The National HIV/AIDS Strategy, HIV Criminalization and Civil Rights: How Did We Fare? (2010)

By Catherine Hanssens
Executive Director, CHLP

Comprehensive reviews of the newly-released National HIV/AIDS Strategy (NHAS) are still to come, although certain themes have emerged in the first reactions of national AIDS organizations. We consider what the NHAS has to say on several issues: criminalization of HIV, stepped-up enforcement of existing civil rights laws, expanded access to legal services to help with enforcement, and prisoners' rights. Not only are these issues a central part of fighting HIV in the US, at least one has the added benefit of costing little or nothing to address.

While comprehensive reviews of the newly-released National HIV/AIDS Strategy (NHAS) are still to come, certain themes have emerged in the first reactions of national AIDS organizations. Most praise the NHAS, while pointing out that goals such as universal treatment access require significant funding commitments, and that sooner or later the administration (and Congress) will have to put some serious money where the proverbial mouth is. There were dissents among the praise, of course. Several organizations, for example, blasted the absence of an aggressive commitment to fund housing and syringe exchange programs as central, proven elements of HIV prevention strategies.

There will be more, ongoing analyses of the NHAS and the documents that accompanied it -- the NHAS Implementation Plan and President Obama's Memorandum for the Heads of Executive Departments and Agencies, summarizing the responsibilities of individual federal agencies in the implementation of the NHAS. In the meantime, let's consider what the NHAS has to say on several issues in which CHLP took a leading interest: criminalization of HIV, stepped-up enforcement of existing civil rights laws, expanded access to legal services, prisoners' health and prevention rights, gender issues, and informed consent. Not only are these concerns a central part of fighting HIV in the US, several have the added benefit of costing little or nothing to address.

On these issues, there is good news and bad news.

The NHAS statement on the problem and public health consequences of HIV criminalization is very good and should be a significant boon to CHLP's Positive Justice Project and anti-criminalization advocacy here in the U.S. and elsewhere. The NHAS maintains that many state HIV-specific criminal laws reflect long-outdated misperceptions of HIV's modes and relative risks of transmission. It points out that actual instances of intentional attempts to transmit HIV – the type of conduct most of these laws purport to curb – are rare, and that available evidence shows HIV criminal laws have no positive public health impact.

As the NHAS states, "In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment." This is good stuff, and a remarkable development coming, as it does, from a politically cautious federal government.

The NHAS also recognizes more generally the importance of addressing widespread public ignorance about HIV transmission risks, a central aspect of HIV-related criminal prosecutions:

"It is also important to educate Americans about how HIV is not transmitted. A significant proportion of the American public harbors misconceptions about how HIV is transmitted… between one in five or one in ten Americans believed that HIV could be transmitted through sharing a drinking glass, touching a toilet seat, or swimming in a pool with someone who is HIV-positive… [A]s many as a third of young people (ages 18-29) held one of these misperceptions. Strikingly, the percentage of the American public that holds these misperceptions has not changed since 1987."

All of this is encouraging evidence of the Administration's understanding of the problem of stigma and an intent to address it. At the same time, we would have preferred to see a more unequivocal condemnation of HIV-specific criminal laws and prosecutions, and a more direct call to states to revise their laws and policies rather than the "suggestion" the NHAS and implementation plan contains. Concrete carrots and sticks will be required to catalyze the goal of widespread repeal of laws and prosecutions targeting people with HIV.

Granted, there are fair strategic arguments for approaching the issue in the way chosen in the NHAS. Consensual sexual conduct without status disclosure of HIV-positive individuals continues, after all, to generate heated and punitive reactions even within LGBT and HIV communities. The NHAS balances its avoidance of political controversy risked through a direct call for the repeal of HIV criminal laws with directives to various federal agencies that allow more specific mandates and incentives in the relative short-term. For example:
• The Department of Justice (DOJ) must "examine and report on HIV-specific sentencing laws and implications for people living with HIV" by 2011;
• DOJ and Health and Human Services (HHS) must "identify a departmental point of contact and provide technical assistance resources to States considering changes to HIV criminal statutes in order to align laws and policies with public health principles;"
• The CDC/HRSA HIV/AIDS Committee and the President's Advisory Council on HIV/AIDS (PACHA) are all tasked to develop recommendations for ways to improve the safety of voluntary HIV status disclosure by those who are HIV-positive; and
• PACHA is directed to "provide, on an ongoing basis, recommendations on how to effectively implement the strategy, as well as monitor the Strategy's imple¬mentation."

Individually and collectively, these actions can and should produce findings that HIV-specific criminal laws and prosecutions contravene prioritized public health goals such as expanded HIV testing and disclosure. This means, though, that our work continues. As the NHAS has made clear, if we want an implementation agenda that reflects our priorities we will have to play an active role in how the details of that agenda get mapped out.

