The PJP Update - September 2015

• California advocates organized three forums, HIV Is Not A Crime, Criminalizing It Is, hosted by the Los Angeles HIV Criminalization Community Forum in Los Angeles, PWN-USA in San Francisco, and the Fresno HIV Criminalization Community Forum in Fresno in August.
• The California HIV Criminalization Working Group is refining the draft modernization bill CHLP and the Williams Institute developed in 2013, with the goal of introducing it in the next legislative session.

COLORADO

• The Colorado HIV De-criminalization Task Force has a new name.S.T.I.G.M.A. (STI Grassroots Modernization Alliance). You can find them on Facebook (they also refer to themselves as The CO Mod Squad.)
• With the tenacious leadership of PWN-USA Board member Barb Cardell, STIGMA is pushing forward its HIV de-criminalization advocacy and outreach work and currently is planning four educational forums on criminalization around the state.
• Colorado STIGMA also is working on a draft modernization bill for possible introduction to the next session of the Colorado legislature. As Barb Cardell sagely stated in a recent email, “We are taking the looooonnnnnnggggg term strategy.”
• Upcoming Events/Meetings/Forums:

Next Meeting: September 29, 2015 6-8PM Mountain Time.
 

GEORGIA

• Led by Jeff Graham, Executive Director of Georgia Equality, the GA group submitted a draft bill to the Georgia Department of Public Health (DPH) for consideration in the DPH agenda for 2016.  The bill was drafted by Steve Scarborough, an Atlanta criminal defense attorney, and Mayo Schreiber, CHLP’s Deputy Director. If the GA DPH takes on the bill as part of its policy agenda, it will go to the Governor for consideration for his legislative agenda for the 2016 legislative session, significantly increasing the likelihood of passage in the legislature. The bill is based on the PJP’s Guiding Principles For Eliminating Disease-Specific Laws, released earlier this year. The Georgia HIV Criminalization Working Group decided to build on the principles by adding a statement on the reality of racial disparity in the criminal justice system.
• The DPH is meeting this month and there should be feedback shortly about its response, acceptance, and concerns with the draft.  If the DPH does not adopt the draft, the working group will move forward on its own to introduce it in the legislature.

Upcoming Events/Meetings/Forums:
Next Meeting: The week of October 12th, time and date to be determined.
 

MISSOURI

• Kansas City HIV de-criminalization advocates Latrischa Miles, Diane Burkholder, and Holly Hanover have been meeting weekly to discuss education opportunities in their area and next steps in pursuing de-criminalization.  Diane has been working with One Struggle in Kansas City and Black Lives Matter in St. Louis to build relationships and emphasize the racial disparity and social justice issues that co-exist in HIV criminalization and the broader work of these groups.
• Jeanette Mott Oxford, Executive Director of Empower Missouri has joined the conversations about anti-criminalization work and is investigating ways to build her agency’s capacity to take the issue up.
• Advocates inside Missouri and across the U.S., outraged by the arrest and treatment of former college wrestler Michael Johnson for being sexually active and HIV positive, convened webinars and discussions to consider the implications of the case and how best to assist Michael. CHLP's Deputy Director Mayo Schreiber worked with attorneys at Gibbons in New Jersey to draft a pre-sentencing brief, while Mayo reached out to Michael’s family and friends in Missouri to submit statements in support of Michael to accompany the brief. Despite coordinated advocacy and commentary on the case, Johnson was sentenced to a total of 60.5 years; with some of the sentences running concurrently, Michael received an effective sentence of 30.5 years. Mayo is now working with Michael and his appellate attorney to assist with the appeal as appropriate.
• In a related development, on April 3rd a bill (HB 1181) was introduced in the Missouri House of Representatives to make it a felony for a person living with HIV “to project saliva at another person”. PJP’s Steering Committee sent a letter in opposition to HB 1181 to the House Civil and Criminal Proceedings Committee. The committee also heard from local advocates and the Human Rights Campaign submitted a written statement in opposition to the bill. Apparently the opposition was successful; the bill was removed from the hearing schedule and there has been no further action on it.

RHODE ISLAND

• Earlier this year, a new HIV criminalization bill, H 5245, was introduced in the Rhode Island General Assembly. Rhode Island has been in the minority of states that do not have an HIV-specific criminal law. CHLP staffer Lauren Fanning’s outreach to New England-area advocates produced significant support from local and national organizations. The Rhode Island Public Health Institute, The Rhode Island ACLU, Positive Women’s Network-USA and GLAD were among those who submitted testimony against the bill. The PJP Steering Committee also submitted a letter of opposition; and SERO reached out to members of the RH House Committee on the Judiciary with PJP member resources, including anti-criminalization resolutions and statements from the President’s Advisory Council on HIV/AIDS (PACHA), the HIV Medicine Association (HIV MA), the Association of Nurses in AIDS Care (ANAC), the Department of Justice (DOJ), the National Association of State and Territorial AIDS Directors (NASTAD), and the 2013 Mayor’s Resolution on HIV Criminalization. The bill was tabled for further study.

