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Iowans Still Dealing with Legal Ramifications of AIDS

Although not the death sentence it once was, there still are both legal and social ramifications of contracting the virus. Today, on World AIDS Day, Iowa Watch and Iowa Public Radio published a report on these issues.

 

By Layla Pena
Iowa Watch

Over the past two decades, hundreds of Americans have faced criminal charges under state laws that many advocates and public health officials believe should be off the books.

At least 125 individuals were prosecuted across the country under these laws during 2008-11 alone. They included men and women, gay and straight, members of the armed services, people with prior criminal records and without, people from many walks of life. What did they have in common? All were HIV-positive.

At the top are videos of Iowans talking about how they live with the HIV virus. The multimedia projects were produced by Lindsey Moon of Iowa Public Radio.

Read about the struggles of University of Iowa student who has to deal with the .

As if dealing with the immune-deficiency virus and its medical, psychological, social and financial ramifications were not difficult enough, 34 states and two territories of the U.S. have passed criminal laws explicitly aimed at people who are HIV-positive and fail to disclose their status to sexual partners or others with whom they have intimate contact.

Some of these laws, contradicting established science, regard spitting, scratching or biting as potential modes of HIV transmission. Many of the laws criminalize non-disclosure even if the virus was not transmitted, and even if protection was used. All the laws hinge on “he said/she said” claims about whether HIV status was or wasn’t disclosed.

And Iowa has emerged as an unlikely leader in pursuing such cases, according to data from the Positive Justice Project, a campaign launched by the New York-based Center for HIV Law and Policy to roll back HIV-related criminal laws.

The best available count of criminal prosecutions for HIV exposure puts Tennessee at the head of the pack, with 50 cases – most also involving prostitution. Iowa comes second; prosecutors in this state have filed 37 charges of criminal transmission of HIV under an Iowa law that took effect in 1998. The cases resulted in 25 convictions involving 22 individuals, and nine of the defendants are still in prison.

This means the likelihood of facing charges under the state’s HIV criminal transmission law in the past dozen years approaches two percent of the people diagnosed with HIV/AIDS in Iowa, estimates PJP activist Sean Strub — and it’s a distinction that makes him profoundly sad.

A businessman and fourth-generation Iowan who calls himself “native as dirt,” Strub now lives in Pennsylvania but keeps close tabs on his home state, which he says is failing to live up to its traditions of social justice. Speaking at a recent medical conference in Iowa City, he likened the laws pertaining to HIV exposure to a “patchwork of craziness” resulting in disproportionately harsh penalties.

Only one Iowa case has involved actual transmission of the virus, Strub noted, adding, “Iowa’s HIV criminal transmission statute is actually not about transmission; it’s about whether you can prove disclosure.”

Strub and other activists view criminal laws singling out HIV – and not other contagious pathogens such as, for instance, the human papillomavirus, which is transmitted more easily than HIV and associated with cervical cancer – as blatantly discriminatory. “We are creating a viral underclass in the law,” Strub said.

In Iowa, an HIV-positive person who has intimate contact with someone, transfers or donates bodily fluids, or shares needles with another person without disclosing his or her HIV status may face conviction for a class B felony, punishable by up to 25 years in prison. Whether or not transmission of the virus occurs is irrelevant. Anyone found guilty under Iowa’s criminal transmission law also must register as a sex offender for life.

The U.S. Dept. of Health and Human Services categorizes Iowa as a “low-prevalence” state for HIV/AIDS; according to state figures, 1,828 Iowa residents were known to be living with HIV or AIDS as of Dec. 31, 2010 – although health officials believe under-reporting and lack of diagnosis put the number closer to 2,400. Nearly 200 deaths in the state of Iowa since 1998 are attributed to AIDS.

The earliest HIV criminalization laws came about in the late 1980s, several years into the HIV/AIDS epidemic, in response to Reagan administration policies that tied federal funding to such measures. The Ryan White Care Act of 1990 required states seeking AIDS relief grants to have a means to prosecute HIV-positive individuals who expose others to the virus.

Despite the funding pressure, Iowa remained hesitant to incorporate HIV into the criminal code until 1997, when a furor erupted around the case of Nushawn Williams, a New York man prosecuted for having unprotected sex with more than 75 women despite knowing that he was HIV-positive. Prompted by media portrayals of HIV/AIDS as a deadly weapon, Iowa lawmakers approved a criminal transmission law the following year with little objection.

