By Oscar Mairena, Manager, Policy & Legislative Affairs and Viral Hepatitis
This month, Congresswomen Barbara Lee (D-CA) and Ileana Ros-Lehtinen (R-FL) introduced bipartisan legislation, HR1843, the Repeal Existing Policies that Encourage or Allow Legal (REPEAL) HIV Discrimination Act. The REPEAL Act calls for laws and policies that demonstrate a public-health oriented, evidence-based, medically-accurate and contemporary understanding of HIV transmission, risks of transmission based on means of exposure, current health implications of living with HIV and the benefits of treatment and comprehensive support services.
The REPEAL Act builds on the National HIV/AIDS Strategy’s (NHAS) recommendation that “state legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to screening for, preventing and treating HIV.” The Presidential Advisory Council on HIV/AIDS (PACHA) provided similar guidance when it unanimously passed the Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments in February 2013. The PACHA resolution acknowledged that punishments imposed for non-disclosure, exposure or HIV transmission are out of proportion to the actual harm inflicted and reinforce fear and stigma associated with HIV. PACHA also resolved that “HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”
The Impact of Criminalization on Public Health
Given the role state HIV/AIDS programs play in implementing HIV related policies, laws and procedures, HIV criminal laws pose a professional and ethical conflict for health providers, public health officials and health departments who may be put in the position of having to choose between enforcing the law and protecting their patients—a conflict that can be detrimental to patient-provider relationships, identification of people living with HIV, linkage and retention to care, and treatment adherence. Because of this conflict, NASTAD released a Policy Statement on HIV Criminalization which committed our members to promote public education and understanding of the stigmatizing impact and negative public health consequences of criminalization statutes and prosecutions. NASTAD also issued five basic guidelines that identify current practices and procedures and provide a framework for evaluation, remedial measures and follow-up monitoring of HIV modernization efforts.
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How the REPEAL Act will Benefit Public Health
The REPEAL Act calls for a joint-report between the Department of Health and Human Services, the Department of Justice and the Department of Defense which:
- Incorporates the input of state public health officials, nongovernmental health organizations and associations
- Involves state public health officials in the review of these laws and the creation of guidance to better address criminal statutes
- Determines whether these laws demonstrate a public-health oriented understanding of routes and risks of transmission of HIV
- Provides an analysis of the public health and legal implications of these laws on people living with and at-risk of HIV
- Includes a set of best practice recommendations directed to state governments, legislatures, attorneys general, public health officials and judicial officers
These specific recommendations will better equip state health departments and HIV/AIDS programs to tackle the criminalization of people living with HIV, modernize their policies so that they are in-sync with national directives and ensure the rights of their constituents without a professional and ethical conflict.
NASTAD commends Congresswomen Lee and Ros-Lehtinen for their work in ensuring the rights of people living with HIV and introducing the REPEAL Act. To learn more about NASTAD’s HIV Decriminalization efforts read our blog posts or visit our website.
We want to hear from you! How are criminal laws impacting HIV prevention and access to care in your state? Tell us how by leaving a comment below.