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Prevention or Prosecution?
A Community Forum

By Mark Milano

Spring/Summer 2012

Prevention or Prosecution? A Community Forum

On May 24th, Queerocracy, a New York City grassroots organization, held a community forum on HIV criminalization at the LGBT Center. Entitled "Prosecution vs. Prevention", it highlighted the many abuses the U.S. criminal justice system applies to people with HIV. With the underlying message of "HIV is not a crime", several panelists spoke on the work they do and their relationship to the HIV-specific criminal laws that many states have.

Panelists included Adrian Guzman from The Center for HIV Law and Policy, Sean Strub from the SERO Project and the Positive Justice Project, Christina Rodriguez from SMART Youth, and Robert Suttle, who was incarcerated in Louisiana for HIV non-disclosure.


Know Your Rights

Adrian Guzman provided an overview of the issue, New York State criminal laws that target people with HIV, and what to do if arrested. He noted that dozens of states have HIV-specific criminal statutes, and nondisclosure is frequently an element of the crime. Two types of behavior are most commonly targeted: spitting and biting (usually specific to police and prison officers) and sexual contact (the type is rarely specified). In most cases, transmission is not necessary -- "exposure" without disclosure is enough. Often the only defense is to state that disclosure did occur prior to sex, but that can be difficult if not impossible to prove. The actual risk of transmission (type of sex, condom use, low viral load) is rarely considered in determining intent to harm or whether prosecution is appropriate. In fact, wildly inaccurate beliefs about the actual risks of HIV transmission seem to inform these laws.

Of particular interest was the disparity in sentencing requirements: in Georgia, for example, someone convicted of not disclosing HIV status before sex faces up to 20 years in prison, whereas someone convicted of vehicular homicide in the second degree faces up to one year in prison and/or a fine of up to $1,000!

Most laws were passed in the 1990s, when HIV was considered fatal. In order to qualify for HIV funding, the Ryan White CARE Act initially required states to demonstrate that they were able to prosecute cases of intentional HIV transmission. Most of today's laws, however, are based on inaccurate beliefs about the actual risks of HIV transmission, and even criminalize actions like spitting that cannot transmit HIV. (Fortunately, New York State's highest court ruled on June 7 that the saliva of a person with HIV cannot be considered a "deadly weapon".)

In New York State, HIV-positive people are targeted using general criminal laws, including reckless endangerment and aggravated assault. At least one court has allowed access to a defendant's medical records to prove whether she was HIV positive.


"Disclosure Is Hard"

Christina Rodriguez, who was born with HIV, told her story:

Until I went to college, I never had to actually tell anyone I had HIV. It always seemed to be done for me: in magazines, newspapers, documentaries, etc., since my mother was a well-known HIV advocate. I had never gotten a bad reaction, but this was a whole new world -- college students on a small campus. On top of being a freshman, I was stressing out about disclosure. Who would I tell? When? How?

But these concerns were just a fraction of the anxiety I endured when I finally disclosed to my friend of seven years. We hadn't spoken in a couple of years and I decided that when he came back to New York I would tell him everything. I couldn't sleep. I couldn't eat. My heart raced at the thought of the moment I would tell him.

On the day we met, I remember that everything seemed to slow down. I could hear my heart in my ears. Everything went quiet. I was sweating in a fully airconditioned car. I wanted the world to swallow me whole. What did I get myself into? Should I just turn back home?

But I pushed through. I looked everywhere but at him as the topic started to emerge. I took out flashcards I had made to help me keep track of where to start and how to end. Once I couldn't think of anything else to say, we sat in silence. It was the longest, most awkward moment of my life. I prepared myself for the worst -- if he wanted me to leave, I would understand. I would take care of whatever emotions I had in the comfort of my own home. But he didn't, and we're still together. I'm extremely lucky to find someone so understanding and willing to become educated.

The moral of the story is that disclosure isn't as easy as people make it out to be. You can't just say, "Tell people, tell people, tell people." Not everyone is in as stable place as I am. You can't expect people to say things so easily, especially when there are laws out there that can put someone in jail just for being HIV positive. We need education and support -- not more stigma. Not to be labeled as "weapons of mass destruction". We are human beings, and disclosure is hard. These laws are not providing the right message in order to move forward.


Serving Time

Robert Suttle then shared his experience:

I am not a criminal. I am not a sex offender, but the state of Louisiana says that I am. I am the oldest of six children, and my grandparents instilled in me faith, discipline, and personal responsibility. After college, I tried to join the Air Force, but during my physical I discovered I had HIV and was not allowed to serve. So I began work as an assistant law clerk, and was well on my way to becoming the first black male deputy clerk in the Louisiana Second Circuit Court.