By 2000, two thirds of the states had passed specific laws criminalizing HIV transmission or added HIV-related provisions and penalties to existing laws, or both, while the rest of the states say that prior laws—for instance, those related to assault and battery or even attempted homicide—adequately covered any potential concerns about deliberate attempts to transmit HIV.

Advocates of decriminalization point out that HIV-specific laws and add-ons grew out of panic over extreme cases of intentional transmission that are exceedingly rare, and say pre-existing criminal law is well equipped to handle egregious cases. The U.S. Centers for Disease Control has said that intentional HIV transmission is “atypical and uncommon.”

Experts and critics agree that elements of many HIV-related laws are medically unsound and that the legal system has failed to keep pace with progress in research and treatment since the first AIDS reports surfaced 30 years ago. It is now known, for instance, that HIV does not travel through spitting or biting; yet state courts have convicted people precisely on this enduring mythology. It is nearly impossible to contract the virus through oral, anal or vaginal intercourse with a person who is HIV-positive but has a low or undetectable viral count, but laws do not take that into consideration. Nor do the laws account for advances in medication that further reduce the prospect of transmission.

“The nature of exposure, the level of risk, and whether the virus is transmitted are not considered,” Strub told the Iowa City meeting. He added that he personally knows eight people in various states who have faced criminal prosecution related to their HIV positive status, and the virus was not transmitted in any of these cases.

Writing in the Journal of the American Medical Association, a U.S. public health law expert, Scott Burris, and a South African jurist, Edwin Cameron, express the growing view that better HIV education and promotion of sexual responsibility are far more effective than trying to regulate morality through criminal law. They note that the majority of people who transmit HIV to others do so not deliberately, but as consensual partners who are unaware one of them has the virus. They find no evidence that HIV criminalization deters risky behaviors or stems transmission; to the contrary, they say, “blunt use of HIV-specific criminal statutes and prosecutions” undermines progress against HIV/AIDS.

Many advocacy groups and public health officials believe the laws not only fail to counter the virus, but in fact may contribute to its spread by deterring people from being tested. This is because a person who unknowingly exposes others to the virus can escape blame by claiming ignorance of his or her HIV status, which constitutes an absolute defense against charges of criminal transmission. “Take the test and risk arrest is the word on the street,” according to Strub.

The movement to eliminate state laws that create special categories for HIV-positive offenders parallels new attitudes emerging on the national level as well as in global forums. An Obama administration policy paper issued in July 2010 calls on legislators to “reconsider” HIV-transmission laws, saying that, “In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

A 2008 report from the Joint United Nations Commission on HIV/AIDS finds “no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission,” and recommends use of “general criminal law” rather than HIV-specific laws in cases of intentional transmission.

Among the groups pushing for change in Iowa’s legal landscape is Community Hepatitis & HIV Advocates of Iowa Network, which claims about 150 members statewide, including people living with HIV/AIDS and health care professionals. This organization has resumed a push for revision of Iowa’s HIV criminal transmission law after a similar effort died in legislative subcommittee last spring.

As Iowa’s HIV decriminalization movement gathers momentum, activists hope that state legislators will introduce a bill during the 2012 session that would mitigate the harshness of the Iowa law. Their objective is not to eliminate avenues for criminal prosecution in truly heinous cases of malicious transmission, but rather to narrow the language of the statute, although some would like to eliminate the HIV-specific law entirely.

At the federal level, meanwhile, U.S. Rep. Barbara Lee, D-Cal., has introduced a bill calling for a national review of HIV-related criminal laws and urging repeal of all state laws that contradict medical science and place undue burdens on people who are HIV positive.

Along with medical, legal and pragmatic objections to the criminalization of HIV are concerns that these laws exacerbate the stigma surrounding the virus, creating additional barriers to effective treatment and care. Stigma is of particular concern in areas such as Iowa that are not at the “epicenter” of infection, according to Dr. Ronald Valdiserri, who as a deputy assistant secretary of Health and Human Services oversees the federal government’s HIV/AIDS policy. “There is stigma everywhere,” he told the Iowa City conference, “but there may be a different spin on it in low-prevalence areas” that impedes remedies.

