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Mich. Health Dept. Puts HIV Criminal Law Review 'On Hold'
Move Comes As Abuses In Prosecution Discovered; Evidence Law Has No Deterrent Effect Mount
By Todd A. Heywood
Originally printed 8/23/2013 (Issue 2134 - Between The Lines News)
LANSING - A yearlong review of Michigan's controversial HIV disclosure law has been put "on hold" a spokesperson for the Michigan Department of Community Health says.
"This review was put on hold due to the internal reorganization," Angela Minicuci, spokesperson for MDCH said in an email. "Staff is checking to see if there are any plans to pick this up again anytime soon."
The reorganization of the department became effective May 13 and is expected to fully complete by Oct. 1, according to a May 10 MDCH memo from Melanie Brim, senior deputy director of health administration.
"The recent reorganization of the Michigan Department of Community Health does not justify keeping people living with HIV in the dark about their privacy rights in Michigan. A full review of Michigan's HIV disclosure law, MCL 333.5210, must be done thoroughly and without further delay. Equality Michigan calls on the MDCH to make clear its intentions to review MCL 333.5210 and work with our communities on how to best address this complex issue," said Emily Dievendorf, managing director of Equality Michigan.
The move is not sitting well with some other anti-criminalization advocates.
"At a time when public health officials around the globe have recognized HIV criminalization as a problem, it is odd that Michigan's health department has chosen to put their review process 'on hold' with no timetable or plan for completion," says Sean Strub, executive director of Sero Project, a national organization dedicated to ending HIV criminalization. "While the bureaucracy dilly-dallies, Michigan public health suffers."
"It would very discouraging for the Department to discontinue reviewing its policies to encourage people to get tested for HIV, while at the same time protecting both their confidentiality and respecting their constitutional rights, " said Jay Kaplan, attorney with ACLU Michigan's LGBT Project.
The department has been reviewing Michigan's HIV specific criminal law, MCL 333.5210, which makes it a felony for a person who knows he or she is infected with HIV to engage in sexual penetration, "however slight," without first disclosing that status to partners. The review is in response, in part, to the federal government's National HIV/AIDS Strategy released in July 2010. That document encouraged states to review the laws and directed the Department of Justice to provide technical assistance in the reviews.
Michigan is one of 32 U.S. states and two territories with such HIV specific laws, and recent years, those laws have come under increasing scrutiny. Academic studies have found the laws have no impact on risk behavior and transmission rates in states with such laws and without them are comparable. A study in Ottawa Canada found that high profile prosecutions also prevented a small percentage of men who have sex with men who were most at risk for infection from being tested for the virus or discussing their sexual health and activity with medical professionals.
In addition to the scientific findings, the Global Commission on HIV and the Law - a United Nations commission - issued a report last year calling for the elimination of such laws. Other organizations such as the National Association of State and Territorial AIDS Directors and the HIV Medicine Association have also called for the elimination of the laws. And in June, California Democratic Congresswoman Barbara Lee was able to attach an amendment to the National Defense Authorization Act requiring the Department of Defense to review policies and prosecutions of service members living with HIV.
Susan Grimes Gilbert, formerly Susan Grimes Munson, was a state Republican lawmaker who pushed the 1989 disclosure law through the legislature. She has since announced the law is not working and that she is working on its repeal.
According to documents obtained from MDCH, the state began reviewing the laws in July of 2012. In December 2012, the state released a July memo, as well as three drafts all from November 2012, of an internal report on the law.
The memo, from Mikelle Robinson, director Bureau of Local Health and Administrative Services, was written July 23, 2012. Robinson writes that subjecting Section 52 of the Public Health Code to legislative action would be a poor choice at this time.
"Recognizing the importance of Part 52 and the risk of untoward amendments the division recommends against opening it up for revisions," Robinson wrote. Emphasis in the original. She then proceeds to lay out two options to address MCL 333.5210, Michigan's HIV-specific disclosure law.
The first option is to "rescind" the section altogether. The second option is to amend the section to address only those who are intent on infecting their partners -- which she notes is "atypical and uncommon."
The draft reports, which were written by a variety of staff in the HIV/AIDS Prevention and Intervention Section (HAPIS), vary only slightly from one and other - although those slight variations would have significant policy impact.
