US: 'It's Criminal', says POZ magazine; my HIV exposure round-up proves it is!

The October issue of POZ magazine is just out, and their cover story is about the criminalisation of HIV non-disclosure.

It's a timely reminder that the US prosecutes more HIV-positive individuals than any other country in the world. They go after us not only for allegedly not disclosing our HIV status before sex but also for just being HIV-positive and having sex or doing other things that are so low on the scale of HIV transmission risks that criminal law involvement becomes a stigmatising over-reaction.

In fact, over the summer months I've been so overwhelmed with news reports of prosecutions from the States, that I've had something of a backlog. So, here's a summary of what's been happening in August and September.

• August 14th: In Ocala, Florida, a 39 year-old woman was arrested for not disclosing her HIV status. The complainant was a 58 year-old man who had sex with her once, according to Ocala.com.
• August 21st: In Palm Beach, Florida a 32 year-old woman was arrested for "committing prostitution while HIV-positive, a third-degree felony which can result in up to five years in prison", according to The Palm Beach Post.
• August 27th: In Oklahoma City, a 40 year-old man was arrested following a complaint from another man for not disclosing his HIV status before oral sex. He was charged with "knowingly engaging in conduct reasonably likely to transfer HIV", according to newsOK.com.
• September 3rd: In Memphis, Tennessee, a burglary suspect was charged with criminal HIV exposure after he "he spit blood in the officer’s face and said that he was HIV-positive" during his arrest, according to myeyewitnessnews.com.
• September 11th: In Florence, South Carolina, a 35 year-old was arrested for HIV exposure after a complainant went to police (sex of both individuals unknown). "A person who violates this law is guilty of a felony, and upon conviction, can be fined up to $5,000 or serve up to 10 years in jail," according to WMBFnews.com.
• September 11th: In Dayton, Ohio a 25 year-old "male prostitute is facing felony soliciting and prostitution charges after he was picked up by an undercover cop working as part of a prostitution sting," reports the Dayton Daily News. His name, face and HIV status was also published.
  
• September 17th: In Fort Smith, Arkansas, a 33 year-old man "charged with knowingly exposing a person to HIV is also the lone suspect in a 2002 homicide in North Carolina", reports the Times Record. The 2002 murder allegedly took place after the female victim discovered the man's HIV status and threatened charges.
• September 21st: In Mattoon, Illinois a 42 year-old man faces HIV exposure charges after a 19 year-old woman complained to police that "he engaged in sex with her, knowing he was HIV positive", reports the Journal-Gazette Times-Courier.
  

Admittedly, the Arkansas case does warrant some criminal justice system investigation (if only to finally prove or disprove these 2002 allegations). It is also the only one where the complainant is acually HIV-positive. I have a feeling we'll be hearing a lot more about this case if and when it goes to trial!

Back to the POZ piece. Page 1 features an overview of US laws; why POZ believes they are wrong and out-of-date; and what HIV-positive individuals can do to protect themselves from prosecution.

If you can get a person to indicate that you have made it perfectly clear that you have HIV, and do so in front of a witness, such proof of disclosure may hold up in court. But unfortunately, many states do not define what constitutes “informed consent.”

[...]

Of course, it is also a good idea to use a condom. While not a legal defense in some states, condoms reduce the risk of spreading HIV. Historically, fewer people have been prosecuted for nondisclosure prior to sex when a condom was used.

Most important, the HIV community must lobby local, state and federal government officials and lawmakers to rewrite (or better yet, abolish) the laws that criminalize HIV transmission. Contact your mayor, your congress people, your state senators and their staff. Educate them about HIV risks and transmission, and hold their feet to the fire to ensure that all people living with HIV are not unfairly punished.

Page 2 features "comments posted on POZ.com by readers in response to various news stories and opinion pieces on the subject of criminalizing people living with HIV."

Page 3 has an excellent interview by Regan Hoffman with Catherine Hanssens, executive director of The Center for HIV Law and Policy. Highlights include:

"It’s hard to think of any disease or context in which someone would be put away for 20 years for what is basically an act of consensual sex where no one has been harmed. But the reporting in the mainstream press [about these cases] is informed by huge misunderstandings about how HIV is transmitted and a lot of ignorance about whom HIV affects and what drives the epidemic."

"The things that you would want to do to protect yourself and your partner are not necessarily the things that are going to be rewarded in the courtroom. There is a disincentive to disclose because proof is a difficult thing."

"Disclosure is not the equivalent of latex... The thing that stops transmission is latex, not words."

