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What We Can Learn From California’s New HIV Law (via TalkPoverty)
January 17, 2018 | Philip B. Clapham
California’s new reforms have been hailed as an exemplar for advocates working to modernize laws in other U.S. states. As of 2011, there were 67 laws in 33 states focused on people living with HIV—many of which were drafted in the earliest days of the epidemic when no effective treatments existed. Most of the laws make it a felony to engage in sexual contact without disclosing your status, and some turn criminal misdemeanors like biting or spitting into felony aggravated assault or attempted murder, despite the universally accepted fact that saliva does not transmit HIV.
State Sen. Scott Wiener (D), who co-authored the bill, believes that the old laws “focus on the exceedingly rare situation where a sociopath runs around and intentionally tries to infect people.” He added, “That’s not who’s being prosecuted under these laws. Who’s being prosecuted? An awful lot of women, particularly African American women and transgender women.”
Recent research from UCLA’s Williams Institute found that 43 percent of the people arrested, charged, or prosecuted under HIV-specific laws were women, even though women only make up 13 percent of the state population of people living with HIV. They also found that felony solicitation enforcement was likely to disproportionately impact LGBTQ youth and transgender women of color, and that white men were statistically less likely to have similar charges brought against them.
“Most of this stemmed from the solicitation part of the law,” said Amira Hasenbush, the Jim Kepner Law and Policy Fellow at the Williams Institute. The first of California’s HIV criminal laws required mandatory HIV testing for individuals convicted of solicitation, and repeat arrests for those already registered as HIV-positive faced felony sentence enhancements. She added that street-based solicitation arrests in California had gone down over the last 15 years with the advent of the internet. But sex workers who rely on public spaces—overwhelmingly black women—now bear a higher burden of arrests.
‘Folks really do think that the laws require transmission’
Many state HIV-specific laws that criminalize non-disclosure do so without requiring actual transmission to take place. Many also do not require prosecutors to prove that the defendant had a malicious intent to transmit; what lawyers call a “culpable mental state.”
“Something that I encounter all the time, even among advocates, is that folks really do think that the laws require transmission,” said Kate Boulton, staff attorney for the Center for HIV Law and Policy. “They are surprised to discover that in fact, no harm needs to occur, and that there doesn’t even need to be a risk of harm,” she said. And risk of harm is growing increasingly rare: people living with HIV who have an undetectable viral load and receive antiretroviral treatment cannot transmit the disease to sexual partners.
The new California law takes this into account. “If you are on treatment, or if you used a condom, those are things that would negate the required intent to transmit,” said Boulton.
Still, advocates disagree on how to move forward.
“It’s very exciting what came from S.B. 239, because you see success is possible,” said Boulton. “But it’s not without its drawbacks,” she added, cautioning the use of viral load suppression as the basis for deciding a defendant’s intent.
“It’s important for advocates to be mindful of potential negative consequences if these laws are modified to criminalize only people with HIV who have detectable viral loads, even when there is no transmission or intent to harm,” says Bruce Richman of the Prevention Access Campaign. Legislation that places a premium on having an undetectable viral load would leave many HIV-positive people—particularly those experiencing a lapse in treatment or those whose HIV becomes resistant to treatment—subject to the same punishments that are currently in place. So for now, legal scholars, public health professionals, and HIV advocates are still struggling to find the balance between using viral suppression as an approach to defining risk reduction and negating intent, without tipping the legal scales against those who have less access to HIV care.
In the long term, advocates are hopeful that reforming these laws, educating lawmakers, and working to increase access to HIV prevention and care will improve legal and health outcomes in low-income and marginalized communities. Otherwise, added Boulton, “It’s just punishing and incarcerating people strictly on the basis of health status.”
Are state’s HIV laws unfair? Activists say it’s time for change (via Georgia Health News)
December 16, 2017
by Victoria Knight
Nina Martinez moved to Georgia from Washington, D.C., in 2005. Just a few months after she settled into her new Atlanta home, she learned about Georgia’s criminal laws regarding people disclosing their HIV status to others. It personally changed things for her.
“As a person living with HIV, I didn’t even form relationships because I didn’t want someone who was just mad at me, who said, “ ‘She didn’t tell me she was HIV-positive,’” said Martinez. “I haven’t minded being single for the last 12 years or so, but it’s not necessarily by choice, I guess.”
The Georgia laws that Martinez is referring to are almost 30 years old. They state that people with HIV can serve jail time for not disclosing their HIV status to others in certain situations. Those situations include having sex with someone; sharing a needle; performing paid sex work; or donating blood, body fluids, body organs or body parts. People with HIV can be imprisoned for up to 10 years for any of these violations.
