Published July, 2017
The PJP Update, Positive Justice Project (July 2017)
Release of Consensus Statement on HIV "Treatment as Prevention" in Criminal Law Reform
The Consensus Statement on HIV “Treatment as Prevention” in Criminal Law was developed by ten organizations in response to concerns about the best way to use HIV treatment advances, "Treatment as Prevention" (TasP) or "Undetectable = Untransmittable" (U=U), in HIV criminal law reform advocacy. Intended to serve as a resource supporting state advocates working on modernizing local HIV laws, The Consensus Statement on TasP flags ways to avoid inadvertently putting people of color and those without regular treatment access at increased risk of prosecution. The Center for HIV Law and Policy, The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign/U=U Campaign, the Treatment Action Group and Women with a Vision are the original endorsers of the statement.
"The groundbreaking science that proves a person living with HIV on effective treatment cannot transmit HIV is changing lives, dismantling stigma, and getting us closer to ending the epidemic. Its usefulness in the context of criminal law reform has raised questions, and this statement provides much needed guidance for using the science in advocacy,” says Bruce Richman, founder of Prevention Access Campaign “Undetectable = Untransmittable”, an originating statement endorser.
The power and reach of this advocacy tool is reflected by the quickly growing list of nearly 50 organizations and individuals that have endorsed the statement since its release two weeks ago, including Equality Alabama, Georgia Equality, HIV Modernization Movement – Indiana, the San Francisco AIDS Foundation and more.
Join us by endorsing the statement and spreading the word about this movement for clear guidance on how the science of HIV treatment and prevention relates to the reform of HIV criminal laws. Visit www.hivtaspcrimlaw.org for an FAQ, resources and a list of endorsing individuals and organizations.
State Advocacy Working Group Updates
On May 31, SB 239—proposed legislation to modernize California HIV criminal laws—passed out of the California Senate and was referred to the California Assembly. The bill successfully made it through the Public Safety and Health Committees in the California Assembly, and will likely be heard in Assembly Appropriations in August. The most current version of the bill can be found here. Members of Californians for HIV Criminalization Reform are currently organizing in-district meets with members of the Assembly to advocate for the bill’s passage. The bill is a vast improvement over current law, in particular eliminating the felony punishment of sex workers arrested for solicitation while living with HIV and retroactively vacating felony convictions of sex workers previously convicted under this section of California law.
The bill has undergone changes as it has progressed through different committees, including the addition of a "reckless exposure" provision, which makes engagement in "particularized conduct that poses a substantial risk of transmission of an infectious or communicable disease" in violation of health officer instructions a misdemeanor. The conduct must occur within 96 hours of the instruction in order to be a violation and the provision is only applicable in "circumstances that make securing a quarantine or health officer order infeasible." Given the lack of an intent requirement and terminology that remains vague or undefined, it is hoped this "reckless exposure" provision can be further narrowed to ensure it is not applied to already-marginalized populations, such as undocumented immigrants and sex workers.
If your organization is interested in supporting modernization of California's HIV criminal laws, we invite you to join Californians for HIV Criminalization Reform (http://eqca.org). Please contact [email protected] or 323-848-9801 for additional information.
In conjunction with National HIV Testing Day on June 27, the Georgia Coalition to End HIV Criminalization sent an open letter introducing itself to AIDS Service Organizations (ASOs) throughout the state and encouraged them to contact coalition members for HIV criminalization trainings.
Members of the coalition convened in June and July, and have been in discussion with the Williams Institute on HIV criminalization research in Georgia.
Coalition members continue to monitor developments around House Resolution 240, which formed a committee tasked with examining barriers to health care for Georgians with chronic health conditions, including HIV. The resolution requires the committee to “[a]ssess the HIV laws' alignment with current evidence regarding HIV transmission risk and consider whether these laws are the best vehicle to achieve their intended purpose.”
Meetings are held the first Thursday of the month from 4:00-6:00pm (ET)
If you are interested in joining the Georgia Coalition to End HIV Criminalization, please contact Emily Brown ([email protected]) and visit the coalition’s coalition’s website for additional information.
In June, the coalition finalized its official name: Louisiana Coalition on Criminalization and Health (LCCH). The group is forming working groups focused on Education, Partnerships, Administrative, Legal/Policy, etc., to engage in more structured efforts to advance the LCCH’s goals of modernization in the state. The group is also working on mounting a rapid response to a recent prosecution in New Orleans. The case involves a man who allegedly spit at police officers, which is currently punishable by up to 11 years of incarceration under Louisiana state law.
Meetings are held on the second Wednesday of the month at 11:00am (CT).
