Activists with Senator Steadman, Rep. Daneya Esgar and Governor Hickenlooper at the bill signing Monday, June 6, 2016. Photo credit: Thomas Bogdan
** FOR IMMEDIATE RELEASE **
Contact: Barb Cardell, CO Mod Squad Co-Chair, Barb@barbcardell.com 303-946-2529
June 8, 2016 – Colorado brought decades-old criminal laws including sentence enhancement for knowledge of HIV–used disproportionately to target youth, people of color, transgender women and sex workers–into line with current science, when Governor John Hickenlooper signed SB 146 into law Monday, June 6. The effort to change the old criminal statutes– relics of ‘80s and ‘90s “AIDS panic” before HIV transmission was well-understood and before antiretroviral treatment dramatically improved the lives of people living with HIV, offering breakthrough advances in prevention–was led by a coalition of advocates who call themselves the “Colorado Mod Squad.” SB 146 was sponsored by Senator Pat Steadman (D-Denver) and Representative Daneya Esgar (D-Pueblo).
Before the change in law, sex work or solicitation of a sex worker with knowledge of HIV diagnosis was a felony—even if condoms were used and the defendant had an undetectable viral load (HIV cannot be transmitted when medication fully suppresses the virus). Penetrative sexual assault with knowledge of HIV diagnosis could mean that the sentence for the assault could be tripled—even in cases with no risk of HIV transmission. SB 146 eliminated felony offenses involving sex work and modernized much of the statutory language concerning sexually transmitted infections in the health code. While the sentencing enhancement for sexual assault by a person living with HIV remains in the criminal code, the new law reduces the enhancement to the maximum sentence and requires the prosecution to prove transmission first.
Colorado laws reflected a fear-based use of the criminal justice system to punish people for knowing their HIV status, a direct contradiction to CDC efforts to reduce HIV transmission by encouraging testing and treatment. Colorado was not unique: similar laws exist in over 30 states in the country, commonly known as HIV criminalization laws. “HIV criminalization affects all of us by shifting the burden of proof only onto the person living with HIV,” declared Lisa Cohen, chair of Colorado Organizations Responding to AIDS (CORA). “The only real protection is not to know your HIV status. This contradicts HIV prevention efforts and offers a terrible public health policy solution.”
“It’s unconscionable that we have permitted fear and bad science to dominate our laws covering sexual health,” remarked Senator Steadman, “and it’s past time that we had informed and respectful legislation in this area. Criminal law is an ineffective tool in our public health response.”
The legislation—supported by the Colorado Department of Public Health–took four years of organizing, soliciting input from stakeholders and strategic negotiations. “We had education sessions for ourselves and the broader community,” said John Tenorio, a Canyon City-based HIV activist and Mod Squad member, of the input-gathering process. “We’d listen to people’s concerns. Really listen. Because that’s what community is about – building consensus and addressing everyone’s concerns at the table.”
Advocates of the Mod Squad made sure existing protections for people living with HIV, unique to Colorado, including access to anonymous HIV testing, confidentiality of public health records and protections during the public health order process, were retained in the bill, and expanded many of them to all mandated reporting for sexually transmitted infections (STIs).
“When we were asked to give up protecting sex workers in our modernizing language n, we refused,” Kari Hartel, Denver-based HIV activist and co-chair of Positive Women’s Network-USA (PWN-USA) Colorado, explained. “We knew this bill could be rendered useless if we let it die that way. We would be sacrificing our integrity if we let people say that sex workers and those accused of sex work didn’t deserve the same protection, or that modernizing our current statutes was just too challenging to pass right now.” Sex workers are particularly vulnerable under HIV criminalization laws, which are often used to enhance sentencing for lesser charges.
The Colorado Mod Squad, led by PWN-USA Colorado, will continue to organize to ensure the new law is implemented correctly and fairly throughout the state. “Getting this bill signed into law is a major achievement, but the real work for community groups starts now –in identifying other areas that need to be worked on,” Jeff Thormodsgaard of Public Policy Group , a key strategist for SB 146, pointed out.