The sentence goes up to 20 years of prison time (and no less than five years) for a person with HIV to put their body fluids on a peace office or a correctional officer, while the officer is on duty. This includes the acts of biting, spitting or throwing bodily fluids such as blood, semen, vaginal secretions, saliva, urine and feces.
Numerous other states also have such laws, and their purpose is obvious: to prevent people from deliberately infecting others with HIV. There have been cases of people doing so.
But with improved understanding of HIV transmission, and scientific strides that have made infection less deadly, critics say the laws are largely outdated.
Martinez says the current Georgia laws are unfair because they allow prosecution of people who did not intend to transmit the disease, and even people who had taken precautions against transmission, like using condoms or taking HIV medication. And she says the disclosure laws create a “he said, she said” situation, because it’s hard to prove what people in an intimate relationship communicated to each other.
“This law does not allow me to provide a good defense for myself against cases where somebody might falsely accuse me of not disclosing,” said Martinez. “It doesn’t require that I actually harm someone for me to be prosecuted. And that’s not right.”
“I just want the ability to be able to have somebody else be legally responsible for their own health,” Martinez continued. “Like why am I legally responsible?”
A movement to change HIV laws has been under way for some time. Martinez is one of the steering members of the Georgia Coalition to End HIV Criminalization, an advocacy group.
The coalition would like to see several changes to Georgia’s current code. One of those changes would be a requirement that a person be prosecuted only if there’s proof of intent to transmit HIV.
“Another thing that we want to see is to get these laws aligned with science,” said Sequoia Ayala, a lawyer and policy fellow at Sister Love, and a member of the Georgia Coalition.
The CDC has stated that the risk of transmission of HIV from biting, spitting or throwing fluids is negligible. Because of this, the coalition wants to see that section of the law removed. Assaults with bodily fluids would still be illegal, but the offender’s HIV status would not be relevant.
The current statute does not consider any measure a person with HIV has taken to prevent the risk of transmission. This includes the use of a condom or adherence to an antiretroviral medication regimen.
“We know now that if an individual has access to their medication, and they have taken the medication, and have achieved a viral load of less than 200 copies, they’re unable to transmit HIV via sex,” said Ayala. “And yet the reality is that an individual being adherent to their drugs does not relieve them of any culpability.”
After several years of discussion with the coalition, the Georgia Legislature is now considering the issue. In the spring, Rep. Sharon Cooper (R-Marietta), four other House representatives and four members of the medical community formed a study committee focused on addressing barriers to adequate health care in Georgia.
The House study committee met in mid-October to discuss HIV laws, and recently released a final report. Possible changes, in line with the coalition’s goals, and best practice recommendations released in 2014 by the U.S. Justice Department were outlined in the final report.
The changes include removing most HIV-specific criminal penalties. But penalties would remain in the following situations: If an HIV-positive person commits a sexual assault where there is a risk of transmission, or when a person is aware of being HIV-positive and intends to transmit the virus, and there is a significant risk of transmission.
The final report said that if people with HIV are taking medication, they should be able to present that as a defense in an HIV criminal case.
Though the committee recommended significant changes to the law, no immediate action was outlined. In fact, Cooper told one of the presenters at the October study committee meeting not to expect any changes in Georgia’s HIV criminal law in the next year.
“There is a time for everything,” said Cooper. “And next year’s session is probably going to be really, really short. Probably not the time to introduce any new legislation on certain things. But certainly this is information to look forward to.”
A mixed picture nationally
According to 2017 statistics from a national advocacy organization, the Center for HIV Law and Policy, 34 states have HIV-specific criminal laws. In six of those states, people who are convicted under the law are required to register as sex offenders. Over the past nine years, 303 people with HIV have either been arrested or charged under these laws.
In Georgia, at least 12 people have received lengthy prison sentences for not disclosing their HIV status. Other recent news stories of alleged reckless conduct by people with HIV may add more to that list. The coalition says these cases “required characterizing otherwise normal and legal behavior as criminal for no reason other than the defendant’s HIV status.”
Several states have been re-evaluating their HIV criminal laws. Texas repealed its statutes in 1994. Illinois revised its laws in 2012, and Iowa passed revisions in 2014.
In 2016, Colorado repealed two of its HIV criminal laws and changed language in other statutes to regard HIV like other sexually transmitted diseases. In October, California changed exposing someone to HIV from a felony to a misdemeanor, treating the virus like other STDs under the law.
