On January 10, 2018, the Williams Institute at UCLA School of Law released the first-ever report of HIV criminalization in the US state of Georgia. The report follows previous studies examining available data on all arrests or prosecutions resulting from enforcement of HIV criminalization laws in a single jurisdiction. These studies have been conducted to fill gaps in understanding how laws are enforced because tracking cases can be very difficult. There is no national database recording arrests or prosecutions under HIV criminalization laws, reporting systems vary by state and city, and the quality and comprehensiveness of records can vary even within jurisdictions.
Among the first studies collecting comprehensive data was an examination of all persons charged with criminal HIV exposure and aggravated prostitution within the Nashville, Tennessee prosecutorial region between 2000 and 2010. Researchers found that the majority of people charged and convicted for these HIV criminal offenses in the Nashville region were poor, from marginalized groups, and often suffered from addiction, mental health, and homelessness issues. Furthermore, researchers found that over one-third of the HIV exposure arrests involved non-sexual incidents such as biting or spitting and nearly half of the prostitution cases involved solicitation of oral sex; these behaviors pose minimal or no risk of HIV transmission.
More recently, the Williams Institute examined criminal offender record information (CORI) data for all persons came in contact with the California criminal justice system from 1988 to 2014 under HIV criminalization laws. The Williams Institute found that HIV criminalization in California disproportionately impacted women and people of color. For example, 44 percent of the people arrested, charged, or prosecuted under HIV criminalization laws in California were women, even though women only make up 13 percent of the state population of people living wit HIV. Similarly, 51 percent of people living with HIV in California are Black or Latino/a, but 67 percent of people experiencing HIV criminalization are Black or Latino/a. These data helped to inform the successful effort to modernize California’s criminalization laws in October 2017, with reforms taking effect on January 1, 2018. The reforms include requiring prosecutors to demonstrate that a defendant had a specific intent to transmit HIV and reducing the penalty for not disclosing HIV-positive status prior to sexual activity from a felony charge punishable by up to 8 years of imprisonment to a misdemeanor punishable by up to six months in jail.
Findings on HIV criminalization in Georgia are consistent with these prior studies. Like the data in Nashville and California, the data in Georgia point to race-, sex-, and geographic-based disparities in the application of HIV criminalization laws. Yet a distinctive finding was high rates of enforcement in rural areas of Georgia. In some smaller counties, as many as 10 percent of the residents living with HIV had experienced an HIV-related arrest.
Below are some of the main findings from the Williams Institute report on HIV criminalization in Georgia. You can read the report here.
*Originally published 1/12/18 by Marlene G. Fried & Susan Yanow on Rewire
Worldwide, there is an enormous gap between having the legal right to abortion and being able to access one. This is painfully obvious in the United States. While abortion is legal, its opponents have successfully decreased access to services through restrictive laws; bans on Medicare, Medicaid, and private insurance coverage; and violence directed at clinics and providers.
These strategies have successfully put abortion clinic services out of reach for many people. Their long-range goal is to overturn Roe v. Wade and re-criminalize abortion. In the meantime, legal and policy barriers too often render the legal right to abortion meaningless, especially for those individuals and communities who are already the most vulnerable.
The option of self-managing one’s abortion has in response become more salient. Abortion pills are a very safe option for ending an unwanted pregnancy, as long as people have accurate information about how to use them and reliable sources for obtaining the medicine. It is critically important that a person who is unable or unwilling to go to an abortion clinic knows the correct dosage of medication, how to recognize the signs of a complication, and how to get medical care if needed without risking legal prosecution.
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It is always spring for human rights. Old ideas embedded in fundamental values do not lose the boundless hope and energy of their birth. In a country that holds its first democratic election or peaceful transition of power, democracy is more than an idea and practice that has existed for centuries, but a new reality worthy of celebration as though a birth in the family, for it may be the new birth of a nation. Human rights are not only principles laid out nearly seven decades ago in the Universal Declaration of Human Rights, with roots far deeper, but a constant struggle and promise — today’s cause, today’s hope.
And so it is with the proposed treaty on the right to health, the Framework Convention on Global Health (FCGH), first proposed a decade ago. While we have seen significant improvements in global health in the ensuing years, the needs that it would address – health equity, accountability, participation, national and global governance for health, health financing – remain every bit as pressing today, fundamental to securing health justice and a healthy future. And like a country that has just experienced its first peaceful transition of power to a new government, or people exercising newfound freedoms, the FCGH is experiencing a rebirth.
