US: New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument” (Press Release)

New York Court of Appeals Says HIV+ Man’s Saliva Is Not a “Dangerous Instrument”

Punishing People on the Basis of Physical Attributes Would Create “Sliding Scale of Criminal Liability”

New York, June 7, 2012 – Legal and public health experts are applauding the New York Court of Appeals, decision today to vacate the 2006 conviction and sentencing of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett had used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation involving several police who were restraining him following an outburst in a medical facility. Plunkett currently is serving a 10-year prison term in Sing Sing.

New York’s highest court vacated Mr. Plunkett’s conviction and dismissed the aggravated assault complaint against him on the basis that his saliva, or any body fluid or part, cannot be treated as “dangerous instruments” and a basis for charging someone with aggravated assault under New York law.

In a 1999 decision, The NY Court of Appeals had ruled that a person’s teeth cannot be characterized as a dangerous weapon, or “instruments” under the terms of the law, as an element of an assuault charge.  The prosecutor and lower court attempted to get around this by stating that the "dangerous instrument" in the indictment was in fact the defendant’s saliva, which was “readily capable of causing death or other serious physical injury.”

In its ruling, the Court “sought not simply to reach a textually and historically correct understanding of what the Legislature meant” the law to include, but also to avoid the injustices that “would result if criminal liability varied with the corporeal attributes of assailants and their victims.”  This interpretation would make an individual’s health, disability or even physical characteristics relevant to a determination of the ability to do harm, resulting in a “sliding scale of criminal liability,” the Court concluded.

The ruling is particularly important because it makes clear that a person's health status, disability or other physical attributes should never be the basis for increased charges or sentencing.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“HIV is not a particularly easy virus to transmit, and it is virtually impossible for it to be transmitted through biting,” explained Terrance Moore,Director, Policy and Health Equity at the National Alliance of State and Territorial AIDS Directors (NASTAD). “However, it is important that we realize that treating HIV or any disease as something that should be the basis of criminal charges, absent actual harm, is terrible for public health efforts. The Court’s implicit recognition of the injustice of basing liability on health status is a huge boon for our work.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“The decision has important implications for cases where people with HIV essentially are being charged and imprisoned on the basis of their health status rather than any intent to do harm,” said Catherine Hanssens, Executive Director of the Center for HIV Law and Policy (CHLP). “The Court of Appeals has gone beyond the issue of transmission risk to say that relying on disability or health status at all is an unfounded and unjust application of aggravated assault statutes.”

Dr. Jeff Birnbaum, Executive Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle the type of stigma reflected in the prosecutor’s point of view all the time.  I treat young people who are being told on one hand that HIV is something they can manage, that it doesn’t make them a pariah, and on the other that their spit and blood are lethal weapons and that they are dangerous to be around. The prosecutors bringing these cases make my job so much harder. Today’s decision is really good news.”

Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection, and even when no transmission occurs.

David Plunkett was represented by Audrey Baron Dunning. Lambda Legal submitted an amicus brief joined by the the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, the Center for HIV Law and Policy, and the HIV Medical Association

###

The Positive Justice Project (PJP) is the first coordinated national effort to address HIV criminalization in the United States, and is coordinated by the Center for HIV Law and Policy. For more information on PJP and HIV criminalization, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

US: Positive Justice Project Watching NY Court of Appeals on “Deadly Saliva” Case

Today, the New York Court of Appeals will hear the case of David Plunkett who was convicted for aggravated assault after allegedly biting a police officer during his 2006 arrest.  The case rests on whether the saliva of someone with HIV can be considered a “dangerous instrument” under the law.

Lambda Legal filed a court brief earlier this week arguing that upholding Plunkett's conviction would further stigmatise people living with HIV.

"Clearly, the trial court here erroneously believed that HIV could be transmitted by saliva," the Lambda Legal brief reads. (Read more about the case and the entire amicus brief at Lambda Legal's blog.)

The Positive Justice Project today released a strongly worded press release highlighting that “it’s time that courts rely on science rather than decades-old notions of HIV.”  The entire release is below.

Let's hope science wins out over stigma this time around.

New York, April 26, 2012 – Legal and public health experts are speaking out as the New York Court of Appeals, the highest court in New York, today reviews a case concerning the 2006 conviction of David Plunkett, an HIV-positive man, for aggravated assault for biting a police officer. The state prosecutor argued that Plunkett used his saliva as a “dangerous instrument” when he allegedly bit a police officer during an altercation, for which he is serving a 10-year prison term.

Medical and public health experts long-ago dismissed the risk of HIV transmission through spitting or biting as near-zero, too small even to be measured.

