Criminalization of HIV Transmission and Related Concerns

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1 Criminalization of HIV Transmission and Related Concerns Monday, October 18, :00 a.m. to 3:00 p.m. The George Washington University Alumni House Meeting Summary DISCLAIMER: This summary is offered for informational purposes and does not necessarily represent the views or policies of participating individuals, the organizations they represent, the American Bar Association (ABA), or the ABA AIDS Coordinating Committee. I. Presenters (in alphabetical order) Aziza Ahmed Assistant Professor of Law Northeastern University Law School Boston, MA Abby Charles Policy & Advocacy Coordinator The Women s Collective Vivek Divan Attorney, Technical Advisory Group Global Commission on HIV and the Law Catherine Hanssens Executive Director Center on HIV Law & Policy John Hassell Washington Director UNAIDS Vanessa Johnson Deputy Executive Director National Association of People with AIDS Brook Kelly HIV Human Rights Attorney U.S. Positive Women s Network Russell Robinson Professor of Law UCLA Law School Los Angeles, CA II. Major Points by Topic (available written submissions and PowerPoint presentations are posted on the AIDS Coordinating Committee website at A. Criminalization Case Law and Prosecutions Criminalization often affects already at-risk vulnerable and marginalized communities such as sex workers, homosexuals, and drug users. Criminalization does not seem to deter risky behavior. Although scientific and medical advances have allowed for better understanding and treatment of HIV/AIDS since the 1980 s (with at least 24 medications now available to treat the disease), these advances are not

2 reflected in criminalization law/policy. HIV/AIDS still depicts it as fatal. The general discourse around 36 states and 2 U.S. territories explicitly criminalize HIV exposure (even if there is no transmission); this exposure can be through drug needles or bodily fluids (often with no scientific basis, such as via saliva, which promotes the falsehood that that any type of contact transmits the disease). Exposure has also been defined as the insertion (or attempted insertion) of one body part into another body part, regardless of fluid exchange. For example, an HIV-positive person has been prosecuted for attempted murder after biting a police officer. Since the common factor in prosecution is that the defendant knew his/her HIV status, this may well create disincentives for HIV testing and therefore could be counterproductive from a public health perspective. But proof of intent is not always an element of prosecution -- there have been cases accusing the HIV-positive defendant of recklessly failing to know he had HIV. HIV sentencing is disproportionate to actual or potential harm. Though risk of infection is as high as 3% or as low as under 1% for unprotected sex during a single exposure, sensationalizing HIV leads to a perception of risk that is much greater than actual risk. The Nushawn Williams case exemplifies how sensationalizing HIV and demonizing PLWHA can inform sentencing: While convicted of intentionally infecting sex partners, he had not known his HIV status when he had sex with many of his accusers, and evidence that he was the person who had transmitted HIV was not admitted with respect to each and every accuser. Health authorities also can spread unfounded information about HIV. For example, an OBGYN clinic in 2008 stated incorrectly that most babies born with HIV die. Public health authorities in some states (see Mississippi) have people sign documents waiving their reproductive rights after they have tested HIVpositive. Quarantine as a potential consequence of HIV infection also is indicated. Health officials often are unaware that they are not obliged to turn over patients medical records during prosecution. Despite low HIV transmission risk, criminalization is conducted in such a way that HIV is disproportionately singled out over other STIs. For example, the transfer of human papilloma virus (HPV) is not criminalized in the same manner as HIV despite arguably posing a higher health threat by increasing the risk of cervical cancer. The CDC should make clear, public statements about the scientific nature and risks of HIV infection risks to dispel misperceptions that lead to discriminatory treatment of PLWHA. Incentives should be developed to encourage states to the repeal laws that have created barriers to testing and used the criminalization of HIV to demonstrate tough on crime policies that mask discriminatory sentiments toward marginalized populations, such as homosexuals. 2

