Archive for the ‘HIV Criminalization’ Category

Nick Rhoades was clerking at a Family Video store in Waverly, Iowa, one summer afternoon in 2008 when three armed detectives appeared, escorted him to a local hospital and ordered nurses to draw his blood. A dozen miles away, his mother and stepfather looked on as local sheriff’s deputies searched their home for drugs — not illegal drugs, but lifesaving prescription medications.

Lab results and a bottle of pills found in the Rhoades’ refrigerator confirmed the detectives’ suspicions: Nick Rhoades was HIV-positive.

Almost a year later, in a Black Hawk County courtroom, Judge Bradley Harris peered down at Rhoades from his bench.

“One thing that makes this case difficult is you don’t look like our usual criminals,” Harris said. “Often times for the court it is easy to tell when someone is dangerous. They pull the gun. They have done an armed robbery. But you created a situation that was just as dangerous as anyone who did that.”

Nick Rhoades was sentenced to 25 years in prison for having sex without disclosing his HIV status — even though he used a condom, was taking medication to suppress the virus, and didn’t actually transmit HIV.
At least 35 states have laws that specifically criminalize exposing another person to HIV — whether or not the virus is actually transmitted. In 29 states, it’s a felony.
HIV is singled out. While some states have laws that specifically punish exposure to tuberculosis, syphilis or “venereal diseases,” HIV exposure is almost always punished more severely.
Laws against HIV exposure sometimes criminalize acts that can’t transmit HIV. For example, some laws punish people with HIV for spitting on and scratching other people, even though the CDC says the virus cannot be transmitted in those ways.
Law enforcement and public health, which have traditionally been kept separate, now overlap. In several states, prosecutors have forced health officials to hand over medical records, such as HIV test results.
The judge meted out Rhoades’ sentence: 25 years in prison.

His crime: having sex without first disclosing he had HIV.

Officially, the charge, buried in Chapter 709 of the Iowa code, is “criminal transmission of HIV.” But no transmission had occurred. The man Rhoades had sex with, 22-year-old Adam Plendl, had not contracted the virus.

That’s not a surprise, because Rhoades used a condom.

And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely. A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.”

After his lawyers petitioned the court, Rhoades’ prison sentence was changed to five years’ probation. But for the rest of his life — he is 39 — he will remain registered as an aggravated sex offender who cannot be alone with anyone under the age of 14, not even his nieces and nephews.

Rhoades’ is not an isolated case. Over the last decade, there have been at least 541 cases in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive, according to a ProPublica analysis of records from 19 states. The national tally is surely higher, because at least 35 states have laws that specifically criminalize exposing another person to HIV. In 29 states, it is a felony. None of the laws require transmission to occur.

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Uncle Poodle

Mark S. King discussess Honey Boo Boo’s Uncle Poodle:

LeeThompsonIn the course of a few short months, Lee Thompson (“Uncle Poodle” to reality TV watchers) has managed to personify a variety of hot button issues among gay men today. He has come out as gay and HIV positive. He has sent an ex-lover to jail and sent nude pictures via Grindr.

Or not. Depending on whom you believe. Let’s break down the strange case of Uncle Poodle.

In what we can all agree was a positive development, Thompson publicly came out as gay last year and evidently has the love and support of much of his family, the colorful clan of the TLC reality show Here Comes Honey Boo Boo. He instantly became an ally and friend of gays everywhere. So far, so good.

Then, in a recent interview with the Atlanta gay magazine Fenuxe, Thompson made the announcement that he tested HIV positive in May of 2012. What was startling, though, was his explanation of his infection. Thompson claimed that not only had an ex-lover knowingly infected him, but that the man is currently serving a five-year sentence for non-disclosure of his HIV status (an example of what is known as HIV Criminalization).

To read the rest of the story CLICK HERE

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Florida Judge Rules HIV Notification Laws Apply Only To Straight People

By Kyle Munzenrieder

Monday, Jul 18, 2011 at 2:35 PM


​In 1997, the Florida Legislature passed a law that made it a felony for a person with any STD, including HIV, to have sexual intercourse without informing their partner of their status beforehand. Problem is the only thing legally considered “sexual intercourse” in the State of Florida is your standard penis-in-vagina sex. Of course, this legislature — the one that blushed when a member mentioned the word uterus, and finally got around to outlawing bestiality only because members didn’t like talking about the matter — isn’t likely to eagerly fix the loophole anytime soon.

