Federal officials work to end HIV criminalization laws

Officials in both the executive and legislative branches of the federal government have begun the process of pushing states to repeal HIV-specific criminal laws and to address HIV criminalization in general.

On Tuesday, the President’s Advisory Council on HIV/AIDS (PACHA) voted unanimously to accept the recommendations of a coalition of groups and individuals to include addressing HIV criminalization as a key action in implementing the National HIV/AIDS Strategy in the coming year.

The letter to PACHA sent by Catherine Hanssens, executive director of the Center for HIV Law and Policy, on behalf of over a dozen groups and individuals made the following argument:

Time and again, and for many years, we have seen government and non-governmental agency references to the shocking fact of ongoing HIV stigma and discrimination and the documented role it plays as a barrier to HIV testing, individual engagement in care, and broadly-embraced public health goals. Rarely, if ever, is this reference accompanied by concrete plans and commitments to address it.

It is time to turn the expression of legitimate concern about HIV stigma and discrimination from a throw-away line to a three-dimensional plan for action. And this plan must start with addressing one of the ugliest manifestations of the problem – government-sanctioned discrimination in the use of the criminal law against individuals who test positive for HIV.

CHLP runs the Positive Justice Project, which is targeting such laws and pushing for their repeal.

The PACHA decision drew praise from Michigan activists.

“Its good to see PACHA join with other advocacy groups in addressing the need to eliminate HIV related stigma. MI-POZ is part of a national coalition of people living with HIV, working to inform and influence the implementation of the national strategy,” said Mark Peterson, a MI-POZ spokesperson. “Criminalization is a serious barrier to prevention and care and continues to be the dark undercurrent from which anti-HIV and anti-LGBTQ policies stay afloat. PACHA has a history of both being vocal advocates for comprehensive HIV prevention and complete access to care, and being used as a rubber stamp to support faith-based anti-LGBTQ policies and anti-science policies with regards to condom use and effectiveness. It all depends on who is in the White House and who is appointed to PACHA. For now, it looks like we have representatives that at least are willing to give meaningful input about de-criminalizing people living with HIV.”

In the legislative branch, California Congresswoman Barbara Lee is floating draft legislation on Capitol Hill which would address HIV criminalization across the country. The draft legislation would create the REPEAL HIV Discrimination Act.

The legislation says that criminalizing the exposure or transmission of HIV “violates the civil and human rights of individuals who are HIV positive.”

It further addresses criminalization:

(9) Punishment and sentences are imposed on persons convicted of HIV-specific offenses without a proportionate assessment of the actual risks or harm involved and/or consideration of the culpability of the defendant. Many people living with HIV have been given sentences of 10–30 years even in the absence of HIV transmission.

(10) In most States, individuals with no intent to transmit HIV may be punished as harshly as a person who actually intends to transmit the virus. Similarly, low- and no-risk activities may be punished as harshly as riskier exposure activities. In most States, any sexual exposure—regardless of whether protection is used—is subject to the same punishment as actual transmission.

The legislation also argues that HIV criminalization is ineffective:

(14) The use of the criminal law to attempt to deter or alter sexual behaviors has been completely ineffective and conflicts with public health principles. Studies amply demonstrate that HIV-specific laws do not influence the behavior of people living with or at risk of HIV in those States where these laws exist. Furthermore, placing legal responsibility for preventing the transmission of HIV and other pathogens exclusively on people diagnosed with HIV undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases.

The legislation specifically cites the case of Daniel Allen, the Macomb county man charged in 2009 with bio-terrorism for biting his neighbor during what Allen said was a gay bashing. The bio-terrorism charges were eventually dropped, but not until after they were sent up to the circuit court for action.

The legislation then calls for a review of state and federal laws by the Attorney General, the Secretary of Health and Human Services and the Secretary of Defense. The review the legislation mandates should include health officials, states attorneys general, people living with HIV and others. The legislation then mandates that within 180 days these reviews produce a report to the Congress.

