Posts Tagged ‘Health Threat To Others’

Local Michigan county wants to force meds on HIV criminal suspect

Posted on: January 10th, 2012 by Todd Heywood No Comments

Sangeeta Ghosh, assistant corporate counsel for Kent County, Mich., says should the 51-year-old man charged in two cases of failing to disclose his HIV-positive status to sexual partners make bail, the county is prepared to ask a court to force him to take antiretroviral medications. (more…)

Michigan health depts targeting HIV-positive pregnant women unfairly, experts say

Posted on: December 1st, 2011 by The American Independent 14 Comments

On World AIDS Day, President Barack Obama declared that America is on its way to defeating the global pandemic known as the AIDS virus. At an online conference Thursday, the President announced more funding ($50 million more) for HIV/AIDS treatment in the U.S. and a higher target goal for how many Americans will be on treatment by 2013 (6 million people). And while HIV patients and advocates welcome efforts to fight and treat the disease on a large scale, many agree that at the state and local levels, serious problems with treatment programs and the criminalization of HIV-positive individuals often go unaddressed. (more…)

Rep. Barbara Lee of Calif. submits legislation to end HIV criminalization

Posted on: September 28th, 2011 by The American Independent 1 Comment

Democratic California Rep. Barbara Lee on Friday introduced legislation aimed at addressing the on-going criminalization of persons living with HIV infection and Reps. Hansen Clarke and John Conyers of Detroit have signed on as co-sponsors of the bill.

Here’s how Lee’s office described the bill when announcing it Friday in a press release:

The bill creates incentives and support for states to reform existing policies that use legal authority to target people living with HIV for felony charges and severe punishments for behavior that is otherwise legal or that poses no measurable risk of HIV transmission.

Michigan is one of 34 states and two territories of the U.S. with HIV-specific criminal laws.

In Michigan, the law makes it a four-year felony to engage in sexual penetration — “however slight” — without first disclosing an HIV-positive antibody test result. However, the law does not criminalize failure to disclose when sharing a needle. In addition to the felony law, Michigan also has the ability to use civil commitment rules under the Michigan Public Health Code to detain a person determined by health officials to be a “health threat to others.”

The criminalization is not limited to laws that specifically address HIV. As Michigan Messenger reported, a Macomb county gay man was charged by Eric Smith, the prosecutor there, with “possession or use of a harmful biological device.” The device? His HIV-positive blood. The man bit a neighbor during what he says was a brutal gay bashing. The charges were later dismissed by a circuit court judge, but even in dismissing the charges, the judge left the door open for an HIV-positive person to be charged with bio-terrorism if that person were bleeding.

The Macomb county case is cited in the legislation as an example of criminalization.

Lee said such laws lag behind our medical understanding of HIV:

“Laws that place an additional burden on HIV-positive individuals because of their HIV status lag far behind the medical advances and scientific discoveries in the fight against the epidemic,” said Congresswoman Lee. “Instead of progress against the disease and protection for people living with HIV/AIDS, criminalization laws breed fear, discrimination, distrust, and hatred.”

“Although our country has made notable advances in the global fight against HIV/AIDS, we have a long way to go,” continued Lee. “The decriminalization of HIV/AIDS is one way we can reduce stigma in our communities, while fighting the epidemic in a rational, holistic, and truly rights-based fashion.”

“HIV-positive Americans deserve the compassion and respect reserved for patients, yet they so often receive the stigma and punishment afforded to criminals. This is a civil rights injustice in our time. Representative Lee’s legislation would fight antiquated and discriminatory laws that do nothing to advance public health but do a great deal to reverse human rights. We must act now to pass her bill and end these practices,” said Clarke in an exclusive statement to Michigan Messenger.

In August, Clarke endorsed the premise behind the legislation, saying:

“HIV/AIDS is a public health crisis in metro Detroit,” Clarke said, echoing statements from progressive activist Van Jones. Jones in an interview with Michigan Messenger in June of last year said the HIV epidemic in Detroit required “federal resources.”

