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 photo CriminaliseHate_Badge_Lrg_EN_rgb_zpsa4714945.pngI am not an expert on HIV/AIDS.  But there are related stories that come across my desktop.  This diary is a sad attempt at pasting some of those stories together.  I apologize in advance for the disconnectedness.

So what starts out as a discussion of the results of a survey will morph into the criminalization of of people who are HIV+ and then emerge in the need to reauthorize the Ryan White CARE Act.

 photo hivcrime_zpsf55e10b1.jpgIn May findings of the National HIV Criminalization Survey, a product of the Sero Project, were presented at the National Transgender Health Summit.

The survey discovered that 58% of transgender or gender nonconforming people feel it is reasonable to avoid HIV testing, 61% thought it was reasonable to avoid disclosing one's status to sex partners, and 48% thought it was reasonable to avoid accessing HIV treatment, all because of fear of HIV criminalization and/or distrust of the US criminal justice system.


These findings don’t surprise us.  The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.

--Cecilia Chung, Senior Strategist, Transgender Law Center and board member, Global Network of People Living with HIV (GNP+)

Criminalization of a disease may not be something most Americans think about, choosing to believe that it is something we find only in Africa.  You can read more about that at HIV and the Law.  But the truth of the matter is that criminal laws against HIV transmission that exist across the US are selectively enforced.  Such laws allow for prosecution of people who do not disclose their HIV status, even if they did not know what it was at the time of sexual intercourse and transmission risk is minimal or non-existent.

More than 3000 people living with HIV participated in the survey, which was conducted online by Eastern Michigan University from June to August 2012.  The senior researcher was Laurel Sprague, who was also a PhD candidate at Wayne State University.

Laws that criminalize non-disclosure of HIV status raise key issues about community norms, expectations of fair treatment by authorities, privacy and the increased vulnerability of certain communities.

--Laurel Sprague

Nearly 25% of HIV-positive respondents said they knew one or more people who did not get tested because they feared criminal prosecution.

While the results revealing that HIV criminalization discourages HIV testing were not surprising, the analysis of transgender/gender nonconforming respondents revealed that those respondents "faced increased levels of vulnerability in relation to the U.S. justice system."

The majority (57%) of HIV+ gender-variant respondennts feared false accusations of nondisclosure, whereas only 14% of them felt an American HIV+ person could get a fair hearing if accused of non-disclosure.

When transgender and third sex respondents were asked their opinions about HIV criminalization, two out of three respondents (67%) said that non-disclosure of HIV status should not be criminalized.  When asked if a sex worker living with HIV should disclose to clients, most transgender and third sex respondents (41%) said it depends on the circumstances.  In fact, transgender and third sex respondents were the most likely to focus on the context (“it depends on the circumstances”) when determining whether there should be criminal charges for non-disclosure related to sex, drug use or sex work.
Sprague shared some quotes:
In order to file charges, I [would have] had to disclose my rape, my [HIV] status and I would have to give up my privacy and be subjected to public scrutiny.

--a transwoman, explaining why she didn't press charges for nondisclosure

I think in cases of rape, incest and other power- or force-related situations, prosecutions should go forward. Otherwise, NO!

--a genderqueer respondent

Another trans woman said that she didn’t press charges for non-disclosure because of the “difficulty in proving in court that he had infected me—and also accepting that we took equal risk in being intimate without protection.”
The responses highlight a critical need for access to legal education and legal services, safe and confidential locations for accessing health care, and support for spaces where transgender people living with HIV can share their experiences, provide mutual support, and work together to identify resilience strategies and advocacy priorities.
Transgender communities are at the highest risk of HIV prevalence in the United States.  The HIV epidemic among transpeople is contributed to by the high incidences of homelessness, unemployment, attempted suicide, violence, stigma, and limited access to health care.  The infection rate for transwomen was 2.6% in 2009, as compared to 0.6% of the general population.  A more current figure is that transgender women are 49 times more likely to be HIV compared to other populations.
Transgender women are the fastest-growing population of HIV-positive people in the country.

