Published May, 2021
The PJP Update, Positive Justice Project (May 2021)
The newsletter of the Positive Justice Project.
Wielding the Power of the ADA to Counter HIV Criminalization
CHLP has long led the way in developing new and creative advocacy paths to fight laws and policies that criminalize people living with HIV (PLHIV). Part of this advocacy involves developing challenges to state HIV criminalization laws using the Americans with Disabilities Act (ADA). In April, CHLP Staff Attorney Anne Kelsey blogged about The Power of the ADA to Challenge HIV Criminal Laws and using the broad scope of the ADA to mount disability law challenges to the validity of HIV criminalization laws. Executive Director Catherine Hanssens also presented on a panel hosted by Yale Law School on the same topic: HIV Criminalization, the ADA, and Strategies for Change.
CHLP Partners with Association of Prosecuting Attorneys (APA) on Science of Disease Transmission Webinar
In April, CHLP collaborated with the APA to co-host a webinar about the science of infectious disease transmission where featured speaker Dr. David Wohl of the University of North Carolina School of Medicine discussed the science behind the transmission of HIV, Hepatitis C, tuberculosis, and COVID-19. The presentation was designed to help prosecutors, law enforcement, and allied professionals understand more about the transmission of disease and issues they may encounter in the field or as prosecutors.
HIV Criminal Law Reform: Before and After
CHLP recently published resources providing a concise overview of the implications of the repeals and reforms to HIV criminal laws in the eight states that have made the most significant changes to their laws since 1994: California, Colorado, Illinois, Iowa, Michigan, North Carolina, Texas, and Washington. These resources provide an objective view of the laws today as well as a sense of who remains at risk and how PLHIV can protect themselves from prosecution. Stay tuned for our "before and after" summary of Virginia's revised criminal law.
PJP Advisory Group Hosts Webinar on the Role of U=U & Viral Suppression in HIV Criminal Law Reform.
CHLP hosted a webinar on the role of viral suppression in criminal law reform featuring panelists Devin Hursey of the Missouri HIV Justice Coalition, Eric Paulk of the Georgia HIV Justice Coalition and Georgia Equality, Linda Dixon of the Mississippi Center for Justice, and Deondre Moore of Prevention Access Campaign. The insightful conversation illuminated how U=U and Treatment as Prevention can be celebrated without leaving marginalized communities behind or making health status a basis for prosecution. CHLP National Policy & Partner Strategist Amir Sadeghi moderated the webinar.
CHLP’s Amir Sadeghi Participates in HIV Criminalization Webinars Focused on Racial Justice and Black Gay Men Living with HIV
For the NAESM Conference in January, Amir participated in the "HIV Criminalization is a Racial Justice Issue" panel with CounterNarrative Project (CNP)'s Charles Stephens and Johnnie Kornegay, as well as Brad Sears, Georgia Equality's Eric Paulk, and Malcolm Reid from THRIVE SS. They stressed the connection between legacies of anti-Black racism and the Black Lives Matter movement and the work of PLHIV in combating disease-specific criminal laws.
For National Gay Mens' HIV/AIDS Awareness Day, Amir participated in a roundtable discussion in support of the We Will Be Heard Week of Action, joining CNP’s Dennis Hardy, advocate Robert Suttle, and moderator Michael Ward. The conversation focused on the criminalization of Black gay men living with HIV and touched on the relationship between the movement for sex worker rights and the movement to decriminalize HIV, and more.
CHLP Commentaries Making News
- COVID-19 isn’t our only viral worry. CHLP Staff Attorney Marguerite Schauer wrote an op-ed for Georgia Health News discussing the under-recognized epidemic of viral hepatitis in the context of COVID-19. The article explains why the criminalization of any disease, from viral hepatitis to HIV, is the wrong approach and why, given the shortcomings of a recent Georgia bill, a more ambitious approach is needed to address the criminalization of both HIV and viral hepatitis.
- Use science, not stigma, to determine the next steps for Nushawn Williams. In a Syracuse.com op-ed, CHLP Staff Attorney Anne Kelsey and Dr. William Valenti discuss the confinement of Nushawn Williams and the use and misuse of HIV science in his case. Their commentary urges the New York Attorney General to reconsider Nushawn’s confinement and to take into account the remarkable improvements in HIV treatment and prevention that have occurred since his incarceration in prison in 1999.
