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What We Can Learn From California’s New HIV Law (via TalkPoverty)

January 17, 2018 | Philip B. Clapham

California HIV advocates scored a win this past October, when lawmakers voted to reform several criminal statutes that specifically targeted people living with HIV. The new law, S.B. 239, reduces the penalty for not disclosing HIV-positive status prior to sexual activity from a felony charge punishable by up to eight years of imprisonment to a misdemeanor carrying a potential punishment of up to six months in county jail. The law also repealed a felony that was specific to sex workers living with HIV.The new provisions, which took effect January 1, now require an actual transmission or for prosecutors to demonstrate that a defendant had intent to transmit HIV. They also recognize that certain risk reduction measures—such as being on antiretroviral treatment or the use of barriers like condoms—negate intent.

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

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.

Martinez
Martinez

“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.

Ayala

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
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 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. (Source: Mary Altaffer/Associated Press)

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.
An advocate for reform of HIV criminal laws holds an
An advocate for reform of HIV criminal laws holds an “End HIV Stigma” sign at a Pride event in Los Angeles. California Governor Jerry Brown signed into law a revised HIV law in October.

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.

Scientists from the National Institutes of Health and Paris-based pharmaceutical company Sanofi are also moving closer to developing a vaccine for AIDS.

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.

Nina Martinez sits in an art piece called
Nina Martinez sits in an art piece called “Cages” which represents the layers of stigma felt by people living with HIV. (Source: Lauren Shay Lavin)

“I live in a state where legislators aren’t educated on HIV. The laws don’t protect me.”– Nina Martinez, diagnosed with transfusion-acquired HIV at age 8


In Georgia, reform of HIV laws might take even longer, as advocates are still in the process of trying to update their legislators on the medical science of HIV transmission.

“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.”

Carrie Foote stands with Travis Spoor's mother as she gives her testimony about how the HIV criminal laws have affected her son and devastated her family at the HIV Modernization Movement advocacy day in Indiana.
Carrie Foote stands with Travis Spoor’s mother as she gives her testimony about how the HIV criminal laws have affected her son and devastated her family at the HIV Modernization Movement advocacy day in Indiana. (Source: HIV Modernization Movement-Indiana)

Nationally, California Congresswoman Barbara Lee reintroduced the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act in the House for the third time in March 2017, requesting that the Department of Justice, Department of Health and Human Services and the Department of Defense review and modernize federal and state law regarding HIV-positive individuals. The same bill was introduced twice by Delaware Sen. Christopher Coons in the Senate and rejected both times.

“I don’t think this has particularly strong prospects in the current congressional climate,” said Boulton in an email.

Indiana HIV activist Foote remains determined.

“It shouldn’t matter how liberal or conservative your state is. It has to do with the fact that we have a health epidemic,” she said. “We have a public health issue. In this case, states are using the state law in an unwarranted way to treat a health issue, where there’s no evidence that works. … [HIV] criminalization has a unit effect, a family effect, and it has a ripple. It negatively affects all of us.”


Georgia lawmakers poised to study HIV decriminalization (via Project Q)

projectq-atlanta-mayor-forum-19

by Regina Willis

Advocates for decriminalizing HIV in Georgia saw small wins last week as two measures from state lawmakers that would create committees to study the issue moved closer to passage.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, testified about one of the measures before the House Special Rules Committee on Wednesday.

“Our HIV non-disclosure statute makes it a felony crime for me not to disclose my HIV-positive status before engaging in private consensual conduct, without regard to whether or not measures are taken to prevent HIV exposure and transmission. Without harming anyone or intending to harm anyone, I could face up to 10 years of imprisonment,” Martinez told the committee.

In Georgia, HIV criminalization laws make it a felony for an HIV-positive person to engage in sex without first disclosing their status. The laws also criminalize acts like spitting when the behavior is directed at law enforcement officers with penalties that include up to 20 years in prison.

Rep. Dominic LaRiccia, a Republican from Douglas, challenged Martinez on her statement.

“Would you share briefly a specific instance, personally, of where you have been discriminated against and how it impacted your ability to move freely and do all the things that you do?” LaRiccia asked.

Martinez responded by discussing being the victim of an attack that she decided against reporting to law enforcement over concerns about her HIV status.

“About nine years ago I was sexually assaulted by an Emory undergraduate student. I was at Emory for graduate school, and because of this law I immediately knew that I wasn’t going to report it to law enforcement,” Martinez said.

“It was never going to be about consent, it was going to be about my HIV status. And so I was afraid of the very real possibility of going to prison for my own sexual assault because of this law,” she added.

Martinez also spoke on a panel about HIV decriminalization in November.

Rep. Buddy Harden, the Republican chair of the committee, quickly thanked Martinez for her testimony and the committee voted to approve the resolution. The measure, House Resolution 240, is from Rep. Sharon Cooper, a Marietta Republican.

But the resolution that passed last week was a watered down version of what Cooper initially proposedin February. It called for the creation of a Joint Study Committee on Reforming HIV Related Criminal Laws but was pared back to propose a House-only committee that will investigate reforms needed to address a variety of chronic illnesses, including HIV, as well as asthma, obesity, shingles and influenza.

The new language now calls on the study committee to “assess the HIV laws’ alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose,” in addition to addressing the other chronic health issues.

Cooper’s revised resolution also states:

“WHEREAS, identifying the barriers to HIV awareness, testing, and early linkage to care would be in the state’s best interest; Georgia ranks fifth in the nation for new HIV diagnoses; the Atlanta-Sandy Springs-Marietta area is listed as eighth in cities with the highest rate of new HIV infection; it is estimated that one in 51 Georgians are at risk of contracting HIV in their future.”