TENNESSEE

• Aaron Campbell, who has been the principal lead on TN HIV de-criminalization efforts, left Nashville Cares at the end of July; Scotty Campbell joined Nashville Cares in August 2015 as the new Director of Public Policy.  Welcome!  Scotty was on board in time to participate in the working group August call.
• Tennessee advocates Tiffany Moore and Sara Beth Myers worked with legislators to pass Public Chapter No. 469 this year, allowing for some of those newly convicted of aggravated prostitution to avoid becoming sex offenders and some already on the registry to have sex offender status expunged and be removed from the registry.
• Local wisdom is that conversations that occurred while working on PC 469 have provided an opportunity to move forward with further modernization of TN’s HIV criminal law. Tennessee advocates are now working with CHLP on a draft, with current plants to introduce it in the 2016 session as a messaging tool and a vehicle to educate, assess support and opposition, and to align allies. The hearings and votes on a bill likely will take place in 2017.
• Generous funding from the Robert Wood Johnson Foundation Center for Health Policy at Meharry Medical College will support Dr. Shannell McGoy, Dana Asbury of Healthy and Free Tennessee, and other staff to support local advocates’ modernization work.

Upcoming Events/Meetings/Forums:
Next Meeting: September 30, 2015 at 2:00PM Central Time
Normally meetings are the 4^th Thursday at Noon Central Time.  September was changed to accommodate State Department of Health Meetings that includes local working group members.
 

TEXAS

• Four bills dealing with HIV were introduced in Texas during first half of the 2015 legislative session. One, SB 779, was the focus of Texas advocates. It would have changed the law to allow a court to obtain HIV test results with a grand jury subpoena.
• A large local and national coalition of organizations and individuals participated in efforts to defeat SB779. CHLP worked with Texas advocates to write an opposition sign-on letter, which was submitted with supporting documents to the senate committee considering the bill.
• Despite opposing testimony, the bill passed in the Senate on May 6 and was sent to the House. Two weeks later the House Criminal Jurisprudence Committee heard the bill and reported it out of committee. The final step for passage required taking the bill to the floor of the House for a second reading before midnight Tuesday, May 26. But that deadline was missed and the bill was eliminated from consideration for the legislative session, which officially ended on June 1. 

CHLP assists criminal defense attorneys in HIV exposure/transmission cases.  We are providing back-up help, from identifying experts to drafting amicus briefs, in cases in Missouri, Florida, Indiana, New York, Ohio and Oklahoma. Among the cases we currently are involved in are the Michael Johnson and Nushawn Williams cases in Missouri and New York. 
 
Deputy Director Mayo Schreiber and two law firms providing pro bono assistance are working with the Missouri Public Defender’s Appellate Division on the appeal in Mr. Johnson’s criminal case. Mr. Johnson, a college student at Lindenwood University in St. Charles, Missouri, was given a draconian sentence of thirty and one-half years when the court found that he violated §191.677 of the Missouri Criminal Code,[1] recklessly infecting or risking infection of others with HIV when knowingly infected with HIV. The complainants in the case were men his age met through online “hook-up” sites.  His appeal should be filed by the end of this year. 
 
CHLP also is assisting Nushawn Williams. Mr. Williams was sentenced in two criminal cases in 1999 for statutory rape (sex with a minor) and reckless endangerment. In April 2010, while Mr. Williams was still incarcerated but shortly before the maximum expiration date of his sentences for reckless endangerment, the State of New York filed a proceeding under the Mental Hygiene Law alleging that Mr. Williams was a detained sex offender who required civil management. In the beginning of 2014, after various legal proceedings, the Supreme Court of New York ordered his civil confinement to a treatment facility.  His attorney has filed an order challenging that decision.  Even though Mr. Williams has served his full criminal sentences, New York State appears intent on keeping him confined indefinitely based on what his attorney argues are erroneous findings of law, a violation of his due process rights, and prosecutorial misconduct. Underlying the various legal issues in the case is the state’s unacknowledged impetus to keep Mr. Williams permanently detained due to his HIV positive status. This fall, CHLP will be filing an amicus brief in Mr. Williams’ case that will argue, inter alia, that an HIV positive diagnosis should not be a basis for civil commitment.
 
Issues for which we have been consulted in other cases are varied, including possible placement on the sex registry for “knowingly infecting HIV while performing an act of prostitution,” “knowingly engaging in conduct reasonably likely to transfer HIV virus” for spitting, a similar violation of law for biting, and the immigration detention of a man living with HIV. We were recently contacted about an appeal in a case in Ohio, where a young woman was sentenced to seven years after pleading to one count of felonious assault for allegedly having sex without informing her partner of her HIV positive status. It appears that the claimants in the case have not seroconverted. Such a sentence is an extreme miscarriage of justice. 
 
