of views and some uncertainty about the best way to use these remarkable scientific advances in their advocacy. Some have proposed that advances reflected in the U=U campaign (“Undetectable = Untransmittable”) should be added as a defense in modernized HIV criminal laws. Others worry that putting this kind of language into an actual law will exclude or further disadvantage those who experience severe disparities in access to quality treatment—individuals who do not reach or maintain viral suppression may still face prosecution.

Beginning in March 2017, a small group of organizations and advocates began discussions of how to draft a statement that could clearly and accessibly capture concerns about the use of “Treatment as Prevention” (TasP) or “Undetectable = Untransmittable” (U=U) in the criminal law reform context.

Over the next several months, the statement was shared with a diverse range of organizations and advocates at both the state and national level. In June 2017—after multiple revisions, reviews, and discussions—the current statement was finalized.

To read and sign on to the Consensus Statement visit: www.hivtaspcrimlaw.org which provides links to a variety of resources that can help support the use of the statement, as well as an FAQ that further explores the issues, such as the many tensions facing advocates working to improve the legal environment for people living with HIV

For example, question 7 asks “isn’t some progress better than no progress at all?

This is a hotly debated issue, and people frequently disagree about it. For example, many people supported a federal law ending discrimination against lesbian and gay people that didn’t include transgender people because they felt it was easier to pass that way, and because some progress was better than none. Unfortunately, it usually takes a long time to change a law to cover the people left behind the first time. And some people think that progress that leaves some people out can be taken as putting a “seal of approval” on treating some people less fairly.

With public health messaging, it is always possible to try new and better campaigns. But when it comes to criminal law reform, change can be slow, and once a law is revised, lawmakers are very unlikely to consider further reforms in the near future. Criminal law reform advocacy focused on U=U might lead to a law that only helps some people—those with access to health care and ART—but provides no real help to those without it. Worst of all, legislators may be happy to claim a victory and not revisit the issue for years, decades, or ever again.

The issue of how best to utilise science in advocacy to combat HIV criminalisation is not unique to the United States, however. Last month, two staff members from the Canadian HIV/AIDS Legal Network published a blog post discussing how the ‘Undetectable = Untransmittable’ campaign might best be understood to impact HIV criminalisation advocacy.

Like the US Statement, they also urged caution in relying solely on science to help resolve the issue.

Advancing U=U as part of broader advocacy efforts to curb unjust prosecutions for HIV non-disclosure, however, warrants further consideration. Individuals who already face discrimination and marginalization may face unique barriers to attaining undetectable status. Research has shown, for example, that people who use drugs have a harder time attaining and maintaining an undetectable viral load. This is also likely to be true for people in prison, many of whom face HIV treatment disruptions because of the temporary unavailability of medications or transfers between institutions. Treatment for Indigenous communities may also be challenging due to the shameful inadequacy of culturally appropriate health care services in rural and remote communities. And women may have a harder time achieving undetectable viral loads for various reasons, including being diagnosed later in life, prioritizing the health of others, and higher rates of poverty, violence, housing instability and food insecurity.

While a growing body of research provides further evidence to consider when determining what constitutes a “realistic possibility of HIV transmission,” advocacy concerning cases of HIV non-disclosure must be informed by the unique challenges that marginalized groups living with HIV face in attaining undetectable status, so that the criminal law does not reproduce further inequities. Advocates must also acknowledge that the criminalization of people living with HIV has a negative impact on public health, regardless of viral load. Without laws and policies to ensure the removal of all barriers to HIV prevention and treatment, new scientific discoveries and their role in the courts may leave disparities between people living with HIV intact — or ultimately, do more to perpetuate them.

US: New study shows that laws criminalising HIV exposure do not cut down on HIV transmission

Criminalizing HIV Transmission doesn’t cut down on new diagnoses

Penalizing people who don’t disclose their status is bad policy, a new study finds.

More than 30 years since the first criminal laws were enacted in the United States to try to prevent the spread of the human immunodeficiency virus, a new study suggests that the regulations have failed to slow transmission of the deadly virus.

The laws impose criminal penalties on people who know they have HIV and engage in behaviors such as sexual activity or needle sharing that might transmit the virus to others, without disclosing their infection status.