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. It is too late in the session to gain approval for a joint study committee – one that includes House and Senate members – so the measure approved last week was limited to a House study committee. That means it only needs House approval to create the nine-member study committee that would include five lawmakers and four health experts.

With just two days – Tuesday and Thursday – left in the session, it’s not clear if Cooper’s resolution will see a full House vote.

The other promising study committee is from Sen. Vincent Fort (photo), an Atlanta Democrat who introduced Senate Resolution 465. That resolution would create a nine-person panel and includes language from Cooper’s original resolution:

“[M]any of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

Fort’s resolution received a favorable recommendation from a Senate committee but it’s not clear if the Senate Rules Committee will push the resolution to the full Senate for a vote.

LGBT and HIV activists have blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

In February, state lawmakers joined with LGBT and HIV activists during a public hearing to explore the impact of the HIV epidemic among black Georgians as well as HIV criminalization laws.


Lawmaker wants to reform Georgia’s HIV laws (via Project Q Atlanta)

rep-sharon-cooper-doctalk

A Marietta Republican is sponsoring a measure to examine the state’s HIV criminalization laws, which advocates argue are outdated and stigmatize people with HIV.

Rep. Sharon Cooper (photo), who chairs the influential House Health & Human Services Committee, introduced House Resolution 240 on Feb. 14 to create a Joint Study Committee on Reforming HIV Related Criminal Laws.

“It was brought to my attention that a lot of the laws on our books are older, and that a lot of the laws on HIV were done in the eighties and we’ve certainly had a lot of change in science since that time,” Cooper said.

In Georgia, HIV criminalization laws make it a felony for an HIV-positive person to engage in sex without first disclosing their status. The laws also criminalize acts like spitting – when the behavior is directed at law enforcement officers with penalties that include up to 20 years in prison.

The current Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. LGBT and HIV activists have blasted HIV criminalization laws in nearly three-dozen states as a failure, criticizing the statues for adding stigma to HIV, keeping people from getting tested, and oppressing already marginalized populations such as LGBT people.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, said during a panel discussion last year.

Lawmakers create study committees to hear expert testimony and collect information about an issue ahead of possible legislative action. Cooper’s resolution would create a 12-member committee – five members each from the House and Senate, along with a representative of the Prosecuting Attorneys’ Council and the state Department of Public Health – that would meet and issue a report of its findings by Dec. 1.

“Sometimes you have to take baby steps,” Cooper said. “Bring in the experts to give you the background and the academic backing to back up which route you decide to go.”

One option the committee could study is completely eliminating HIV criminalization laws, according to Cooper’s legislation:

“The best practice would be for states to reform these laws to eliminate HIV-specific criminal penalties except in two distinct circumstances. First, states may wish to retain criminal liability when a person who knows he or she is HIV positive commits a (non-HIV specific) sex crime when there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is when the individual knows he or she is HIV positive and the evidence clearly demonstrates that individual’s intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.”

Another option the committee could explore is keeping current laws in place but updating them to reflect the actual routes of transmission that are possible, eliminating actions such as  biting and spitting. The Center for Disease Control & Prevention supports reforming HIV criminalization laws.

HR 240 has been assigned to the House Special Rules committee and undergoes the same route to approval as other legislation. If it gets approval from the committee, then it moves to a House vote and then to the Senate for consideration.

The resolution has a handful of influential co-sponsors, including Rep. Wendell Willard, a Republican and chair of the Judiciary Committee, Rep. Carolyn Hugley, a Democrat and Minority Whip, and Rep. Bruce Broadrick, a Republican from Dalton.

Bill would OK expedited partner treatment for STDs

Cooper is also sponsoring another sexual and reproductive health related measure. House Bill 360 allows physicians to prescribe medications for certain sexually transmitted diseases – namely chlamydia and gonorrhea – to somebody’s partner without first examining the partner. Expedited partner therapy (EPT) is recommended by the CDC to help control the spread of certain STDs.

“Normally the physicians have to see somebody before they order a medication, and sometimes it’s very hard to get the partner to come in,” Cooper said.

“[EPT] allows one part of the duo to save face, and hopefully take the medicine and then make sure they are both clear so they are not just reinfecting each other,” she added.

Some 38 states currently allow this practice. HB 360 has been assigned to Cooper’s Health & Human Services Committee. Cooper said a version of this bill introduced last year was passed in the House and was held up in the Senate.

Neither the resolution or the bill has been scheduled for a hearing.


HIV disclosure double jeopardy (via NOW)

by Cécile Kazatchkine, Ryan Peck

Many people living with HIV in Canada live in fear of potential unfair criminal prosecutions. Their future is finally looking a little brighter.

In a statement that mostly flew under the radar, Minister of Justice Jody Wilson-Raybould declared, on World AIDS Day (December 1), her government’s intention “to examine the criminal justice system’s response to non-disclosure of HIV status,” recognizing that “the over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS.”

Wilson-Raybould also stated that  “the [Canadian] criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease.”

This long-overdue statement was the first from the government of Canada on this issue since 1998, the year the Supreme Court of Canada released its decision on R v. Cuerrier, the first case to reach the high court on the subject.

That ruling established that people living with HIV could be criminalized for failing to disclose their HIV status to a partner prior to sex that could pose a so-called “significant risk” of HIV transmission.

In a subsequent 2012 decision, the Supreme Court changed the legal threshold by establishing a duty to disclose before sex that could pose a “realistic possibility” of HIV transmission.

In effect, the law was actually made harsher. In defining this new standard, the Supreme Court and most other courts, police and Crown prosecutors failed to properly consider current scientific evidence about transmission risks, which are far lower than most understand – especially when a condom is used or an HIV-positive partner has a low or undetectable viral load, usually as a result of effective treatment. It is now well established that HIV treatment not only allows people to live a long and healthy life, but also prevents new infection.