In these cases we have counseled defendants and their family members, provided legal and trial strategy advice to their attorneys, referred medical experts and immigration attorneys, and drafted sections of briefs. 
 
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 him or her, or his or her lawyer, contact CHLP (212-430-6733) for assistance.

Routes, Risks And Realities of HIV Transmission and Care: Current Scientific Knowledge and Medical Treatment, The Center for HIV Law and Policy (August 2015)
 
Almost every type of HIV-related discrimination and associated stigma—from denials of medical treatment or admission to schools and camps to unwarranted felony prosecutions for HIV “exposure”—is rooted in gross misperceptions about the actual routes, risks and current realities of HIV transmission and treatment. Extraordinary progress in treatment options has transformed what it means to live with HIV, yet public understanding of HIV seems largely stuck in the 1980’s, before HIV was a treatable, chronic disease.
 
This fact sheet was created as part of a larger effort to arm advocates and policy makers with concise, authoritative information that addresses the major areas of ignorance with facts about what is currently well-known about how HIV is (and is not) transmitted, and how modern HIV care has transformed the health and longevity of people living with HIV while reducing transmission to others.
 
The contributors to and reviewers of the fact sheet are Dr. David Wohl, Associate Professor/Site Leader at Univ. North Carolina AIDS Clinical Trials Unit at Chapel Hill, Director of the North Carolina AIDS Education and Training Center, and Co-Director of HIV Services for the N.C. Department of Public Safety; Dr. Wendy Armstrong, Associate Professor of Medicine at Emory Univ. School of Medicine, and Medical Director, Ponce de Leon Clinic/Grady Health System; and Dr. Joseph Sonnabend, one of the earliest researchers and most respected clinicians in the field of HIV.
 

 
Guiding Principles for Eliminating Disease-specific Criminal Laws, The Steering Committee of the Positive Justice Project (2015)
 
After much discussion, the PJP Steering Committee agreed on the following set of principles to guide the modernization of state HIV criminal law modernization regardless of the particular jurisdiction.  They have proven to be a useful tool to guide discussions and build consensus on specific state law proposals for reform. Your feedback, comments, suggestions on these Principles are encouraged. Some advocates have tailored the principles for their particular group by adding an additional principles on the need to recognize racial and gender bias in the criminal law.
 
Please send your feedback or suggestions to Senior Community Outreach Specialist Lauren Fanning, at [email protected]
 
The Guiding Principles state:

1. The Positive Justice Project is dedicated to eliminating disease-specific criminal laws that base liability on an individual’s health status rather than on the intent to harm another individual. We oppose the use of felony laws, and the associated lengthy terms of incarceration that treat health status as evidence of wrongful intent, and transmission of a treatable illness as equivalent to manslaughter, vehicular homicide, and other forms of assaults that pose immediate, life-threatening harm to another.
2. The Steering Committee of the Positive Justice Project supports collaboration among all stake holders and a broad range of allies to end the use of criminal laws that target people for arrest and punishment on the basis of a diagnosis of HIV or other disease.
3. Experience strongly suggests that modernizing current HIV and disease-specific criminal laws is preferable to pushing for outright repeal:
   1. Incorporating principles of intent and proportional punishment to modernize existing criminal laws is the most promising way to ensure fair treatment of all people with misunderstood infectious diseases; and
   2. Modernization reduces the risk that repeal or lack of an HIV-specific criminal statute will result in prosecution of people living with HIV under traditional assault and battery laws, as has happened in some states.
4. We embrace the following unifying principles for modernizing criminal law as it affects HIV and other diseases:
   1. No specific disease or condition should be the focus of a criminal law or sentence enhancement;
   2. Prosecution must prove specific intent to harm coupled with conduct that is reasonably likely to accomplish the intended harm;
   3. Evidence that a defendant took or tried to take steps to reduce the risk of transmission demonstrates lack of an intent to harm;
   4. Because of the difficulty of fairly proving or defending against a charge of specific intent to transmit disease when airborne or casually transmitted diseases are involved, diseases that can be passed from person to person in the course of everyday contact should not as a matter of law or policy form the basis of a criminal prosecution or penalty enhancement;
   5. Any penalty must be proportionate to the harm and prioritize alternatives to incarceration, and classification as a sex offender should never result;
   6. A misdemeanor rather than a felony law carries sufficiently serious consequences for intentional transmission of a treatable infectious disease; and
   7. Proposals to modernize laws should not create more serious crimes related to exposure to or transmission of a specific disease or significantly increase the scope of penalties for any individual on the basis of a particular health condition or disease.

Accurate Information = Power! 

For free access to legal, scientific and policy resources to increase your advocacy power, search the HIV Policy Resource Bank, an annotated collection of fact sheets, court cases, scientific research reports, legal and medical guides, pleadings and briefs, policy analyses and recommendations, and other materials to inform and boost your work.