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HIV Criminalization

By Gary Bell

January 24, 2012

In May 2008, a homeless, HIV+ man was sentenced to 35 years in prison for assaulting a police officer with a "deadly weapon," his saliva! Willie Campbell, who was clearly intoxicated at the time, has been HIV+ since 1994 and has a history of aggressive behavior with public servants, will have to serve at least 17.5 years to be eligible for parole. The police officers were not infected. According to the Centers for Disease Control (CDC), although there have been a few rare cases of transmission through severe bites, "contact with saliva, tears or sweat has never been shown to result in transmission of H.I.V."

Thirty four states, two U.S. territories and numerous other countries (including Russia, Finland, Australia, England, and 20 countries in Sub Saharan Africa) have HIV-specific criminal statutes. Other U.S. states and some other countries have used non-HIV specific charges such as assault with a deadly weapon and attempted murder. Many of these laws and prosecutions do not differentiate between whether an HIV+ person used a condom or even whether the virus was transmitted. All of this begs the question: Should we even be on this slippery slope?

Being HIV+ is not a crime. With the new developments in treatment, it is no longer a death sentence. Moreover, recent studies have demonstrated that one of the most effective methods of prevention is aggressively treating individuals with HIV, thereby lowering their viral load so that they may be less infectious. Studies have also shown that people who know their status tend to behave more responsibly. Unfortunately, the CDC estimates that as many as 1 in 5 people who are HIV+ are unaware of their status. Therefore it is crucial that people know their HIV status.

I understand the fear and demagoguery that has dogged the HIV epidemic. And, I am certainly not making the case for irresponsibility when it comes to having sex. I get it! But we have made significant gains in this country, not just in treatment, but in making HIV testing a routine part of medical care. The last thing that we need is to arm prosecutors with powerful laws to "punish the victim," e.g., to lock away hundreds -- if not thousands -- of HIV+ people to protect us from them. And what responsibility does the "partner" have in all of this. Does a person have to be told that their potential partner is HIV+, before they will use a condom?

Unfortunately, this issue is much more complex than the time and space that I will currently give to it. Perhaps the greatest concern is that these laws, which were no doubt designed to prevent infection, will more likely have the opposite effect of scaring people away from getting tested. After all, what is to stop a scorned ex-lover from pressing charges, stating that they WERE NOT TOLD of their partner's HIV status. Haven't we learned that punitive action is not always the answer. In other words, in our efforts to prevent the spread of HIV, the shield is mightier than the sword.

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