State Advocacy Working Group Update
The Arkansas HIV Reform Initiative (AHRI) continues to grow their coalition and define their mission and strategy. At a recent virtual strategic planning summit, AHRI hosted local advocates, national partners, and community stakeholders to plot their reform campaign in Arkansas. AHRI meetings are held on the second Thursday of the month at 11:00am (CT). To get involved, contact Latunja Sockwell at [email protected].
Georgia Senate Bill 164 passed the Senate by a 50-2 margin in March. SB 164 is a bipartisan bill introduced by Senators Chuck Hufsteler (R), Kay Kirkpatrick (R), Nan Orrock (D), and Gloria Butler (D). The bill would:
- require that a person “knowingly engages in a sex act with the intent to transmit” and that there be a significant risk of transmission for prosecution (although transmission is not required);
- retain felony-level punishments but reduce the possible prison sentence from 10 years to 5 years;
- require that the prosecution prove that a sex worker living with HIV consents to perform a sex act with the intent to transmit HIV and requires that there be a significant risk of transmission;
- remove punishment for PLHIV who donate blood, blood products, other body fluids, or any organ or body part;
- eliminate felony punishments for PLHIV for assaulting a peace or correctional officer using bodily fluids with intent to transmit.
Georgia HIV Justice Coalition meetings are held on the third Wednesday of the month at 6:30pm (ET). To participate, contact Johnnie Kornegay at [email protected].
HB 1063 passed the House in April with a vote of 90-9 and passed the Senate with a vote of 37-17 on May 25. The bill now awaits the governor’s signature. HB 1063 repeals Illinois’ HIV-specific criminal law. This follows reform in 2012 that included changes requiring “specific intent to commit the offense” of criminal transmission of HIV. Unfortunately, prosecutions in Illinois continued under the reformed law, with courts interpreting the intent requirement broadly. HB 1063 gets rid of the offense entirely and makes no other changes to the law. With Governor Pritzker’s signature, Illinois will become the second state to fully repeal its law criminalizing PLHIV.
CHLP Staff Attorney Marguerite Schauer participated in an Illinois HIV Action Alliance (IHAA) webinar last fall, discussing intersections between COVID-19 and HIV criminalization, and what lessons can be gleaned for advocates working to end the criminalization of infectious disease. Tim Jackson from AIDS Foundation Chicago moderated the discussion, which also included Breanna Diaz from Positive Women’s Network USA and Aisha Davis from AIDS Foundation Chicago.
IHAA meets quarterly and the next meeting is Monday, July 19 at 4:00pm (CT). To join the coalition, visit this website.
House Bill 1340 was signed into law by Governor Holcomb on April 29. HB 1340 updates language throughout the law, removing several instances of stigmatizing language in the public health and criminal code. Representative Ed Clere plans to submit a request to the Indiana Legislative Council for an interim study committee to further examine the HIV criminal laws in Indiana.
To get involved in current and future advocacy with the Indiana HIV Modernization Movement, contact Carrie Foote at [email protected] or [email protected], or visit the coalition’s website.
In March, Louisiana State Representative Pat Moore introduced House Bill 238, a bill that would have increased the criminal penalties for exposure to sexually transmitted infections (STIs). The bill sought to establish tiers to the offense with gradually increasing penalty levels depending on the age and vulnerability of the victim. The bill carried a potential 25-year felony penalty for exposure to any and all STIs, and under no tier of the proposed offense was transmission of an STI required. On May 5, the day the legislation was heard in the Louisiana House Committee on Administration of Criminal Justice, Moore withdrew the bill after an outpouring of opposition from Louisianans and the Louisiana Coalition on Criminalization and Health (LCCH).
CHLP’s Amir Sadeghi presented to the Louisiana Commission on HIV, AIDS, and Hepatitis last fall with attorney and LCCH member Mandisa Moore-O’Neal to discuss HIV criminalization in the state and nationally. Following the presentation, the Commission motioned to fully support and coordinate with LCCH, draft an official statement on HIV criminalization in Louisiana to advise the Governor and legislature, and convene a summit with stakeholders in the community, including criminal justice professionals, media and public health experts, and PLHIV.
LCCH meets on the second Wednesday of the month at 11:00am (CT). If you are interested in working with the coalition, contact [email protected].