--Miss Major, executive director of San Francisco's TGI Justice Project

Transgender women have been contracting HIV since the beginning of the epidemic, but the data collection has not always allowed for capturing gender identity and more often than not transgender women were lumped in with MSM or men who have sex with men.  Additionally, there has been very little specific outreach, prevention strategies, or public education specifically for transgender women or gay and bisexual transgender men.  What may be occurring is more accurate data collection and a growing awareness of the need for services and prevention efforts targeted for transgender women and also for transgender men.

--Gunner Scott, director of programing at Pride Foundation

The Ryan White program, enacted in 1990, has been amended and reauthorized by Congress in 1996, 2000, 2006, and 2009.  The current authorization is set to expire on September 30, 2013.  There is speculation that it may not be reauthorized in lieu of the Affordable Care Act.  That could be devastating to people living with HIV/AIDS.  The argument in favor of reauthorization is made here.

Originally posted to Robyn's Perch on Sun Jul 21, 2013 at 04:01 PM PDT.

Also republished by TransAction, Voices on the Square, LGBT Kos Community, and HIV AIDS Action.

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Comment Preferences

    •  Being sensitive to these types of issues (3+ / 0-)
      Recommended by:
      rserven, micsimov, Calamity Jean

      ...not only the LGBT community, but as an American, I have to say:

      Are you effing kidding me.

      Without that money, Outreach dries up. Education dries up. HIV/AIDS rates go up.

      With the already difficult task of reaching reaching more and more cultures who are inculcated against talking about these issues.

      Republicans have no souls. As an atheist, I hope I'm in the same hot-tub in Hell so I can spend eternity laughing at their ass....

      (don't try to parse that, please... an emotional response)

      "Wealthy the Spirit which knows its own flight. Stealthy the Hunter who slays his own fright. Blessed is the Traveler who journeys the length of the Light."

      by CanisMaximus on Sun Jul 21, 2013 at 09:08:15 PM PDT

      [ Parent ]

  •  Criminal justice industry is a cancer (8+ / 0-)

    Re-criminalizing abortion of part of the same thing as HIV criminalizing. There is a laundry list.

    Censorship is rogue government.

    by scott5js on Sun Jul 21, 2013 at 04:09:30 PM PDT

  •  I learned a lot from this diary (8+ / 0-)

    I didn't know the Ryan White program was set to expire, and that it might not be renewed.

    I'm against the criminalization of any illness. That also is happening with the war on drugs and can even happen w/ mental illness in addition to HIV.

    As a member of Courtesy Kos, I am dedicated to civility and respect for all kossacks, regardless of their opinions, affiliations, or cliques.

    by joedemocrat on Sun Jul 21, 2013 at 04:26:03 PM PDT

    •  The template for law enforcment and disease (3+ / 0-)
      Recommended by:
      rserven, FindingMyVoice, lostboyjim

      Tuberculosis
      http://www.cdc.gov/...

      Case examples

      A 53-year-old woman sought by law enforcement because she might expose people to tuberculosis tried to run from officers Wednesday morning, but was captured minutes later in a patch of woods in north Jackson County.
      Police issued an arrest warrant for Hicks on a charge of reckless conduct. She was considered a public risk due to her tuberculosis and continued failures to get treatment, according to Oconee County sheriff’s Chief Deputy Lee Weems.
      http://onlineathens.com/...
      A Stockton man was arrested on Tuesday after not making himself available for tuberculosis treatment, according to the San Joaquin County District Attorney’s Office.
      The county has had more than 30 tuberculosis prosecutions since 1984, prosecutor Stephen Taylor said. It also has prosecuted a woman accused of knowingly giving syphilis to her sex partners and refusing treatment.
      http://sanfrancisco.cbslocal.com/...