With growing data on the experiences of people singled out for irrational, exceptionalist treatment and punishment solely on the basis of their known HIV status, we should call for a DOJ report that concludes that this treatment represents a violation of federal disability antidiscrimination laws. And consistent with the spirit and enforcement mechanisms of the Rehabilitatio Act of 1973 (that allows withdrawal of federal funds from federal contractors who discriminate), The DOJ, HRSA and other agencies also might recommend steps such as the following:
• Federal funding for state HIV programs linked to a demonstration that states have eliminated laws and policies that effectively discriminate against people with HIV and/or are at odds with federal policy on HIV criminalization as expressed in the NHAS;
• Incentives such as the linking of additional discretionary funds to a state's demonstration that discriminatory criminal laws or prosecution policies have been repealed or suspended.

After all, these kind of incentives have been built into the Ryan White Care Act and CDC funding priorities for years to secure more regressive state policy-making, including many of the state HIV criminalization laws currently in effect, along with name-based HIV case reporting and repeal of patient-protective state HIV consent laws.

NHAS repeatedly affirms the truth that "enforcement of civil rights laws … are a critical part of any effort to reduce stigma and discrimination," and that "three decades of experience tell us that essential starting points for addressing stigma and discrimination include maintaining a commitment to civil rights enforcement." The NHAS demonstrates that the voices of civil rights advocates were heard loud and clear. Unfortunately, support for community legal services that are indispensable to that enforcement earn only a passing reference. And nowhere in the NHAS is there an explicit commitment to end stigma and discrimination in federal agencies, such as the military, that continue to routinely exclude people with HIV, or to ratchet up investigations and enforcement related to other civil rights laws relevant to the HIV epidemic, including, civil rights laws that address unequal treatment on the basis of race and gender.

However, directives to the EEOC and DOJ regarding employment and addressing discrimination can be met with community input like the evidence of continuing discrimination in federally-operated programs and agencies, and the absence of any evidence to support these policies. The mandates to these agencies should produce guidance, ideally with an accompanying Executive Order, declaring that HIV typically does not pose any impediment to enrollment or service in any federally-operated programs or licensed professions, and that any decision to exclude a person with HIV must be based on specified, significant and unusual circumstances or health issues particular to the applicant or individual involved. With the release in May of a study of VA health care recipients demonstrating that people with HIV in the military have better than average viral suppression, such broad guidance is both appropriate and long-overdue.

While the NHAS references the difficulty that ex-offenders experience accessing medications on release, and also the importance of targeting prevention to those headed towards the exit door, the silence on the plight of the still-imprisoned incorrectly suggests that access to treatment and comprehensive prevention while incarcerated is not an issue for people with HIV. Of course risk reduction in the context of a prisoner's return to society is important, but the narrowness of the focus reinforces a current policy advocacy trend that puts the term of incarceration itself insexual health limbo and does not merit progressive policy interventions. Limiting the sense of urgency to community reintegration ignores not only the issue of prison sex (consensual and nonconsensual) and the rights of the incarcerated to consistent medical care that addresses sexual health, but squanders the opportunity for productive policy intervention presented by  a literally captive and at-risk population whose health affects that of the community to which they return. And the continued segregation, forced testing and program exclusion of many prisoners, particularly in South Carolina and Alabama, merits demonstrations, not silence.

Finally, considering the mix of invisibility and coercion many women with HIV encounter in matters of prevention, treatment, pregnancy and reproductive choice, the silence of the NHAS on these points is disappointing. And in view of the State Department's repeated assurances that the Obama administration is "committed" to U.S. ratification of the CEDAW Treaty (the Convention on the Elimination of All Forms of Discrimination Against Women), the NHAS would have been a great place to connect the dots.  On a related point, made more salient with the recent news of a microbicide with a real potential impact on transmission risk, there is no mention of the increasing urgency of informed consent in an era of rapidly expanding recommendations for the use of antiretroviral therapies earlier and more often for treatment and prevention.

Overall, then, there are elements of the NHAS to prompt both cheers and jeers. The leadership reflected in the NHAS on issues such as criminalization and the importance of civil rights was unfathomable under previous administrations. It represents the first meaningful official statement on the issue of criminalization and the role of civil rights in addressing the HIV epidemic, and reflects both the advocacy of HIV civil rights advocates who consistently prioritized the issue, and the willingness of ONAP staff to respond substantively and decisively.

In assessing the NHAS, remembering the context of its creation is key. Regardless of the multiple community meetings and opportunities for online input, and the obvious commitment, brains, hard work and investment by ONAP personnel, the NHAS is the creation of government employee workgroups, with input and review by PACHA. While CHLP actively advocated for the creation of parallel community task forces to work with and monitor federal work groups in the actual drafting and review of the NHAS before its official release, that did not happen. The call for this level of community input on the actual draft was endorsed by a coalition of groups serving women with HIV, but the fact of the matter is that most agency advocates did not actively prioritize this brand of community inclusion; and some actually defended the administration's determination not to have it. What we achieved with the NHAS is surprisingly good, considering the limits of what reasonably could be expected by federal agency work groups drafting a set of mandates for themselves. In any event, we got much of what we need to move forward and to turn our attention to implementation.

So let the next round of work begin.