Advocates for those living with the virus are also hailing the legislation’s introduction.

“The REPEAL Act is important for many reasons. It calls out HIV criminalization for what it is: the use of the criminal law to single out people with HIV for exceptionally severe punishment for conduct that is legal for those who have not been diagnosed with HIV. It recognizes that this kind of exceptionally bad treatment of a disability is stigmatizing, discriminatory, and at odds with the prevention messages in which we’ve invested millions of public dollars,” said Catherine Hanssens, executive director of the Center for HIV Law and Policy, which last September launched the Positive Justice Project with an eye towards eliminating HIV criminalization. “This irrational treatment is particularly intolerable when it is created and enforced by government officials. In response, the REPEAL Act provides practical, affordable steps to address and resolve the problem. And finally, in view of the disproportionate impact of both HIV and the misuse of the criminal law on Blacks and other people of color, it addresses an issue of racial justice.”

Hanssens praised lawmakers for stepping up on the issue.

“While the REPEAL Act is a public health imperative, it is important to recognize the political guts of Congresspeople Lee, McDermott, Clarke and the other co-sponsors in taking on the widespread, and widely accepted, ignorance and prejudice that is the foundation for HIV-specific criminal laws,” she said.

Mark Peterson, a spokesperson for the group Michigan Positive Action Coaltion — which has also endorsed the legislation — was also full of praise on the issue.

“This bill shows that we have grown as a society from the early days of HIV. It finally addresses the need to base our laws on science and human rights instead of fear and ignorance. There is no other place in our laws where people living with a terminal illness are so villified and criminalized. Culturally, we have allowed this rampant stigma and dehumanization to go on unchecked. One need only to look here in Michigan, where recently we had an HIV positive individual charged as a bioterrorist simply because they had HIV,” said Peterson. “Congresswoman Lee’s bill is a good first step in righting the wrongs of the last thirty years. We also should be very proud that Congressman Clarke has signed on as a co-sponsor.”

Equality Michigan also praised the legislation.

“The criminalization of HIV is a hindrance to public health. Initially introduced and sold to the public as an aggressive tool to combat the AIDS epidemic, we have instead seen HIV criminalization laws wielded by law enforcement and courts based on prejudice and with reckless abandon,” said Emily Dievendorf, policy director for the lesbian, gay, bisexual and transgender rights advocacy group in Detroit. “The silence that results from the fear of a legal bias against HIV and AIDS has killed countless Americans. To individuals with HIV the targeting has been more akin to war on an already vulnerable population than on a deadly virus. Criminalization empowers the already disabling stigma against HIV and makes at-risk individuals far less likely to be open about their HIV positive status or even to get tested in the first place. Congresswoman Lee’s legislation is an important and urgently needed shift toward demanding equal protection and intelligent public health for all Americans.”

AIDS advocates concerned about Kalamazoo County HIV disclosures

Posted on: May 12th, 2011 by The American Independent No Comments

In spite of a 2009 change to controversial Client Acknowledgement forms used to inform HIV-positive patients of their legal responsibilities in Kalamazoo County, HIV advocates remain seriously concerned about the documents and their use in the county.

The Client Acknowledgement forms came under fire in February when a Michigan Messenger investigation found that the documents in use throughout the state misrepresented the state’s HIV disclosure law, and had been linked to criminal prosecutions.

In April, the Michigan Department of Community Health sent a letter to local health departments informing them the documents were neither “endorsed or encouraged” by MDCH. The letter went on to say the documents could be seen as stigmatizing HIV positive persons and risk behaviors for HIV transmission.

Macomb county has since changed its document, while the Michigan Department of Corrections has said it will not be changing its document.