That rebirth comes with the formation of the Framework Convention on Global Health (FCGH) Alliance on December 10, 2017 – this past Human Rights Day. The FCGH Alliance is a new NGO, formed under the Swiss Civil Code and with its address both in Geneva and in the hopes and commitment of people and organizations throughout the world in the global network that will be the Alliance’s driving force.
I have been an FCGH advocate for years, and seen its growth. As tends to be the case with innovative new ideas, the innovating continues. The vision for the FCGH has evolved. The right to health has moved to its core, and central areas of the treaty have come into focus: addressing the failings of national and global health accountability; persisting health inequities and marginalization, from marginalized communities to marginalized nations; inadequate health financing, with both national budgets and international assistance falling short, and; lack of policy coherence, with different laws and policy directives potentially at odds with the right to health (such as in the area of access to medicines, where patent protections may undermine people’s right to medicines).
Over the past several years, this vision has drawn support from some of the world’s most formidable health advocates, who are proving willing to commit their time (everyone is a volunteer), energy, and passion to the FCGH. They come from all walks of life and regions of the world.
Take just two of the Vice Chairs of the FCGH Alliance, among seven individuals and organizations that will lead the FCGH Alliance in its formative years. One is the Treatment Action Campaign, its significance for South Africa’s struggle against AIDS and for the global AIDS movement analogous to Solidarity’s importance to Poland’s struggle for democracy and the rise of democracy in the era of the fall of the Berlin Wall and end of the Soviet Union. Another is Leslie Ramsammy, for ten years Guyana’s minister of health, during which time he was esteemed by his peers, chosen to be the president of the 61st World Health Assembly (2008). He is already a visionary in his own quest for global health equity, having proposed a 75 X 25 initiative, seeking to raise the life expectancy in every country to at least 75 by the year 2025. He was already thinking of global treaties, proposing one to eliminate child mortality by 2025.
The Alliance’s officers are rounded out by our Chair, Martin Havia, Dean of the Torcuato Di Tella University Law School, Argentina; two more Vice Chairs, Gracia Violeta Ross, Bolivian Network of People Living with HIV/AIDS, and Eze Eluchie, People Against Drug Dependence and Ignorance, Nigeria; Adam Bertscher, who will serve as Secretary, and; Gabriella Sozanski, Coordinator of the Alliance for Health Promotion, serving as Treasurer.
Before this past December 10, a more informal coalition – first the Joint Action and Learning Initiative on National and Global Responsibilities for Health, and more recently the Platform for an FCGH – spearheaded FCGH advocacy. Case Gordon, co-founder of the IMAXI Cooperative – itself a global network advocating for the right to health, and comprised of people with serious diseases and disabilities – was the spark behind the creation of the FCGH Alliance. Nearly two years ago, he recognized that the FCGH had reached a stage where something more than an informal coalition was needed, a presence that could better bring more people and organizations on board, and proposed creating an FCGH NGO
Hence the idea of the FCGH Alliance, a membership NGO. Now it is here. I used to view organizational membership as exclusive, a barrier to engagement – and it can be just that – but I see now how, as I believe it is in our case, it can also be a form of inclusion. For the FCGH Alliance is not a club of the privileged or those who can afford to pay its fees (the Alliance does have fees, but they are low, with waivers available). Rather it is an organization with its door wide open to all who are committed to the FCGH and the precepts of the right to health, seeking to provide a platform and home to those who are in some quarters pushed aside, even hidden, rendered invisible. The FCGH will neither be or be perceived as being controlled in any way by one or several entities – or even the Alliance’s officers or its Executive Committee. Membership will give any individual, and any organization, a voice and vote in the future of the FCGH and the FCGH Alliance. The run-up to and formation of the FCGH Alliance has already significantly widened the group of those actively involved, and I am confident that it will continue to do so.
Become a part of the FCGH Alliance yourself, and help bring about the next stage in the further codification and realization of the right to health. For more information, please visit http://www.FCGHAlliance.org. You can also contact the FCGH Alliance through this form. Become a part of this spring for the right to health.
In recent days, the Trump Administration has created an uproar with its abrupt decision to dismiss all members of the Presidential Advisory Council on HIV/AIDS (PACHA). This is a troubling development, but one that has the potential to distract us from what matters: working collectively to end the HIV epidemic in the United States and around the world. I may have a unique vantage point from which to react to this news. I was President Obama’s first HIV Advisor and I oversaw the decision to revamp PACHA by terminating all appointees of the prior Administration and starting fresh at the beginning of the Obama Administration. More than that, President Obama came to office having pledged to develop a National HIV/AIDS Strategy for the United States, something we require from our partner countries in our global AIDS program, the President’s Emergency Plan for AIDS Relief (PEPFAR), but which we never had for the United States. It was my task to coordinate this effort. I was originally somewhat skeptical that any “Strategy” could produce lasting change, yet nearly eight years after the release of the first Strategy, I am amazed at the quantifiable results that have been produced. As a sign of its success, this nonpartisan plan that identifies priority actions for government and non-governmental stakeholders alike was updated in 2015 to guide the Nation’s efforts through 2020.