The loophole was noticed only recently. An HIV-positive woman was accused of having sex with another woman without informing her of her status. However, the judge ruled that because their actions were not technically “sexual intercourse,” the law could not be applied. According to the Sarasota Herald-Tribune, that interpretation of the law must now be applied statewide.

What that means is that a law meant (at least in theory) to curb HIV transmission does not apply to one of the groups that is most at risk for infections: men who have sex with men.

But some critics wonder about the usefulness and ethics of such a law in the first place. The law means a person who knows their HIV status and has sex without informing their partner could spend up to five years behind bars whether or not protection is used and whether or not the virus is transmitted. Granted, anyone with any STD should inform their partner beforehand, but legislating such things has the unintended consequences of further stigmatizing HIV and leading some people to think they might be better off not knowing their status in the first place.

Regardless, the current law has a large loophole, and the Tribune reports that fixing it might be tricky business for the prudish legislature.

“It’s something that absolutely has to be clarified,” Sen. Mike Bennett (R-Bradenton) told the paper. “It’s one of those touchy subjects that people don’t want to debate… On this one, I think they just simply missed it.”

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The Iowa Independent:

New group seeks end to HIV-specific criminal laws
National, international organizations join forces
By Todd A. Heywood 9/28/10 2:00 PM
NEW YORK CITY — Activists, civil rights attorneys and AIDS service organizations met for the first time last week in New York City to launch a project that seeks an end to HIV-specific criminal laws in the U.S. and around the world.

The project, called the Positive Justice Project (PJP), is a program of the Center for HIV Law and Policy in New York City.

“There seems to have been an explosion of new prosecutions in the last two or three years, and federal emphasis on HIV testing also puts into sharp relief the irony that those who respond to this call to test now risk arrest and imprisonment more than ever before,” said Catherine Hanssens, executive director of the HIV Law and Policy Center. “Also, frankly, the agency launching this effort, CHLP, is itself a new organization with a new focus — real collaboration, real sharing and respecting of the legal and policy work of other advocates who have worked in the trenches for years, and a mission that prioritizes the human and civil rights that many mainstream organizations have deprioritized over the last decade.”

Hanssens noted that for the first time since the epidemic began in the U.S. nearly 30 years ago, the federal government has taken exception to the HIV-specific criminal laws on the books. She points to President Barack Obama’s National HIV/AIDS Strategy, which for the first time calls for states to review their criminal laws related to HIV. The Justice Department is also tasked with gathering information and reporting about those laws and their impact.

Iowa is one of 32 states where engaging in acts that could potentially result in the transmission of HIV could be ruled a crime. The law, which was passed in 1998, was done, albeit belatedly, in response to federal funding mandates. That is, if states wanted to receive federal monies for AIDS care and education, they were required to have criminal penalties related to transmission of the disease. Only two years after Iowa passed its law, the federal government reauthorized the primary legislative vehicle for HIV/AIDS funding, the Ryan White Care Act, without requiring states to criminalize transmission or related offenses.

The formation of the group came as the results of a large study of men who have sex with men was released. The study found, to the surprise of activists, that 65 percent of gay men support HIV-specific criminal laws.

Advocates noted the study points to an uphill battle.

“[The study] is indicative of how poorly-informed our own community is about these statutes and how they affect the epidemic and people with HIV,” said Sean Strub, a senior advisor to the Center for HIV Law and Policy. He is also the founding published of the magazine POZ. “Most people have not spent much time thinking about these statutes and prosecutions; I suspect that once we start to get the message out, those numbers will change fairly quickly. But they are disturbing, for sure.”

In addition to HIV-specific criminal laws, the Center has noted an increase in the number of prosecutions of persons with HIV under other, non-HIV-specific criminal laws. One case in particular that raised concerns was the HIV-as-terrorism case in Macomb county.

Several studies have found that HIV-specific laws do not affect the spread of HIV-infection, nor do they change the behavior of those most at-risk for infection. To the contrary, activists say they hear from many at risk for HIV that they will not get tested for HIV because a positive result would make them eligible for criminal prosecution.

“We know that many people living with HIV and their advocates agree with the harm of HIV criminalization and will welcome the opportunity that the PJP provides to get actively involved, to channel their frustration about prosecutions of people with HIV and the way they are portrayed in the media, and to play leadership roles in ending this toxic form of discrimination and HIV ‘exceptionalism,’” says Hanssens.