“There has been much discussion about whether criminal-exposure laws affect HIV-risk behaviors or transmission,” senior author Dr. Jonathan Mermin said in an email. “In this analysis, we found no association between HIV diagnosis rates and laws that criminalize HIV exposure.”

Working with data collected in 33 states from 2001-2010, Mermin and colleagues at the U.S. Centers for Disease Control and Prevention (CDC) in Atlanta tracked diagnoses of HIV, the virus that causes the acquired immunodeficiency syndrome (AIDS). They also analyzed AIDS diagnosis rates in all 50 states from 1994-2010.

By the end of 2010, 30 states had passed criminal-exposure laws. But the new study, published in the journal AIDS, found no association between criminal-exposure laws and HIV or AIDS diagnosis rates.

The researchers did find two factors associated with higher HIV and AIDS diagnosis rates: lack of education and living in urban areas.

Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project at the UCLA School of Law, said the study “underscores the fact that we understand the social and structural drivers of the epidemic, and that criminalization is not a particularly useful tool in addressing HIV transmission.”

“These laws are harmful,” said Miyashita, who was not involved with the study, in an email. “They embody the continued fear and stigma associated with HIV and serve to perpetuate a lack of awareness and understanding about existing biomedical interventions.”

More than 1.2 million people in the U.S. have been diagnosed with HIV, according to the CDC. About a third of them take antiretroviral therapy, which can virtually eliminate the possibility of transmitting the virus to others.

Few HIV criminalization laws consider whether an HIV-positive person took measures to reduce the risk of transmitting the virus, the authors write.

A 2013 report in ProPublica pointed out that people have been prosecuted for nondisclosure of HIV infection even when they were using condoms or taking antiviral drugs that made transmission very unlikely (http://bit.ly/1ZBdlfN).

HIV criminal-exposure laws have engendered debate about their effectiveness since 1986, when states first enacted them, the authors write. The laws were intended to encourage people who tested positive for HIV to disclose the fact to potential sex partners and to discourage behaviors that could expose others.

Some feared the laws could have the reverse effect and increase transmission by discouraging testing; if people don’t know they have the virus, they can’t be prosecuted under these laws.

Since 2010, an estimated 40,000 people a year in the U.S. have been diagnosed with HIV.

HIV disproportionately infects blacks, African-Americans, gay Hispanics and Hispanics who inject drugs, previous studies have shown. The new analysis too found that minority populations had higher HIV and AIDS diagnosis rates.

Amira Hasenbush, who has studied HIV criminalization laws in California, said in an email that her research has shown that the laws disproportionately target women and people of color. Hasenbush, a fellow at The Williams Institute at the UCLA School of Law, was not involved with the new study.

“Enforcement data show that HIV criminalization is yet another example of the criminalization of the poor, criminalization of people of color and criminalization of otherwise marginalized populations,” Miyashita said. “We know HIV impacts these communities greatly, and it’s time we realize criminalization is not the solution to addressing the epidemic.”

Miyashita called for review, if not repeal, of all HIV criminalization laws.

“Criminalization is not the solution to this problem,” she said. “These data prove that.”

Published in the Huffpost on May 1, 2017

US: American Pyschological Association's entire March newsletter explores why HIV criminalisation "can no longer be ignored."

APA’s commitment to decriminalizing HIV

This issue explores criminalization of HIV exposure and transmission, which can no longer be ignored.

By Maggie Chartier, PsyD, and Tiffany Chenneville, PhD

In 2016, the APA joined the ranks of medical and professional organizations opposing HIV criminalization laws (Positive Justice Project Consensus Statement on the Criminalization of HIV in the U.S., n.d.). Since 1986, these laws have criminalized nondisclosure of HIV and engagement in “risk” behaviors (sexual activity, needle sharing, and in some instances spitting and biting) for those who are aware of their HIV status (Lehman, Carr, Nichol, Ruisanchez, Knight, Langford, et al., 2014). Between 1986-2011, 67 HIV-specific criminal laws were enacted in 32 states and two U.S. territories (Lehman, 2014), many or most of which do not consider the level of risk and/or intentionality of the act.

