President's Advisory Council on HIV/AIDS(PACHA) approves resolution calling for federal action against HIV criminalization (2013)

by Catherine Hanssens
Executive Director, CHLP

The President's Advisory Council on HIV/AIDS (PACHA) today voted to approve a resolution calling for federal action against HIV criminalization.

The resolution includes the following recommendations:

1. The Department of Justice (DOJ) and the Department of Health and Human Services (HHS) / Centers for Disease Control (CDC) complete a written review regarding opportunities for the creation of specific guidance and incentives to state attorneys general and state departments of health for the elimination of HIV-specific criminal laws and to develop recommendations for approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of similar health and safety risks; and support legislation, such as the REPEAL HIV Discrimination Act, that advances these objectives.

2. Current criminal laws require modernization to eliminate HIV-specific statutes or application of general criminal law that treats HIV status, or the use of condoms or other measures to prevent HIV transmission, as the basis for criminal prosecution or sentence enhancement.

3. Federal and state officials review the HIV-specific convictions and related penalties, sentence enhancements, and other restrictions imposed on people living with HIV, such as mandated sex-offender registration and civil commitment. In the event that such convictions or sentence enhancements fail to conform to the principles outlined above, federal and state officials should take appropriate measures (e.g., executive clemency, pardon, sentence reconsideration, parole, probation) to mitigate the harm caused to individuals.

4. U.S. law should be consistent with current medical and scientific knowledge and accepted human rights-based approaches to disease control and prevention and avoid the imposition of unwarranted punishment based on health and disability status.

5. The CDC should issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.

It is important to know something about what this resolution does and does not mean. PACHA's role is to advise the Secretary of HHS and the President; it has no power to order anyone to do anything. Secretary Sebellius and President Obama both have the discretion to ignore the resolution's recommendations.

So what is the value of the President's Advisory Council on HIV/AIDS (PACHA) Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments? I believe it is important for several reasons:

1. As the first clear, comprehensive statement of recommendations against HIV criminalization from a federal body, the resolution is an important step in moving federal agencies – from the White House to the CDC – to a more public, active position and related action against criminalization in the United States and abroad.

2. It provides additional impetus for the CDC and the DOJ to issue statements, guidance and incentives that can help to impress state policymakers that there is both a need and federal support for criminal law reform as it affects people living with HIV.

3. It is a very useful advocacy tool for summarizing both the problem of, and several solutions to, HIV criminalization in federal agencies (such as the military and federal prisons).

4. For similar reasons, it is a useful, needed tool for local advocates working with state policymakers to begin the process of modernizing current law and practices.

5. It is a clear and concise document that will be useful for community and policymaker education at many levels, pointing out not just the problem, but also ways that we can begin the process of change and demands that community members can make of federal and state officials.

The work of advocates who pushed for passage of the resolution is not over. But we have passed a major marker on the road to reform and justice for many people and communities affected by HIV.

For the complete text of the PACHA resolution, click this link.