3 Law enforcement should be tied to financial incentives. For example, threatening to withdraw funding if cases are deemed disproportionate. HIV infection should not be deemed as automatic intent to harm another; there should be proof of additional intent in order to convict. HIV criminalization might inspire hate crimes against PLWHA, without their protection as a targeted population. County-level HIV testing procedures should be re-examined viz. whether a person is deemed sufficiently at-risk for HIV to meet the standard requiring that 60% of testing be for high risk people. B. Policymaker Perspectives on Criminalization Moral rhetoric allows unification against already vulnerable minorities. Punitive laws that hinder HIV testing and treatment should be repealed. Often laws in former British colonies regarding deadly diseases are still in place. Though they span back 150 years, they often direct HIV/AIDS laws. Policymakers should examine how laws criminalizing HIV affect HIV positive people as well as those vulnerable to HIV; the manifestations and implications of violence against HIV positive people, with a focus on its impact on women and children; how laws impede treatment access; and what can be an impetus for changing detrimental laws. There is a gap in knowledge regarding how criminal laws affect HIV-positive people. Need a policy book with practical implications for government and policymakers. Confidentiality in era of electronic medical records should receive close scrutiny. As technologically advances, there seems to be greater pressure on people to know about/treat HIV status, with a no excuse mentality is increasing. There is growing debate about whether a model template should be endorsed to guide countries (especially developing countries) on how to deal with HIV criminalization. Such efforts must be careful about making such a template context-specific. C. Personal Perspectives on Criminalization The down-low phenomenon (men who sleep with women and hide the fact that they sleep with men, thus exacerbating risk of HIV infection) is a harmful portrayal of disease risk, as isolated cases (such as that of Nushawn Williams) become the face of infection and intervention. Simplistic understandings of HIV as a victim-perpetrator relation removes mutual responsibility of both sex partners. Disproportionate blame on the exposer removes responsibility from both partners to negotiate condoms and safe sex practices. HIV/AIDS criminalization laws are focused on those who are already criminalized these comprise at least 70% of cases. 3

4 While there have not been many prosecutions, there is a disproportionate number of laws dealing with HIV exposure, ranging from sex toys to mutual masturbation. The current policy discourse excludes people who do not fit into simplistic categorization. For instance, twice as many people identified themselves as something else than those who identified as homosexuals. The something else designation is especially pronounced among black and Hispanic minorities, potentially due to stigmas in those communities. Black women have not been identified as a high-risk group, though they comprise a disproportionate percent of infections. This seems to be significant regardless of whether their partners are high risk. Policy measures should be crafted in terms of prevention and intervention rather than criminalization, including how to spread information, especially to vulnerable communities, more effectively. Interventions must be careful about use of labels, as they may reduce risk perception (such as among black women, or among people who perceive their relationships as monogamous, not generally identified as high risk). While comprehensive sex education in public schools cannot be enforced federally, it can be in federally run facilities. D. Gender Perspectives on Criminalization Women represent about 25% of HIV/AIDS cases nationally and more than 50% in some states. Black women have 23 times the infection rate of white women. Younger women are more at risk as they are less likely to recognize partner risk. Criminalization increases, not reduces, rates of other problems such as domestic violence, discrimination, and incarceration, especially in minority communities that are already at high risk for these negative factors. Black women have less access to good counseling, as reflected in the limited amount of counseling they receive during pregnancy. While the rate of transmission from mother-to-child stands at about 20-25%, treatment reduces risk to about 2%, yet Black women s lack of access to treatment choices makes them more vulnerable to vertical transmission. A crucial question is, when should a mother s choice to take medication end and the state s role begin? There must be a restorative justice mechanism to empower women and to meet their emotional needs. Women need validation of their worth after they re infected so that criminalization is not the only solution. Criminalization can be detrimental to family life, as women who are registered as sex offenders can t be in proximity to minors. 4

5 A felony can lead to lack of state benefits such as Section 8 housing, as well as an inability to find work due to both sex offender status and felony record generally. Once a felony is on record, its nature must be made public, especially to employers; this means that HIV status is no longer confidential. Rather than seek a complete overhaul, which is politically difficult, the general strategy for criminalization reform should focus on specific revisions, such as correcting non-scientific bases for prosecution (e.g. spitting). E. Alternatives to Criminalization Understanding alternatives to criminalization refocuses the conversation about the legal response to address HIV away from ineffective punitive measures and towards evidence and human rights-based approaches to addressing the HIV epidemic. Public policy should promote an overhaul of criminalization by stressing a cost-benefit analysis where jail time and other necessary services such as foster care are shown to be more costly than rehabilitative services (not to mention more emotionally beneficial), and look at alternative models of dealing with HIV and other criminalization/restorative frameworks to provide model for action. 5