Wildly diverse interpretations of the law, however, have ended in people being convicted of aggravated sexual assault and going to prison for engaging in sex that in reality posed negligible to no risk to their partners.

Simple disclosure was thought to be an easy fix. But when being HIV-positive can still mark a person for overt discrimination and physical violence, disclosure remains anything but simple, especially for those on whom criminalization has a disproportionate impact: women, Indigenous peoples, migrants and members of African/Caribbean/Black communities.

Wilson-Raybould’s commitment to exploring change is important. Federal and provincial governments must take action to limit the scope and application of the criminal law in cases of HIV non-disclosure, in keeping with best practices and international recommendations. Canada is out of step with human rights principles and the broad scientific consensus surrounding HIV.

The use of the criminal law should be limited to cases of intentional transmission of HIV. Given what we know from science, in no circumstances should the criminal law be used against people living with HIV who use a condom, practise oral sex or have condom-less sex when they have a low or undetectable viral load.

We also need to do away with the practice of laying sexual assault charges in cases of HIV non-disclosure. It is misguided to equate HIV non-disclosure with the force and threats that normally define our understanding of sexual assault. Labelling people living with HIV as sex offenders is a stigmatizing misuse of this law.

In practical terms, there are some important ideas that the minister, and her provincial counterparts who are responsible for enforcing the law, can act on right now.

First, we’re calling for an immediate moratorium on all prosecutions in cases of HIV non-disclosure (unless there is alleged intentional transmission of HIV) while we’re exploring law reform options and working with the provinces to establish much-needed prosecutorial guidelines to limit the current misuse and overextension of the criminal law.

Second, the responsibility to recognize that things have gone seriously awry with our criminal justice system does not stop with the feds. Provincial attorneys general should immediately publicly state their commitment to ending the overly broad application of the criminal law in cases of HIV non-disclosure.

Third, we need ongoing meaningful dialogue that must always include people living with HIV, human rights advocates and scientific experts.

The minister’s commitment is one New Year’s resolution that we need to see come to fruition in 2017.

Cécile Kazatchkine is a senior policy analyst with the Canadian HIV/AIDS Legal Network. Ryan Peck is executive director of the HIV & AIDS Legal Clinic Ontario. Both are active members of the Ontario Working Group on Criminal Law and HIV Exposure (clhe.ca).


What it’s like to be HIV-positive (via NOW)

by DeClan Keogh

Photos by Tanja-Tiziana

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ALEX MCCLELLAND

Doctoral student at the Centre for Interdisciplinary Studies in Society and Culture, Concordia University; steering committee, AIDS ACTION NOW! 

I’ve had HIV for quite a long time now, almost 20 years. At this point I’ve had HIV longer than I haven’t had it. I first tested positive when I was a teenager. My doctor told me I wouldn’t live to be 30.

It was right after the main advances in protease inhibitors. There was a big change in antiretroviral treatment that meant people could live their entire lives. But because it was pretty new, they hadn’t tested the long-term effects and assumed people would only live a certain length of time. Now we know that if you suppress the virus in your immune system long enough, you can live the full, natural course of your life.

Even though it doesn’t have to now, being diagnosed confronted me with my own mortality at a really young age. It gave me drive. It also gave me a sense of how your HIV status can be used to justify incarceration. In Canada, you have people who are arrested and incarcerated because they have a medically controllable, chronic illness – and they’re treated like violent predators.

I rely on pills every day, but it is a manageable condition. The things that are life-threatening now have nothing to do with HIV and everything to do with people’s misperceptions.

Some AIDS organizations and public health institutions are terrified of the idea that it’s okay for someone with HIV to have unprotected sex if their disease is undetectable. It’s sad, because you realize these organizations are the ones driving the stigma. The consequences of what people thought about HIV/AIDS are still impacting people’s lives.

I don’t have a lot of time for people’s ignorance. I don’t put up with the idea that people are intentionally trying to infect others. People want to take care of their own health, and taking care of your own health when you have HIV means taking medication. I’ve actively made myself un-infectious.

People who are HIV-positive are actively engaged in their health. People who are transmitting HIV are people who don’t know their status.

Recently some friends approached me about being a sperm donor. I guess growing up I never thought that was an option because people think when you have HIV you can’t have kids, which is totally untrue. It’s pretty exciting. My parents are now going to have a kid in their lives who’s connected to me.

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MARVELOUS

community health coordinator

Before I immigrated to Canada in 2006, I was an accountant, the national finance secretary for an organization called Zimbabwe National Network of People Living with HIV. Canada [gave me] an opportunity to build my career and go back to school.

I’ve always been a resilient person. My mom had mental health issues – she was diagnosed with schizophrenia and bipolar disorder later in life – and I had to look after her when I was still in secondary school.

So when HIV came along in 1995, it was not my priority. I had other issues to deal with. When I think about it, I never got depressed. I developed this personality where I choose what I want to concentrate on.

Of course, it was a way of coping. I didn’t want to dwell on it. My friends and other members of the community around that time were dying. At first I just thought, “I’m going to die, I’m going to die,” but as each year passed I realized, “You know what? HIV does not define me.” I can still be like anyone else. When I started treatment, my health also improved.

I marked my 10th year in Canada in August, but it’s been challenging.

I thought it was just going to be smooth sailing. I was expecting Canada to be far ahead in terms of discrimination and access to treatment, but it’s not like that. Actually, I’ve seen people who I came with in 2006 completely shut down. They were activists back home but are not any more due to the stigma and discrimination associated with HIV.

Living in a small immigrant community when you are HIV-positive, it’s almost like you are embarrassing the whole community. HIV ceases to be about you; it becomes a community problem. When you go to churches or where we live, people don’t want to talk about HIV. You are seen as a sinner. People look at you differently.