“It is virtually impossible for HIV to be transmitted through biting,” explained Oscar Mairena, Senior Associate for Viral Hepatitis / Policy and Legislative Affairs at the National Alliance of State and Territorial AIDS Directors (NASTAD). “According to the Centers for Disease Control and Prevention (CDC), in order for there to exist even a remote possibility of transmission from a bite, there would need to be severe trauma with extensive tissue tearing and damage. What occurred in this case – and in the vast majority of HIV criminal cases that involve biting – bears no resemblance to that description.”

The Plunkett case is one of hundreds across the country where HIV-positive individuals face criminal charges and long sentences on the basis of their HIV status for no-risk conduct and consensual adult sex. Members of the Positive Justice Project, a national group challenging the medical, legal and ethical support for such laws, object to the gross scientific mischaracterizations reflected in HIV-specific criminal laws and prosecutions as “flying in the face of national efforts to get people with HIV tested and into treatment.”

“This type of case reflects widespread ignorance about the routes and actual risks of HIV transmission,” said Beirne Roose-Snyder, Managing Attorney at the Center for HIV Law and Policy (CHLP). “Persistent misinformation about how HIV is transmitted, and what it means to have HIV in 2012, is a major cause of these laws and can create a major barrier to convincing people that it is safe and necessary to get tested.

Dr. Jeff Birnbaum, Program Director of the Health and Education Alternatives for Teens (HEAT) Program and the Family, Adolescent and Children’s Experience at SUNY (FACES) Network added, “I have to battle this type of stigma with the young people I treat all the time. This kind of case just makes my job harder. It’s time that courts rely on science rather than decades-old notions of HIV.”
 
Dozens of U.S states and territories have laws that criminalize HIV non-disclosure and “exposure,” such as through spitting or biting. Sentences imposed on people convicted of HIV-specific offenses have ranged as high as 50 years, with many getting decades-long sentences despite lack of evidence that HIV exposure, let alone transmission, even occurred. A growing number of defendants are also being required to register as sex offenders.  

In New York, prosecutors have used the general criminal law to pursue people with HIV charged with HIV transmission or exposure, resulting in long prison terms despite a lack of proof that the individual charged even was the source of a partner’s infection. 

“Each time there is a case like this that relies on ignorance about the nature of HIV, the public gets the message that people with HIV are highly infectious and out to hurt people,” said Michelle Lopez, community advocate and a woman living with HIV.  “That message is cruel and counter-productive.”

Susan Rodriguez, also HIV-positive and Founding Director of Sisterhood Mobilized for AIDS/HIV Research & Treatment (SMART), an educational and advocacy organization for women and youth living with HIV, added, “Women and young people living with HIV pass through these doors all the time with their heads hanging down, afraid of what people will think of them because they’re positive.  It can take a long time for some to believe that they have the right to hold their heads high, because they have a virus, not a character defect or a loaded gun. Telling people to get tested on one hand, and then turning around and treating them like felons?  Do they really think that telling people who test positive that they are dangerous will encourage others to get tested, let alone to disclose their status to someone who can get them thrown in jail?  Be real.”

Denmark: HIV criminalisation exports stigma, writes Justice Edwin Cameron

Denmark's leading broadsheet newspaper, Politiken, last week published an article by Justice Edwin Cameron of the South African Constitutional Court congratulating Denmarks' recent suspension of its HIV-specific criminal statute, and asking that it considers abolishing it altogether – otherwise it risks being emulated in low-income settings that follow the country's example of an otherwise strong human rights record.

Justice Cameron wrote a similar article for a Norwegian newspaper in 2009 which led to a rethink of the use of Paragraph 155 (the 'HIV paragraph') and the establishment of an independent commission to explore the article's revision.

I hear from my contacts in Denmark that there already some signs that the article has gained the attention of some high-level government ministers concerned about Denmark's standing in the global HIV community.

Let's hope it has a positive impact on Denmark's ongoing government working group currently considering whether the only HIV-specific law in Western Europe should be revised or abolished.

The full text of Edwin Cameron's article in English is below. The Danish original can be found here.

Debate: Denmark exports stigma
AIDS Foundation
Politiken 8th June 2011, Culture, page 6

INTERNATIONAL COMMENTARY: Danish HIV-law is in conflict with the UN
by Edwin Cameron

When South Africans think of Denmark, we see a country with the highest humanitarian standards that others look up to. I was therefore disturbed to realise recently that Denmark has one of the world’s harshest laws criminalising HIV: Penal Code Section 252, paragraph 2. This provision makes criminal anyone with a life threatening and incurable communicable disease who wilfully or negligently infects or exposes another to the risk of infection.