      “Texas is a so-called red state, but you’ve got 10 million Democrats here in Texas. And …, there are a whole lot of people here in Texas who need us, and who need us to fight for them.” President Obama

      by Catte Nappe on Sun Jul 21, 2013 at 05:15:17 PM PDT

      [ Parent ]

      •  In fairness . . . (8+ / 0-)

        tuberculosis is actually contagious.  An infected person can infect others relatively easily because the bacterium is airborne.  Thus, tuberculosis and HIV are not similar in this respect.

        Whether people should be prosecuted for such things is another matter, of course.  I'm simply pointing out that unlike TB, HIV cannot be spread through casual contact.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Sun Jul 21, 2013 at 05:46:00 PM PDT

        [ Parent ]

        •  No, but SEXUAL contact is the vector (2+ / 0-)
          Recommended by:
          rserven, marykk

          Not disclosing your status to a sexual partner is, at least, very irresponsible.  

          The laws don't criminalize HIV, they criminalize non-disclosure.  That's an important difference.

          Minority rights should never be subject to majority vote.

          by lostboyjim on Mon Jul 22, 2013 at 09:24:24 AM PDT

          [ Parent ]

          •  Sigh (2+ / 0-)
            Recommended by:
            lostboyjim, rserven

            The laws actually have nothing to do with whether sexual conduct is a vector for HIV transmission.  As I mentioned elsewhere in these comments, transmission of the virus is not necessary for criminal liability.  

            And please allow me to point out that non-disclosure of one's HIV status is certainly no more irresponsible than having unprotected sex.  So an HIV-negative person who is truly concerned about protecting himself from HIV need only take the appropriate precautions to prevent transmission.  He doesn't have to depend on a poz person disclosing his status.  A condom works just as well when status is not disclosed as when status is disclosed.

            These laws do nothing but stigmatize HIV+ people and place us in the category of criminals when we fail to disclose our status.  In many if not most states, it doesn't matter if we use condoms during the encounter; it doesn't matter if we have undetectable viral loads and are thus practically incapable of transmitting the virus; it doesn't matter if we have no intent to infect the other person; and again, it doesn't matter if the person isn't actually infected.  Criminal liability attaches even when the complainant has suffered no harm whatsoever.  It's hard to find many criminal laws that require neither intent from the perpetrator nor harm to the victim.

            Finally, these laws are a disaster from a public health perspective.  Since many of them criminalize only those of us who actually know our status, they discourage people from getting tested.  Once you've been tested and know you're infected, you can no longer claim ignorance as an excuse.  We should be trying to encourage testing, not discourage it.

            But as is usually the case with laws involving gay men and sex, sensible public health policy isn't the motivation.  Homophobia usually is.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Mon Jul 22, 2013 at 09:55:40 AM PDT

            [ Parent ]

  •  It's not an illogical fear... (4+ / 0-)

    especially considering the Rethugs attitude towards anyone who doesn't conform to their very VERY specific gender identity politics/sexual politics, etc.

    Of course, due to transgender people's natural reaction to the group who actually is out to get them, it becomes a cycle of the Rethugs blaming the victims of the disease because "They don't seek treatment and NEED to be regulated."

    I don't have the answer.  Other than stripping Rethugs of every bit of power they have, of course.  (But that's the solution to MANY problems.)

    I don't blame Christians. I blame Stupid. Which sadly is a much more popular religion these days.

    by detroitmechworks on Sun Jul 21, 2013 at 04:53:15 PM PDT

  •  The Ryan White Care Act was part of the problem. (7+ / 0-)

    When it was originally enacted, the Ryan White legislation actually required states seeking grants to criminalize the non-disclosure of HIV status.  Under former 42 U.S.C. § 300ff-47(a):

    The Secretary may not make a grant under section 300ff–41 of this title to a State unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any HIV infected individual, subject to the condition described in subsection (b) of this section, who—

    (1) makes a donation of blood, semen, or breast milk, if the individual knows that he or she is infected with HIV and intends, through such donation, to expose another to HIV in the event that the donation is utilized;

    (2) engages in sexual activity if the individual knows that he or she is infected with HIV and intends, through such sexual activity, to expose another to HIV; and

    (3) injects himself or herself with a hypodermic needle and subsequently provides the needle to another person for purposes of hypodermic injection, if the individual knows that he or she is infected and intends, through the provision of the needle, to expose another to such etiologic agent in the event that the needle is utilized.