Since the beginning of the AIDS epidemic, hundreds of people living with HIV have been arrested for behaviors posing little, if any, risk of HIV transmission (CDC, 2015). It is estimated that 20-25 percent of prosecuted cases related to HIV exposure/transmission have involved spitting, biting or external exposure to bodily fluids (e.g., throwing bodily fluids) which pose negligible transmission risk (CDC, 2015; Patel, Borkowf, Brooks, Lasry, Lanksy & Mermin, 2014; Pretty, Anderson & Sweet, 2009).

Many HIV-specific criminalization laws were passed before research showed that:

Consistent condom use significantly reduced the spread of HIV (Pinkerton & Abramson, 1997).
Adherence to antiretroviral therapy results in undetectable viral loads which dramatically reduce HIV transmission (Dieffenbach & Fauci, 2009 [PDF, 119KB]).
Increased efficacy of post-exposure prophylaxis and pre-exposure prophylaxis and are efficacious in preventng HIV (Celum & Baeten, 2012; van der Straten, Van Damme, Hbere & Bangsberg, 2012; Young, Arens, Kennedy, Laurie & Rutherford, 2007).

People diagnosed with HIV in states with HIV-specific criminal laws must disclose their HIV serostatus to sex partners and injection needle sharing partners and refrain from various sexual behaviors, regardless of actions taken to minimize HIV risk transmission (e.g., consistent condom use, using clean needles, consistent adherence to combination antiretroviral therapy [ART]). In the rare instances in which intentional transmission of HIV is determined, states may use general criminal laws or communicable disease laws to prosecute persons accused of intentionally trying to transmit HIV instead of HIV-specific criminal laws.

Not only do most HIV criminalization laws ignore the level of risk or intentionality of the action, they also do not reflect the current, and considerable, evidence base on HIV transmission (CDC, 2015), and in many instances, they counteract public health efforts to decrease HIV transmission by increasing stigma and discrimination (Valdiserri, 2002). As a result, in 2014, the Civil Rights Division of the Department of Justice issued a “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors (PDF, 117KB).”

This newsletter will present a human face to HIV criminalization laws and discuss the public health implications and the role that psychological research and practice can play in helping to address the individual and social impact of these laws. By emphasizing this issue, APA strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their clients and the general public’s health.

For more information on APA’s resolution, visit the Background Information on the Resolution Opposing HIV Criminalization webpage.

Ethiopia: New report on HIV criminalisation law with a focus on Ethiopia concludes that the use of criminal law to address HIV is anappropriate

Abstract

States ever since the outbreak of HIV/AIDS have been using different methods in order to combat the pandemic if possible and to reduce vulnerability. In spite of this, HIV/AIDS continues to be prevalent especially in a less developed countries to the extent that it to be hurdle for development. Criminalization of HIV/AIDS patients is one of the mechanisms that are used in the fight against the deadly disease. However, employing criminalization as prevention and vulnerability reduction strategy poses a question and stimulates a debate. Hence, the main thrust of this article is to identify this challenge and to assess whether criminalization of HIV/AIDS patients reduce vulnerability to HIV/AIDS. This being the aim it will also go on to analyze the role of criminal law in a public health issue. In doing so, the article will discuss experience of countries in criminalization of HIV/AIDS patients along side with international frameworks. At a glance, criminal law through a vehicle of punishment seems to play a role in reducing vulnerability to HIV/AIDS but, the writer based on the analyses of relevant literature and experiences of countries, argues that the use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so, and this is because of the high degree of proof required in criminal case and the difficulty of using criminal law in HIV related issue due to the nature of the disease and the absence of technology used for the required proof in the criminal law, i.e. beyond reasonable doubt.

Ekubu, Y. (2016) Reducing Vulnerabilities to HIV: Does the Criminalization of HIVAIDS Patients Contribute?. Beijing Law Review, 7, 292-313. doi: 10.4236/blr.2016.74027.

The report can be downloaded here

Social Science Update: Where criminalisation of sex work intersects with HIV criminalisation

In this article, authors Sienna Baskin, Aziza Ahmed, and Anna Forbes examine the interlocking webs of anti-prostitution laws and HIV criminalisation. Throughout the piece, the authors demonstrate critical research ethics by taking, as their starting point, the lives, freedom, and dignity of sex workers living with HIV.