Kalamazoo was one of the counties identified as using a document which misrepresented Michigan law. But in a sit down interview with Michelle Thorne, clinical services director for the Kalamazoo County Health Department, said the document had been changed by early 2009 as part of an annual review by the MDCH HIV/AIDS Prevention and Intervention Section. Local health departments and AIDS Service Organizations are subject to review and accreditation by the state every three years.

The old document has now been replaced with a generic document which reads:

“I (print client’s name) understand what safe behaviors are as explained to me by the Health and Community Services Department staff I need to follow to prevent further transmission of (blank). I have had all my questions regarding safe behaviors answered to my satisfaction. I understand what actions Kalamazoo County Health and Community Services may have to take should I not follow these instructions including any actions under the Michigan Public Health Code sec. 333.5201.”

“It’s a generic form and we use it for TB, other communicable diseases and HIV,” Thorne said.

Thorne said that KCHD only institutes an investigation if some one comes to the county and claims a person did not disclose their HIV status prior to sexual activity. If the department determines the claim to be unreliable, including anonymous complaints, the investigation goes no further. However, if the department determines failure to disclose happened, it triggers a Health Threat To Others (HTTO) investigation.

The HTTO program has also been criticized by advocates.

The department does not refer investigations to police or criminal justice. They may refer those filing complaints to law enforcement. Thorne said the department will disclose files on HIV positive people to law enforcement, but only if a subpoena has been issued.

“We understand that there are going to be legitimate complaints on this and there are going to be not so legitimate complaints,” Thorne said. “We get a lot of he said/she said anonymous complaints.”

She said the department fields two or three complaints of failure to disclose every month. But Thorne says the department is not able to offer legal advice to HIV positive people on how to develop evidence to support that they did disclose their HIV status to a sex partner.

“Would I, personally, advise a person with HIV to get their partners to sign a document? I might. But would they follow it? I don’t know,” Thorne said.

But Catherine Hanssens, executive director of the Center for HIV Law and Policy in New York City, said she is not happy with Thorne’s explanation.

“Since Michigan has decided that having people sign forms documenting that they have consented to HIV testing is too burdensome, forcing them to acknowledge potential criminal liability is something they should never be required to do. Even if the law requires the state to inform newly-diagnosed people of their obligation to disclose, that does not obligate the newly-diagnosed to put in writing something that can and has been used against them in a criminal proceeding. Everyone asked to sign such a form should be informed of that possibility before signing,” Hanssens said. “And everyone offered an HIV test should be advised before testing that Kalamazoo health officials have and will continue to hand over their HIV testing records to law enforcement officials…If these records are not confidential and protected from disclosure from law enforcement, people contemplating testing should know this in advance so that they can consider whether to test elsewhere or anonymously.”

But Thorne says her agency’s goal is to help those who test HIV-positive, not to incriminate them. “We’re not using that to try to put some one in jail,” she said. “That is not our intention.”

Macomb County responds to state health dept., amends HIV document

Posted on: April 13th, 2011 by The American Independent No Comments

In response to guidance from the Michigan Department of Community Health, the Macomb County Health Department has changed the client acknowledgment forms they use — but some advocates say they haven’t gone far enough yet.

Dr. Kevin Lokar, medical director of the Macomb County Health Department, tells Michigan Messenger in an email that the department made the changes in February.

“We revised our form in February 2011. There is no longer any statement requiring the use of condoms,” Lokar wrote. “However, condom use is recommended. Disclosure is the only thing required. Clients are asked to sign the form but this also is not required. Forms will continue to be confidentially maintained by the Department.”

The documents came under fire in February after a Michigan Messenger investigation showed the documents were legally inaccurate. Many of the documents obtained by Messenger improperly stated the state’s HIV disclosure law; some counties like the Cass Van Buren County department improperly included sharing needles as part of the law, while Macomb and Kalamazoo county documents directed HIV-positive individual to use condoms or other barriers for the rest of their lives. Those documents have been tied to criminal prosecutions against HIV-positive persons in Mecosta, Kent, Kalamazoo, Calhoun and Bay counties in Michigan.