Every state in the Southeast except Alabama has criminal laws related to HIV. Right now, Florida and Georgia seem to be the only two states in the region that are looking at changes. In May, the Florida Legislature considered changing HIV-related felonies to misdemeanors. It failed in the Senate, but legislators will likely re-introduce it next year.
And now Georgia has the study committee’s recommendations.
Rep. David Dreyer (D-Atlanta), who was not a member of the House study committee, is firmly for changing the HIV laws. But he thinks just as Rep. Cooper predicted, real action may take some time.
“I think these [laws] were enacted when people were afraid of HIV. When the science might not have been in on how HIV gets transmitted. And it was just a reaction out of fear, rather than science,” said Dreyer. “But these things do take a few years,” said Dreyer. “And this issue is going to be important in policy circles for years to come.”
Martinez is determined to keep fighting for reform, even if it takes years.
“Our HIV criminal laws don’t even fit the attributes of traditional criminal laws. Criminal law says you have to have intent to harm and you acted in a way that made harm likely,” said Martinez. “Our current Georgia law does not require intent to transmit or actual transmission. It literally only requires that you didn’t say something you should have said.”
Ontario to limit criminal prosecutions of HIV-positive people who don’t disclose status (via CBC Canada)
Non-disclosure can lead to sexual assault charges, because it’s been found to invalidate a partner’s consent
The Canadian Press Posted: Dec 01, 2017 4:04 PM ET
Ontario will no longer criminally prosecute HIV-positive people who don’t disclose their status to sexual partners if there is no realistic possibility of transmission, the province announced on Friday as it marked World AIDS Day.
The move comes as the federal government published a study saying that the bar for someone who doesn’t disclose their HIV status to be charged with a criminal offence needs to catch up to science.
The Justice Department study pulled together scientific evidence and the current prevalence of HIV in Canada and treatment, and stacked it up against the way the criminal justice system currently handles cases of people who don’t disclose their HIV status prior to engaging in sexual activity.
While there’s no law specifically related to it in the Criminal Code, non-disclosure can lead to assault or sexual assault charges, because it’s been found to invalidate a partner’s consent. Current wisdom suggests that if they knew a person had HIV, they wouldn’t consent to sexual activity because of the risk of transmission.
Science, however, suggests the risk of transmission is basically negligible if those living with HIV are being treated or taking appropriate precautions, the study concluded.
“It can, therefore, no longer be assumed that a person living with HIV in Canada is at risk of transmitting it.”
Ontario urging criminal code reforms
Ontario’s attorney general and health minister on Friday urged Justice Minister Jody Wilson-Raybould to consider Criminal Code reforms to align with that evidence, something advocates have long been urging.
“The scientific conclusions reflect the growing body of evidence that shows that there is no realistic possibility of transmission of HIV if a person is on antiretroviral therapy and has maintained a suppressed viral load for six months,” Yasir Naqvi and Eric Hoskins wrote in a joint statement.
Ontario Crown attorneys will no longer proceed with criminal prosecutions against those individuals, they announced.
The provincial ministers also said Ontario will put another $2.7 million to community HIV/AIDS programs, nearly $1 million more for harm reduction outreach workers and an additional $3.4 million to improve access to harm reduction supplies.
The federal study found that the law is not being applied consistently throughout the country, and the way it is being used needs to take into account a range of factors, including the scientific risks of transmission and degree of blameworthiness.
For example, the study noted, not everyone has equal access to HIV treatment or other services to help them manage the risks.
While the study’s publication coincidence with World AIDS Day, it also follows a landmark apology in the House of Commons this week for past state-sanctioned discrimination against the LGBTQ community in Canada.
‘Criminal justice system must adapt’
The milestone saw many advocates raise concerns about the current regime of criminalization the non-disclosure of HIV, noting it had been a year since Wilson-Raybould had promised to look into it and consider providing better guidance to prosecutors.
But Wilson-Raybould only has control over federal prosecutions and while she’ll use the results of the report to develop guidelines, it remains to be seen whether other provinces will follow suit.
The Canadian Coalition to Reform HIV Criminalization had issued a statement earlier this week, endorsed by more than 150 organizations, urging the Liberal government to go beyond guidelines and also reform the Criminal Code so sexual assault charges can’t be used.
The Justice Department report said criminal law reform could result in greater legal certainty but there are other issues.
“Law reform impacts the scope of the criminal law, not decisions about how to address cases that fall within that scope,” the report said.
“Moreover, law reform may require enacting HIV-specific provisions, which many stakeholders have opposed on the basis that this would increase the stigma experienced by persons living with HIV.”
