State legislature, governor re-victimize victims: Part Two

The new sexting law is not the only way in which the General Assembly and Governor Corbett have harmed victims recently. They also managed to pass a new law that does nothing for victims of sexual assault while ratcheting up the hysteria over HIV-AIDS.

House Bill 1794, now Act 201 of 2012, passed the legislature two weeks ago and was signed by the governor on Thursday. This new law allows a district attorney to seek and a judge to order a forced HIV test of a person arrested for sexual assault. (The ACLU of PA supports universal HIV testing but opposes forced testing of anyone.) The DA must seek the order in consultation with the victim.

That sounds great on its face. Right, only to people who know nothing about HIV. The Centers for Disease Control and Prevention has a recommended protocol for people who may have been exposed to HIV. It involves a regimen of drugs known as post-exposure prophylaxis, or PEP. PEP reduces the chances that a person will contract HIV after possible exposure.

This drug regimen must be started within 72 hours of the exposure. Ideally, it is started within 2-36 hours. What are the chances that a suspect is arrested, the DA consults with the victim, the DA seeks the order, a judge issues the order, an HIV test is administered on the arrestee, and the results are returned within 72 hours? Slim to none.

This new law is also based on the false idea that everyone who is arrested must be guilty. Google "innocence project" and you'll know that's not true. According to the Innocence Project, "there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused."

Imagine this nightmare scenario. The DA has arrested the wrong person, and he's HIV positive. What kind of additional trauma will that place on the victim? Or imagine that they've arrested the wrong person and he's HIV negative, giving the victim a false sense of security.

People with HIV can also test negative. In the first six weeks to six months that a person has contracted the disease, he or she tests negative. This is also the time in which the person is most likely to transmit the disease because his viral load is high.

There is another factor here, a fact that is little discussed. Transmission of HIV is relatively rare. According to one study, a person with HIV will transmit the disease to a partner once in every 900 unprotected sexual encounters. According to the CDC, transmission by consensual vaginal intercourse is 0.1%-0.2% and by consensual anal intercourse is 0.5%-3%. (Transmission rates by sexual assault are not known.)

Of course, safe sex is extremely important to slow the spread of HIV. But this new law is based on the false idea that exposure equals transmission. It does not. 

According to a 2009 survey by the Kaiser Family Foundation, 51 percent of people would be uncomfortable having their food prepared by someone who is HIV positive. This law is based on the same wrong-headed attitude toward HIV. It furthers the hysteria around HIV, and that leads to those living with the disease to be further ostracized and isolated.

Sexual assault victims need the best care possible, and that care comes from medical professionals, not DAs or judges.

Learn more about the ACLU's work on HIV-AIDS by visiting the webpage of our AIDS Project.

State legislature, governor re-victimize victims: Part One

For all of the rhetoric around crime victims' rights at the General Assembly, it's hard to believe that any legislation that harms victims could ever be passed. But that's exactly what happened two weeks ago. And it happened twice.

Two weeks ago, the legislature passed House Bill 815, and the governor signed it on Thursday, now Act 198 of 2012. This bill creates a new crime of teen "sexting." You're probably familiar with sexting by now, but if not, it is a term used to describe a wide range of activity that involves photos, sex, and electronic communication. Basketball fans, think Greg Oden.

Act 198 creates summary and misdemeanor offenses that involve sexting by kids between the ages of 13 and 17. The charge is based on the circumstances of the activity.

Imagine this scenario. Two 17-year-olds are dating and send pictures of themselves in various stages of undress. Newsflash: Teens are clumsy with their sexuality. Teens have been exploring their sexuality since our species evolved and don't always do it in a mature way. That's not exactly earth-shattering news.

So she dumps him. In anger, he sends her semi-nude photo to the entire school. She's a victim of abuse, right? Well, under Act 198, she's a criminal because she produced the photo and sent it to her then-boyfriend. She could be charged with a summary offense.

There have been some tragic incidents that have involved teens sexting. And the supporters of HB 815, including the Pennsylvania District Attorneys Association, have used these incidents to push for this bill. The DAs used these incidents in which kids were abused to push for a bill- now law- that will criminalize these victims, which will only compound their suffering. Incredibly, some so-called victims' advocacy groups supported the bill, too.

Supporters of HB 815 claim that all sexting by teens (under the age of 18) is currently felony child pornography, even if the person in the photo also produced it. The DAs think that if they say something is a crime, then it's a crime. 

