This is an amicus brief, submitted by Lambda Legal, in an appeal of a criminal conviction of an individual with HIV for assault with a deadly weapon for spitting in a police officer's face. Lambda's brief addresses the lack of scientific basis for treating spitting as a source of HIV transmission.
A selected list of cases and journal articles on the criminalization of HIV transmission. It is an expansion of a list originally provided by Lambda Legal.
This chart, updated in June 2008, was revised by the ACLU and is based on earlier compilations by the ACLU's National Prison Project and Lambda Legal. The chart includes information on criminal laws related to exposure and/or transmission of HIV for all 50 states and the District of Columbia. Information includes statutory and regulatory citations, crime classification, summaries of laws, and additional notes.
New Mexico court of appeals decision reversing a lower court conviction of an HIV+ individual accused of spitting on an officer. The following is excerpted from the court's opinion: "We acknowledge that spitting or throwing bodily waste may give rise to rational concerns about infection or communicable disease. Defendant Jones threatened as much as he spat upon the officer. However, we have not been cited to any authority, and we know of none, that based criminal liability for battery upon the victims' subjective and unsubstantiated fears that they could develop a disease. To the contrary, the authorities all involve batteries with bodily waste from known carriers of communicable diseaseNeither case before us contains evidence that the accused carried any communicable disease. We will not assume as a matter of law that one has been battered by a harmful disease unless supported by the evidence, especially in the absence of clear legislative intent to make such unsubstantiated apprehension a felony."
This commentary, published by the Canadian HIV/AIDS Legal Network and endorsed by more than 40 organizations around the world, including the Center for HIV Law and Policy, is a comprehensive, excellent critique the the April 2007 UNAIDS Guidane Note on HIV and Sex Work. Noting the Guidance Note's inconsistency with prior UN statements on the importance of protecting of sex workers' basic rights, the commentary addresses UNAIDS' failure "to consider seriously the precarious human rights situation of sex workers, and the way abusive and violent poicing and ill-conceived national laws undermine sex workers' rights. It also fails to discuss the human rights of sex workers as workers, including their right to work, their right to a livelihood of their choosing, and their right to workplace safety."
This paper, drafted in 2002 for UNAIDS by Richard Elliott of the Canadian HIV/AIDS Legal Network, is a well organized and useful document that describes the various policy considerations involved in legislating criminalization of HIV, and includes multiple policy options that advocates can use to argue against criminal exposure and transmission laws, or at least for mitigation of the effects of such laws. It incorporates a human rights discussion throughout and offers some guiding principles that legislators ought to keep in mind when considering legislation designed to punish HIV-positive individuals.
This report, prepared by Richard Elliott of the Canadian HIV/AIDS Legal Network, describes the work of the 2006 WHO technical consultation on the criminalization of HIV exposure and transmission. The consultation, which involved participants from all over Europe, focused on several key issues, including the application of criminal law to instances of unprotected sex, the relationship between criminal law and public health policy, the potential effect of criminal laws on the lives of HIV-positive people, and potential policy action on the part of governments and consultation participants. The executive summary indicates that participants “concluded that criminalization of HIV/STI transmission or exposure should be a last resort and only undertaken in a manner consistent with human rights conventions and laws, as outlined for example in instruments such as the International Guidelines on HIV/AIDS and Human Rights. Any instance of resort to criminalization represents a failure of prevention efforts, and participants highlighted the need for greater efforts on this front, including measures to overcome stigma and discrimination that undermine prevention.”
This news report summarizes research, published in 2005 in an online sexuality research journal, that raises concerns about continuing criminal prosecutions of people living with HIV and the creation of “AIDS criminals.” This research on the impact of criminal prosecetuion of HIV-positive persons is collected and discussed in the Sexuality Research and Social Policy Journal issue entitled “Reckless Vectors: The Infecting ‘Other’ in HIV/AIDS Law." According to Gary Kinsman, one of the journal’s reviewers, Reckless Vectors “addresses what has become a largely neglected aspect of AIDS research, the continuing stigmatization and criminalization of people living with AIDS/HIV.’”
According to the introduction, the purpose of the study described in this paper was to “obtain information on criminal prosecutions for HIV exposure in the United States, including: state and year, mode of exposure, type of law under which prosecution occurred, defendant and victim characteristics, and outcome.” Identifying 316 prosecutions in 39 states over a 15-year period, the authors found that outcomes varied significantly depending on the factors noted above. Ultimately, the authors concluded that, as a public health intervention and a deterrent to future activity, criminal prosecution of HIV exposure is ineffective.
A revised and consolidated version of the original guidelines published in 1996, the purpose of the Guidelines is “to assist States in creating a positive, rights-based response to HIV that is effective in reducing the transmission and impact of HIV and AIDS and is consistent with human rights and fundamental freedoms.” The Guidelines are a joint project of the United Nations Office of the High Commissioner for Human Rights and UNAIDS. The consolidated guidelines include the revised Guideline 6, which reflects the human rights dimensions of access to HIV prevention, treatment, care, and support. The document consists of three parts: 1) twelve guidelines for state action; 2) recommendations for dissemination and implementation of the Guidelines; and 3) a description of the human rights principles underlying a positive response to HIV. The primary users are intended to be states, but it is also meant to inform intergovernmental organizations, non-governmental organizations, networks of people living with HIV, community-based organizations, networks on ethics, law, human rights, and HIV, and AIDS service organizations. It is also useful for any person looking for interested in a rights-based approach to HIV/AIDS and specific steps needed to implement such an approach.