I’ve seen discrimination in the health care system, too. You hear comments like “What are you doing in this country? You’re the ones who bring HIV.” I’ve heard it from hospitals, from nurses. Awareness is lacking.

We see so many adverts for cancer awareness on TV – celebrities fundraising, people talking about it. You rarely see people talking about their HIV. It’s still dealt with in silence.

When you have that blanket of self-stigma, you don’t see anything positive – even when people mean well. There are times when you walk around thinking that everyone who sees you knows you’re HIV-positive.

I’m an activist and an advocate; I’m a woman living with HIV; I’m a wife; I’m a student; I’m a service provider; I’m also a voice of the voiceless; I’m an immigrant. I wear different hats at different times, depending on what I’m doing. But I’m also Marvelous – I’m just me.

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KERRIGAN JOHNSON

treatment access coordinator with PASAN, Prisoners with HIV/AIDS Support Action Network

I came to Toronto when I was 16 and lived on the streets off and on. I started using hardcore drugs after I lost my girls to Children’s Aid in 2003. I gave one up for adoption and the other one to my mom.

I contracted HIV through injection drug use. I was diagnosed in 2005, along with hep C. I had my first HIV-positive pregnancy in 2007; that’s when I started medication. She came out negative and lives with her grandparents down South. After that I just went back to using and prostitution, because I really didn’t care about my health or anything that was going on.

In 2009 I got really ill. I was in the hospital for three and a half months. All my organs were shutting down. It’s scary when I think about it. People were preparing for my funeral.

The doctors thought I was on opiates and heroin, but I was actually clean off heroin for almost a year. I didn’t want anything for pain management, but they were giving me Dilaudid intravenously.

I didn’t want to go back to my lifestyle. I was tired. I was like, “I just want to do something better for myself.”

But I didn’t have any kind of motivation, so I slowly went back to using. It was tiring just to survive. It’s like drinking all day, prostituting at night and doing drugs just to stay awake to do it all over again.

And then I got pregnant with my son and I quit cold turkey.

People would ask, “How could you do that to a child?” Or “Is the baby going to have HIV?” It just shows you how much people aren’t educated these days. I went back to hiding my status because I just didn’t want to deal with the stigma.

Before, I was doing all these poster campaigns, so people would recognize me. That was kind of hard. Ever since, I’ve always been wary of what I do publicly, because of my son. I’ve often wondered, if things got out, how [my son] would deal with it.

But in the last year I’ve come to think, “You know what? Fuck it.” He likes the Red Ribbon, so if we’re walking around in the village he’ll be like, “Look, Mommy, it’s the Red Ribbon!” But he doesn’t really know what it is yet. He’s been surrounded by the HIV community. I’m trying to raise him to hopefully be a good advocate.

I started out in 2005 as a peer, going to people and telling my story. That really helped me heal. Of course, I’d go and get high right after because it brought up a whole lot of shit. But I eventually got stronger.

I want to break the cycle for my son. But it’s kind of hard, because we’ve isolated ourselves a lot. I just don’t want to deal with people’s thoughts or opinions about how I do things or why I’ve done things or because I’m HIV-positive and parenting. I just don’t want to hear it any more. Which is sad for [my son], because we don’t go to community events and stuff like that. We don’t get the cultural teachings or [First Nations] ceremonies.

I just kind of block it out now. It’s their issue, not mine. At the end of the day, HIV is only part of me; it doesn’t define who I am.

These interviews have been edited and condensed.


POSITIVE REINFORCEMENT

5 key findings from the latest studies on HIV

– Antiretroviral therapy (ART) can reduce the viral load in the blood and other bodily fluids of people with HIV to undetectable levels.

– A research study known as HPTN 052 found that the risk of HIV transmission through condomless sex between heterosexual couples was “extremely low” when the HIV-positive partner was on treatment.

– A three-year European study of more than 44,000 condomless sex acts between gay and heterosexual couples reported no transmission of HIV when one of the partners was HIV-positive and undergoing ART.

– The average risk of HIV infection can be relatively low in some cases regardless of viral load. The average per-act transmission risk for receptive anal sex without condoms, for example, has been estimated at 1.4 per cent when the viral load is detectable.

– Undetectable viral load doesn’t necessarily mean that there is no virus but that the amount of HIV is below the level tests can detect. Tests in Canada cannot detect HIV in cases where there are fewer than 40 copies of HIV per ml of blood.

Source: catie.ca

Read more from this week’s Being HIV+ package here.


HIV is not a crime (via NOW)

by DeClan Keogh

A little over two years ago I found out someone I had unprotected oral sex with was HIV-positive.

I barely knew this person, having met him that same night. We hooked up at a show during Calgary’s Sled Island Festival, behind a life-sized diorama depicting an idyllic beach complete with palm trees, surfboards and sand. What happened was a fun, drunken sexual encounter between two consenting adults.

I didn’t think to ask him about any sexually transmitted infections (STIs) he might have, nor did he offer any such information. Mine is a narrative commonly played out by young people in their early 20s, often fuelled by drugs or alcohol. According to the Canadian Foundation for AIDS Research (CANFAR), young adults aged 20 to 29 account for a quarter of all Canadians diagnosed with HIV or AIDS. Since 2000, the proportion of AIDS cases among youth has grown significantly, increasing from 26.3 to 43 per cent.

After finding out his status from a mutual friend, I was scared and angry. Admittedly my knowledge of the realities of HIV was average at best. I reached out to ask why he hadn’t told me.

The answers I got back were ones I had never heard before. He told me he had “a low viral load,” which by conventional scientific standards means the risk of transmission was low to negligible.