They fail to respect the role of the judge in our judicial system. Not a single court in Pennsylvania has upheld a felony charge in a sexting situation. Not one.

So, parents, make sure that sexting is part of The Talk with your kids. And in Pennsylvania, be sure that they understand that sexting, even if it's consensual, could lead to a visit from their local DA, who apparently is more concerned about what teens do in their bedrooms than he is about real criminals.

A second post is coming about how the legislature and the governor harmed victims with ill-advised legislation.

Costume Ideas for Banned After Dark

Banned After Dark, the ACLU's darker, sexier, 21-and-over banned books celebration, is being held at Brillobox again, at 8 p.m. on Tuesday, October 30th. Because our annual night of revelry and reading falls on Mischief Night this year, we're making it a costume party!

In addition to bringing your favorite banned book to shock us at the microphone that evening, you're invited (but not required) to dress up as your favorite character! To get your creative juices flowing, we've provided some examples below.

THE WIZARD OF OZ has been challenged since it was published, was banned from even public libraries for thirty years, and challenged in school libraries in a high-profile case as late as the 80s.

Possible Costumes: Dorothy, the Scarecrow, the Tin Man and the Lion would all be fabulous costumes, as would the Wicked Witch, but if you want to capture the spirit of why the book was banned, you should come as Glinda! Opponents of The Wizard of Oz in the 1980s objected on the grounds that it depicted a good witch and "everyone knows witches are bad."

WHERE'S WALDO was banned from several schools because on one beach page a woman appears to be sunbathing topless.

Possible Costumes: Waldo himself, of course! This costume is sure to get people talking. Waldo in beach gear is extra appropriate.

JAMES AND THE GIANT PEACH has been challenged for a variety of reasons, including violence, the word "ass," and a reference to Spider licking her lips that one Wisconsin town thought to be possibly sexual.

Possible Costumes: All of James's bug companions have wonderful costumes, including Ms. Ladybug, Mr. Grasshopper, Mr. Centipede and the offending Ms. Spider. But if you don't want to worry about fashioning so many extra legs, you could always go as a Giant Peach!

THE GREAT GATSBY has been banned for language and sexual references.

Possible Costumes: Flapper costumes are a staple every Halloween, and since there's a new movie coming out this winter, you can look to the trailer for inspiration for your Nick Carraway, Daisy Buchanan, Jordan Baker or Jay Gatsby costumes.

HARRY POTTER - If it's got witches in it, chances are someone has fought to remove it from schools. J.K. Rowling's bestselling series is no exception.

Possible Costumes: Harry Potter fans love to dress up, so if you were crushed when you didn't get your Hogwarts acceptance letter, you probably already have a costume lying around. Go as your favorite young witch or wizard, Order of Pheonix member, Hogwarts professor, Marauder or Dark Wizard - or just wear your house colors.

AND TANGO MAKES THREE, a children's book based on a true story, is about two male penguins at the Central Park zoo who were given an egg to hatch after they were seen nesting together and trying to hatch an egg-shaped rock. This was the most challenged book of 2006 to 2010 due to the controversy over gay marriage and adoption.

Possible Costumes: A penguin, of course!

THE HUNGER GAMES, despite its strong anti-violent messaging, made it onto the Most Challenged Books list very shortly after publication because parents consider it too violent.

Possible Costumes: Young heroine Katniss Everdeen; baker's son Peeta Mellark; brilliant and compassionate stylist Cinna; drunken mentor Haymitch.

ADVENTURES OF TOM SAWYER/HUCKLEBERRY FINN: Both books have been banned for use of the n-word, effectively stunting the discussion about racism that Mark Twain hoped to inspire.

Possible Costumes: Get out your overalls - the titular troublemakers Tom Sawyer and Huckleberry Finn would be great costumes to do in a pair.

TO KILL A MOCKINGBIRD: Banned, like Mark Twain's work, for the use of the n-word despite its anti-racist messaging.

Possible Costumes: Scout Finch; Atticus Finch; Boo Radley.

FAHRENHEIT 451 - Ironically, this book about book-burning and censorship was only available in a heavily censored form for years, with "hells," "damns," and references to abortion and drunkenness removed. It was more than a decade before Ray Bradbury even knew that the publishers had censored his work.