- remove most references to HIV and replacing them with “a serious infectious or communicable disease” which has been narrowly defined as a “non-airborne disease spread from person to person that is fatal or causes disabling long-term consequences in the absence of lifelong treatment and management”;
- create different levels of offenses while keeping felony punishments even if a person does not act with the intent to transmit a disease: If a person “knowingly expose[s]” someone to a serious or communicable disease it is a Class D felony, punishable by up to seven years in prison, and if transmission occurs, it is a Class C felony punishable by up to ten years in prison. If a person acts “in a reckless manner by exposing” someone to an infectious or communicable disease, they could be charged with a Class A misdemeanor and be jailed for up to one year;
- limit criminal conduct to activities that create a “substantial risk of transmission”;
- eliminate the current law’s “condom use is not a defense” provision;
- allow both accusers and the accused to maintain the privacy of their identity and health status.
However, the bills would also:
- not address Missouri’s rarely used but extremely harsh penalty enhancement for sex workers living with HIV;
- leave in place felony-level punishments for organ, blood, and tissue donation by PLHIV and for needle sharing, although there is an exception for medically appropriate blood and organ donation;
- make the crimes of endangering a corrections or Department of Mental Health employee apply to prisoners who are knowingly infected with any serious infectious or communicable disease and expose another person to the disease (currently the law only applies to exposing the victim to HIV, Hepatitis B, or Hepatitis C).
Senate Bill 275, which significantly reforms Nevada's approach to HIV and communicable diseases, passed with bipartisan support and is headed to the governor's desk. The bill was introduced by Senator Dallas Harris in March. For the bill’s hearing in the Assembly, the Williams Institute presented data and developed this fact sheet summarizing the main findings of their study on the enforcement of HIV criminal laws in Nevada.
SB 275 will repeal NRS 201.205, an HIV-specific criminal offense carrying a penalty of up to 10 years in prison, replacing it with a misdemeanor offense in the public health code that would:
- require intent to transmit, conduct likely to transmit, and actual transmission;
- apply to intentional transmission of any communicable disease (as defined in NAC 441.040 to include 78 communicable diseases);
- provide a defense to prosecution if someone uses means to prevent transmission or if the person subject to transmission knows the defendant has a communicable disease, knows conduct could result in transmission, and consents to the conduct.
Other changes to the law include:
- a statement in the public health code that “the spread of communicable diseases is best addressed through public health measures, rather than criminalization";
- repeal of the category B felony for engaging in or soliciting prostitution after a positive HIV test;
- repeal of provisions that require HIV testing for individuals arrested for prostitution, arrested for a sex offense, or entering the custody of the Department of Corrections;
- amendments to provisions regarding testing for communicable diseases following incidents in which first responders come in contact with bodily fluids;
- repeal of a provision permitting confinement of persons living with AIDS and removal of many stigmatizing references to AIDS in the public health code;
- amendments to provisions regarding the duties of individuals living with communicable diseases and public health officials’ authority to order testing, treatment, isolation, or quarantine.
SB 275 also will reestablish Nevada’s Advisory Task Force on HIV Modernization for the 2021–2022 legislative term. The bill instructs the Governor Sisolak to reappoint members who previously served on the Task Force and to appoint additional members “who are members of the [LGBTQ] community, women, persons living with [HIV] and sex workers." The Task Force would be authorized to make additional recommendations for legislative, regulatory, and policy reform following further research and community input.
CHLP's Marguerite Schauer Amir Sadeghi, and NVHMC co-chair Stephan Page recently spoke about HIV criminalization, reform strategy, and SB 275 at the Community Counseling Center of Southern Nevada. NVHMC meets on the first Tuesday of the month at 5:30pm (PT). To get involved, contact co-chair Connie Shearer at [email protected].
In April, New Jersey State Senator Joseph Vitale introduced Senate Bill 3707, which passed through the Health, Human Services and Senior Citizens Committee on May 6. The bill would amend state law criminalizing exposure to sexually transmitted infections (STIs), including HIV. Currently, it is a crime of the fourth degree if a person knows they are living with an STI and exposes someone through sexual contact without first disclosing their status. For PLHIV, the same offense is a crime of the third degree (equivalent to a felony). SB 3707 would:
- remove the HIV-specific offense and require specific intent to transmit “an infectious or communicable disease,” and transmission of that disease;
- create a defense to prosecution if a person attempts to take a means to prevent transmission;
- clarify that failing to take means to prevent transmission is not in itself enough to infer specific intent to transmit;
- create a defense to prosecution for prenatal transmission through childbirth;
- prohibit prosecutors' access to or use of medical records in criminal proceedings.
For further information, contact Amir Sadeghi at [email protected].