Within 90 days of reporting to Congress, the Attorney General and the Secretary of Health and Human Services would be required to release a best practices guidance in relation to HIV criminalization. Within 60 days those same officials would have to provide a report on how the entities will monitor the implementation of the best practices. Within 90 days of the report on monitoring, the entities would issue a report recommending changes to federal laws and policies, including recommendations for legislation or presidential executive order. And finally one year after the new guidance is released, the entities would report on the impacts of the guidance.

The legislation would also authorize funding appropriations for the various departments to carry out the act if it becomes law. Under the act, grantees would have to agree to a variety of statements related to HIV and the criminal law:

(1) not to place any unique or additional burdens on people living with HIV/AIDS solely as a result of their HIV status; and
(2) that if the entity, department, or organization promulgates any laws, policies, regulations, or judicial decisions regarding people living with HIV/ AIDS, such actions shall demonstrate a public health-oriented, evidence-based, medically accurate,and contemporary understanding of—
(A) the multiple factors that lead to HIV transmission;
(B) the relative risk of HIV transmission routes;
(C) the current health implications of living with HIV;
(D) the associated benefits of treatment and support services for people living with HIV; and
(E) the impact of punitive HIV-specific laws and policies on public health, on people living with or affected by HIV, and on their families and communities.

Lee’s proposed legislation also drew praise from activists.

“Congresswoman Lee’s draft REPEAL HIV Discrimination bill is both courageous and pragmatic. It represents the first time a member of Congress has taken on the charged issue of HIV criminalization in a productive and practical way,” says Hanssens of CHLP. “The REPEAL bill recognizes that government can’t invest money in ending the HIV epidemic with one hand while using the other to write special criminal laws and policies that target people with HIV for consensual or no-risk behavior, and reinforce grossly inaccurate beliefs about how, and how easily, HIV is transmitted.”

“Congresswoman Lee’s Bill is a good step toward righting the wrongs imposed in 1990 by the authors of the Ryan White CARE Act. These authors blackmailed the states into instituting harmful and archaic punishments on individuals who became HIV-positive before the states could get federal dollars to support HIV care. It has always been a truly revolting double message. Before you can use our money for care and treatment of people living with HIV/AIDS, you had to first criminalize them,” Peterson said. “Congresswoman Lee’s Bill states clearly and plainly that there should be a requirement to not only prove intent to transmit, but also that transmission was actually scientifically possible in an occurrence in question. Scientists who work in HIV support this bill; Government leaders in public health support this Bill and advocates for civil, human and patient rights support this bill. It kind of makes one wonder about who would oppose it and what their true motives might be. Perhaps common sense public health laws like this will keep media seeking, grandstanding politicians who serve as prosecutors from charging HIV-positive people with bioterrorism because they simply got into a scrap with a neighbor. One can only hope.”

The legislation would also address public ignorance about HIV transmission. As Michigan Messenger reported last month, a majority of Americans say they get their information about HIV from the media, according to the Kaiser Family Foundation. Many of the HIV criminalization cases pop up in the mainstream media and create an illusion that HIV can be easily transmitted or can be transmitted in ways — such as biting — that the CDC says are highly unlikely to transmit the virus.

“The criminalization of HIV is a hindrance to public health. Initially introduced and sold to the public as an aggressive tool to combat the AIDS epidemic, we have instead seen HIV criminalization laws wielded by law enforcement and courts based on prejudice and with reckless abandon. The silence that results from the fear of a legal bias against HIV and AIDS has killed countless Americans,” says Emily Dievendorf, policy director of Equality Michigan. “To individuals with HIV the targeting has been more akin to war on an already vulnerable population than on a deadly virus. Criminalization empowers the already disabling stigma against HIV and makes at-risk individuals far less likely to be open about their HIV positive status or even to get tested in the first place. Congresswoman Lee’s legislation is an important and urgently needed shift toward demanding equal protection and intelligent public health for all Americans.”

Lee’s office had no comment on the draft legislation.