“Stigma discourages people from seeking care, and also from disclosing,” said Strub. “Nothing sanctions stigma more than when the government builds it into law.”

(Iowa Public Radio Research Assistant Lindsey Moon, a senior at the University of Iowa, contributed to this story. Layla Pena is a junior at the University of Iowa majoring in journalism and international studies.)

For more information about AIDS and HIV, go to:

Centers for Disease Control & Prevention HIV/AIDS

Joint United Nations Programme

World Health Organization

Iowa Department of Public Health

Center for HIV Law Policy Positive Justice Project

American Civil Liberties Union HIV/AIDS Project

Kaiser Family Foundation HIV/AIDS information

Global HIV/AIDS timeline

Clark Baker December 04, 2011 at 07:02 PM
OMSJ has forced prosecutors to drop or plea bargain HIV-related criminal charges in 35 cases since 2009. Their success comes from forcing prosecution experts (clinicians and infectious disease experts) to testify about HIV under oath under penalty of perjury. When forced to tell the truth, they fail miserably. For more info, visit OMSJ's "HIV Innocence Group."
Dawn Stotlar December 06, 2011 at 08:30 PM
I dated someone for 7 yrs from the state of IA who was HIV positive. He knew his status a yr before we met, yet for 7 yrs chose to hide it from me - until his sister finally told me. He gave me no choice, played God with my life. At the time there were no laws in place protecting me. I was told I couldn't disclose his status I would be breaking the law. There were laws that made it mandatory to notify your partner of every other STD but HIV. Although my status was negative - I was not infected, I paid a hell of a price for all he put me through. This law is necessary because there are many more people out there like this. The State has a duty to protect all of it's residents the ones with HIV and the ones without.
Clark Baker December 07, 2011 at 12:07 AM
Dawn - your boyfriend didn't KNOW he was infected - he simply BELIEVED and parroted the claims made by a clinician who probably received kickbacks from Bristol Myer Squibb and Gilead Sciences for unnecessarily prescribing their drugs to healthy patients. Pharmaceutical lobbyists drafted and paid lawmakers to pass these laws as part of their ongoing marketing campaign, which you can read more about at OMSJ's HIV Innocence Group.
Dawn Stotlar November 11, 2012 at 03:45 AM
@ Clark, oh yes, he did know. He knew before we started dating. He had been tested by the University of Iowa Hospitals in 1986. We started dating in 1987. His entire family knew. He was a minor when he found out. His family confirmed. They all knew the entire time we dated and no one, NO ONE told me!! I dated him 7 years!! He knew. No one has a right to have sex with a partner when they have any STD, without notifying that partner!!! And if they do, and it is one that will lead to death, then it is premeditated murder!!!!!
Dawn Stotlar November 11, 2012 at 03:45 AM
@ Clark, oh yes, he did know. He knew before we started dating. He had been tested by the University of Iowa Hospitals in 1986. We started dating in 1987. His entire family knew. He was a minor when he found out. His family confirmed. They all knew the entire time we dated and no one, NO ONE told me!! I dated him 7 years!! He knew. No one has a right to have sex with a partner when they have any STD, without notifying that partner!!! And if they do, and it is one that will lead to death, then it is premeditated murder!!!!!
Clark Baker November 11, 2012 at 04:23 PM
@ Dawn - If "Joe" and "his entire family" claim that he's missing his left arm and points to the stump where his arm should be, you, Joe, and his family can then corroborate that fact. But if Joe says that he's infected with a 120 nanometer bug that produces no signs or symptoms (unlike all other STDs), Joe cannot really KNOW unless he's a virologist or MD who understands the testing, diagnosis and treatment for HIV AND who used a test that detects HIV. While 35 FDA-approved tests are marketed as "HIV tests," the small print establishes that these tests really do not detect HIV, which can only be diagnosed clinically. In ALL 100+ cases that we have examined across the US since 2009, not one single clinician ever made ANY attempt to conduct an actual HIV diagnosis. So as you can see, it is one thing for some unnamed and unqualified health department bureaucrat to allege that Joe is infected, but quite another for them to prove it. The tests are used to generate fear and hysteria so that people like you will seek unnecessary testing and treatment, which generates billions of dollars for the healthcare and drug industries ever year. For more about the widespread incompetence and corruption related to HIV testing, visit http://www.omsj.org/blogs/hiv-tests-explained
Elizabeth Ely November 12, 2012 at 01:13 AM