Someone can have a low viral load by sticking to a regimen of antiretroviral drugs. A growing body of research suggests that if someone’s viral load stays low for a period of six months, the virus can become undetectable, which means they can’t transmit HIV.

While the risk of developing disease are higher if you have HIV, new and better drugs have made the odds of developing full-blown AIDS much lower than they were in the 80s, when an AIDS diagnosis was considered a death sentence.

But two decades of HIV-related indoctrination kept nagging at me.

A consensus report released in 2014 by the Canadian Journal of Infectious Diseases and Medical Microbiology says the probability of transmission, regardless of the type of sexual activity or viral load, is low and becomes negligible when a condom is used.

But according to current trends in Canadian law, what happened between us could be considered rape.

A realistic possibility of gross disproportionality

In the eyes of the court, the person I was involved with should bear the full weight under the Canadian judicial system for failing to disclose his status to me.

Failure to disclose one’s HIV status is prosecuted as aggravated sexual assault, commonly known as rape. According to the Criminal Code, this law applies to someone who “wounds, maims, disfigures or endangers the life of the complainant.” A conviction carries with it a sentence of anywhere from five years to life imprisonment, along with a lifelong branding on the Sex Offender Registry.

Canada is currently one of the top 10 countries when it comes to criminalizing and incarcerating people living with HIV. While the numbers are not exact, activists and lawyers who work on cases involving people living with HIV estimate that some 180 prosecutions have been pursued in Canada since 1989.

Cécile Kazatchkine, a lawyer with the Canadian HIV/AIDS Legal Network, tells me it’s unknown how many of those charged have been convicted. (Researchers are currently putting together those statistics.)

But in November, the United Nations Committee on the Elimination of Discrimination Against Women called on Canada to end its broad criminalization of people living with HIV. The committee recommended that the law in Canada be applied only to those who intentionally transmit HIV. In particular, it asked for a review of the application of serious charges such as aggravated sexual assault to women who do not disclose their HIV status to their partners when there is little risk for transmission or when transmission did not occur or was unintentional. This is what some HIV/AIDS activists have been saying for years.

The 2014 consensus report outlining the probabilities of transmission was put together to help our courts interpret current scientific data.

But the current norms regarding the courts’ handling of HIV cases suggest that enforcement in Canada is influenced by stigma, fear, homophobia and even racism. A recent study by York University academics of media coverage of criminal cases involving non-disclosure between 1989 and 2015 reveals that 69 per cent focused on Black and/or immigrant men, even though they make up 20 per cent of the people charged.

A long list of proceedings and precedents govern how the Supreme Court of Canada decides what it thinks we should feel when someone fails to disclose their status.

Most recently, a 2012 ruling (R. v. Mabior) states that a “realistic possibility” of transmission triggers the obligation to disclose. In this case, the court suggested both that a condom must be used and a low viral load be maintained in order to negate a criminal conviction. Even though HIV was never transmitted, the case hinged on the failure to disclose.

Let the punishment fit the crime

Alexander McClelland is an activist and sociology and criminology researcher at Concordia University. His current work focuses on the first-hand experiences of people with HIV charged in Canada. He’s been following 14 cases, 12 of which involve multiple charges, including aggravated sexual assault. His work brings him face to face with our country’s idea of who is a sexual offender.

What McClelland’s research gives us is a perspective wholly absent in the broader discussion of HIV – that of those on the receiving end of our policies. He says everyone he has interviewed has attempted suicide at least once since being charged.

“The stories I’ve heard are really terrible.”

Two of the women he spoke to for his research, he says, were raped, and while reporting this to the police they were subsequently charged with failing to disclose their HIV status to their rapist.

The violence that can result from criminalization of non-disclosure is exponential, McClelland tells me.

“Dirty charges” like rape often result in severe beatings in prison that only intensify when someone has HIV. One man interviewed for his research was beaten so frequently in the general population that he was put into protective custody, housed with child murderers, pedophiles and people who committed violent rape. The beatings continued because prisoners in his new pod saw him as “more heinous than a child murderer” because he had HIV and was charged with rape.

McClelland told me that this man had broken up with his boyfriend, who then went to the police to complain about his failure to disclose. But the ex had allegedly known about his former partner’s HIV status throughout their relationship.

While these examples are extreme, Kazatchkine says her best guess is that at least half the prosecutions in cases of HIV non-disclosure have involved no transmission of the virus.

A research paper released in 2012 by the Canadian Journal of Law and Society – Who? What? Where? When? And With What Consequences? An Analysis Of Criminal Cases Of HIV Non-disclosure In Canada – revealed that 40 per cent of convictions in more than 100 cases involved no transmission.

McClelland says some women living with HIV have started cataloguing and freezing used condoms in an effort to protect themselves from the possibility of prosecution.

Stigma may kill more people than HIV

Michael Schneider is the Positive Youth Outreach (PYO) coordinator at the AIDS Committee of Toronto (ACT). He argues that the issue of disclosure is not as cut and dried as the courts make it out to be. Things like a person’s immigration status and language, as well as fear of rejection, prosecution, violence and abandonment all play into decision-making about whether or when to disclose your status.

“It’s not a gingerbread cutout for everyone,” says Schneider.

These fears are real for many people living with HIV. Immigrants have been deported after court proceedings regarding HIV disclosure. Women and men can face many different forms of violence after disclosing their status. In 2007, Stuart Mark’s boyfriend beat him to death with a golf club after Mark disclosed that he had HIV.

A growing body of empirical research suggests that criminalizing HIV negates the effectiveness of safe sex campaigns. Where once there was an emphasis on dialogue and transparency, now there is fear and punishment. Activists argue that the fact that people can be charged for non-disclosure provides a false sense of security and removes accountability from consensual sex.