In the first draft, dated Nov. 1 and the second, dated Nov. 16, staff recommended the adoption of the policy construction substantially similar to recommendations from the Center for HIV Law and Policy in New York City as well as the Global Commission on HIV and the Law.
"In cases involving the willful and knowing spread of HIV and other hazardous communicable diseases," the MDCH staff wrote, "ensure that prosecution requires proof of intent to harm, conduct that is likely to result in that harm, proof the conduct of the accused in fact resulted in the alleged harm, and punishment that is proportionate to the actual harm caused by the defendant's conduct."
In the third draft released by MDCH, dated Nov. 29, that recommendation is removed.
In Michigan, Trevor Hoppe, a University of Michigan researcher and Ph.D. candidate, has raised significant concerns about the abuses of the state's laws related to HIV. He has identified 61 convictions in Michigan between 1992 and 2010, and reviewed just over 4,500 pages of trial transcripts from 46 of those cases.
In February, Hoppe published a study in the Journal Social Problems which found some local health departments were willing to facilitate the prosecution of people living with HIV. The study was the result of interviews Hoppe conducted with various local health agencies to discuss the use of HIV specific laws in the state. MDCH vehemently denied Hoppe's findings were accurate.
But a 2009 memo from Grand Traverse County shows Hoppe's findings were, in fact, accurate. In the memo to Grand Traverse Prosecutor Al Schneider, from Grand Traverse Health Officer Fred Keeslar, Keeslar tells of receiving a complaint from Brian Simmerson of the Thomas Judd Center - an medical center dedicated to treating HIV in Traverse City - about a man identified only as Mr. X.
Simmerson alleged that the man was engaging in 'unprotected' sexual activity with partners he met online and at a local public restroom without disclosing his HIV-positive status. Simmerson's sole source of the allegations comes as unsubstantiated statements from other, unidentified HIV-positive clients of the center.
Despite the fact the allegations were second hand statements from unidentified clients of the medical clinic, the health department initiated a health threat to others action against the man. Such an action is a civil action which can result in mandatory counseling, education or up to six months civil confinement.
"I suggest three options." Keeslar wrote to prosecutor Schneider in February 2009. "1. This Mr. X be warned by you and/or prosecuted for failure to inform his sex partners of his HIV status. 2. There be a "sting" operation by the police at the public bathroom where this person is reported to have had his encounters. 3. That I go public and inform the public via the media that this activity is happening and that anyone who has engaged in this behavior should get tested for HIV and other STI. I would not divulge the name of the person or the public bathrooms. 4. All or two of these options."
No evidence exists that any of Keeslar's recommendations were followed. Freedom of Information Act requests to police authorities in Grand Traverse County, including the city police, county sheriff and state police, who frequently conduct sex sting operations targeting men who have sex with men in the region, found no operations in 2009. A request to the office of the prosecutor uncovered no written responses or memos from Schneider about the case.
The Thomas Judd Center declined to comment on the specifics of the case, or the requested actions from the health department to the prosecutor's office.
While health officials in the state continue to deny Hoppe's findings are accurate, cases of prosecutions uncovered by Hoppe are raising eyebrows.
For instance, in 2009, an adult entertainer working in a strip club pleaded guilty to one count of Michigan's HIV disclosure law and was sentenced to five months in prison. According to trial transcripts obtained by Hoppe and shared with Between the Lines, the woman's alleged penetration could not transmit HIV.
"[The confidential informant] would pay her twenty dollars a song for a lap dance, and on this occasion she was topless, she began dancing, started grinding on him, trying to arouse his penis," the investigation detective told the court during a plea hearing. "At one point she exposed her vagina area to him and placed it on the tip of his nose and began grinding on his nose with her vagina."
The Prosecutor then asked, "Did the confidential informant indicate that his nose actually went inside or penetrated her vaginal area?"
"Yes, it did," the detective testified.
There has never been a documented case of HIV transmission involving vaginal nasal penetration.
"I think that the MDCH staff who considered the problems with the existing law and proposed ways to modernize it deserve considerable credit for their leadership and clear vision of the big picture. Rather than assume, I and others at The Center for HIV Law and Policy, and members of the Positive Justice Project, will stay tuned to see whether the reorganized MDCH will continue the work completed so far. We stand ready to support an open, informed process of reform," said Catherine Hanssens, executive director of Center for HIV Law and Policy.