Baskin et al. describe the ways in which, for sex workers, criminalisation is about so much more than the simple existence of laws. Instead, it is the particular policing and prosecutorial practices in a jurisdiction, based on the laws in place, that shape the lives of sex workers.

Similar to HIV-specific criminal laws, laws criminalising sex work are generally broadly written and arbitrarily enforced, enabling systemic discrimination and bias to turn into prosecutions of people of color and poor people.

The authors detail the consequences of arrest and prosecution that are frequently ignored in discussions of the criminal laws, including violence at the hands of police and fellow inmates, costly fees, possible loss of custody of one’s children, loss of employment and housing, and even loss of the right to sue police for violence that the police enact against sex workers in custody.

When HIV ‘exposure’ is also a crime in a state, then the legal penalties for sex work become even more harmful. If a sex worker is living with HIV, then she or he more often faces a felony rather than misdemeanor charge.

Using public health law mapping, the authors examine the US states that have HIV-specific criminal laws, laws criminalising sex work while living with HIV, and court-imposed mandatory HIV testing for people accused or convicted of sex work.

Baskin et al. find tremendous variety in the legislation from differences in when and how mandatory testing is conducted, to whom HIV test results are revealed, to how the results are used in court.

Of the approximately 32 U.S. states that criminalise HIV ‘exposure’, 14 have specific penalties for HIV-positive sex workers. Eleven states require mandatory HIV testing of sex workers and have enhanced sex work penalties for those living with HIV. Further, those prosecuted for sex work while living with HIV can be prosecuted under general (non HIV-specific) laws in any state.

To be prosecuted in eight states, sexual contact need never occur. People need only to be considered to be “loitering” or to make an offer for sexual services. In ten states, laws mandate testing of those prosecuted for sex work and provide enhanced penalties for those who engage in sex work who are living with HIV. In these states, any arrest after the first arrest (and related mandatory testing) leads to an almost automatic conviction. The HIV testing results become part of the person’s court files.

Noting that, 30 years into the HIV epidemic, there is no evidence that criminal law approaches have any positive effect on HIV prevention, the authors contend that criminalising sex work serves only to harm and discriminate against vulnerable populations and to perpetuate the HIV epidemic.

Details

Criminal Laws on Sex Work and HIV Transmission: Mapping the Laws, Considering the Consequences, by Sienna Baskin, Aziza Ahmed, and Anna Forbes (link to pdf download)

Denver Law Review, Volume 93:2, 355-388, Published: 2016

Social Science Update: Review of HIV criminalisation research in the US, 1990-2014

An article reviewing 15 years of U.S.-based social science research on HIV criminalisation was published in the September 2016 issue of AIDS and Behavior. The research team, led by Dini Harsono of Yale University’s Center for Interdisciplinary Research on AIDS (CIRA), Criminalization of HIV Exposure Work Group, described results from twenty-five research studies conducted in the US from 1990-2014. Studies were conducted with women and men living with HIV, gay men and other men who have sex with men (HIV-positive and –negative), public health workers, and medical providers.

Across the studies, the authors found that, while awareness of HIV exposure laws was generally low, attitudes were generally supportive of criminalisation.[1] The studies showed little to no relationship between the existence of laws and decisions to disclose one’s positive HIV status or to test for HIV. The clearest relationships between stigma and HIV non-disclosure laws could be found from the Sero Project study findings that people living with HIV expect to be treated with bias in the courts simply because of their HIV status. The authors call for future studies to pay more attention to health outcomes, rather than attitudes, and to more closely research prosecution and enforcement practices.

For a global overview of HIV criminalisation research, see O’Byrne et al. (2013). “HIV criminal prosecutions and public health: an examination of the empirical research.”

Details

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States, by Dini Harsono, Carol L. Galletly, Elaine O’Keefe, Zita Lazzarini. AIDS Behavior. DOI 10.1007/s10461-016-1540-5. Published online: 7 Sept 2016.

[1] Although the Sero Project study (2012) was included in the research review, one key set of findings was not discussed. In the Sero Project study, support for criminalisation dramatically declined when survey respondents were provided additional response options (beyond only the choice to support criminalization or not) in survey questions.

Criminalization of HIV Exposure: A Review of Empirical Studies in the United States