Consensus Statement on HIV Criminalization

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Stopping Injustice
Leading HIV scientists issue expert consensus statement on HIV criminalization
by Hank Trout

At the July 2018 IAS2018 conference in Amsterdam, The Netherlands, twenty of the world’s leading HIV scientists published the Expert Consensus Statement on the science of HIV in the context of criminal law.

The Expert Consensus Statement (ECS), released at IAS2018 and simultaneously published in the Journal of the International AIDS Society on July 25, 2018, is based upon current scientific evidence regarding HIV transmission, exposure, and non-disclosure. These experts, from various regions of the world, including a Nobel Laureate and other leading global scientists with expertise in research, epidemiology and patient care, performed a detailed analysis of the best available scientific and medical research data on HIV transmission, treatment effectiveness, and forensic phylogenetic evidence. Emphasizing science over stigma, the ECS advises governments and those in legal and judicial systems to take heed of the significant advances in HIV science since the beginning of the pandemic and to apply current scientific knowledge to the law in cases related to HIV.

According to statements released by the International AIDS Society, the ECS stresses that: (1) there is no possibility of HIV transmission via contact with the saliva of an HIV-positive person, including through kissing, biting or spiting; (2) the risk of transmission from a single act of unprotected sex is miniscule and reduces to zero risk during vaginal or anal sex when the HIV-positive partner has an undetectable viral load (“U=U”); and (3) it is impossible to establish proof of HIV transmission from one individual to another, even with the most advanced scientific tools. These factors argue strongly in favor of decriminalizing HIV.

Currently, some sixty-eight countries criminalize HIV nondisclosure, exposure, or transmission. Prosecutions have been based upon the perceived risk of HIV transmission associated with sexual activity, but prosecutions have also occurred for acts such as biting and spitting. These laws and prosecutions have ignored the best available scientific and medical evidence regarding HIV and its treatment; instead, these prosecutions have reflected the persistent societal stigma and fear associated with HIV. Prosecutions have occurred even in instances where no harm was intended, where HIV transmission did not occur, where transmission was not possible or was extremely unlikely, and where transmission was neither alleged nor proven (prosecutions based solely on nondisclosure).

The ECS addresses the factors influencing transmission risk associated with particular acts, the importance of proving transmission, and the harmfulness of HIV, noting that “persistent misconceptions exaggerating the harms of HIV infection appear to influence application of the criminal law.” The authors emphasize that their purpose is to assist those providing expert opinion evidence in individual criminal cases, and that the ECS is “not intended as a public health document to inform HIV prevention, treatment and care messaging or programming.”

In an editorial accompanying the ECS, JIAS Editor-in-Chief Kenneth Mayer and colleagues wrote, “[S]pecific laws focusing on HIV criminalization, and misuse of other laws, despite the evidence against the likelihood of HIV transmission, reflect the perpetuation of ignorance, irrational fear and stigmatization…We therefore hope that governmental authorities will view this Expert Consensus Statement as a resource to better understand the actual rather than the perceived risks posed by exposures to individuals living with HIV, and to create societies that encourage engagement and not fear.”<p>

Photo: Alina Oswald

Ken Pinkela [A&U, October 2016], an advocate for justice for those wrongly criminalized for being HIV-positive, knows too well the absurdity of criminalization, as it destroyed his sterling military career. Erroneously convicted of having had sex with another officer without disclosing his serostatus (no sex act occurred), Ken has fought for six years to get his conviction overturned and his pension and other benefits restored—to no avail, despite the sole witness’s having recanted his story. After attending IAS2018 in Amsterdam, Ken told A&U, “I am very excited about the timing of the release [of the ECS]. The personal and community impact stems from the power of the authors and the medical community standing up to the prejudice and ignorance of HIV criminalization. The language on phylogenetics and the facts on risk of transmission are now laid out and can be used by advocates all around the world fighting HIV criminalization.”

The ECS is significant for its global reach and its recognition of the impact which ignoring current HIV science can have on individuals wrongly prosecuted. It is an important step in the campaign to ensure that people living with HIV are treated fairly in criminal justice systems around the world. The ECS concludes, “Given the evidence presented in this document, we strongly recommend that more caution be exercised when considering criminal prosecution, including careful appraisal of current scientific evidence on HIV-related risks and harms. This is instrumental to reduce stigma and discrimination and to avoid miscarriages of justice.”

In addition to the twenty experts who authored the Expert Consensus Statement, the ECS has been endorsed by International AIDS Society, the International Association of Providers of AIDS Care, and the Joint United Nations Programme on HIV/AIDS.

In an email to A&U, Peter Perkowski, the Legal Director for OutServe-SLDN, which assists the LGBT military community—including active-duty servicemembers, veterans, and Department of Defense civilians and those living with HIV—cautions that “[i]n the military context…prosecutors (Trial Counsel) typically charge everything they can, and they have been resistant to arguments that they should not charge activity that poses no risk of exposure to or transmission of HIV. Military regulations criminalize the failure to disclose HIV status before engaging in sexual activity, as well as the failure to use condoms during sex, and neither offense depends on or even considers the risk of transmission. Unfortunately, I don’t see the Consensus Statement affecting the charging decisions of Trial Counsel—or for that matter military judges, who routinely deny motions to dismiss charges even when the activity carried no risk of transmission. Our hope, to be frank, has been with the juries, who on occasion have been smart enough to acquit on some of the most serious crimes when presented with testimony that there was zero risk to the complaining witness.”

Mr. Perkowski continued, “For the same reason, I don’t see the Consensus Statement resulting in prior convictions being overturned. But [it] may assist us…with clemency petitions to the Boards for Correction of Military/Naval Records. We hope that, when presented with this new scientific evidence, the BCM/NRs will grant clemency to veterans convicted for HIV-related crimes. We also hope that the Consensus Statement will prompt the Pentagon and the service Branches to take a hard look at their HIV-related regulations, which are long overdue for an overhaul to reflect the current state of HIV medical science.”
On a much more encouraging note, after a six-year battle with the US Army, on August 4, 2018 Ken Pinkela’s veteran’s disability rating from post-Gulf War combat injuries was approved and activated. He had previously lost all of his benefits through HIV criminalization in the US Army. He told A&U, “I’ve never been so grateful for previous service-related injuries that later on in life would aid the approval of my full medical benefits denied after being wrongfully criminalized for living with HIV.”

Further information can be found in NAM AIDSmap’s reporting at www.aidsmap.com; you can read the complete Expert Consensus Statement in the Journal of the International AIDS Society at https://onlinelibrary.wiley.com/doi/full/10.1002/jia2.25161. Further information about OutServe can be found at www.outserv.org.

Hank Trout writes the “For the Long Run” column every month.