"The notion that we need a whole other set of standards and separate laws [to prosecute the nondisclosure of HIV] reveals that it’s not the intent to harm that results in a lot of prosecutions, but rather the ignorance about how transmissible HIV is and a revulsion for people who are affected by HIV."

Couldn't have said it better myself!

US: Tennessee woman charged with "aggravated prostitution", unusually sympathetic reporting

An unusually sympathetic report of the case of a 28 year-old female sex worker from Knoxville, Tennessee, who faces between three and 15 years in prison for being an HIV-positive sex worker, was published today in the local paper, the Knoxville News Sentinel.

The report is probably the most balanced reporting I have ever seen of a case of this type, and the reporter, JJ Stambaugh, is to be congratulated on his report.

[The woman] differs from most of the 525 other known prostitutes arrested in Knox County over the past five years in one significant way: she is HIV-positive. [Her] medical condition means that when she turns tricks for a living she's committing a felony called aggravated prostitution. Women without HIV face misdemeanor prostitution charges that often add up to no more than probation and a fine. [She] is a repeat offender, having been convicted twice of being an HIV-infected prostitute before she was arrested a third time early this year, records show. Despite the fact that she's never been accused of any type of sexual assault, her criminal history already means she must register as a sex offender under state law and follow many of the same restrictions as rapists and child molesters.

Through court records, the article details the woman's difficult upbringing, her drug addiction, her mental health issues, and her previous arrests for prostitution.

She was discharged from prison the second time last November. Her most recent arrest for aggravated prostitution came April 10, when she was picked up on Magnolia Avenue during an undercover sting that netted eight other streetwalkers and their customers. She has since been held at the Knox County Detention Facility, unable to make her $15,000 bond, jail records show.

In addition to a history of homelessness, she has also been diagnosed with a neurological disorder and mental problems that include "flashbacks of being raped while working the streets," according to her pre-sentence report.

The article then highlights why, despite its intentions to protect the public health, using the criminal law in this way may not be in the best interests of the community.

The state law that classifies women such as [the accused] as sexual predators is - in the eyes of one defense attorney who has represented several women charged with the crime - just another way of hurting the true victims of abuse.

"I understand there is a public policy to control the spread of HIV, but I'm not sure that accelerating prostitution to a felony charge and meting out more severe punishment is the way to deal with the crisis," said Julie Auer Gautreau of the Knox County District Public Defender's Office. "I think it's inherently unfair to treat sick people, mentally ill people and drug addicts as criminals who are intent on endangering the public, because that's not what they're trying to do.

"It may be that they, in effect, present a kind of public danger, but in the case of every prostitute I've ever represented, you are dealing with somebody who is deeply troubled, who has suffered for years, and whose addiction ... is the result of some kind of abuse or mental illness or addiction."

Knoxville Police Department Sgt. Chris Baldwin said the aggravated prostitution law is a necessary tool for protecting public health.

"If you are aware that you have a disease or condition that could endanger the health of others, it's no less in my opinion than pointing a weapon at somebody," Baldwin said. "When a customer is exposed, then everybody he comes into contact with - including innocent third parties like his family - are at risk at well.

"What you're doing is putting another human being in danger, not just their moral but their physical well-being."

Baldwin agrees that many prostitutes are in dire need of drug treatment or psychological help, but stressed that the risks to public health are urgent when a hooker becomes infected with HIV.

As a sex offender, Moore can't take part in some residential drug treatment programs available to other addicts because she's not allowed to live at any place that also houses juveniles, records show.

"Ideally, our position is that prostitutes would be arrested and go to some kind of treatment or rehabilitation, but that very rarely happens," he said. "We have to focus on it from the law enforcement perspective. That's what we're tasked with."

Finally, the article also suggests that prosecutions of HIV-positive sex workers for "aggravated prostitution" appear to be selective.

[She] is one of 39 women in Tennessee who are on the state's Sex Offender Registry because they have been convicted of aggravated prostitution, according to Tennessee Bureau of Investigation spokeswoman Kristin Helm. She is one of only two women in Knox County to have actually been convicted thus far of the charge, although the Knox County Health Department says at least 10 HIV-infected local women are known prostitutes.

US: Tennessee man accused of infecting woman during 'drug holiday', confesses to police

A 47 year-old man from Portland, Tennesseee became the 15th person to be prosecuted under Tennessee's criminal HIV exposure laws this week after he was charged with three counts of criminal exposure to HIV.

The details of this case, as reported on the tennesseean.com, are rather unusual since the man took a 'drug holiday' during his relationship with the woman, and may have been aware that his viral load would have increased during this time.