Right. The link for that group is http://www.omsj.org/innocence-group. So far, it's the only group that is actually working on behalf of defendants in this. Contrary to the impression given in this article, the Center for HIV Law and Policy and its "Positive Justice Project" haven't shown any interest in this. Where was the Center when NuShawn Williams was charged and convicted, mostly for being a black man living in a small white town? Where was the outrage? If you believe you are being targeted for prosecution, or know someone who is, contact the HIV Innocence Group. Seriously, there's a list there of 48 people assisted by OMSJ in getting their charges dismissed. None of the mainstream AIDS organizations or their legal defense arms wish for you to know about OMSJ; it has been systematically ignored in the media hype regarding "HIV decriminalization." Why? Go to the OMSJ "HIV Innocence" site and watch the videos there. It's interesting!
Elizabeth Ely November 12, 2012 at 01:19 AM
Dawn, you're in good hands with Clark Baker. He has worked on this in the courts. His collection of research is worth going over. I wish you peace of mind and a long, healthy life -- these are all possible if you look into this. Certainly, most of us can relate to an incident of reckless disregard for us inside what we thought was a loving relationship. But no one needs to carry that resentment forward for more than 25 years just because someone in a high place committed research fraud. You deserve better. I hope you'll read the sites and check these facts. The "test" doesn't stand up in court. There are a lot of reasons for that, reasons that the people involved in this "decriminalization" effort would rather you didn't know.
Dawn Stotlar November 12, 2012 at 01:45 AM
@Clark, he does have HIV. His status was confirmed to me is all I can say. He is a severe factor 8 deficient hemophiliac, who takes clotting factor every other day, or at least that's how it was at that time. I know enough to know they did not test the blood at the blood banks until 1985. The clotting factor is/was made from plasma donations. Once they started testing the blood, they started testing the high risk people, including hemophiliacs - especially factor 8 deficient. The chances of them being infected if getting clotting factor prior to 85 was like 85-95%. I went through testing at the U of I Hospital and started my research at that time. It was mandatory that he tell who his partners were if he had any STD but HIV. At that time, it was on a voluntary basis if he chose to disclose his partner if infected with HIV. It made no sense to me. If I had been infected I could have tried to pursue a case against him, but there were no laws in the state of Iowa that dealt with this issue. When I found out, in 1995 that he had repeatedly exposed me without my knowledge or consent for more than 7 years, I wrote letters to the Governor, the Senators, the President stating that my rights as a resident of the State of Iowa and The United States of America were violated and Thank God and lucky for me, I walked away HIV negative. I do agree with you that if there is no exposure, there should be no jail time, but the law should remain for those with no regard.
Dawn Stotlar November 12, 2012 at 01:55 AM
@ Elizabeth, there was no research fraud. There is no resentment. My anger comes from the fact that I wanted that law in place. People with HIV should have privacy, should have a life, but not with "reckless disregard" for others. Education and awareness is what your time and research should be devoted to. Not trying to undo the progress of the laws that need to be in place to protect the innocent. It is a sad day and age that people think that getting spit on or hugged will spread HIV. How can we still be this ignorant on it? Spend your time and efforts on something that will make a bigger impact. Maybe the wording of the law could be changed, but to drop the law all together is wrong!! As I told Clark, if no transmission, no jail time, but if the law is there, hopefully they won't take the risk. I did leave my ex boyfriend, once I found out about his status, but as I told him - I didn't leave because he had HIV, I left because he lied to me for 7 years. Once I found out and he had to admit it to his friends, they still accepted him. No one would hate him for having HIV. He was born with it, tough break, but when you put other peoples lives in danger because you are so selfish you won't disclose - that's unacceptable.
Elizabeth Ely November 12, 2012 at 02:16 AM
Dawn, I support laws that apply to those with no regard for the victims of what they do. But what Clark has been trying to tell you here is that there is a problem with the test. It doesn't stand up in court, as evidence. This should concern you, because as long as anyone can ruin another person's life by claiming they have HIV, they have even more power to do others wrong. In fact, it should be criminal to tell a person they have a deadly disease, or will develop one, based on a test that isn't even FDA-approved for that purpose. Factor 8 is one of the things that can cause a false-positive test. The organizations pushing for this "decriminalization" hysteria -- as you say, with no concern for victims like you if the test is right as they believe -- owe their very existence to the uncertainties around this test. They want you to keep believing in it.