    Fortunately, I believe this section was repealed in 2000, but by then, states had already passed laws criminalizing non-disclosure, and despite the language of the federal statute, many of those laws, like Iowa's, for example, don't require that the poz person have any intent to transmit the virus.  And in many if not most states, actual transmission is not required to establish criminal liability.

    Don't get me wrong.  We need Ryan White, but we should remember that it was originally passed at a time when AIDS hysteria was at its height, and the law reflects much of the serophobia of those times.

    Anyway, this is an excellent diary, Robyn.  Many thanks for bringing this issue to DailyKos.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Sun Jul 21, 2013 at 05:42:35 PM PDT

  •  Isn't it a moral obligation (3+ / 0-)
    Recommended by:
    rserven, lostboyjim, marykk

    of a person knowingly carrying HIV or any other STD to disclose that fact to the person who is about to have sex with them?

  •  For those unfamiliar with who Ryan White was, (2+ / 0-)
    Recommended by:
    micsimov, rserven

    I highly recommend reading the wiki entry about him:

    http://en.wikipedia.org/...

    At Ryan's funeral, his pallbearers included Elton John, Howie Long, and Phil Donahue. On the day of his funeral, a tribute to Ryan written by Ronald Reagan was published in the Washington Post, which you can read here:

    http://articles.dailypress.com/...

  •  I am the Prison Support Coordinator (3+ / 0-)
    Recommended by:
    lostboyjim, rserven, marykk

    for HIV.AIDS in my community. More and more of the, primarily men, I meet with have been incarcerated for non-disclosure of status. The Supreme court of Canada recently stated that if someone has an undetectable Viral load and uses a condom, they are not obligated to disclose their status. There is still a lot of confusion around this issue as it doesn't even address sharing needles etc. To clarify, I do NOT work for the Correctional system, but rather for a community based agency who provides support to those with HIV

    "Another world is possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

    by jazzizbest on Mon Jul 22, 2013 at 08:22:58 AM PDT

    •  very interesting (1+ / 0-)
      Recommended by:
      rserven

      So the opinion of the court is that an undetectable viral load means transmission is impossible?

      Minority rights should never be subject to majority vote.

      by lostboyjim on Mon Jul 22, 2013 at 09:29:04 AM PDT

      [ Parent ]

      •  No (2+ / 0-)
        Recommended by:
        lostboyjim, rserven

        they still insist that a condom is used as well, but recognize that an undetectable VL significantly lowers risk of transmission

        "Another world is possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

        by jazzizbest on Mon Jul 22, 2013 at 09:56:58 AM PDT

        [ Parent ]

        •  Agreed (1+ / 0-)
          Recommended by:
          rserven

          Is it becoming a 'thing' for undectible to BB without disclosure because they feel the risk of transmission is so low?

          Minority rights should never be subject to majority vote.

          by lostboyjim on Mon Jul 22, 2013 at 10:07:35 AM PDT

          [ Parent ]

          •  well that depends (2+ / 0-)
            Recommended by:
            lostboyjim, rserven

            the problem was that depending on which jurisdiction you were charged in, the charges and sentence/outcome were different. Some followed the science (Low VL) while others refused to acknowledge the science. The risk of transmission with a low VL is certainly diminished but not completely impossible. Also noted that those on Truvada had a much less risk of infecting others. Here in Canada charges were getting very common, I work with some men who were sentenced anywhere between 2 yrs to life. That is why the supreme court had to finally make some sort of determination regarding disclosure

            "Another world is possible, she is on her way. On a quiet day, I can hear her breathing." Arundhati Roy

            by jazzizbest on Mon Jul 22, 2013 at 12:45:19 PM PDT

            [ Parent ]

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