HIV Is Not A Crime Convention In Huntsville, Alabama And How Its Outcomes Matter To An African Immigrant in USA

A FACT SHEET ON HIV CRIMINALIZATION AND BASIC CRIME DEFINITIONS FOR AFRICAN IMMIGRANTS IN USA

By Tom R. Muyunga-Mukasa*

The National HIV is not a Crime Training was an opportunity to hear from advocates, actors and survivors in the area of HIV Criminalization in the Americas. Themes varied from: HIV criminalization survivors and their families; How to commit to meaningful involvement of people living with HIV; Role of research in HIV Criminalization/Criminal law modernization; Antiblackness and HIV Criminalization/Grounding ourselves in racial justice; What's working? Where are we struggling? Focus on state strategies; Successes and Challenges; Towards a broader decriminalization agenda: How race, sexuality, and gender intersect with HIV criminalization; and HIV criminal Laws and Prosecution in the deep south. My take home lesson was that: HIV Criminalization and immigration are two intersecting events in an immigrant's life. 

Why? One may ask. There are a variety of answers to the question:

Prior to 2010, federal immigration law prohibited people with HIV from entering the country. The United States recently removed statutory and regulatory bans prohibiting people living with HIV from entering the country. Effective January 4, 2010, HIV is no longer a bar to entry into the United States for visitation or immigration purposes. This means that HIV status alone cannot be a reason for excluding, removing, or deporting a person from the United States.  HIV status may be a basis for applying for asylum, a form of immigration protection in the United States, if an immigrant is able to show past persecution or fear of future persecution because of their HIV status. Nevertheless, people living with HIV who are detained in immigration detention facilities, including those applying for asylum protection, often experience difficulty in accessing essential health care and drug therapies while in custody (http://www.hivlawandpolicy.org/issues/immigration).

There are a number of options for treatment even if one immigrated to USA and contracted HIV before being fully documented. No hospital or healthcare facility in USA can deny one treatment and care for HIV-related illnesses or AIDS-related issues.

Do not hide or suffer in silence. Seek medical care immediately as soon as possible. Everyone needs to know their status. The medical term you will hear is called "serostatus." The usage can be in form of knowing one's serostatus or testing for one's serostatus. It is good practice as we shall see. 

Many public health rationales are given for the need to disclose one’s HIV status to sexual partners. The first is prevention. 

Disclosure is understood to be a key part of this public health objective by motivating people to seek testing upon learning a partner’s HIV status and in changing behavior to prevent the further spread of HIV.

Disclosure is also seen as a way for individuals to receive support (http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights_spring2011/sex_and_hiv_disclosure.html).  

Once one is aware of their status, it is possible to make informed choices for say, prevention, treatment seeking, self-care, avoiding transmission and avoiding a conflict with law. 

Remember, in USA many states have broadly criminalized HIV transmission under  different sexual offense statutes. 

In California, criminal laws include these penalties e.g., wilful exposure; donating tissue; sexual intercourse; and penalty enhancements (http://www.criminaldefenselawyer.com/resources/transmitting-std-california.htm). The California Health and Safety Code states that “any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom), when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony.” The law clarifies that “a person’s knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent.”

Michigan law criminalizes non disclosure, stating that if a person has been diagnosed with HIV and knows that he or she is infected and “engages in sexual penetration with another person without having first informed the other person that he or she has acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex or is HIV infected, is guilty of a felony.”

Any manner that constitutes transmission, intention to transmit and suspicion can be grounds for being penalized in courts of law as felonies. Failure to disclose HIV status is penalized; in some states (WV, VA, DE, KY, AL, AK, FL, GA, LA, MS, NC, SC, TN and TX), sharing needles or any instruments (works) previously used by HIV+ve persons is penalized; in many states HIV intentional infection can be reason for being registered as a sex offender. This means, one has to be registered under the Sex Offender Registry; one has to be on the Public Notification Website. Other penalties that can be cited include: Felony enhancement, solicitation, non disclosure of HIV and trafficking ( http://www.hivisnotacrime.com/). 

In Iowa, criminal transmission of HIV, is a felony in the same category as manslaughter, drug crimes and robbery. In 2009, a man called Rhoades was sentenced to 25 years in prison. His sentence was later reduced to time served plus five years of supervised probation. He is also required to register as a sex offender for the rest of his life ( https://www.wklaw.com/california-hiv-disclosure-laws/).

Because of the above, stigma, discrimination and marginalization can arise. For immigrant communities this has devastating repercussions. The fires can burn brighter when stoked by race, sexuality, orientation, social economic status, gender and HIV criminalization in a given jurisdiction.

Before we wind up this short session, I want us to understand two aspects of US penal code. The words: Felony and misdemeanor.

Felony is a serious crime. It is a crime punishable by death or imprisonment beyond one year (Federal Government of US definition). Examples include: treason, kidnapping, grand theft, larceny, obstruction of justice, assault, perjury, mail/wire fraud, violating parole/probation, recognizance bond, threatening officials and other acts.

Misdemeanor is a minor offense such as not carrying one's driving license in a traffic violation.

Remember, always seek information, do not suffer alone. Ignorance of the law is no excuse. We are now living in an advanced country. Rule of law and mechanisms that are used to enforce the law are superior in America compared to Africa. Please be careful in the way you consummate your sexual desires! Find out your HIV/other STI's status; also ask your sexual partner their status; ask about their age too ( age of consent/discretion must be above 18). Negotiate for safer sex.

*The author of this combined article/factsheet on HIV Criminalization and Immigration is a Harvard trained Quality Improvement and Global Health Practitioner. He has special interest in addressing health disparity, inequality, promote constructive dialogue and durable solutions. He won the prestigious scholarship to attend the National HIV is Not A Crime Training (2016) at University of Alabama, Huntsville.