But after five years, that budding career -- and life as I knew it -- abruptly ended. A former partner from a contentious relationship filed charges against me for not having disclosed my HIV status when we first met. This wasn't about transmitting HIV -- just whether I had shared my HIV status. How do you prove that you told someone? I couldn't. So I accepted a plea bargain rather than risk a ten-year sentence. I served six months and am now required to register as a sex offender for the next 15 years.

When I was released from prison, I knew I had suffered a terrible injustice, although I didn't know it had a name: HIV criminalization. I wanted to become an advocate and help create a movement to correct the injustice. That's when I found Sean Strub, who helped get me involved in the global movement to stop the criminalization of people because of the viruses they have. Last December I went to Switzerland to speak before the UNAIDS Programme Coordinating Board, and this past February we went to Norway where I spoke at the U.N. High Level Consultation on HIV Criminalization. I'm determined to do whatever I can to prevent anyone else from suffering a miscarriage of justice like mine.

I don't understand why the gay community and the AIDS community are not talking about this. It feels like we're ashamed of it. I think criminalization is not the answer to HIV prevention. Just because you know your status, the law says that is intent. People with HIV have a right to have sex. Everyone deserves that. We're human beings.

I talk about this because I have nothing else left. I want to see things change. I want to see people with HIV hold their heads up high and not be ashamed of a disease they did not ask for. Please take what you learn here tonight and use it.


A Community Discussion

The panel then opened up the discussion to the floor for questions and comments (in italics).

I'm hearing two different things: one, that you can be arrested for not telling your partner, and two, that in some cases people have been arrested even after they disclosed.

Robert: That's the problem: how do you prove that you told someone?

Sean: Sometimes people are prosecuted because they didn't disclose immediately, even though the relationship went on for some time after disclosure. Some people are afraid to disclose because what someone from their past, or even someone they met before they knew they were positive, might report them.

Were states too hasty in getting rid of written consent and counseling?

Adrian: There's a conflict here: the public health community says written consent is a barrier to testing. Human rights advocates say it is not a barrier and we need it. The elimination of written consent and the information necessary to make sure consent is informed have been the main issues in the debate, and until recently criminalization has not received as much attention.

Sean: It would be nice if those advocating for "routinizing" HIV testing and removal of written consent fought just as strongly to combat stigma and for removal of HIV criminal statutes.

Prevention or Prosecution? A Community Forum

Is it possible to turn down the volume, the hysteria? Isn't this part of a larger effort to criminalize gay people in general?

Sean: AIDS organizations have generally not been leading on this issue. They do advocacy mainly about funding issues -- they're desperate to keep their doors open. In one state the director of the AIDS advocacy network chastised the head of an AIDS organization who was doing education around this issue: "Why are you making trouble? This is never going to be a priority for us until people with HIV in our state are more responsible about their sexual behaviors." So a lot of the problem is in our own community.

But there is a real opportunity with the criminal justice reform groups, with labor, with communities of faith. One African-American minister said, "HIV is always dicey to talk about in our churches -- but we understand putting black men in prison." I've seen this issue engage people who don't get the other issues about HIV -- it's a point of entry.

Last summer, Louisiana changed its sex offender law so that people convicted of sex work are no longer required to register as sex offenders. The coalition that brought about that change is the coalition that will work to remove HIV criminalization laws.

My comment is that I think there's a tremendous danger in focusing on eliminating disclosure requirements -- that's a brick wall. It will create a rebuttable presumption: "Of course this guy didn't disclose -- no one ever discloses." The community needs to come up with a strategy that won't run headlong into the right wing. I fear there might be some naiveté here about just how bad the stigma against people with HIV is. "Take the test and risk arrest" could push further actions like we've seen in France, where there have been prosecutions based on the idea that you should have been tested: "We think you avoided being tested because you didn't want to know." I have seen positive people discuss this issue in ways that seem to me, as a positive person, pathological about their lack of obligation to disclose.

Sean: You're talking about a core issue: what is the obligation to disclose? The Global Network of Young People with HIV has put out a paper where they assertively affirm the right not to disclose. This is very controversial -- I'm not sure where I stand on it. We still don't have a consensus as to the role of the courts regarding sexually transmitted pathogens that can cause serious harm if left untreated.

But I am sick of what I call "the arrogance of the well". The assumption that there's a pristine, perfect healthy person out there and it's my job to protect him or her -- that we, people with HIV, are inherently a danger to them. The substance of what establishes a moral obligation to disclose is being defined by people who don't have HIV. But it's equally dangerous not to acknowledge that there can be a harm inflicted when someone does not disclose -- sometimes even when there isn't HIV transmission. There's harm in deception, for sure, and there can be harm in failing to volunteer relevant information, even in the absence of deception. The obligation to disclose is different in different circumstances and it's very difficult to translate that into law.

