Prosecuting HIV: Take the Test -- and Risk Arrest?
Imagine meeting someone online, having a nice chat, and then deciding to hook up. You have HIV, but you're adherent to your meds and have had an undetectable viral load for years. You and your sexual partner use a condom. Sometime later, the partner learns you have HIV and presses charges against you for failing to disclose your HIV status prior to sex.
Your life is suddenly turned upside down, with your name and picture splashed across the media. You are called an "AIDS Monster." You and your family and friends feel humiliated and embarrassed. Your employment, housing, and relationships may be put in jeopardy and you need to find tens of thousands of dollars for legal fees for the impending prosecution.
If convicted, you face decades in prison, lifetime registration as a sex offender, and other restrictions; if acquitted, your life is still never the same, because you will always be known as the "AIDS Monster."
Think about that for a moment: Consenting adults. No intent to harm. Undetectable viral load. A condom was used. No HIV transmission. Twenty-five years in prison. This isn't hypothetical; it is exactly what happened in a recent case in Iowa. In fact, as of July 2009 Iowa had convicted nearly 1% of all Iowans with HIV under their HIV-specific criminal statute.
There have been hundreds of prosecutions for HIV crimes in the U.S., all over the country. As of today, 36 states and territories have HIV-specific statutes, but a targeted law isn't required to prosecute an HIV crime. These prosecutions usually have little bearing on the actual level of risk of HIV transmission, ignoring factors like whether a condom was used or the viral load of the person with HIV.
It's important that people with HIV and their advocates understand the issues at stake, the risk they present for people with HIV, and how they may undermine public health strategies to reduce HIV transmission. The issue is complicated, especially since the public is generally supportive of criminal prosecution of people with HIV who do not disclose their HIV status to a partner before sex. One study, from the University of Minnesota, showed that about two-thirds of gay men supported such prosecutions; among very young gay men, it approached 80%. Even among gay men with HIV, it was nearly 40%. Outside of gay men, it is likely that support for these statutes is even higher.
Criminalization supporters often believe these statutes are effective in reducing HIV transmission, but there are no data to support this; in fact, there is a growing body of research demonstrating that they do not reduce HIV transmission and may even contribute to its further spread.
A Viral Underclass
Since the earliest days of the AIDS epidemic, stigma has been a major obstacle to effective HIV prevention and care. Even as fear of contagion from casual contact has lessened over the years, profound stigma persists. People with HIV face judgment, marginalization, discrimination, and misunderstanding about the actual risks of transmission.
Many people with HIV internalize and accept this judgment, perpetuating the perception of those with HIV as toxic, highly infectious, or dangerous to be around. This has serious adverse effects on them personally, as well as for the broader effort to combat the epidemic while protecting sexual freedoms.
Stigma discourages people at risk from accessing care -- including testing for HIV -- and it discourages people who know they are HIV-positive from disclosing to potential sexual partners and others. Much of this stigma is based in racism and homophobia.
Nothing drives stigma more than when government sanctions it by enshrining discriminatory practices in the law. That is what has happened with HIV, resulting in the creation of a "viral underclass" of people with rights inferior to other citizens. Stigma driven by HIV criminalization promotes illegal discrimination against people with HIV, including prohibitions on certain occupations and licensing.
After three decades of the epidemic, people with HIV continue to experience punishment, exclusion from services, and a presumption of guilt in a host of settings and for practices that are, for those who have not tested positive for HIV, unremarkable.
This is reflected perhaps most dramatically in the criminal prosecution of people who know they have HIV but are unable to prove they disclosed their status prior to sexual contact. The ostensible purpose of these statutes is to deter HIV-positive people from putting others at risk. The inherent problem with these laws is that they focus primarily on the existence of proof of disclosure, not on the nature of the exposure, the actual level of risk present, or whether HIV was transmitted. Consequently, as studies have demonstrated, they do nothing to advance their intended purpose.
The Origins of HIV Criminalization
The legal obligation to disclose stems, in part, from the 1990 Ryan White CARE Act. That legislation required that states demonstrate an ability to prosecute intentional HIV exposure, a recommendation from the head of President Reagan's AIDS commission. At the time, it was widely believed that simple exposure to the virus -- or having intimate contact with someone who was infected -- was a "death sentence." This requirement was dropped in the 2000 renewal of Ryan White, but the criminalization statutes it spawned remain in force.
Some states considered their existing assault and public health statutes adequate to meet the Ryan White requirement, but many added HIV-specific laws (see map). These vary widely, both in what they punish and sentencing provisions.
In states without HIV-specific statutes, criminal law (and in one recent case, an anti-terrorism statute) has been used to prosecute people with HIV for behaviors that posed little or no risk of transmission. In these cases, HIV, or the blood, semen, or saliva of a person with HIV, is often characterized as a "deadly weapon." Heterosexual men of color are the most likely to be prosecuted.
Typically, sentencing is vastly disproportionate to the harm caused or the level of risk present in the sexual encounter. In one Texas case, a man was sentenced to 35 years in prison for spitting at a police officer. In fact, about 25% of recent prosecutions are for behaviors like spitting or biting, which pose no measurable risk of HIV transmission. Many of the prosecutions for failing to disclose prior to sex have been of someone with an undetectable viral load and/or who used a condom, but who is still sentenced to decades in prison.
The ethical obligation of people with HIV to disclose health factors that could put sexual partners at risk was codified in the Denver Principles, the historic 1983 manifesto that launched the AIDS empowerment movement. Defining what constitutes a risk sufficiently serious to require such disclosure is where it gets tricky.
The Denver Principles also recognize sexual freedom as a fundamental human right, noting that people with HIV have a right "to as full and satisfying sexual and emotional lives as anyone else." Fully integrating people with HIV into society, in part by allowing them to have fulfilling sexual lives without the risk of incarceration, is critical to combating the stubborn stigma that remains an enormous obstacle to preventing new HIV infections.
The fact that HIV is so linked with homosexuality and communities of color has made it easier to "punish" people with HIV -- an example of how race or sexuality can be used to form policies that isolate individuals and limit their freedoms.
Ethical obligations aside, criminalizing the sexual conduct of those living with HIV is justified only when there is proof of the intent to harm another person, like a situation where someone intentionally injected someone with HIV with a syringe or had sex with the explicit purpose of transmitting the virus. Existing state and federal criminal laws are adequate to deal with these extremely rare cases. Prosecutions in these instances should focus on the proof of intent to harm, the degree of risk present, and the resulting injury.
Other cases -- including some that have received widespread media attention -- involve people with mental health issues who are recklessly and repeatedly putting others at risk. Those situations should be handled through existing public health policies for people with mental health issues.
Those who support criminal prosecution of people with HIV who fail to notify partners in advance of intimate contact must consider whether they also support similar prosecutions of those with hepatitis viruses, herpes, viruses like CMV, EBV, HPV, and other pathogens that can be transmitted sexually.
This article was provided by Test Positive Aware Network. It is a part of the publication Positively Aware. Visit TPAN's website to find out more about their activities, publications and services.
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