CHLP’s Amir Sadeghi continues to coordinate the Free Nushawn Coalition and to call out the racist and discriminatory Article 10 civil confinement of Nushawn Williams as a "dangerous sex offender" based almost entirely on the fact that he was sexually active following an HIV diagnosis. To learn more and get involved, visit FreeNushawn.com. We also continue to work with the attorneys representing Nushawn in hearings to secure his release.
CHLP plays an active role in the COVID-19 Working Group-NYC and its work to ensure that New York’s response to the pandemic is community-oriented and meets the needs of underserved communities. CHLP's Anne Kelsey was the primary author of an open letter from health professionals urging New York State Governor Andrew Cuomo to provide vaccine access to incarcerated individuals. The letter received approximately 200 sign-ons and was mentioned in several local news sources (HuffPost, El Diario, and Gothamist).
The Ohio Health Modernization Movement (OHMM) is actively promoting the HIV criminal reform legislation that they have refined over the last few months. They hope to see the legislation introduced this year.
In March, as part of OHMM’s monthly webinar series, CHLP's Marguerite Schauer joined longtime advocate Bryan Jones, Dominic Detwiler of Equality Ohio, and Zach McCune of Equitas Health for The Past and the Future: Language and the Modernization of Our HIV Laws. Panelists discussed the details of the reforms OHMM is proposing for Ohio’s several HIV-related criminal laws.
OHMM meetings are held every other third Monday of the month at 6:00pm (ET). For more information, contact [email protected] or visit OHMM’s website.
The Southern HIV Decriminalization Network holds calls on the fourth Thursday of the month at 3:00pm (ET). The network shares information and ideas about the work of state groups in the South to reform their laws and reports on case developments of interest to the group. To join the call, contact Charles Stephens at [email protected].
Supervising Attorney of Criminal Justice Initiatives Jada Hicks participated in the Tennessee HIV/AIDS Virtual 2020 Conference hosted by Tennessee AIDS Advocacy Network. Jada was joined by Robin Lennon-Dearing, the co-founder of the Tennessee HIV Modernization Coalition. Jada spoke on the national perspective of HIV criminalization and in detail about HIV-specific laws in Tennessee. Robin discussed how these HIV-specific laws disproportionately affect sex workers and the uniquely harsh punishment of sex offender registration.
The Tennessee HIV Modernization Coalition meets every fourth Thursday at 1:00 pm (CT). For more information, contact Amir Sadeghi at [email protected].
Governor Ralph Northam signed SB 1138 into law in late March. Previously, it was a Class 6 felony punishable by 1 to 5 years' imprisonment for a person diagnosed with HIV, syphilis, or hepatitis B to have vaginal or anal intercourse, or oral sex with the intent to transmit the disease to another person; and a misdemeanor for a person with any of these diseases who fails to disclose their health status to their sex partner prior to sex.
The new law now:
- repeals the felony criminal ban on blood, tissue, or organ donation by those living with HIV and other STIs;
- repeals the law that makes failure to disclose HIV-positive status before sex a Class 1 misdemeanor;
- removes HIV from a list of “infectious biological substances” under the infected sexual battery section of the state code and replaces it with any “sexually transmitted infection,” thus expanding the categories of people who are subject to prosecution;
- keeps a Class 6 felony for persons diagnosed with any STI who has sex with the intent to transmit the disease, but now requires that the sexual contact has a substantial risk of transmission to their partner, and transmission occurs. A Class 6 felony carries a punishment of no more than five years in prison or a $2,500 fine;
- makes HIV testing for people convicted of certain crimes, including prostitution and drug charges, optional rather than mandatory.
ECHO VA (Ending Criminalization of HIV and Over-incarceration in Virginia) meets every month. To participate, email [email protected].
Last year, ESHB 1551, reforming Washington’s criminalization law, went into effect. Some of the bill’s changes to the public health code call for administrative rulemaking to flesh out how the new law will be administered. The Washington HIV Justice Alliance (WHJA) is monitoring the Board of Health’s rulemaking process and providing community input. CHLP is working with the National Association of Criminal Defense Attorneys (NACDL) to assist persons convicted under the former law who remain on the sex offender registry. For more on ESHB 1551, see HIV Criminal Law Reform, Before and After: Washington.
WHJA meets every other Monday at 11:00am (PT). To get involved, contact Erick Seelbach at [email protected].