What is notable about the Danish law is that it includes mere exposure—which means that a person may be guilty even though there is no actual transmission. The penalty is severe—up to eight years of imprisonment. Today the law only covers people living with HIV — a vulnerable group that experiences much discrimination.

Denmark is among the world's most generous contributors to UNAIDS, the UN agency that works to mitigate the impact of this mass worldwide epidemic. In addition, Denmark has signed the declaration on HIV and AIDS, adopted at the UN Special Session. But Denmark's penal code is in conflict with both UNAIDS and the UN Declaration's position.

UNAIDS has called on governments to limit criminalisation to cases where "a person knows his HIV positive status, acts with the intent to transmit HIV and actually transmits HIV'. In contrast, the Danish penal provision is precisely the kind of legislation that UNAIDS warns against.

We know that many developing countries pay attention to the more developed countries' laws when they formulate their own. In Africa, my own continent, an increasing number of countries have adopted laws that criminalize HIV, with devastating consequences - not least for women. By maintaining its own discriminatory legislation Denmark in effect exports stigma.

But there are strong reasons why criminal laws and prosecutions are bad policy when it comes to AIDS.

1: Criminalisation is ineffective in relation to limiting the spread of HIV. In most cases the virus spreads when two people have sex, neither of them knowing that one of them has HIV. The fact that a penal provision is of no use here is a good reason to doubt whether it should remain on the statute book.

2: Criminal laws and prosecutions are poor substitutes for measures that can really control the epidemic. Experience shows us that well-considered public health programmes that offer counseling, testing and treatment are far more effective tools to prevent the spread of HIV.

3: Criminalisation does not protect women, but makes them victims. In Africa, most of those who know their HIV status are women, because most tests take place at antenatal health care sites. These laws have rightly been described as part of a 'war on women'.

4: Many of these new laws in Africa, which are being adopted partly on the strength of Western European precedents, are extremely poorly drafted. For example, according to the 'Model Law' that many countries in East and West Africa have adopted, a person who is aware of being infected with HIV must inform “any sexual contact in advance” of this fact. But the law does not define “any sexual contact.” Is it holding hands? Kissing? Nor does the law say what “in advance” means.

5: Criminalisation increases stigma. From the first AIDS diagnosis 30 years ago, HIV has carried a mountainous burden of stigma. One overriding reason: the fact that HIV is sexually transmitted.  No other infectious disease is viewed with as much fear and repugnance. It is tragic that it is stigma that drives criminalisation.

6: Criminalisation has a deterrent effect on testing. AIDS is now a medically manageable disease, but why would someone want to know their HIV status when that knowledge may lead to prosecution? Criminalisation assumes the worst about people with HIV and punishes their vulnerability.

Denmark's legislation also makes it difficult for a country that ought to be a world leader in non-discrimination to confront other countries' laws.  For example, Denmark has contributed constructively in the international movement to abolish the travel restrictions for people with HIV.

The recent decision by the Danish Justice Minister, Lars Barfoed, to suspend the Danish Criminal Code provision on HIV on the grounds that people living with HIV on treatment today live much longer lives and the risk of transmission of the virus to others is much reduced is certainly a step in the right direction. I congratulate the Danish Government on this decision. The very positive developments in HIV treatment is indeed a good reason to radically reconsider whether Penal Code 252. 2 should exist at all.

Penal Code provisions are a piece of the puzzle that shows how a country treats its citizens. Let us fight stigma, discrimination and criminalisation - and fight for common sense, effective prevention and access to treatment.  Only in this way can we fight this global epidemic.

Edwin Cameron is a judge of South Africa's Constitutional Court who is himself living with HIV.

US: State public health officials condemn 'stigmatising, harmful' HIV-specific laws

This weekend, the National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement that signifies an extremely important development in the Positive Justice Project's campaign to repeal HIV-specific criminal laws in the United States.

NASTAD is a highly-respected organisation of public health officials that administer state and territorial HIV prevention and care programmes throughout the US.

Its motto is: 'Bridging Science, Policy, and Public Health'.

The message of their statement is simple: repeal these laws because

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV.

In order to work towards the goal of repealing laws that create HIV-specific crimes or increased penalties for persons who are HIV-positive and convicted of criminal offences, NASTAD will

advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Further, NASTAD encourages its members to:

Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;

Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;

Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

Todd Heywood of the Michigan Messenger reports that US HIV advocates - including the National Association of People with AIDS (NAPWA) and the Positive Justice Project's Senior Advisor, Sean Strub – have warmly welcomed NASTAD's statement.  Read his report at the Michigan Messenger here.

The full text of the statement, below, can also be downloaded as a pdf.