After my experience with non-disclosure, I felt some resentment. But while researching this article, I reached out to the person who didn’t disclose to me. We talked about the assumptions we’d both made about each other. It felt good to talk and air our grievances.

I realized I’d learned something I’d never heard from doctors during any of my dozens of trips to the STI clinic, something I’d never heard from my family, my school, in the media or from the government – that you don’t need to be afraid of people living with HIV.

Read more from this week’s Being HIV+ package here.


Laws criminalizing HIV are putting vulnerable women at greater risk (via NOW)

by Kevin Ritchie

Michelle Whonnock was not in a good situation when she entered into a relationship with a former john in 2006. She was a sex worker on Vancouver’s Downtown Eastside and battling drug addiction. The businessman asked Whonnock to be tested for HIV, but she falsely told him the test had come back negative.

“He was really aggressive and abusive,” she tells NOW. “I was scared of what would happen [if I told him the truth].”

She was in a recovery home in Abbotsford when police showed up to arrest her for aggravated sexual assault. She wound up with a three-year sentence but was given a statutory release after two and a half years. She is now a registered sex offender.

Whonnock’s story is a familiar one to legal experts and women’s advocates who say Canadian laws criminalizing HIV non-disclosure are putting vulnerable women at risk of further harm.

As a child, Whonnock says, she was sexually abused by family members and paid to have sex, experiences that led her down a troubled path. When as an adult she attempted to report sexual assault incidents stemming from her sex work, police did not take her seriously.

“It was just, like, a joke because of what I was doing for a living,” she says.

Today, Whonnock is doing much better. She avoids the Downtown Eastside, lives with a new partner, has a relationship with her five-year-old son and attends drug treatment and counselling as per her release conditions.

“I get up every day and go to work. I feel like I’m leading a normal life again,” she says. “Drugs, alcohol and what I had to do to get by – it was just horrible.”

In Canada, there is no provision in the Criminal Code related to disclosure of HIV status. However, courts have ruled that failure to disclose HIV-positive status before sex can amount to fraud, thereby invalidating consent to sex. Hence the charge of aggravated sexual assault in HIV non-disclosure cases, even if there is no evidence of transmission or serious risk of transmission.

A survivor’s history of sexual violence does not factor into a trial. That information is relevant only at the sentencing phase. Critics say that by treating HIV non-disclosure in this way the courts are failing to consider that women and men aren’t always on an equal playing field in relationships.

Moreover, treating HIV-positive women as sex offenders is subverting sexual assault laws designed to protect sexual autonomy and gender equality. Front-line workers and lawyers say they’re hearing from HIV-positive women who are afraid to report rape and domestic abuse for fear of being charged with aggravated sexual assault themselves.

“People come to me all the time who don’t know what to do,” says Cynthia Fromstein, a Toronto-based criminal lawyer who’s worked on 25 to 30 non-disclosure cases. “Canada, unfortunately, is virulent in its zeal to prosecute aggravated sexual assault related to HIV non-disclosure.”

Fromstein points to the 2012 Supreme Court ruling in R. v. D.C., one of two landmark cases that determined that some people don’t need to disclose their status if they use a condom and have low or undetectable levels of HIV.

The case concerned a Quebec woman (referred to only as D.C. due to a publication ban) who had sex with her partner once before disclosing. The relationship continued for four years and became abusive and violent. After the man was convicted of beating D.C. and her son, he accused her of not disclosing her status the first time they had sex.

The trial judge decided D.C. was lying when she said a condom was used. Although the judge felt her partner was motivated by revenge, D.C. was convicted of aggravated sexual assault.

The Supreme Court later threw the conviction out on appeal, but “solely on a technical legal ground,” related to the trial judge’s handling of the condom evidence.

Fromstein believes that decision puts HIV-positive women in a grey area. “It makes it incredibly evident that [positive status] is a weapon that can be used,” she says.

The handful of front-line workers and legal experts interviewed for this story echo her concerns. They say they’ve received calls from HIV-positive women who’ve been raped but are afraid to report for fear of being charged.

When it comes to prosecuting sexual assault, women’s advocates also point to a double standard.

Says Lenore Lukasik-Foss, director of the Sexual Assault Centre for Hamilton and Area (SACHA), “We’ve heard cases where police are approaching people and saying, ‘Did you know that person is HIV-positive?’ and encouraging them to lay charges. That is not happening in quote-unquote traditional sexual assault.”

Organizations like SACHA are not funded to provide services to registered sex offenders, but are getting creative about finding ways to help HIV-positive women avoid getting charged if a relationship goes sour. One method is for a woman in a new relationship to ask a social worker to witness the signing of a document, kind of like a pre-nuptial agreement, stating that her partner knows her status.

Others will bring a partner to a medical appointment or counselling session so there is a record of disclosure. Women are also advised to ask their partners to get tested together prior to having sex for the first time.

While evidence remains anecdotal that HIV criminalization is discouraging the reporting of sexual assault, two research studies are investigating impacts on women: the Canadian HIV Women’s Sexual And Reproductive Health Cohort Study (CHIWOS) and the smaller Women And The Criminalization Of HIV (WATCH).

According to CHIWOS, women represent nearly one-quarter of the 71,300 people living with HIV in Canada. Of the 1,213 HIV-positive women who participated in CHIWOS, 49 per cent reported being sexually inactive. The kicker: more than 16 per cent of participants reported acquiring HIV through coercive sex. According to the World Health Organization, women with histories of physical or sexual abuse are 1.5 times more likely to have a sexually transmitted infection and, in some regions, HIV.

Marjorie Schenkels, an Indigenous woman from Manitoba who is appealing her 2014 conviction for aggravated sexual assault would fall into that category. (This week a Court of Appeal panel reserved judgment in her case.)