He also apparently waived his Miranda rights and confessed to his arresting officers that he had unprotected sex with the female complainant, who tested HIV-positive in December 2008, "without her knowledge or consent".

She told police she met Tanner, 47, in December 2007 and began dating him in January 2008.

The woman alleges she had sex with him four times between April and November 2008, and three of those four times were unprotected.

Before this relationship, she had been living in abstinence, and she further told authorities Tanner was the only man she had been intimate with in several years.

According to police, the woman alleged Tanner told her [in] Nov [2008] that he had been diagnosed with positive HIV approximately 10 years before their relationship began.

Tanner reportedly told her he had been on a “holiday,” which he described as when an individual stops taking his prescribed medication.

He further told authorities he had been on the holiday approximately 10 to 12 months. The woman found out Dec. 30 she was HIV positive and claims when Tanner found out he said, “Now that you are sick like me, I can take care of you.”

Although HIV transmission is alleged to have taken place, in Tennessee this does not have to be proven for the man to be found guilty.

Tennessee: Memphis pool worker charged with rape, HIV exposure; media furore

A media furore has exploded in Memphis, Tennessee, after a city swimming pool employee was charged with raping a 17-year-old girl and exposing her to HIV.

The media reports were based on a Memphis Police Department press release (below).

The case is particularly problematic because of the confusion in the police press release over:

• his job (they said he was a lifeguard, when in fact he was a pool worker, and – even more problematically - was fired by the City of Memphis when they learned of his arrest);

• whether "consensual sex with underage females" is a crime;

• and whether his HIV status is an aggravating factor, or whether the police are now looking for further complainants to make HIV exposure charges stick.

In fact, the press release is also a fishing expedition for further HIV exposure complaints.



Helping the police is the Memphis media, which has published the man's name and photo. One news story, on the Memphis news website, commercialappeal.com, has so far received over 160 comments, some of which threaten the man's life. Is publishing the man's name and photo really in the public interest?

Reading through some of the comments, it seems to many that the man's HIV status is more worrying than his alleged rape, with some having extremely unrealistic ideas over how HIV is transmitted. This isn't made any better by the media report itself, which suggests, subtly, that his HIV status puts others, including fellow prisoners, in some kind of danger.

However, at least one media outlet, Mediaverse, a Memphis-based blog that critiques local media coverage, has asked some extremely pertinent questions over how the police and the media have handled the case.

Story from Memphis news website, commercialappeal.com below.

City swimming pool worker faces rape, HIV charges
by Hank Dudding
Tuesday, August 19, 2008

An employee at a Memphis city swimming pool has been charged with raping a 17-year-old girl and exposing her to HIV last month.

Timothy Bernard Payne, 37, is being held in the Shelby County Jail on $250,000 bond.

The teen told investigators she accepted a man's offer of a ride home from the Westwood Community Center on July 31. Instead, he took her into a wooded area and sexually assaulted her.

The investigation led police to Payne, who was charged Monday with aggravated rape and criminal exposure to HIV.

An offender must know he carries the virus that causes AIDS to be charged with exposing others to it, said Maj. Joe Scott of the Memphis Police Department.

A police news release originally said Payne worked as a lifeguard at the community center, but the department later corrected the release to state that he was a pool attendant.

Pool attendants don't perform any lifesaving practices, said City of Memphis spokeswoman Toni Holmon-Turner.

The city fired Payne on Aug. 1 when it learned of the investigation, Holmon-Turner wrote in an e-mail. He was hired in 2006, a year before the city began doing background checks on temporary employees.

The pools are now closed for the summer, she said.

Police believe Payne has had sex with several underage females in the Westwood and South Memphis area and asked victims to call the sex crimes bureau at 545-5330.

Payne has a history of arrests dating to 1992. He was indicted on a rape charge in 1993, but pleaded guilty to a reduced charge of misdemeanor assault.

Records indicate he served five months in the Shelby County Correction Center in 2003 for vandalism. He's not listed on the state's sex-offender registry list.

The Shelby County Jail doesn't keep inmates with HIV separate from other prisoners, said sheriff's office spokesman Steve Shular.

"There's no immediate danger," he said. "We just do our best to know where all the inmates are."

The arrest was the latest troubling incident involving Memphis city pools this summer.

Two teens drowned May31 on the first day pools were open for the season, one of them at the Westwood pool.

The pools were then closed for a month. When they reopened, the city required pool users to carry ID cards and anyone who wanted to go into deep water had to pass a swimming test.