US: Coalition of Public Health and Legal Experts Urges Rational Response to Prosecution of People Living with HIV

Press Release from the Positive Justice Project

(New York, April 27, 2011) -- The Positive Justice Project, a coalition of legal and public health experts that represent people living with HIV, is speaking out against sensationalist media coverage of criminal charges that have been brought against an HIV-positive African American man in Buffalo.

Darryl Fortner, 20, who has no prior criminal record, has been charged with reckless endangerment for allegedly failing to disclose his HIV status to his sexual partners.

The Positive Justice Project urges journalists to consider the following in their coverage.

A wide range of health and human rights organizations, including the United Nations High Commissioner for Human Rights, have condemned the criminal prosecution of people living with HIV for not disclosing their status. While these prosecutions often seem to protect the public health, they actually undermine public health initiatives by discouraging testing and fueling stigma. They also put HIV-positive people at high risk of unjust prosecution.  President Obama’s own National HIV/AIDS Strategy, released in 2010, questions the efficacy of such laws and calls for a comprehensive review of them.

"Rushing to judgment and demonizing a young black man on the basis of his HIV status has a horrible impact not only on people who already are diagnosed with HIV, but on all of those in my community who are afraid to get tested," said Kali Lindsey, a public policy expert at Harlem United and a person living with HIV. "No one is going to get tested for HIV if they think that knowing their status will land them in jail."

Fortner's arrest is one in a long line of cases across the country where HIV-positive persons, often African American, are facing criminal charges and disproportionately long sentences for otherwise-legal behavior on the basis of their HIV status.  Intent to transmit or intent to expose others to HIV is rarely--if ever--a consideration in these cases, which typically turn into a credibility battle in which the person who has first discovered he or she is HIV positive is assumed to be dishonest.

"The over-reaction to this type of situation has no support in public health principles," said Terrence Moore, Associate Director of Racial and Ethnic Health Disparities at the National Association of State and Territorial AIDS Directors.

On Wednesday, April 20, Fortner was charged with one count of reckless endangerment for allegedly not disclosing his HIV status prior to engaging in sexual conduct.   [He now faces four reckless endangerment charges.]

Journalists should keep in mind that to be charged under reckless endangerment in New York, one must have presented a “grave risk of death” to another person. HIV is no longer considered a death sentence, but rather a chronic disease.  

"These laws and prosecutions continue to occur because people incorrectly believe that HIV is quickly and invariably fatal and as such should be treated differently than other sexually transmitted infections," said Vanessa Johnson, Deputy Executive Director of the National Association of People with AIDS. "That’s just not the case. And until legislators, law enforcement officials, and prosecutors understand HIV in the 21st-century, these miscarriages of justice will continue to happen all over the country."  

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The POSITIVE JUSTICE PROJECT is the first coordinated national effort in the United States to address HIV criminalization, and the first multi-organizational and cross-disciplinary effort to do so.  HIV criminalization has often resulted in gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission.

For more information on the POSITIVE JUSTICE PROJECT, go to http://www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.

To see the Center for HIV Law and Policy’s collection of resources on HIV criminalization, go to: http://www.hivlawandpolicy.org/resourceCategories/view/2

The POSITIVE JUSTICE PROJECT has been made possible by generous support from the M.A.C. AIDS Fund, Broadway Cares/Equity Fights AIDS, the Henry van Ameringen Foundation and the Elton John AIDS Foundation.  To learn more or join one of the POSITIVE JUSTICE PROJECT working groups, email: pjp@hivlawandpolicy.org

US: Excellent Michigan Messenger article on abuse of ineffective HIV disclosure laws

Here's a truly excellent, and sobering, article from the Michigan Messenger - an independently-produced political news daily featuring original and investigative reporting – that spells out in an interview with an African-Amercian man convicted under the state's HIV exposure law – just how these laws are open to abuse, both by individuals and the criminal justice system itself.

In brief, Michael S. Holder was accused of not disclosing his status before having sex by his (white) ex-girlfriend. Five members of the jury admitted during jury selection that they were prejudiced either against inter-racial relationships or against African-American men, but were allowed to remain on the jury. The complainant retracted her original testimony on the stand, and admitted that Mr Holder had, in fact, disclosed his HIV status before they had sex.

On Dec. 3, 2001, the jury of 11 white women and one white man — including the five jurors who noted their opposition to inter-racial relationships on their questionnaires — voted to convict Holder of violating the disclosure law. He was sentenced to 10-15 years in prison, three times the recommended sentence. That sentence was reduced in 2003 to 7 1/2 to 15 years because of an appeal that the state Attorney General’s office failed to respond to. But Holder’s pleas for justice in regard to incompetent counsel were denied by the Michigan Court of Appeals and the Michigan Supreme Court. A writ of Habeas Corpus filed in federal court was denied and is currently slated for a hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

The article also includes a brief history both of how Michigan's HIV exposure laws came to be enacted, and US HIV-specific laws in general.

In 1990, the Ryan White Care Act required states receiving federal funds for the assistance of those impacted by HIV to certify the state had laws to prosecute HIV transmission. By the time the bill was sent for reauthorization in 2000, this mandate was removed, because 32 states had passed laws specific to HIV, and all 50 had certified they had criminal laws to address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan. Those persons with human papillomaviruses, which have been linked to cancers, herpes, Hepatitis B and C, and other viral or bacterial infections are not required under state law to disclose their infection to potential sexual partners.

[...]

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the idea of introducing legislation to expand the disclosure law to include persons infected with Hepatitis B and/or C last session. But the legislation was never introduced, his chief of staff Dennis Denno said. Thomas declined multiple requests for an interview on this topic.

It also includes interviews with Lance Gable, associate professor of law at Wayne State University; Bebe Anderson, Lambda Legal's HIV project director; Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan; and, most strikingly, a Michigan Senator.

“By criminalizing sexual activity, it hasn’t been able to protect the public,” said State Sen. Hansen Clarke, a Detroit Democrat. “We’ve [the legislature] got to look at a different policy because the current one is not effective. It could be something counterproductive, but I have to research that more.”

Click here to read Michigan’s HIV disclosure law: Overly broad and open to abuse, by Todd A. Heywood.