In 2014, she was convicted for failing to disclose her status to a friend she had unprotected sex with three times after they had both been drinking. The complainant later tested positive for HIV.

She received a sentence of two years less a day (plus probation). Unlike Whonnock, Schenkels did not actively lie, but remained silent regarding her status.

In the sentencing decision, the judge noted that “her silence was the result of fear and inability to accept the gravity of her situation.” The judge also wrote that Schenkels was “a product of sexual assault,” recounted her traumatic upbringing, history of intergenerational sexual violence and Schenkels’s belief that she contracted HIV after coercive sex.

Friends and family noted that Schenkels had turned her life around. A report before the court had assessed her as a medium risk to reoffend.

Given these mitigating factors, Schenkels’s supporters were stunned at the length of her sentence.

“Her story is similar to so many women’s,” says Laverne Gervais, project coordinator for Sisters of the Fire, a Winnipeg-based support organization for Aboriginal women living with HIV.

“How she contracted the illness has never been addressed. And so there she was, standing in a courtroom facing charges that in her own [assault] had never come to court.”


Activists: Change Georgia laws that unfairly punish HIV-positive people (via Creative Loafing Atlanta)

by Sean Keenan

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Georgians living with HIV can be locked away for up to a decade for neglecting to inform sexual partners of their status, even if they’ve been told by a doctor that their viral loads are too low to transmit the virus.

Under Georgia law, HIV-positive people are required to tell partners of their status prior to sex. If they don’t, they could be charged and convicted for “reckless conduct” — a felony — even if they don’t transmit the virus. People who divulge such personal info to others can face harsh discrimination, and even violence, for saying they have HIV. In other cases, their privacy could be compromised.

According to the Center for HIV and Law Policy, more than 30 states have laws about prior notification and spitting or biting, even though medical experts say such behavior does little, if anything, to contribute to the transmission of HIV. And Georgia activists who are trying to end HIV stigma want state lawmakers to revisit laws here. 

The topic was raised on Nov. 30, the evening before World AIDS Day, at an event organized by advocacy group Georgia Equality. During a panel discussion at the event, four HIV-positive people talked about the stigma that comes with living with the condition. 

Nina Martinez, a public health analyst and Georgia Equality activist, said she hasn’t had a relationship in 11 years. That’s because Martinez is worried she could be beaten or criminally charged for merely engaging in romantic endeavors with someone who is not aware of her condition. Martinez told the few dozen people in attendance that, after being sexually assaulted, she kept quiet in fear of “going to prison for my own rape.”

Panel speakers said they’re working with local politicians to create legislation that could reduce the stigma surrounding HIV. Many people don’t know that HIV-positive people taking proper medication can have normal sex lives with virtually no risk of passing the virus to others, said panel moderator Dazon Dixon Diallo, founder and president of SisterLove, an advocacy group focused on African-American women with HIV/AIDS.

Dixon Diallo said appropriate use of pre-exposure prophylaxis, or PrEP, and antiretroviral therapy can now virtually quash the chances of transmission during intercourse or other exchanges of bodily fluids, citing a two-year study of more than 1,000 couples that knew of their partner’s status.

“Treatment is prevention,” said Dr. Richard Rothenberg, associate dean of faculty development and research at Georgia State University’s school of public health. “Getting people on adequate treatment (defined as no detectable viral load) clearly diminishes transmission considerably.”

Georgia has one of the highest diagnosis rates of HIV in the nation. According to a recent study by the Big Cities Health Coalition, metro Atlanta had the country’s second-highest rate of HIV diagnoses, second to Washington, D.C. Nearly half of metro Atlanta cases are in Fulton County.

“So how well has our criminalization law done to drive down [HIV] cases?,” asked Mel Medalle, a SisterLove policy and advocacy advisor. “I don’t think very well.” 

To people who aren’t knowledgeable of advancements in HIV treatment and prevention, Dixon Diallo said, “it might seem like these laws are helping people … But there is no sense of agency or responsibility to someone who is not HIV positive.” For example, Martinez said she could be taken to court for not informing a partner of her status prior to having sex, even if she contracts an STD her partner might be carrying in the process. “Complying with the law assumes that disclosure is safe,” she said. “But there’s nothing to stop that guy on a Friday night from giving me syphilis.”

One audience member asked whether a pre-sex, contractual understanding could thwart cases in which people raise issues with the terms of their sexual exploits after the fact. Medalle said having such a document in theory but “in the real world, the stigma would outweigh that every single time.”

Charles Stephens, director of The Counter Narrative Project, an advocacy group supporting gay black men, said HIV criminalization is also used as a means of endorsing homophobic and xenophobic policy. Stephens has followed the case of Michael Johnson, a gay black college wrestler who last summer was jailed after being convicted of transmitting HIV to one man and risking the infection of four others. Johnson was sentenced by a Missouri court to more than 30 years in prison. A Missouri appeals court yesterday ordered he receive a new trial.

“A lot of national organizations are only interested in people with perfect narratives,” Stephens said. “No one was talking about this…If Michael had blonde hair and blue eyes, the cavalry would have come a lot sooner.”

Marxavian Jones, an activist with NAESM, a group that provides education and services for people affected by HIV/AIDS, reminded the crowd that the virus does not discriminate.

“When talking about HIV, it’s not just numbers, these are lives,” Jones said. “People who are married catch HIV. People who have one partner catch HIV. People who have sex for the first time catch HIV. Everyone’s story is different, and it’s unfair to put rules and labels on how people have to share their private and personal information.”

The panelists said they’re working to draft a legislative proposal — they said it’s too early to share specifics — for the upcoming General Assembly to address Georgia’s laws and “decriminalize HIV,” once and for all. 