While HIV may be rarely front-page news these days, the United States continues to have a very serious epidemic with 1.2 million Americans living with HIV. Our public and private investments have produced remarkable results for the American people: new infections have begun declining and with effective treatment and quality medical care, people with HIV can live essentially a normal lifespan. Nonetheless, our progress has been uneven with gay and bisexual men and transgender women, along with Black and Latino communities especially disproportionately impacted. Combining HIV treatment for people living with HIV, supplying sterile syringes to people who inject drugs, offering condoms, and providing a daily pill to HIV negative individuals with significant risk for infection (called pre-exposure prophylaxis or PrEP), we have the tools to stop new HIV infections, but we need to get these tools to some of our most marginalized and traumatized communities. Continued progress does not solely depend on the federal government. Yet and still, presidential leadership matters. President Trump has an opportunity to move us dramatically closer to the day when HIV is no longer a public health threat. To get there and be a hero of this story, however, the Administration needs to both step up and step out of the way.
President Trump and his team have every right to appoint whomever they choose to provide advice on HIV policy. The sudden terminations of existing council members are alarming not in isolation, but they are happening after a year in which the Administration has worked strenuously to undermine the Affordable Care Act (ACA), legislation for whom people living with or at risk for HIV infection have been among its biggest beneficiaries. I do not believe that any single policy or action contributed more to achieving the nearly 20% decline in new HIV infections that occurred during the Obama Administration than the ACA’s reforms which expanded access to Medicaid and private insurance for people living with HIV.
In the last month, it also has been reported that the Administration has banned certain words from use in their budget submission to Congress. The Administration has the right to use any words it chooses to justify their priorities, but their priorities must respond to the needs of all communities heavily impacted by HIV. This is among the toughest issues to navigate through the political landscape because it involves sex and drugs, and is like salt in the wound of our cultural divide. In our diverse country, we can have differing views and values, but when investing public money, we need to rely on scientific evidence of what works best. When we released the National HIV/AIDS Strategy, we used such evidence to shift priorities over which interventions we would fund and how we would allocate funding. This did not always make our supporters happy. In some cases, the biggest losers were cities and states in Blue America that had done the most to fight HIV and the biggest winners were jurisdictions in Red America that, even when receiving more federal money, sometimes seemed indifferent to the people living with HIV in their own communities. These were tough changes, but we felt they were the right thing to do because it is what research data told us would have the biggest impact. It is almost laughable that the Administration is apparently asserting that CDC policies are based on science “in consideration with community standards and wishes.” Communities are often divided and we need objective scientific data to pull us out of the morass of conflict in order to show the public we are not wasting their resources and in order to move forward together.
Where does this leave us? For the HIV community, we cannot lose sight of what we need to do. We need to keep doing in 2018 what we did in 2017. That means we shout a little more loudly that we love our trans sisters and brothers, Black, Latino, native, and Asian communities, immigrant families, queer youth and adults, and substance using mothers and fathers. Our diverse American family is amazing and we must rededicate ourselves to fighting for our whole family and doing what we need to do to support all people living with HIV to learn their status, get into care, get on treatment, and lead long, happy, healthy lives. We need to keep spreading the message that U=U (Undetectable=Untransmittable). This means that people with HIV who are on medication and have an undetectable amount of HIV virus will not transmit HIV. We need to keep fighting for access to quality health care and working to create affordable access to PrEP in the communities that need it most. And, in these challenging times, we need to redouble our efforts to spread hope. Getting HIV does not need to be an inevitability in any of our communities. We have never had a broader swath of American society supporting us and invested in our success.
For the President and his team, I say that you still can earn a legacy of leadership of fighting the HIV epidemic. Follow the Strategy. Support all parts of the LGBT community, embrace people of color, take bold action to respond to the opioid crisis, and stop bashing the immigrants who contribute so much to our American greatness. Work with Congress to increase not decrease funding for critical HIV prevention and care programs and AIDS research. And, start working to make our health system function effectively. I cannot imagine who would have more credibility to advise you than the dismissed PACHA members, but no matter who you are listening to, the path forward is clear. And, we will be watching.