In a statement, Wilson-Raybould said the report provides an evidence-based way to address HIV non-disclosure in the criminal justice system and she’ll continue working with the provinces on next steps.
“It clearly demonstrates that our criminal justice system must adapt to better reflect this progress as well as current scientific evidence on HIV-AIDS,” she said.
The study was published also as the federal Liberals announced $36.4 million in projects designed to address AIDS.
Science battles politics in growing state-by-state debate over HIV felony charges (via CNBC)
by Jessica Mathews
- California Gov. Jerry Brown signed a bill last month making California the fourth state to revise criminal laws regarding HIV exposure.
- Medical studies say there is effectively no risk of transmitting HIV while taking current drug regimens.
- Advocates are pushing states across the country to reevaluate HIV criminal laws.
In six U.S. states, individuals living with HIV who are found guilty of knowingly exposing a partner are required to be registered as a sex offender. They can face felony charges, or felony-level punishments, in 32 states.
But as breakthrough HIV drug treatments and medical studies show there is essentially no risk of sexually exposing someone to HIV while taking antiretroviral drug therapy (ART), states are being forced to play catch-up to the science, and stigma, of the AIDS virus.
There are 1.1 million people living with HIV in America, according to the Centers for Disease Control and Prevention. Between 2003 and 2013, ProPublica reported (in the most recent data available) 2,352 records of HIV-related charges, with at least 541 convictions or guilty pleas.
“It’s not easy to get people to agree with science,” said Bruce Richman, executive director at the Prevention Access Campaign, an organization that seeks to provide the public with accurate information about HIV exposure. “It conflicts with their long, deeply held beliefs about transmission risks.”
Last month Gov. Jerry Brown signed bill SB 239, making California the fourth state to rewrite HIV exposure laws that were enacted in the 1990s during the AIDS epidemic. Before the legislative reform, a person living with HIV who violated the California law could spend eight years in prison, with additional time if the person was a sex worker. The punishment resembled a typical sentence for voluntary manslaughter — three, six or 11 years in prison.
The bill reduced charges from a felony to a misdemeanor, with maximum sentencing in a county jail now set at six months, and is no longer HIV-specific but includes other communicable diseases, such as hepatitis. Anyone who intentionally attempts to transmit a disease without success will be charged with a misdemeanor with a maximum sentence of 90 days.
While the bill passed in the California Assembly 44-13, not all legislators agreed with the decision.
“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony. It’s absolutely crazy to me that we should go light on this,” Sen. Joel Anderson said as he debated the bill, according to a report in the Los Angeles Times.
“This isn’t about making people sick; it’s about people living with HIV being able to live their lives and not be subject to felonies that people with other communicable diseases are not subject to,” said Jo Michael, legislative manager at LGBT advocacy group Equality California. In fact, Michael said this legislation will lead to more individuals seeking treatment. “HIV was singled out, and that increases the stigma,” Michael said. “If you want to lower new infection rates and have fewer people living with it over time, addressing the disparity in discrimination is a way to do it.”
Two recent medical studies — the PARTNER study, which followed 900 heterosexual and gay couples for 16 months; and Opposites Attract study, which followed 358 gay couples — have determined that the risk of transmission while taking ART is effectively zero.
“We can achieve full suppression of viral replication, and we know from the data: If the medication is taken continuously and over the time of the infection, there is no breakthrough infection anymore,” said Hendrik Streeck, director of the Institute of HIV Research at the University Duisburg-Essen in Germany, which conducts research on therapy methods and vaccine development.
Without taking ART, condoms and PrEP (a medicine that lowers the risk of infection), reduce the risk of getting HIV by more than 90 percent.
According to research at the William Institute of Law at UCLA, the California law before its reform disproportionately affected women and people of color, and 95 percent of HIV-specific criminal incidents impacted sex workers or suspected sex workers.
Recent CDC statistics show that individuals living below the poverty line are two times more likely to be HIV-positive than those living above it.
States are still resistant to reforming HIV laws
Despite the latest science, many states remain hesitant to change laws adopted in the 1990s. In total, 29 states impose felonies on an individual who fails to disclose their HIV status before sex, and three states (Louisiana, Minnesota and New Jersey) impose punishments equivalent to that of a felony offense, with sentences of at least two years in prison.
In Tennessee a person living with HIV who knowingly exposes others can be quarantined by the state’s Department of Health “after exercising other appropriate measures” if he or she is determined to be a threat to the public. This health code does not require a conviction under the Tennessee HIV-exposure law.
State HIV criminal laws stem from a federal initiative in 1990 under the Ryan White Comprehensive AIDS Resources Emergency Act, which made funding for AIDS treatment and care contingent on states passing laws to prosecute individuals who knowingly exposed someone to HIV.