Elizabeth Ely November 12, 2012 at 03:37 AM
OMSJ never says on its site that these laws should be dropped. Clark Baker isn't the one advocating that. He's advocating that they actually have to prove "transmission." If they can't, then as you say, "no transmission, no jail time." Exactly. Yes, there was research fraud. Happens all the time. Courts are acknowledging all over the country that the test is not admissible as evidence. To protect the innocent, protect them from misleading medical testing. There is no way to prove "transmission" using this test. But there's no talking to a hysteria. No listening, no conversation here. Because I agreed with you three posts ago, but you didn't hear that.
Dawn Stotlar November 12, 2012 at 04:17 AM
I apologize if I misread what both of you said. Both of us were tested for the HIV antibodies by the U of I. I was irritated by the notion that we didn't really know what the diagnosis was. I watched a couple of the videos, I will review the whole site when I have more time. I can also attest to the education piece from the medical profession. As I went through this starting in 1995. I had my first test in March, 2 months from my last exposure and it came back negative. U of I told me I had to be tested every 6 months up to a year and a half to 2 years. I had another test in 3 months, so I five month test, which also came back negative. I then moved to CA. I went to Planned Parenthood for my 3rd test, which was at 8 months and they said if I had passed the first 2 I was probably ok. I argued with the saying this is not what Iowa City told me and why would they say this? They did the test and gave me the number to the CDC. I was informed by them that planned parenthood was right, it should show within 3 months, can take up to 6. They weren't sure why Iowa City said that, except they new of one case where someone contracted both HIV and hepatitis at the same time and the hepatitis made the HIV take longer to show up. They thought Iowa City was just being cautious. I passed again. I went one more time to my GP at 1.5 yrs, just to ease my mind and he says, oh no, you have to be tested every yr for 7 years. I told him he was wrong call the CDC & gave him the #.
Dawn Stotlar November 12, 2012 at 04:22 AM
Point being, if me, being 25 yrs old when this started, from small town IA, knowing nothing about HIV/AIDS except the Ryan White story, knew more about it at that point than a DR in LA County, clearly, yes, we still need education - as was indicated again in the video. I was appalled to think that anyone would be diagnosed without a blood test. Hysterical I am not Elizabeth, passionate about this cause I am. If there is anything I can do to help with the awareness, I would love to do so. I do however live in WI now. Seventeen years later, from the time I found out and was tested, I would think we would be much further than this.
Elizabeth Ely November 12, 2012 at 05:54 PM
Dawn, please do review the site and related links. It's quite eye-opening, and you'll definitely know more than the Ryan White story and even what the LA County authorities are telling you. The stories you've been given about needing to re-test are just plain wrong -- and dangerous. You are being victimized twice -- first by your former lover and second by the pharma companies. Actually, both times by the pharma companies, because the former lover believed them, too, when Factor 8 is one of the things that can cause a false positive result. These companies have settled out of court for hundreds of millions of dollars on these tests. I'll bet they didn't tell you that! They bank on your respect for their authority. Against being exposed for that, they'll put innocent people in jail along with the guilty ones -- it's why the "decriminalization" people are unconcerned about the actual defendants. And they'll try to keep you testing again and again to put you into the system of drugs and treatments. After all, when you test positive, you will stop testing, right? But as long as you test negative, you need a second opinion and a third one, and so on. Did you know that even a recent flu shot could throw off the test and give you those life-changing results? And having had a couple of kids. People need to have this awareness beyond the popular media stories, to protect themselves.
Elizabeth Ely November 13, 2012 at 12:11 AM
A Tale of Two Iowans: One convicted (though sentence shortened) and still a registered sex offender, the other with charges dropped. I note that the victim in the first case gets to put his two cents in -- but whose fault is it for his suffering? The courts, perhaps? Pharmaceutical companies who have paid hundreds of millions in settlements to keep news of their crappy tests from reaching the public? Mainstream AIDS organizations who suddenly call for the "decriminalization" of something they just noticed in the past year? SEE: http://redd.it/133ac2

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