February 3, 2016 at 2:59 pm EST | by Chris Johnson
In Dem primary, HIV criminalization remains an orphan issue
Hillary Clinton, Democratic Party, Bernie Sanders, gay news, Washington Blade

Former Secretary of State Hillary Clinton and Sen. Bernie Sanders have remained silent on HIV criminalization laws. (Washington Blade photo of Clinton by Damien Salas; Blade photo of Sanders by Michael Key)

DES MOINES, Iowa — As the Democratic primary heats up, Hillary Clinton and Bernard Sanders are seeking to gain traction by expressing support for LGBT rights — and to some extent by vowing to combat HIV/AIDS. But one related issue that remains untouched by either candidate is HIV criminalization laws.

In 32 states, there are laws criminalizing perceived exposure to HIV, regardless of the actual risk of transmission, and 13 states have laws criminalizing certain acts — like spitting — by people with HIV/AIDS, even though they can’t transmit the disease through saliva. These laws have resulted in lengthy jail sentences for people with HIV, and in some cases forced those convicted onto the sex offender registry.

The silence of the presidential candidates on HIV decriminalization was particularly salient during the first primary contest in Iowa, where state LGBT and HIV advocates just recently succeeded in reforming one of the more draconian laws in the country.

In 2014, Iowa Gov. Terry Branstad, a Republican, signed into law a reformation of the state’s HIV criminalization law after both chambers of the state legislature — one controlled by Democrats, the other by Republicans — approved the measure by unanimous votes.

Tami Haught, an Iowa-based HIV advocate who’s been living with the disease for 22 years, was instrumental in pushing for reform in the five years leading up to the signing of the law.

“You have to believe that they thought that these laws would prevent the spread of HIV and were good policy,” Haught said. “Since then, we have found out they are not and it just further stigmatizes and discriminates HIV. You might think it’s statewide discrimination against people living HIV.”

Under the old law, enacted in 1998 and known as 709c, any nondisclosure of being HIV positive before sex was punishable with up to 25 years in prison and designation on the sex offender registry – even if the person with HIV practiced safe sex, was undetectable and didn’t transmit the disease.

The new law, known in legislative form as Senate File 2297, replaced that with a four-tiered sentencing system taking into account intent and transmission. The first-tier is intent to transmit and success in transmission; the second-tier is transmission with reckless disregard; the third-tier is intent without transmission; and the fourth tier is non-transmission with reckless disregard. Additionally, the new law also eliminates designation on the sex offender registry. It also is no longer HIV-specific and includes tuberculosis and Hepatitis C.

Donna Red Wing, executive director the LGBT group One Iowa, recalled Branstad was compelled to sign the legislation because it passed on a bipartisan basis, but noted he looked uncomfortable at the signing ceremony.

“We had every Republican in the House and Senate signed on,” Red Wing said. “He had to [sign it]. It was bulletproof. So were we surprised? No. We were there. He didn’t look happy. He was surrounded by queers and people with HIV and had to sign it.”

The old system resulted in a number of harrowing stories out of Iowa. One woman in Sioux City with HIV, Leslie Flaggs, was in an abusive relationship with a man who committed domestic violence against her and threatened to inform authorities about her status if she ever contacted the police.

She never called the police when he was beating her up, but one day in 2007 the neighbors did. After he was arrested, two weeks later she was charged under 709c with failing to disclose her status, even though the couple had been together for three years and he was aware she was HIV positive. Flaggs received a 25-year suspended sentence, four years probation and a decade on the sex offender registry.

Haught said Flaggs was removed from sex offender list in Iowa because the reform law was retroactive, but she remains on the list in South Dakota, where she has worked. They’re still looking for an attorney to take her case to remove her from the South Dakota registry.

Although the HIV criminalization law in Iowa is now relaxed, HIV advocates in the state continue on their path to eliminate criminalization entirely.

Haught said many people feel there shouldn’t be a law on the books in Iowa at all, but the bill that was agreed to was the best that could happen given the political realities.

“I don’t know how to get that point and if we’ll ever get there,” Haught said. “HIV should not be treated differently than sexually transmitted and communicable diseases. It would be nice. But I don’t know if we’ll see it in my lifetime.”

Keenan Crow, deputy director of One Iowa, said a “light push” is underway to repeal the law entirely, but admitted it’s “taking a back seat” to other efforts.

“I think kind of everyone’s goal in this coalition is just complete repeal, and we ended up having to compromise in order to get that unanimous vote and finally get this through, but it’s a vast, vast improvement over what we had before,” Crow said. “People had their lives back, people were able to get their jobs back in many instances because they were retroactively removed from the sex offender registry, which they have had to be on for the rest of their lives had this not passed.”