I wish we could all sue someone for lying to us. Half the people on Manhunt.com would be in jail! When is a person criminally liable for a misunderstanding or even a complete fabrication? It seems like the people in greatest danger are those who were in relationships, did disclose, and it ended badly. Someone could be criminally prosecuted because someone didn't like the divorce settlement! Do these people have access to lawyers?

Adrian: Many of the people who are being prosecuted are those who can't afford attorneys. Many people also mistakenly think that a lawyer they pay for is always better than the public defender. The Center for HIV Law and policy has built a network of lawyers around the country who, depending on the case, may be able to help someone facing arrest. In New York City, there are a lot of attorneys and other advocates who provide legal services to people with HIV, but that's not the case around the country. When you're facing criminal charges, you need a criminal defense lawyer.

Sean: Most people I know who got prosecuted did not have very good counsel. A lot of people have been convicted because they were more cooperative than they should have been. If it comes up, shut up -- you need a lawyer. People have said things in the moments after being arrested that caused big problems later on.

Being in a serodiscordant relationship, I'm feeling paranoid right now. I can't be open with my partner's family because they live outside of the country. This is a pink flag for me -- I know my partner, but can I trust him in the future? It's scary that we're still having this conversation. It sucks big time.

Adrian: So many of the HIV-specific criminal laws -- and even the laws that are not HIV specific, like those used in New York -- are being used against people with HIV, causing them to live in fear and think that the only way to protect themselves is to criminalize nondisclosure. But it's really our own behaviors that protect us the most.

If this is a part of the Ryan White CARE Act, why are we going state by state or city by city? Mayors and governors have no control over Ryan White requirements. Let's go to Congress and have that law revised.

Sean: Actually, the reauthorization of Ryan White deleted this requirement a number of years ago. The states passed these laws years ago and they're still there. So our approach is on multiple levels: first, there's the community approach and education, then we approach the individual states, and there's a federal approach and a global approach. Whether one will work better than the others, we don't know.

Do young people know about this?

Sean: When I speak on campuses I am appalled by how little they know about transmission. Polls show that 79% of gay men aged 18 to 21 support criminalization of HIV nondisclosure. There will be a paper at the International AIDS conference this summer showing a correlation between confidence in HIV statutes and a willingness to engage in unprotected anal intercourse. The more you believe criminalization is protecting you, the more likely you will put yourself at risk. That's part of the growing body of evidence that criminalization is contributing to transmission.

What's the strategy?

Sean: The Positive Justice Project has a working group that is talking to public health officials. The National Association of State and Territorial AIDS Directors came out with a terrific statement on this, and the President's HIV/AIDS Strategy includes a great paragraph on criminalization that opened up all sorts of conversations with federal agencies. There is a process under way to develop a community consensus statement. But this is going to be difficult work. It's a movement in its beginning stages. A friend told me, "You're one of those lost cause people." But in the last two years we've come farther than I ever thought we would. It's not a lost cause.

Adrian: Changing laws is difficult. Law is often based on precedent -- it takes a very brave court to break free from tradition and take a stand on what we think is a more commonsense approach. In some states, judges have actually ordered a defendant to take an immediate HIV test -- the defendant leaves the courtroom, takes a rapid HIV test, comes back 20 minutes later, and is forced to share the result. And changing the laws on the books takes legislators with political will and courage. Mobilizing people at the grassroots level and from all the relevant professions -- medical, public health, law enforcement -- can provide well-intentioned legislators with the support they need to make change. There are people organizing in at least half a dozen states, and PJP is providing the support to keep that moving forward.

Are any repeal efforts under way?

Sean: Legislation was introduced in Iowa two years ago. There's a woman with HIV leading the effort. The Iowa Public Health Department -- in a state with a Republican governor -- has been quite cooperative. One of our efforts has been to develop this effort without making it a Republican/Democrat issue. In other states, a few meetings have been held, so it's just beginning.

Last year, Barbara Lee, a congresswoman from California, introduced the Repeal HIV Discrimination Act that requires the Pentagon, the Department of Health and Human Services, and the Department of Justice to review federal laws and regulations to identify where they place "unique or additional burdens" on people "solely as a result of their HIV status" and encourages their repeal. So far, it has 30 cosponsors.


Conclusion

The forum ended with a call to action. Adrian noted the many materials available at the Positive Justice Project website, and urged people to spread the word about the National Convening on HIV Criminalization, being held on July 20th in Washington, D.C. People can also visit thestigmaproject.org.

Arguments Against HIV Criminalization




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