The MDCH sent a letter to all local health departments earlier this month directing them to have attorneys review the documents, and noting the documents are neither “endorsed” or “approved” by the state department. Additionally, the state said the use of the documents could, in fact, increase stigma against those with HIV.

Advocates said the requirement to use condoms for the rest of the HIV-positive person’s life violated an individual’s reproductive rights of those people.

“Barrier sex was previously required because of our interpretation of the ‘Health Treat to Others’ law,” Lokar wrote in his email about the old document. “This law allows a local health department to consider a person a ‘Health Threat to Others’ if they display an unwillingness to conduct themselves in such a manner as to not place others at risk of transmission of an infectious agent. We believed that not using a barrier method met this definition if a person was HIV positive. We changed the form in February after discussion with MDCH.”

That belief was based on a legal opinion penned by MDCH attorney Denise Chrysler.

“From our conversation, it sounds like an individual would always be a health threat, even if the individual’s partner is also HIV-positive. An HIV-infected individual is not relieved of all responsibility to prevent transmission simply because he/she has warned their sex partner of HIV-infection,” wrote Chrysler in an April 29, 2008 e-mail to staff at the MDCH HIV/AIDS Prevention and Intervention Section (HAPIS) regarding the documents in question. HAPIS staff raised legal concerns about the barrier sex requirements. “The form does NOT state the individual with HIV must cease having sex; it says that the individual must stop having unprotected sex.”

Kelly Nieber, spokesperson for MDCH, issued a statement saying Chrysler’s opinion was not an official legal assessment.

“Apparently Denise Chrysler’s e-mail was in response to a telephone conversation as she indicated in her e-mail,” said Niebel. “Her opinion was not intended to be formal legal advice to any health department, including Macomb County, nor was it intended to present a legal position or interpretation of the department.”

The Health Threat to Others law has also come under fire by advocates for those with HIV.

Regardless of the changes, not all state advocates are happy with the steps taken by Macomb County.

“The County Health Department appears to be missing the essential problem with this form, which is that it exists at all, and particularly that it is given to people who already are dealing with the news of being newly-diagnosed with HIV,” says Catherine Hanssens, executive director of the Center for HIV Law and Policy in New York City. “It is a particularly strange point of focus for a health department in prioritizing information that should be provided and documented for the newly-diagnosed. Is there a form that explains that person’s right to be free of discrimination? What to do if they are denied employment, access to basic services, or health care and insurance? Assurances that the health department’s priority is that person’s health and welfare? The use of the form is, at the least, insensitive and, at worst, an inappropriate involvement of a public health agency in the potential criminal prosecution of people living with HIV.”

“Macomb County took a proactive step forward by amending their forms to make them an accurate reflection of Michigan law. I do have concerns with the fact that, even while HIV positive individuals are not required to sign the new form, it remains formatted like a contract with a signature line,” says Emily Dievendorf, policy director for Equality Michigan.

“The Michigan Department of Community Health announced that no disclosure form of any kind is even required by Michigan much less a form requesting a name on a dotted line. Equality Michigan is sensitive to misleading forms because disclosure forms have been used to prosecute HIV positive individuals,” Dievendorf continued. “We would prefer that the revised versions created by our counties not be presented with a signature line or designed in any way that suggests that the forms acts as a contract.”

“Our counties have an opportunity to do a great service to the public health by revisiting their disclosure forms and revising them to be the best and fairest possible working documents,” she concluded. “To Equality Michigan this means that we leave no room for misinterpretation – and thus no signature line.”

Michigan HIV disclosure forms found inaccurate under law

Posted on: February 7th, 2011 by Eartha Jane Melzer No Comments

Image by: Matt MahurinLANSING — HIV advocates and legal experts say the state’s local health departments and the Michigan Department of Community Health are using documents which exaggerate the risks of HIV transmission and misstate what Michigan law requires. (more…)