NATIONAL HIV/AIDS STRATEGY IMPERATIVE: FIGHTING STIGMA AND DISCRIMINATION BY REPEALING HIV-SPECIFIC CRIMINAL STATUTES

The National Alliance of State and Territorial AIDS Directors (NASTAD), the organization which represents the public health officials that administer state and territorial HIV/AIDS and adult viral hepatitis prevention and care programs nationwide is gravely concerned about the corrosive impact of sustained stigma and discrimination on state, federal and local efforts to combat HIV/AIDS in the United States. The National HIV/AIDS Strategy (NHAS) provides an unprecedented strategic blueprint for reducing HIV/AIDS incidence through the scale-up of interdisciplinary, impactful prevention approaches. NASTAD acknowledges that the NHAS is not a magic bullet; however, the NHAS’ central vision of the U.S. becoming “a place where new HIV infections are rare” cannot be realized until the nation aggressively responds to the core of the matter: pervasive and unmitigated stigma and discrimination against people living HIV/AIDS that diminishes our best efforts to combat one of the greatest public health challenges of our time.

As a member of the Positive Justice Project, a coordinated national effort to address “HIV criminalization” statutes – laws that create HIV-specific crimes or which increase penalties for persons who are HIV positive and convicted of criminal offenses – NASTAD supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm. Steps identified to reach this goal in the Federal Implementation Plan include step 3.3, Promote public health approaches to HIV prevention and care which states that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” In addition, step 3.4, Strengthen enforcement of civil rights laws requires an examination and report by the Department of Justice on HIV-specific sentencing laws and implications for people living with HIV.

HIV criminalization has often resulted in egregious human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty- four states (34) and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. Examples include:

A man with HIV in Arkansas was sentenced to 12 years (and must register as a sex offender after release) when he failed to disclose his status with his girlfriend and another woman – both women tested negative;

A man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom;

A woman with HIV in Georgia, who was sentenced to eight years imprisonment   for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.

In none of the cases cited was HIV transmitted. In fact, most prosecutions are not for transmission, but for the failure to disclose one’s HIV status prior to intimate contact, which in most cases comes down to competing stories about verbal consent that are nearly impossible to prove.

HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear and discrimination against people living with HIV. NASTAD members commit to examining existing public health policies related to HIV criminalization that may exacerbate stigma and discrimination and lessen the likelihood that individuals will learn their HIV status. NASTAD members will also continue to emphasize the importance of providing comprehensive prevention and care services for HIV positive individuals to help reduce the risk of transmission to others. In conjunction with new and existing partners, our members also pledge to:

Support the maintenance of confidentiality of HIV test and medical records in order to encourage and support individuals to be tested, learn their status and enter services if positive;

Identify and share best practices related to successes in repeal of policies and/or laws and statutes in jurisdictions that are not grounded in public health science; Promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions;

Provide unequivocal public health leadership on the relative risks of transmission and the dangers of a punitive response to HIV exposure on the epidemic.

NASTAD will continue to advocate at the national level to raise awareness of this urgent issue. Realizing the vision of the NHAS is predicated on a strong foundation of public health science and practice void of stigma and discrimination. Instead of applying criminal law to HIV transmission, state and local governments should expand programs to reduce HIV transmission while protecting the human rights of people living with HIV.

Approved by NASTAD’s Executive Committee: February 2011

Nigeria: Oh the irony - "aggressive dissemination" of HIV-specific law both increases and punishes stigma

It was passed three years ago, but only now has the Lagos State AIDS Control Agency (LSACA), in collaboration with Enhancing Nigerian HIV Response (ENR) and the Lagos State Ministry of Justice begun "aggressive dissemination" of the Law for the Protection of Persons Living with HIV and Affected by AIDS in Lagos state and for other Concerned Matters.

According to the Daily Independent, the law's prime aim is to protect the rights of people with HIV by punishing HIV-related stigma.

Any form of prejudice, negative attitudes, abuse and maltreatment directed at people living with HIV and AIDS amounts to stigma. However, not so known to many people is the fact that committing any of these acts now amount to committing serious legal sins against HIV positive persons, for which some of the punishments are almost as grave as criminal offences.

There are, indeed, some positive provisions in the law which punishes breaches in healthcare worker-patient confidentiality and employer and landlord discrimination of people with HIV. It also criminalises bogus claims of HIV 'cures'.

To make this law work effectively, a Justice and Human Rights Watch Group is to be established. The group, which shall be under the control of the Lagos AIDS Control Agency, would be responsible, by law, for the monitoring and implementation of provisions of the law.

