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

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](http://www.legislature.mi.gov/(S(outzwtudlc5olw55lnustwbo))/mileg.aspx?page=getObject&objectName=mcl-333-5210) 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.”

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