NOW WHAT?

C R I M I N A L I Z AT I O N O V E R V I E W
B Y K E N N D A K A L I B U R T

LEPROSY
What/ When have you heard about leprosy? Including Biblical, what were the reactions to post modern leprosy? Do you know anything about modern day leprosy?

LEPROSY, PATTERNS & HIV/AIDS

Whats the connection between leprosy, polio and HIV/AIDS?

There is a pattern of criminalization. Criminalization based on fear, ignorance and stigma.

WHAT IS CRIMINALIZATION?

Criminalization, in criminology, is the process by which behaviors and individuals are transformed into crime and criminals (Michalowski, R.J. 1985. Order, Law and Crime: An Introduction on Criminology. New York: Random House.)

VARIOUS CRIMINALIZATION COURT CASES

Brock v. State, 555 So.2d 285, 287-88 (Ala.Crim.App.1989) (reversing first degree assault conviction when no evidence about HIV transmission was presented and "the role of saliva in the transmission of [HIV] is unclear" ) Weeks v. State, 834 S.W.2d 559, 562-65 (Tx.Ct.App.1992) (sustaining attempted murder conviction of HIV-infected inmate who spat into face of guard) Commonwealth v. Brown, 413 Pa.Super. 421, 605 A.2d 429 430-31 (1992) (sustaining aggravated assault conviction against inmate with HIV and hepatitis who flung fecal material into guard's mouth). State v. Bird, 81 Ohio St.3d 582, 692 N.E.2d 1013, 1016 (1998) (affirming no contest plea of HIV infected defendant who spat in police officer's face because plea made it unnecessary to decide whether HIV could be transmitted by saliva).

CRIMINALIZATION & HIV/ AIDS

Most countries only criminalize HIV exposure or transmission if a person has been tested for HIV, and know their positive results. (10 Reason Why Criminalization of HIV Exposure or Transmission Harms Women, Athena Network, 2009) What people are getting prosecuted for is negligent transmission of HIV Criminalization of HIV covers sexual transmission, donating HIV infected organs, tissue or blood, even spitting or any other sharing of HIV infected bodily fluids (this includes breast milk) The following states have laws: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Washington.

SOME CRIMINALS ARE BEING TRIED UNDER

Laws against causing bodily harm can be applied to HIV transmission Application of the criminal law to cases where people are negligent or reckless Cases of poisoning (France has no specific HIV- Transmission laws) First-degree assault with sexual motivation Grievous Bodily Harm Harassing a public servant with a 'deadly weapon'

Alabama Engaging in activities likely to transmit an STD is a class C misdemeanor. California Engaging in uninformed, unprotected sexual activity (exception for consent) with the intent to infect the other person is a felony punishable by up to 8 years in prison. Colorado Committing or soliciting prostitution with knowledge of being HIV positive are class 5 and 6 felonies. Florida Unlawful for person with HIV, with knowledge both of their infection and risk of sexual transmission, to have sex without disclosure and consent having taken place. Michigan It is a felony to engage in sexual penetration, however slight and regardless of whether semen has been emitted, without informing the other of his/her HIV status. Missouri It is a class B felony to expose a person to HIV if defendant knowingly acted in a reckless manner without knowledge and consent through oral, anal or vaginal sex. If complainant becomes infected, the charge is a class A felony. The use of a condom is not a defence. New York The applicable part of the law is reckless endangerment in the first degree for engaging in conduct which creates a grave risk of death to another person. Pennsylvania The state Superior Court ruled in a 2006 case involving oral sex that HIV positive people who do not disclose their status to their sexual partners can be charged with reckless endangerment. It follows that any kind of unprotected sex without disclosure could be prosecuted. Texas HIV transmission cases have been brought to court under aggravated assault laws whereby a person intentionally, knowingly, or recklessly uses or exhibits a deadly weapon as part of an assault. Saliva of an HIV infected person is considered a deadly weapon.

USA
LAST UPDATED ( SUNDAY, 29 NOVEMBER 2009 )
Estimated number of people living with HIV Number of people prosecuted 448871 345

Number of people convicted

Applicable Law The United States of America is made up of different states which each have different states laws, both criminal and public health. Maximum sentences possible are 25 years imprisonment for HIV exposure (Iowa) or the death penalty for HIV transmission in Missouri.

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THINGS TO THINK ABOUT

Why are other STDs not treated the same, even though untreated can also be fatal, and diseases like Herpes can never be cured? Are there human rights, civil rights and constitutional rights of privacy that need to be taken into account?

Could criminalization of tested deter people from getting tested even if partaking in risky behaviors?
Where do medical confidentiality laws come in? How does that effect doctors, nurses and others in the medical field?

Is it worth court funding, if not a premeditated goal set by an individual?

VARIOUS RESOURCES

http://ijsa.rsmjournals.com/cgi/content/abstract/20/9/613
http://www.gnpplus.net/criminalisation/index.php?option=com_ content&task=view&id=15&Itemid=37 http://www.aclu.org/hiv-aids http://www.hivlawandpolicy.org/ http://www.hrw.org/topic/health/hiv/tb?t=hivaids&document_limi t=0,5 http://www.lambdalegal.org/issues/hiv/

LETS TALK!

Whats going on in Detroit, Carrie? What have you done in the past? What can we do now?