In June and July of 2009, The Iowa Independent ran a three part series that looked at several aspects and ramifications of the Iowa law. To date, no Iowa lawmaker has signaled whether he or she is willing to revisit the decade-old statute to see if existing laws governing public health risks are adequate.

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Majority of US gay men support HIV transmission laws
HIV and criminal law
Michael Carter
Published: 21 September 2010
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Further information on HIV and the criminal law
Two-thirds of US gay men believe that it should be illegal for an HIV-positive man to have unprotected anal sex without disclosure, investigators report in the October edition of AIDS Care.

“Believing that it should be illegal was associated with HIV-negative or unknown status, less education, having a non-gay sexual orientation, living in a state that was perceived as hostile towards GLBT persons, reporting fewer UAI [unprotected anal intercourse] partners…and feeling greater responsibility”, write the authors.

Since 2008, at least 30 individuals in the US have been prosecuted for exposing others to HIV. Penalties vary between states and range from a small fine to a lengthy prison sentence. The impact of such laws on HIV prevention efforts are hotly debated. Moreover, there is uncertainty about the attitudes of the communities most affected by HIV about the criminalisation of HIV exposure.

Gay and other men who have sex with men remain the group most affected by HIV in the US. In 2008 investigators therefore used gay social websites to recruit 1725 to a study designed to:

Describe overall attitudes towards the criminalisation of exposure to HIV due to unprotected anal sex without disclosure.

The factors associated with such attitudes.

Overall, 65% of men believed that it should be illegal for HIV-positive individuals to have unprotected sex without disclosure, 23% thought it should not be illegal and 12% did not know.

Support for criminalisation was highest (79%) among men aged between 18 and 20, and lowest (56%) among those aged 41 to 70. The investigators note that younger gay men were significantly less likely to have been tested for HIV. Separate research has shown that untested men are more likely to adopt a disclosure-based HIV prevention strategy “that gains credibility by transmission laws.”

The overwhelming majority (70%) of HIV-negative and untested men (69%) supported legal sanctions, but only 38% of HIV-positive men endorsed criminalisation. “These differences most likely reflect a shift in orientation toward criminal statues on HIV transmission following seroconversion”, comment the investigators.

Men with the lowest educational achievements were most likely to support criminalisation (75%), and those with a degree least likely (58%).

Over three-quarters of men who did not identify as gay or bisexual supported criminalisation compared to 63% of those who had some form of gay identity.

In addition, those who were least comfortable with their sexual orientation were most likely to endorse criminalisation.

Living in a state which was perceived to be hostile to gay, bisexual, lesbian and transgender people was also associated with support for criminalisation.

Sexual behaviour was also significant. Men who reported two or more episode or unprotected anal sex within the previous three months were least likely to support criminalisation (52%), and those who reported no unprotected sex the most likely (69%).

Finally, the investigators found that a sense of responsibility was associated with support for criminalisation.

Statistical analysis showed that men who were HIV-positive were less likely to support criminalisation (OR, 0.33; 95% CI, 0.24-0.44), as were those with a higher degree (OR, 0.42; 95% CI, 0.27-0.64). Living in a state that was perceived to be more accepting of homosexuality was also associated with less support for criminalisation (OR, 0.75; 95% CI, 0.59-0.96), as was having had a greater number of episodes of unprotected anal sex (OR, 0.72; 95% CI, 0.56-0.93) and a lower feeling of responsibility towards the sexual health of sex partners (OR, 0.75; 95% CI, 0.69-0.81).

Conversely, men who did not identify as gay or bisexual were 54% more likely to support criminalisation (OR, 1.54; 95% CI, 1.08-2.02).

The investigators found no evidence that laws deterred high-risk sexual behaviour. However they conclude “further research is needed to examine whether they act as a barrier for MSM [men who have sex with men] at highest risk for acquiring or transmitting HIV.”

Research carried out among MSM in England and Wales in 2006 found a strong relationship between the expectation that a man should disclose his HIV status to prospective sexual partners and support for criminal prosecution of HIV transmission. The authors of that study, conducted by SIGMA Research at the University of Portsmouth, concluded that the practice of prosecuting transmission worked to reinforce the expectation that men would disclose, thereby impeding any HIV prevention efforts that seek to educate men against making assumptions about HIV status on the basis of a lack of disclosure.

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