In the aftermath of reform of the law in Iowa, advocates in that state have taken their efforts to the national level. As the presidential candidates came to Iowa, they’ve encouraged the 2016 hopefuls to express support for reversing HIV criminalization in other states.

So far, the only candidate who expressed a position on the issue is one that has now dropped out of the race: Martin O’Malley. The former Maryland governor included a call for repeal of HIV criminalization laws in an October speech at the Iowa Spirit Awards.

O’Malley called for “pushing states to repeal laws that criminalize people with HIV — because these laws are inconsistent with science, and they are harmful to public safety and public health.”

Haught said O’Malley included that line in his speech after her staff met with him in Iowa to inform him about the nature of HIV criminalization statutes.

“So he was able to look into it more and that was when he at that conference was the first to call for these [laws] to be repealed,” Haught said.

Meanwhile, Clinton and Sanders haven’t explicitly articulated a position on the issue of HIV criminalization laws. In her proposed LGBT policy platform, Clinton vows to secure affordable treatment for people living with HIV/AIDS by calling on governors to expand Medicaid, capping out-of-pocket drug expenses to $250 a month and expanding use of HIV prevention medication, but she makes no mention of criminalization laws.

The Clinton and Sanders campaigns didn’t respond to numerous requests from the Washington Blade over the course of this week to comment on their candidates’ positions on HIV criminalization laws.

Haught said HIV advocates have tried through Twitter and other means to get Sanders and Clinton to comment on the issue, but thus far to no avail.

“They haven’t announced a plan of policy yet, but we are still working on it,” Haught said. “We hope to get both of them to call for the repeal or modernization of these HIV criminalization laws.”

Based on the hesitation he encountered in Iowa — even within the LGBT community — over reforming the HIV criminalization law, Crow understands why presidential candidates wouldn’t want to articulate a position on this issue.

“I don’t think that lends itself to a national campaign strategy so much because it’s not something you can condense into a single sentence and make it sound really sexy,” Crow said.

To counter the idea HIV criminalization laws have justification, Crow said they stigmatize HIV, which no longer carries a death sentence, by treating it differently than other diseases and in a way that doesn’t reflect science. Crow also said the laws have the effect of discouraging people from getting tested for HIV.

“In our opinion, as far as protection goes, people are responsible for themselves,” Crow said. “It’s the other person’s responsibility to protect themselves. The government does not need to be in there.”

Sean Strub, an Iowa native and director of the Sero Project, which combats HIV stigmatization, said he wants to “hear from the Clinton and Sanders campaigns on the topic,” but thinks there’s a greater problem about misunderstanding about the laws.

“I don’t think the centrality of criminalization reform to HIV prevention is understood,” Strub said. “As an issue, it tends to get more lip service, rather than substantive action and resources, from many key HIV prevention policy players in the epidemic.”

Although these laws are at the state level, efforts are underway at the federal level to challenge them. Legislation introduced in both houses of Congress known as the REPEAL HIV Discrimination Act would require an interagency review of federal and state laws that criminalize certain actions by people living with HIV.

In the House, the bill is H.R. 1586 and was introduced by Rep. Barbara Lee (D-Calif.), co-chair of the Congressional HIV/AIDS Caucus. In the Senate, the bill is S.2336 and is being led by Sen. Chris Coons (D-Del.).

Lee said in a statement to the Washington Blade she would like to hear all candidates running for president to call for an end of laws criminalizing HIV.

“HIV criminalization laws continue to discriminate against thousands of Americans,” Lee said. “I hope that as the 2016 campaign continues, all of the candidates will publicly support our work to repeal these discriminatory laws that only serve to create stigma.”

The New York-based Gay Men’s Health Crisis made public last month a wide-ranging questionnaire on HIV/AIDS and LGBT issues, saying only three Democratic candidates in the race at that time chose to respond. No question on the survey was on HIV criminalization (O’Malley volunteered his position in response to a question on the ban on gay blood donations).

Anthony Hayes, a Gay Men’s Health Crisis spokesperson, said the questionnaire was focused on the National HIV Strategy and won’t be the last inquiry from the organization to the candidates. A question on HIV criminalization might be part of a later effort, Hayes said.

If the Democratic candidates were to express support for HIV decriminalization, Haught said those words would have a significant impact at both state and federal efforts to reform the laws.

“Any time we can get anyone with prominence in the news cycle to call for [repeal of these laws, it helps a little bit so that, hopefully, we’ll make other legislators look at it,” Haught said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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