CHLP’s assistance in criminal cases includes counseling defendants and their families, providing legal and trial strategy support to criminal defense attorneys, identifying and assisting with the preparation of medical and scientific experts, drafting sections of court submissions, and submitting friend-of-the-court briefs.
CHLP led a community-driven effort to meet with the New York State Attorney General Letitia James to address Nushawn Williams’ racist and discriminatory Article 10 civil confinemen. New York is one of 20 states with laws allowing the indefinite civil commitment of individuals designated as "dangerous sex offenders likely to reoffend." Despite serving 12 years for charges of reckless endangerment and statutory rape, Williams has been detained at the Central New York Psychiatric Center for an additional 10 years based on the determination that his offenses in 1996 make him too dangerous to release. During his civil commitment hearing, the Attorney General and their experts referred to Williams' HIV status more than 1,000 times in describing his "dangerousness." The extent to which Williams' race and HIV was referenced to justify his civil commitment is a profound injustice, and gives credence to the legacy of medical mistrust in communities hardest hit by the HIV epidemic.
The COVID-19 pandemic and year-long periods during which Williams goes without any contact with a physician are an ongoing threat to Williams' health.
More than 260 advocates Housing Works, Legal Action Center, Treatment Action Group, GMHC, The National Black Leadership Commission on Health, VOCAL New York, Harlem United, HEAT SUNY Downstate, the Latino Commission on AIDS, and ACT UP/NY have joined CHLP in the effort to Free Nushawn.
CHLP also joined several civil rights groups on an amicus brief in support of a petition for writ of habeas corpus seeking the release of a 63-year-old transgender woman from Eastern Correctional Facility, a men’s prison in Ulster County, New York, due to the risk that COVID-19 poses to her health. The woman, Cathy Citro, has multiple chronic health conditions, including diabetes, asthma, and high blood pressure, that make her uniquely vulnerable to suffering severe illness if she were to contract COVID-19.
The amicus brief, written by Cornell Professor Cynthia Grant Bowman on behalf of New York State law professors and major civil liberties and LGBT legal advocacy organizations, focuses on the availability of the writ of habeas corpus to remedy situations such as Citro's, where a pandemic has rendered prison conditions unconstitutional. Citro was released shortly after the amicus brief was submitted.
CHLP drafted a friend-of-the-court brief in support of Galen Baughman’s petition for appeal of his civil commitment to the Virginia Supreme Court. CHLP’s Anne Kelsey and Virginia attorney Cary Citronberg represented the groups that joined the brief, including GLBTQ Legal Advocates and Defenders, Health Professionals Advancing LGBTQ Equality, the O’Neill Institute for National and Global Health Law, Brad Sears J.D., the National Center for Reason and Justice, and the National Center for Lesbian Rights.
Baughman is a gay man and advocate who was civilly committed and then placed on indefinite intensive supervision due to a finding, based on non-sexual texts he exchanged with a 16 year-old living in another state, that he is a “sexually violent predator” likely to commit a violent sex offense in the future. CHLP's brief challenges the methods used to establish “sexually violent predator” status, including expert testimony by a psychiatrist who did not personally evaluate Baughman, a diagnosis that is not accepted by psychiatrists, an assessment tool that is more likely to penalize gay men, and reliance on a vague concept of “grooming” that could apply to any communication with a teenager. The brief also argues that the treatment of Baughman is part of a long tradition of legally sanctioned discrimination based on sexual orientation in Virginia.
If you are aware of anyone charged in an HIV exposure or transmission case, please refer them or their lawyer to CHLP for assistance at 212-430-6733 or [email protected].
The Positive Justice Project (PJP) is a national campaign of organizations and individuals, including those living with HIV, viral hepatitis, and other infectious diseases; medical and public health professionals; law enforcement; community organizers; advocates; attorneys; sex workers; social scientists; and others working to end disease and identity criminalization in the United States. We advocate at the federal and state level; create resources to guide policy reform; support attorneys working on HIV criminal cases; and educate, organize, and mobilize communities and policymakers in the United States. The Center for HIV Law and Policy provides ongoing coordination of the Positive Justice Project with the active support of the PJP Partners, the PJP Advisory Group, and the many individual and organizational members of the PJP.
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Legal Disclaimer: CHLP makes an effort to ensure legal information is correct and current, but the law is regularly changing, and the accuracy of the information provided cannot be guaranteed. The legal information in a given resource may not be applicable to all situations and is not—and should not be relied upon—as a substitute for legal advice.