Possible Costumes: This would provide a great twist on the fireman costume.

THE CATCHER IN THE RYE, America's most famously challenged book, was called "filthy," offensive to Christianity and, most perplexingly, "anti-white."

Possible Costumes: Go as Holden Caulfield in his orange hunting cap, or put on a catcher's mitt and accessorize with rye grass.

THE HANDMAID'S TALE, a about a society where sex is policed by violent moral guardians, was challenged for sex and immorality.

Possible Costumes: The characters in The Handmaid's Tale wear very specific costumes, so you can craft a gown in red for a Handmaid, blue for a Wife or green for a Martha.

BONUS COSTUMES

THE COLOR PURPLE has been banned for sexual content. The most famous banned books by authors of color feature downtrodden characters who might not feel great to embody at a party, so we encourage you to look to the titles. If you want to show your love for Alice Walker's classic, try channeling your inner Prince and just showing up in head-to-toe violet.

THE BLUEST EYE, likewise, is a costume in its own right. Paint a big blue eye on your shirt, glue on some fringey eyelashes, and you're bound to have people asking you questions, giving you the opportunity to talk censorship in more detail.

THE DICTIONARY, if you'll believe it, has been banned in schools for its definition of oral sex. I'd hate to be an English teacher in that school. Mad props to whoever figures out how to dress as a dictionary.

Join us for a night of scandalous literary fun! Costumes not required.
Tuesday, October 30th
8 p.m.
Brillobox, 4104 Penn Avenue, Pittsburgh PA 15224

Must be 21 or over to attend.

by Tracey Hickey, an intern in the ACLU-PA Pittsburgh office

State Senate makes subtle but important change to gang legislation

Yesterday the Pennsylvania Senate quietly amended a piece of legislation that illustrated how effective the ACLU of Pennsylvania can be at the state legislature.

House Bill 1121 creates a new offense of "recruiting criminal gang members" and tasks the Commission on Sentencing with creating a sentencing enhancement for a person convicted of committing a crime of violence on behalf of a gang. This bill had numerous civil liberties problems, including First Amendment issues, too much potential for discrimination, and its impact on prison crowding. We said as much in a memo (pdf) sent to the Senate Judiciary Committee and the House Judiciary Committee last week. 

When the bill left the Senate Judiciary Committee last week, HB 1121 defined a "criminal street gang" like this:

"A FORMAL OR INFORMAL ONGOING ORGANIZATION,
ASSOCIATION OR GROUP, WITH OR WITHOUT AN ESTABLISHED HIERARCHY,
THAT HAS AS ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF
CRIMINAL OR DELINQUENT ACTS AND THAT CONSISTS OF THREE OR MORE PERSONS WHO HAVE A COMMON NAME OR COMMON IDENTIFYING SIGNS, COLORS OR SYMBOLS THAT LAW ENFORCEMENT PERSONNEL USE TO IDENTIFY THE GROUPS OR SUBGROUPS."

This screams, "First Amendment." Criminalizing "signs, colors or symbols" is problematic and giving law enforcement the power to determine what is and is not illegal gives the executive branch entirely too much power.

When HB 1121 left the Senate Appropriations Committee on Tuesday, that definition had been amended. It now says:

"A FORMAL OR INFORMAL ONGOING ORGANIZATION ,
ASSOCIATION OR GROUP, WITH OR WITHOUT AN ESTABLISHED HIERARCHY,
THAT HAS AS ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF
CRIMINAL OR DELINQUENT ACTS AND THAT CONSISTS OF THREE OR MORE PERSONS."

Note the deletion of the "signs, colors or symbols" language. This is important. This change will keep people from getting rung up under this law for wearing the wrong colored shirt. And, although it doesn't eliminate this danger altogether, it lessens the ability of law enforcement to use arbitrary criteria against young men of color.

I tweeted about this and a few other issues in the cheeky way that occasionally gets me in trouble at the legislature, so I want to give a tip of the hat to the state Senate for altering this bill in this way.

Don't get me wrong, this bill still has problems. There is a risk of it being used disproportionately against young black and brown men, and it has the potential to add to the slow drip that leads to a bursting prison system.

We can't stop this bill, though. It's being pushed by the Senate Majority Leader. But sometimes at the state capitol we take our wins where we get them. Sometimes we're grateful that we get important alterations to bills, grateful that someone listened, and live for the next debate.