Jeffrey S. Crowley is the Program Director of Infectious Disease Initiatives at the O’Neill Institute at Georgetown Law. From 2009 to 2011, he served as the Director of the White House Office of National AIDS Policy and Senior Advisor on Disability Policy for President Barack Obama
Photo: Smithsonian Magazine
Throughout recent history, confinement has been justified by countries on purported ‘public health’ grounds to prevent the spread of infectious diseases. However, too often the practice of confinement leads to egregious rights violations through overly-broad use of isolation or other forms of confinement, which sometimes includes excessive and lengthy duration and tends to be counter-productive, such as when detention, isolation, and quarantine increases fear and stigma around a disease, thereby driving people with symptoms underground and away from health facilities. While in modern times the Siracusa standards require inter alia that measures restricting rights are strictly necessary to achieve the stated aim and that a measure is not imposed arbitrarily, too often these standards are far from met.
First used to prevent the spread of plague epidemics during the 14th century, quarantine restricted ships from coming into port for 40 days. Quarantine and other forms of confinement have also been used in the context of many diseases including yellow fever, cholera, leprosy, and more recently SARS and MERS; confinement in the context of tuberculosis also has a long and dark history.
In the context of SARS, quarantine was widely used in Asia and Canada—13,000 people were quarantined in Canada while China used extreme quarantine measures including cordoning off entire neighborhoods, despite low infection rates. China, Singapore and Hong Kong utilized coercive measures including imposing criminal penalties for breaching quarantine orders rather than the largely voluntary approach used in Canada.
The WHO emphasises that involuntary isolation and detention must be methods of last resort. However, confinement is too often used as a ‘public health response’ to TB and instead of addressing TB, drives the further spread of it. In some contexts and countries, confinement and isolation may be the default rather than the exception, including where laws allow for mandatory hospitalization or treatment. Mandatory and overuse of hospitalization and involuntary isolation create a situation in which people with TB are coercively confined, sometimes in prison-like conditions. Relatedly, persons in confined settings including prisons and immigration detention centres suffer high rates of TB infection due to high prevalence rates in confined settings and risk factors which increases risk of TB including inadequate nutrition and lack of or poor quality health care. Further, disadvantaged populations disproportionately end up in prison, populations who already have a high burden of disease and often have inadequate access to health services. Such individuals are already at higher risk of TB and confinement further increases this risk, particularly where there are poor prison conditions.
In several Eastern Europe and Central Asian countries, the over-use of hospitalisation and involuntary approaches to TB impede human rights and an effective TB response. For example, in Russia the law allows for involuntary examination of TB patients while in Kyrgyzstan a TB specific law allows for a wide range of involuntary TB-related measures including testing and treatment, isolation and hospitalisation. Further, in addition to involuntary isolation, patients in Kyrgyzstan who are unable to adhere to treatment are subject to a large fine.
Prisons and confinement settings are incubators for TB whilst simultaneously the most vulnerable members of society end up in prison due to criminal justice issues such as inappropriate application and selective enforcement of criminal laws and high rates of incarceration and confinement which disproportionately impact the poor and marginalised. An extreme example of rights violations that have occurred in the context of TB-related confinement, in Kenya patients who were unable to adhere to TB treatment were imprisoned under the Public Health Act which includes a broad measure authorising confinement on grounds of ‘public health.’ The two individuals who were imprisoned were not treatment literate—they had not received proper treatment counselling and support and were thus not aware that they should continue with treatment even when they started feeling better. Beyond the deprivation of liberty and other human rights violations inherent in imprisonment on the basis of inability to adhere to TB treatment, prison is perhaps the least appropriate setting for individuals with TB, particularly if there is no access to treatment, support and proper nutrition and since confined prison settings may more easily spread TB if they are in overcrowding and inadequately ventilated conditions.
Similarly, many countries around the world, including in a number of high burden TB countries, have laws which effectively criminalise TB, whether disease specific or of broad application to many diseases. Some of these include Angola, Bangladesh, Brazil, China, DPR Korea, Ethiopia, India, Kenya, Lesotho, Liberia, Myanmar, Namibia, Nigeria, Pakistan, Russia, Tanzania, Zambia and Zimbabwe. While there is limited information on the extent to which these laws are enforced or used in practice in many of these countries, their very existence—particularly when definitions are overly-broad and fail to meet Siracusa requirements—further stigmatises TB and other infectious diseases and have the potential to lead to serious human rights violations. It is urgent that countries move away from confinement as a response to TB and other infectious diseases and towards community-based, evidence-informed and human rights-based approaches.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.