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Prosecuting HIV: Take the Test -- and Risk Arrest?

May/June 2012

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Prosecutions

Proof

Not only do these statutes require people to disclose their HIV status to potential partners, but also to be able to prove it in a court of law.

Highly publicized HIV criminalization cases are frequently driven by inaccurate and inflammatory media coverage and sometimes by politically ambitious prosecutors. They feed into the public's ignorance and anxiety about HIV, reinforce negative stereotypes about people with HIV, and send conflicting messages about the real risks of HIV transmission.

They depict people with HIV as dangerous infectors who must be controlled and regulated, making it more difficult to create an environment that encourages people to get tested and disclose their status.

The Iowa case mentioned earlier provides a sobering illustration. The person with HIV who was charged with failing to disclose his status to a sexual partner was a 34-year-old gay man. He met a male partner online and went to his house. He was on HIV medication, had an undetectable viral load, and used a condom when anally penetrating his partner, so the risk of transmission was negligible to nonexistent.

When the partner heard the man had HIV, he went to the county prosecutor and pressed charges. The person with HIV was convicted and sentenced to 25 years in prison. Fortunately, advocates were successful in getting the sentencing reviewed, and after serving eleven months he was released on five years probation. But he must register as a sex offender for the rest of his life, may not be around his nieces or nephews without adult supervision, is subject to wearing an ankle-monitoring bracelet, and cannot leave his home county without permission from the court. Iowa's statute is particularly broad -- in theory, it could cause a person with HIV who kissed someone without disclosing to spend 25 years in prison -- but other states' statutes are equally as absurd. Here are some examples:

  • Texas doesn't have an HIV-specific statute, but Willy Campbell, who was sentenced to 35 years for spitting on a police officer, was convicted of "assault with a deadly weapon" even though spit from a person with HIV doesn't infect someone, let alone kill them.
  • Gregory Smith was within a year of his release from a New Jersey prison when he was charged with attempted murder, assault, and terrorist threats following an incident in which he allegedly bit and spat on a guard (Smith denied the charges). An additional 25 years was added to his sentence; he died of AIDS in prison.
  • In late 2009, using laws designed to combat terrorism, Michigan charged Daniel Allen, who has HIV, with "possession of a harmful biological agent" after he was involved in an altercation with a neighbor. Prosecutors equated his HIV infection with "possession or use of a harmful device."
  • A man with HIV in Ohio could not prove he had disclosed to his girlfriend that he was positive and was sentenced to 40 years in prison. He claims she knew he was positive and only went to a prosecutor after he stopped dating her and moved in with another woman.

These cases highlight one of the significant problems with HIV criminalization statutes: Not only do they require people to disclose their HIV status to potential partners, but also to be able to prove it in a court of law. Imagine this line at a bar: "Let's go home and get it on. Since I have HIV, could you sign this affidavit stating that I told you that? We can stop by a notary public on the way home and get it notarized."

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Yet that scenario is not so far-fetched, as more people with HIV are seeking ways to document their disclosure, either by saving text or email messages, disclosing in the presence of a third-party witness, or in some cases taking a partner with them to a doctor's appointment and asking the doctor to note the disclosure in the medical record.

Spitting poses no risk of HIV transmission. Yet in the past several years, there have been at least six convictions of people with HIV for spitting. And as a practical matter, it is the person biting, rather than the person bitten, who is at the greater risk of acquiring the virus.

Criminalization is also reflected in "pile-on" charges and more aggressive prosecution or sentencing of people with HIV charged with other crimes. In 2009, a woman with HIV in Maine who was eligible for release was sentenced to continued confinement when the judge learned that she was pregnant.

He sought to "protect" the fetus from infection by having the jail supervise the woman's treatment, also typifying how courts sometimes elevate the perceived interest of a fetus over the rights of a pregnant woman. Although legal advocates secured her release shortly thereafter, the desire of a federal judge to confine a woman with HIV to prison, despite testimony that she was engaged in appropriate prenatal care, reveals ignorance and an inclination to criminalize illness by even the most educated and privileged members of our society.

What all of the cases above have in common is that none of them resulted in transmission of HIV to another person.


A New Strategic Approach

Historically, the discussion among advocates and policy leaders concerning HIV criminalization has focused on civil liberties concerns. Yet a growing realization that HIV criminalization is also a serious public health challenge has helped propel the issue to the forefront. An important step was the recognition of the need for changing HIV criminalization statutes in President Obama's National HIV/AIDS Strategy, released this past July:

"Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and [they] should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. ... [These laws] may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. ... In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment."

Early in 2011, the National Alliance of State and Territorial AIDS Directors (NASTAD) became the first major organization of public health professionals to join the effort to repeal HIV-specific criminal statutes. Their statement notes:

"HIV criminalization undercuts our most basic HIV prevention and sexual health messages, and breeds ignorance, fear, and discrimination against people living with HIV."

Advocates who focus on the serious public health ramifications of HIV criminalization can help repeal or end reliance on criminalization statutes and other criminal laws that persecute and stigmatize people with HIV. They can also help educate law enforcement, prosecutors, and the media, ultimately lessening HIV-related stigma and discrimination.

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This article was provided by Positively Aware. It is a part of the publication Positively Aware. Visit Positively Aware's website to find out more about the publication.
 
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