After Alabama… just one perspective

Published 30, May, 2016
Author // Jeff Potts

Jeff Potts reports back on the "HIV is not a crime" training academy for those advocating against criminalization of HIV non-disclosure

After Alabama… just one perspective

Once a trusted advisor to the President of the United States, Army Lieutenant Colonel Kenneth Pinkela was convicted of an alleged aggravated assault for HIV exposure in 2012, and he spent 272 days in a military prison. Kerry Thomas is living with HIV and an undetectable viral load.

Even though he used condoms, and despite the fact that he never transmitted HIV, Kerry was convicted for non-disclosure of his HIV-positive status and was sentenced to 30 years in the Idaho State Correctional Centre.

Ponder this: if you are living with HIV, your saliva makes you a bio-terrorist! This is what at least one person who lives with HIV in the U.S. believes is her truth. These are realities for too many, and it is not okay!

Our gathering place was the picturesque and expansive campus at the University of Alabama in Huntsville. We were 300 people from the United States, Canada, Mexico, and the United Kingdom, and we came together for the second HIV Is Not A Crime Training Academy.

Social media was abuzz with Tweets and Facebook posts that had #HINAC2016 trending. Some of us gently complained about the physical distance between meeting spaces, and most of us were undeniably overwhelmed by the intensity of the schedule. But in hindsight, the vastness of the venue and the daunting nature of the program was befitting the complexity and seriousness of the issue we gathered to grapple with: the criminalization of HIV.

What is HIV criminalization and why is it a problem?

As described by HIV Justice Worldwide[1], HIV criminalization boils down to using either HIV-specific or general criminal laws (e.g., sexual assault) to prosecute people living with HIV who are accused of failing to disclose their HIV-positive status and are presumed to have transmitted the virus to others.

Prosecutions (and convictions) are hardly commensurate with real or potential HIV transmission risks; are remarkably contrary to HIV-related public health policy or practice; and have long-lasting, profound impact on people’s lives.

Some convictions, for example, further stigmatize and marginalize people living with HIV as registered sex offenders, and too often lead to lengthy terms of incarceration. Simply put, the application of laws which criminalize HIV in more than 70 countries around the world adversely affects people living with HIV and represents violations of our basic human rights which we cannot and should not tolerate.

The important role of research and scientific evidence was profiled to help underscore how critical this issue is.  For example, we heard that the Centers for Disease Control predicted that “1 in 3 black gay men will become HIV positive in their lifetimes, while only 1 in 25,000 white heterosexual men will.”  We also heard repeatedly, and saw presentations to affirm findings, that HIV-related stigma is a significant barrier to HIV care and prevention, and that HIV criminalization intensifies that stigma almost exponentially.

What happened in Alabama was a passionate meeting of minds; a stirring of serious activism; and a show of strength and solidarity with, by, and for people living with HIV that many would agree is too rarely witnessed – at least in the way it was in Huntsville. Sessions were intensely emotional.

Emphasis on language and power dynamics was always evident with focus on how we should use language that is less stigmatizing in our everyday conversations: we are persons living with HIV, we are survivors, we are warriors; we are not victims, we are not people ‘infected’ with HIV; we are NOT criminals!

Keynote addresses, and plenary and breakout presentations provided us with uniquely interactive opportunities to contemplate and discuss how we, as advocates, can and should always commit to meaningful engagement with people living with HIV; how we ought to make better use of evidence to modernize laws and reform justice systems; how race, gender and sexuality intersect and how cognizant we must be to ensure intersectional approaches in the work we do; and how our commitment to be effective and accountable leaders paves the way for us to be part of the change we need to realize.


So What?

Among the 300 delegates, 17 Canadians, including three members of the Canadian Positive People Network (the CPPN), attended the HIV Is Not A Crime Training Academy. We travelled great distances to be there; two of us made the 4,000 kilometre return trip by car.

Conference organizers made the unprecedented decision to award full scholarships to the three of us attending on behalf the CPPN based on our commitment to find ways to replicate the training and share the knowledge we garnered with our Canadian peers as soon as possible after returning home.

We were, we are representatives from the Canadian Treatment Action Council, the HIV/AIDS Legal Clinic Ontario, the CPPN, the Canadian HIV/AIDS Legal Network, COCQ-SIDA, Concordia University, York University, the University of Ottawa, Nova Scotia Legal Aid, Kanikanichihk, Positive Living BC, the International Community of Women Living with HIV/AIDS, North America, PARN, Your Community AIDS Resource Network, and HIV Justice World Wide.

"...Canada is perceived by others as particularly harsh in its application of criminal laws affecting people living with HIV and is, therefore, complicit in blatant human rights violations." 

We were referred to as the “polite, quiet” group and folks actually said to us, "Man, you guys gotta get mad; you gotta get real pissed and show it". A delegate from the United Kingdom went so far as to emphatically conclude that without action, “Canada is f@#ked!” If we weren’t already motivated, these comments surely set our advocacy fires a-blazing.

The Supreme Court of Canada has held that “people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault.”  

This is not okay! Using condoms and/or having a low (or even undetectable) viral load may not be enough to protect us from criminal prosecution; and, what “realistic possibility” of transmission actually means is unclear. This is not okay!

We held a strategic meeting as a Canadian delegation while in Huntsville and, among other things, we agreed on two key points: that HIV criminalization is harmful and it is wrong; and that Canada is perceived by others as particularly harsh in its application of criminal laws affecting people living with HIV and is, therefore, complicit in blatant human rights violations. 

We must and will come together as a Canadian coalition of advocates against HIV criminalization; we must and will act to bring about critical change in this country. Alabama moved us. Alabama motivated us. Our commitment to protecting the rights and dignity of people living with HIV across this country after Alabama is renewed and unrelenting!

What do you think?

About the Author

Jeff Potts

Jeff Potts

Jeff Potts was and remains motivated by his own HIV infection twenty-five years ago.  In his life and his career, Jeff is inspired by Helen Keller and shares this goal: "I long to accomplish great and noble tasks, but it is my chief duty to accomplish humble tasks as though they were great and noble.  The world is moved along, not only by the mighty shoves of its heroes, but also by the aggregate of the tiny pushes of each honest worker." 

Jeff was a national programs consultant at the Canadian AIDS Society from November 2014 until January 2016.  Before that, he was a long-time public servant. His last position was with the Public Health Agency of Canada as the (national) manager of the Hepatitis C Prevention, Support and Research Program.  Before that, he held health portfolio positions at Health Canada and at Correctional Service Canada; and before that (way back), he was one of the earliest representatives of CATIE. Over the years, Jeff has spoken about and/or represented public health policy and programs on countless occasions across Canada, and at international meetings in more than twelve countries around the world.  Jeff is a proud and active member of the Canadian Positive People Network (the CPPN) where he shares unyielding resolve to improve and protect the health, quality of life and social condition of people living with HIV and HIV co-infections in Canada - and everywhere!