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President's HIV/AIDS Council Responds to Unjust HIV Criminalization Laws

The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution this month stating that punishments imposed for HIV non-disclosure or exposureareout of proportion to actual harm inflicted, and that HIV criminalization is bad public health policy that fuels the epidemic.

Nick Rhoades is an HIV positive gay man from Iowa who in June 2008 was arrested, prosecuted, and sent to jail for a 9-month term for not disclosing his status to an HIV negative man he had sex with. Rhoades used a condom and was on antiretroviral medications with an undetectable viral load, which has been shown to reduce the risk of transmission by nearly 100%. Still, he was jailed and spending his first 6 weeks in solitary confinement, locked in a cell with a camera pointed at him 23 hours a day.

Later, Rhoades was sentenced to 25 years in prison -- a sentence that was removed after an extensive letter-writing campaign. Tragically, however, he is now considered a Class B felon and will always be listed as a sex offender, along with child molesters and rapists.

The HIV negative sex partner who pressed charges against Rhoades did not acquire HIV from the incident. Yet this otherwise innocent man had to face extreme, undue criminalization simply because he is HIV positive. His is only one alarming example of HIV criminalization against otherwise innocent positive people.

HIV criminalizationlaws were put in place to legitimately protect the public. In 2010, an HIV positive man was arrested in Indiana for knowingly and intentionally exposing more than 100 women over a 5-year period. Another case involved a man in Michigan who acknowledged to police that he was trying to infect as many people as possible and admitted to having unprotected sex with thousands of people. The intent of the original laws passed as a part of the Ryan White Care Act in 1990 was to criminalize "intentional transmission," but some states took it further by adding "failure to disclose" HIV status to a sexual partner.

Disclosing HIV status in any setting can be a complicated and personal decision, and the ultimate choice should be based on the safety of both people with HIV and their partners. But as was the case for Rhoades and dozens of others, some laws are unjust, extreme, and seek to criminalize people simply because they did not disclose their HIV status. These laws set back the advances made in the epidemic by instilling unwarranted fear of people with HIV and the highly unlikely chance of exposure from situations that pose no risk of transmission.

Today over 39 states still have various criminal statutes on their booksor have brought charges resulting in more than 80 prosecutions of people living with HIV. Astonishingly, the Global Network of People Living with AIDS (GNP+) says the U.S. is at at the top of the list of 15 hotspots for HIV criminalization.

Scott Schoettes, HIV Project Director at Lambda Legal Defense, stated on the organization's blog, "HIV criminalization is a striking example of how stigma and discrimination affect people living with HIV and how the government perpetuates these stigmatizing messages. Imposing unfair criminal penalties on people with HIV has led to a society where people are imprisoned, classified as felons and forced to register as sex offenders, based on outdated and inaccurate information regarding HIV."

The good news is that recent efforts have begun taking steps to change these harmful HIV criminalization laws. On February 7 the Presidential Advisory Council on HIV/AIDS, known as PACHA, called for an end to HIV criminalization. Bill Clinton initiated PACHA in 1995 through an executive order. During Barack Obama's administration it has been instrumental in helping to shape the Office of National AIDS Policy (ONAP) National HIV/AIDS Strategy, which includes language on HIV criminalization.

The PACHA resolution states:

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons.

Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.

PACHA's resolution recommends that federal government departments issue guidance and offer incentives to state attorneys general and state health departments to do away with specific laws regarding HIV criminalization. Though a PACHA resolution is only advisory and doesn't have teeth, it is a significant step in the right direction because it comes from the highest advisory body to the president on HIV/AIDS, and it could shape policy in the Department of Justice and Department of Health and Human Services.

In addition, PACHA is calling on the Centers for Disease Control and Prevention (CDC) to issue "a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities."

Last year Representative Barbara Lee from California -- an outspoken leader in the fight against HIV/AIDS -- introduced H.R. 3053, the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act. The bill creates incentives for states to reform their HIV criminalization policies, which she has called unfair and discriminatory. According to Lee, the bill requires the attorney general, Secretary of Health and Human Services, and Secretary of Defense "to work with stakeholders to review federal and state laws, policies, regulations and judicial proceedings that involve criminal cases against people living with HIV/AIDS, and to provide support for education and reform initiatives."

Advocacy to help educate and protect people by encouraging safe and legal disclosure have also been forthcoming, as people with HIV have continued to be prosecuted unfairly. The Sero Project is a not-for-profit human rights organization promoting the empowerment of people with HIV, combating HIV-related stigma, and advocating for sound public health and HIV prevention policies based on science and epidemiology rather than ignorance and fear. The project is particularly focused on ending inappropriate criminal prosecutions of people with HIV for non-disclosure of their status, potential or perceived HIV exposure, or HIV transmission. The Sero Project website has the latest information on laws in each state and further educational information and links. The HIV Justice Network features information about HIV criminalization and efforts to fight it worldwide.

The Positive Justice Project of the Center for HIV Law and Policy has issued a 26-item rationale for decriminalizing HIV in a consensus statement that has 39 endorsing individuals and organizations. The project is a grassroots, multidisciplinary response to HIV criminalization and the fallacy that a person's HIV status is proof of intent to harm, and therefore a basis for being prosecuted and sentenced.

"There is no reason to believe that these outdated laws criminalizing HIV exposure or non-disclosure serve the public health or the interest of the American people," commented PACHA member Naina Khanna, director of the Positive Women's Network. "And in fact, we know that HIV criminalization laws are not only an affront to our dignity as human beings, they make people living with HIV vulnerable to violence, coercion, manipulation and abuse. It's the responsibility of leaders to step up to end this blatant violation of human rights."

While there have been many advances in HIV treatment and prevention over the past decade that have extended people’s lives, discrimination, stigma, and criminal prosecution have limited advances in the rights of people living with HIV/AIDS. The real crime is how these HIV criminalization laws perpetuate stigma and fear, thus impacting prevention, impeding testing, and discouraging disclosure.

2/20/13

Sources

S Schoettes. It's Time to End HIV Criminalization. Lambda Legal blog. November 30, 2012.

Center for HIV Law and Policy. Positive Justice Project.

Sero Project. www.seroproject.org.

HIV Justice Network. www.hivjustice.net.