Michigan HIV disclosure forms found inaccurate under law
LANSING — 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.
At issue are documents called “client acknowledgment forms” that are meant to explain to newly diagnosed HIV-positive people Michigan’s disclosure law. But experts say those forms go beyond that stated purpose and distort the legal requirements on HIV-positive people.
Under Michigan law, when a person tests positive for HIV, health officials are required to meet with them and do two things. First, they are expected to offer assistance in contacting sexual and needle sharing partners. Such contact is expected to be anonymous, and not identify who was the source of an exposure to the virus.
The second thing officials are expected to do is inform the newly diagnosed person that under Michigan law, they are legally obligated to disclose their HIV-positive status prior to sexual relations. Failure to do so is a [felony](http://www.legislature.mi.gov/(S(gmab5f3hjfpd4u55cmrp3n3l))/mileg.aspx?page=getObject&objectName=mcl-333-5210).
The documents, obtained through Michigan’s Freedom of Information Act, go beyond the legal requirement to explain Michigan’s law. They also require people infected with HIV to engage in only protected sex, such as using a latex condom, dental dam, or a female condom when engaging in sexual contact with others. The document implies that failing to do so is a crime.
Also included in the released document is a legal opinion from an MDCH lawyer which supports claiming it is illegal for a person who is HIV positive to engage in unprotected sex. The lawyer, Denise Chrysler, says the state’s Public Health Act and the specific Health Threat to Others section of it, allow officials to declare unprotected sex for HIV-positive people illegal.
“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.”
Chrysler’s legal memo appears to be in opposition to the MDCH’s own policy guidance for Health Threat To Others situations, which Michigan Messenger reported on in December. That guidance defines an HTTO as a person who is failing to disclose his or her status to sexual and needle sharing partners.
Records from the MDCH show that at least three of the state’s 83 counties — Van Buren, Cass and Macomb health departments — are asking newly diagnosed HIV-positive persons to sign a form related to the state’s HIV-specific criminal statute. Michigan Messenger has obtained similar documents from the Michigan Department of Corrections and Kalamazoo County.
In 2007, officials at the Ingham County Health Department came under withering criticism for a document with similar content. MDCH officials say that document, contrary to claims by Ingham County, was never reviewed or approved by the state and is, in fact, “unnecessary.” Ingham county’s document was called a contract, and after two months of publicity, the department revoked the document.
These documents have been used to prosecute HIV-positive people in Kalamazoo, Montcalm, Calhoun and Bay counties for failing to disclose their HIV-positive status prior to sexual activity. However, none of the documents indicate that they may be used in the future for criminal proceedings against the HIV-positive person.
One document from the Van Buren and Cass Health Departments implies that sharing needles without disclosing an HIV-positive status is a felony. However, Michigan law only makes sexual penetration, “however slight,” a felony.
Michigan’s law has been criticized by activists and lawmakers alike. In an interview with Michigan Messenger in 2009, former state senator and current member of Congress Hansen Clarke said Michigan’s disclosure law criminalized sexual activity, but “it hasn’t been able to protect the public.”
Experts: Documents concerning, possibly ‘illegal’
“My concerns would be the Michigan law does not specifically prohibit two consenting adults who have knowledge of each other’s HIV status from engaging in unprotected sex, nor does it criminalize the sharing of needles if one is HIV positive,” says Jay Kaplan, staff attorney for the ACLU of Michigan’s Lesbian, Gay, Bisexual and Transgender Project. “I think the way these statements, the way they are written, are misleading (in that they imply that is what Michigan law specifically says). I think the better way would be to have them state that it is recommended health department policy not to share needles, not to engage in unprotected sex when either one or both partners are HIV (and provide medical reasons why).”
For others advocates, however, the documents are more than just a concern.
“The Michigan client’s forms, and the so-called legal opinions about them, reflect a poor grasp of both the relevant science and the relevant law. A positive antibody test is not proof of infection; a confirmatory test is required. The form, and its assessment, also treats all types of sex as equally risky, and all persons with HIV as equally infectious at every stage in the medical condition that is HIV disease. This is a level of medical inaccuracy that is unacceptable from a state Department of Health. Lawyers who think that banning only unprotected sex is legal might want to acquaint themselves with the U.S. Constitution and legal opinions which have long since established the decision to conceive children as a Constitutionally-protected, fundamental right,” says Catherine Hanssens, executive director of CHLP. “In short, the use of the form, the false, exaggerated message of toxicity, and the loss of reproductive rights as a consequence of a medical condition that is being imposed on anyone with HIV, let alone someone who is newly-diagnosed, is not only unconscionable but likely illegal.”
Other advocates, like Sean Strub, senior adviser for the Center for HIV Law and Policy and founding publisher of POZ magazine, a publication written for and by people living with HIV, point out that state law singles out only HIV to prosecute among all of the dangerous sexually transmitted diseases.
“It is sad that Michigan’s Department of Health is leading the nation in oppressive public health policies that seek to regulate and control the sex lives of citizens rather than promote empowering policies that improve the public health,” Strub says. “About 70% of the sexually active adult population in Michigan carries Human Papiloma Virus at some point; how many women in Michigan died of cervical cancer last year? Almost every single one of them got it from HPV. Is the MDCH going to pursue similar kinds of regulation and reporting for those with HIV? Of course not; HPV isn’t associated with an outlaw sexuality, or with communities of color, homosexuality and drug use, as is HIV.”
Laurel Sprague, from the Global Network of People Living with HIV North America (GNP+NA), the documents seem to undermine a core function of public health — detecting those with HIV. Federal, state and local health authorities have been pushing for more routine HIV testing. In 2006, the CDC going so far as to recommend HIV testing annually for all people ages 13-64.
“We have people going to their health department, taking the test, then receiving results that are frightening and overwhelming. What they need is compassion, hope, and accurate information about how they can protect their health and the health of the people with whom they are most intimate,” Sprague says. “Instead, they are treated as if the only thing stopping them from a wild, mad rampage of infection is this sternly worded document informing them about the law.”
“I expect our health departments to promote current, accurate, evidence-based responses to HIV,” says Sprague, who lives in Ann Arbor. “In addition, a simple-minded approach that insists that people with HIV use condoms in every sexual encounter is absolutely blind to the science around transmission risks and methods of risk reduction. Our public servants ought to be encouraged to seek and promote current evidence about prevention and care – information that is useful for all people in the state. Important to this discussion, but absent, is the evidence that transmission risk is negligible when the amount of virus in one’s body is undetectable.”
Strub is more blunt. “This is really about demonizing gay male sexuality and marginalizing and stigmatizing people with HIV to satisfy a political agenda, not a public health agenda,” he says.