If you are interested in information about HIV criminalization or actively participating in LCCH, please contact Chip Eakins at [email protected].
Missouri HIV Justice Coalition held community roundtables on July 18 and 20 in St. Louis and Kansas City to identify the perspectives and priorities of those who are most severely affected by Missouri’s HIV criminal law.
On August 5 and 6, the coalition is hosting a train-the-trainer event in cooperation with the Sero Project in Springfield.
Meetings are held on the fourth Friday of the month at 1:00pm (CT) via conference call.
If you are interested in becoming an advocate with the Missouri HIV Justice Coalition, please contact Ashley Quinn at [email protected], and visit the coalition’s website for additional information.
On July 8, Ohio advocates held a community forum in Columbus, with support from the Positive Justice Project. The event included more than 50 attendees from across the state, many of whom were new to the issue of the HIV criminalization. The first half of the day provided an overview of Ohio’s HIV criminal law, as well as recent efforts relating to Batista and Ohio’s Criminal Justice Recodification Committee. The second half of the day was a participatory workshop where attendees worked together in breakout groups to map a strategy moving forward.
In June, the Ohio Criminal Justice Recodification Committee released its final recommendations to the state legislature. The recommendations can be found here. In brief, the proposal would remove HIV non-disclosure from Ohio’s felonious assault law, and create a new offense entitled “Dangerous Sexual Activity,” which would contain the following provisions: 1) intentional transmission of HIV by any means would be punished as a 2nd degree felony 2) non-disclosure of HIV status and sexual activity resulting in transmission would be punished as a 2nd degree felony and; 3) non-disclosure of HIV status and not taking “reasonable precautions” (ART or condom use) prior to sexual activity would be punished as a 1st degree misdemeanor. Refer to page 57 in the link for details. Coalition members wrote a letter to the Recodification Committee opposing a similar proposal in December 2016. That letter can be found here.
Meetings are the second Wednesday of the month at 5:00pm (ET).
If you would like information on HIV Criminalization or are interested in becoming an advocate with the Ohio HIV Criminalization Working Group, please contact Arpita Appannagari at [email protected].
The PJP Tennessee Working Group convened in June and July and reviewed updates from recent legislative advocacy efforts. This summer advocates are fine-tuning their legislative strategy, working on a rapid response plan and opportunities for prosecutorial and public defender education.
Meetings are held on the fourth Thursday of the month at 1:00pm (CT).
If you would like information on HIV criminalization or are interested in becoming an advocate with the PJP TN Working Group, please contact Arpita Appannagari at [email protected].
Advocates are planning an HIV Criminalization 101 webinar in August to introduce new members to the basics of this advocacy work. The group convened in June and added many new members to their coalition.
Meetings are held on the third Thursday of the month at 6:00pm (CT).
If you are interested in information about HIV criminalization or actively participating in the Texas HIV Working Group, please contact Arpita Appannagari at[email protected].
CHLP’s assistance in criminal cases includes counseling defendants and their families, referring defendants to attorneys, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.
In April, the Missouri Supreme Court upheld the Court of Appeals’ decision overturning Michael Johnson’s conviction and remanding his case for a new trial. The case is back in the 11th Judicial Circuit Criminal Court, St. Charles County, Missouri. The trial has not started, as the case is in a preliminary stage. The next court date is August 28, 2017.
On June 19, the U.S. Supreme Court denied Nushawn Williams' request that it review the decision to indefinitely civilly commit him to a New York State Psychiatric Center as a dangerous sex offender based on his sexual activity while living with HIV. CHLP, along with other organizations and individuals, had filed a brief in support of Williams, arguing that his case was the only one in New York in which an individual was essentially isolated or quarantined based on his HIV status, in violation of his Constitutional rights and federal disability protections. His attorneys are analyzing next steps in his case.
On May 17, the Supreme Court of Ohio heard oral arguments in Orlando Batista’s case. Batista was indicted for felonious assault in July 2014 for allegedly engaging in sexual conduct with his girlfriend without first disclosing his HIV status. After the trial court rejected his motion to dismiss, Batista pleaded no contest and the court sentenced him to the maximum term of eight years. CHLP, with support from the Gibbons P.C. law firm and the Ohio Public Defender, along with seven Ohio-based and national organizations, submitted a friend-of-the-court brief in support of Batista to the Supreme Court of Ohio. The ACLU of Ohio Foundation and Center for Constitutional Rights submitted a separate friend-of-the-court brief based on First Amendment grounds. No ruling has been issued to date.
If you are aware of anyone charged in an HIV exposure or transmission case, please refer them to our website, www.hivlawandpolicy.org and/or have them or their lawyer, contact CHLP for assistance at 212-430-6733 or [email protected].
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