In 1995, AIDS was the leading cause of deaths for adults 25 to 44 years old. There were 51,414 deaths that year, the peak of the epidemic. Since new drugs to treat HIV became available between 1995 and 1996, the number of HIV-related deaths per year in the United States have sharply declined. In 2014 there were 6,721 deaths, according to the Centers for Disease Control and Prevention.
Iowa was among the first states to take small steps in reforming HIV laws, along with Colorado. In 2014, Iowa eliminated a requirement for convicted individuals to register as sex offenders, and it created a tiered penalty system, which now looks at whether transmission of HIV occurred and whether or not exposure was intentional. Additionally, other diseases were elevated to be included under the law, such as hepatitis or tuberculosis. However, someone who exposes a partner to HIV can still face up to five years in prison — up to 25 years in prison if the virus is transmitted.
In 2016, Colorado eliminated felony penalty enhancements involving sex workers living with HIV and modernized language having to do with HIV and other sexually transmitted infections in its public health code. It also reduced the sentence enhancement for sexual assault if a person is HIV-positive to twice the original sentence and requires proof of transmission.
Catherine Hanssens, executive director of The Center for HIV Law & Policy, says these state measures still don’t reflect the latest science regarding HIV.
“The rest of the country does not understand that it is not easily transmittable and easily manageable,” Hanssens said. “[HIV] is serious, but it can be managed.”
Advocates are pushing against many state legislatures that show little inclination to reform their laws.
“There are efforts to change the laws under way across the country from Florida to Ohio to Washington state,” said Kate Boulton, staff attorney at the HIV Center for Law & Policy. She says it is a highly complex process, depending on the political climate of the states.
“It has a lot to do with how the individual legislation works and how connected to policymakers the advocates are,” Hanssens said.
An Ohio Supreme Court challenge fails
Ohio could have been the next state to reform their HIV criminalization laws, but the Ohio Supreme Court decided to uphold its current HIV codes in a ruling on Oct. 27. Orlando Batista appealed after being charged with a second-degree felony assault in 2016 for transmitting HIV to his girlfriend without disclosure and receiving a charge of eight years in prison.
The American Civil Liberties Union advised the court that his conviction violated the equal-protection clause by singling out people living with HIV, and it forced disclosure of personal medical diseases that violated his right to freedom of speech.
Elizabeth Bonham, staff attorney at ACLU, had been hopeful the law would be struck down in its entirety. “This was a disappointing decision and a setback for the rights of people living with HIV, but we will continue fighting against the stigma and against criminalization,” she said in an email the day the Supreme Court decision was released.
“I live in a state where legislators aren’t educated on HIV. The laws don’t protect me. … There is no room for defense for people like myself,” said Nina Martinez, who was diagnosed with transfusion-acquired HIV (passed along through blood) when she was 8 years old.
Martinez was present last week when Georgia State Legislator Betty Price — former Trump Department of Health and Human Services Secretary Tom Price’s wife — used the word “quarantine” in a suggestion for how to stop the spread of HIV in a meeting on improving health-care access.
“I feel like we’re back in the ’90s, but we’re in 2017,” Martinez said.
In Indiana the health codes are tied to HIV laws. Individuals given an HIV-positive diagnosis are asked to sign an acknowledgement that their health providers have a “duty to warn” — meaning doctors and health-care providers are permitted to break client/patient confidentiality agreements in cases having to do with HIV exposure. This could make people less likely to seek out a diagnosis or disclose information to their therapists or doctors.
“Health providers become an extension of the laws,” said Carrie Foote, chair of the HIV Modernization Movement in Indiana, which was formed last summer.
People living with HIV caught in the crosshairs
Aside from health providers, residents who seek diagnosis open themselves to potential criminal action merely by knowing their status. “If you don’t know your HIV status, it’s not a crime,” Foote said.
Travis Spoor was diagnosed with HIV in 2012, but he had never been linked to care when he was sentenced to three years in prison in Indiana for failing to disclose his HIV status to a sexual partner, even though he did not transmit HIV. Foote said it will be incredibly difficult for him to start getting treatment in the Indiana jails, since he had not been receiving care before his arrest.
“He should have been linked to care. Our system failed him, and it’s still failing him,” Foote said.
HIV is the only disease criminalized under Indiana laws. “It is not based on whether someone intended to harm or did harm. It’s based solely on their HIV status,” Foote said.
EQCA legislative manager Michael said, “Wherever laws like this exist, they are harming people.”