“The H in HIV stands for humans, and we seem to be missing that humanistic approach,” Jones said. “I am not a walking infection. I am a human. Don’t lock me up for who I am.” 


It’s Time To End Bad HIV Laws (via Positive Justice Project)

Watch and share our new a three-minute video on why we need to #EndBadHIVLaws.

The video talks about what these laws do, whom they target, and how they cause harm without any perceptible benefit and is the result of a joint campaign by CHLP, the Human Rights Campaign and the National Center for Lesbian Rights to raise awareness about the harms of HIV criminal laws.

Tweet about our video with #DecriminalizeHIV #EndBadHIVLaws  


Activists push to change HIV criminalization law in Georgia (via Project Q)

Project-Q

A panel of HIV activists and LGBT organizers took aim at laws in Georgia that criminalize people with HIV and can leave them facing prison sentences of up to 20 years.

Last year, a gay Atlanta man was charged in South Carolina with exposing a sex partner to HIV. Tyler Orr said he did disclose and as the panelists pointed out during the recent discussion, what counts as disclosure and how to avoid “he said, she said” debates in court is unclear.

“What advocates have tried to encourage folks to do in this really unwinnable situation is to have a notarized document or affidavit before you engage in one of these punishable acts,” Mel Medalle of SisterLove told the crowd of about 40 people.

“Which almost never happens, but that is how extreme and absurd this situation is,” Medalle added.

Nina Martinez, a member of the Coalition to End HIV Criminalization in Georgia, pointed out that disclosure laws can also create safety risks for people with HIV.

“Every single time, especially as a woman, every single time, it’s me risking my personal safety,” Martinez said.

Marxavian Jones, who serves as one of Georgia Equality’s Youth HIV Policy Advisors, echoed agreed with Martinez.

“Who is going to defend me when I disclose my status to someone and they take it to social media and decide they want to tell everybody,” Jones said.

The Center for HIV Law & Policy has pointed to the increased risk of intimate partner violence that can come with disclosure, writing that disclosure can “provide an additional excuse, or cover, for physical violence.”

The ongoing stigma of HIV-positive individuals also means that – as Jones pointed out – a disgruntled lover posting a partner’s HIV status to social media can have real consequences, including job loss or being outed to family.

During the National HIV Prevention Conference in Atlanta last year, public health experts and HIV activists argued that rather than criminalizing HIV-positive people, and adding to the stigma they face, people with HIV should be pushed to treatment options.

At the recent panel, participants also highlighted legislation being drafted by the Coalition to End HIV Criminalization in Georgia. The coalition is currently reaching out to legislators to find a sponsor for the bill.

“[The legislation is] so we can repeal, which would completely get rid of it,” Medalle said. “The other option would be to reform it, so to make changes to it but to ultimately have some semblance of it.”

While Medalle said it may seem like a “no brainer that we wouldn’t want this [law],” stigma and other means of criminalizing HIV-positive individuals makes the issue more complicated. In Texas and a handful of other states, there are no specific statutes that target people with HIV but they are still prosecuted under other laws including reckless endangerment.

Reforming the law means that advocates can create better standards for prosecutions, and can “craft a law that comports with modern HIV science, what we know about the routes of transmission,” Medalle said.

Martinez, who is a member of the coalition, said the HIV criminalization law in Georgia also falls short in other aspects.

“The law in Georgia doesn’t require intent to infect, it doesn’t require likelihood of transmission because it has things like spit, urine, feces in it. It doesn’t require transmission,” Martinez said.

The Georgia law also doesn’t take into account issues like condom usage or advising a partner to take PEP (post-exposure prophylaxis) after sexual intercourse – acts which reduce the likelihood of transmission. The reforms to the law would change that, the panelists said.

Emily Halden Brown, a Georgia Equality field organizer who organized the panel discussion, said the event highlighted how people with HIV are impacted by it.

“I think the most valuable moment in all of the discussions I’ve ever been a part of on this, are the moments where people living with HIV share the stories of how they are directly impacted,” Brown said. “Anytime someone shares their personal story you can just feel the change in the audience.”

The event was hosted by Georgia Equality, SisterLove, and The Counter Narrative Project at Gallery 874. The panel discussion coincided with the “Living With” art exhibit, which featured art about the experiences of living with HIV. A closing reception helped raise funds for Georgia Equality’s HIV policy work.

Words & Photos by Regina Willis | clockwise left to right: Marxavian Jones, Georgia Equality Youth HIV Policy Advisors; facilitator Daizon Dixon, founder of SisterLove; Nine Martinez of Coalition to End HIV Criminalization in Georgia; Charles Stephens, founder and executive director of the Counter Narrative Project; Mel Medalle, Policy & Advocacy Program Manager at SisterLove.


Closer Look: World AIDS Day; Needle Exchanges; And More (via NPR)

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On today’s “Closer Look” Rose Scott and Jim Burress talk to people looking at the future of reducing the risk and stigma of HIV. COURTESY OF WORLD AIDS DAY

Thursday on “Closer Look with Rose Scott and Jim Burress”:

  • 0:00: Rose Scott and Jim Burress give a news brief on the announcement of Deputy Chief Erika Shields as Atlanta’s new Chief of Police;
  • 0:55: Jeff Graham, executive director of Georgia Equality and Sequoia Ayala, policy and advocacy fellow at SisterLove, talk about local efforts to change the national dialogue on the criminality of HIV;
  • 20:47: Dr. Carlos Del Rio, chair of the Department of Global Health at the Rollins School of Public Health, talks about what 30 years of local research has meant for the fight for the cure;
  • 36:02:  Cyprian Wejnert, lead author of the Center for Disease Control and Prevention’s report on HIV and needle exchanges, talks about how the opioid epidemic has increased the risk of HIV through unsafe needle injections.
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