Ibirogba said, “Part of the policy which informed the drafting and subsequent passage of the law was the fact that Lagos state is most concerned about the plight of the affected persons, especially in terms of discrimination and stigmatization in hospitals, their neighbourhood and places of work.

Head of LSACA’s project Office, Dr. Olusegun Ogboye, said the agency would do everything possible to ensure the law is disseminated across as many Nigerians in Lagos.

ENR coordinator in Lagos, Dr. Olusegun Oyedeji, however cautions that HIV positive people should not take advantage of the law to ‘stigma people who are HIV negative or make unprincipled demands.’

“It will not make sense for any person to demand for special attention or ask for more than what he or she deserves because he or she is HIV positive,” Oyedeji said at the dissemination forum, which also had People Living With HIV/AIDS in attendance.

However, and without a hint of irony, it notes that – in my opinion – a poorly-written, vague and problematic statute in the law

makes an offence punishable with various jail terms up to 10 years imprisonment and fines for anyone who intentionally infects others with the Human Immunodeficiency Virus (HIV) that causes the Acquired Immune Deficiency Syndrome (AIDS).

Director at Citizens Rights directorate of Lagos state ministry of Justice, Mrs. Omotilewa Ibirobga, who gave insights on the law during the dissemination meeting at Cheers Hotel, Ikeja, Lagos , said “Section (18) subsection (1) is clear about this.”

The section reads; “Any person who willfully or knowingly endangers other persons by infecting them with the AIDS virus, commits an offence and shall be liable on conviction to a fine not exceeding N200,000 or imprisonment not exceeding 10 years or both fine and imprisonment.”

Across the continent in Uganda, international civil society Organisations, academics and HIV professionals met with the social service committee of the Parliament of Uganda last month to argue that similarly worded criminalisation statutes in the HIV/AIDS Prevention and Control Bill will increase HIV-related stigma.

[We] are of the view that crucial provisions of this law constitute a step back to the pre-1987 time when ignorance, fear, stigma and discrimination were the hallmarks of national engagement with the crisis. Namely mandatory testing, that is to say testing of a person for HIV without their knowledge and informed consent; mandatory disclosure, that is to say disclosure of a person’s HIV status without their knowledge and informed consent; and criminalization of intentional transmission of HIV.

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!

New Zealand: 'HIV predator' case increases testing and stigma

Following the intense media reporting of the alleged 'HIV predator' case, the New Zealand AIDS Foundation reports that the case has increased stigma against people already living with HIV, and also increased the number of people coming forward for HIV tests.

The New Zealand Herald quotes NZAF's national communications co-ordinator Dawn O'Connor.

"While people in New Zealand are aware of the need to get tested the media interest has created a stigma and discrimination against people living with HIV," she said yesterday.

It then goes on to try and assess the number of HIV tests taken up since the man's name and photo was released last month.

The NZAF would not say how many tests it had carried out, "out of respect for its clients and their right to confidentiality", but confirmed a marked increase in demand for HIV testing and counselling compared with this time last year. [...] HIV support group Body Positive said 25 to 30 people had now been tested. Craig Webster, a social worker for the agency, said calls continued to come in from all over the country, averaging five to 10 per day.

It's a conundrum that challenges those who argue that criminal HIV exposure and transmission laws and media reports of prosecutions increase HIV-related stigma and, therefore, have a negative effect on testing.

From the research I've been reading and digesting recently, there really is no proof at all that criminal laws or media reports about prosecutions dissuade people at high risk of HIV from taking an HIV antibody test. Although in some cases they might actually persuade some people to test, and in others, may dissuade someone who is highly aware of their actions and the legal repercussions not to test, their aggregate effect on testing is probably neutral.

A colleague who studies the behaviour of people with, and at risk of, HIV in the UK said to me recently that claiming that criminal laws and prosecutions put people off from testing "ascribes too much cool calculation to people who are generally getting on with their lives, and not wanting to think much about HIV." I think she's right: there are plenty of reasons why people don't test for HIV but for most people, worrying about being arrested doesn't register on the radar at all. HIV is already so stigmatised that the additive effect of being criminalised once you know your HIV-positive status is unlikely to be a significant deterent. This suggests to me that the links made between stigma and testing are perhaps not quite as straightforward as some advocates argue.

However, there is no doubt that for people already diagnosed with HIV criminalisation palpably increases the stresses and fears of living with HIV – and adversely affects their decisions to disclose and take sexual risks – but that is not necessarily the same as putting people off testing.

If anyone knows of studies from outside of the US (I am aware of two: Burris et al, 2007 and Wise 2008) and the UK (summarised in Chalmers 2008) that measure the impact of criminalisation on HIV testing, please let me know!