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

Bad Public Health Policy

HIV criminalization discourages people at risk from getting tested. Studies show that people with HIV who are aware of their status are more responsible in their sexual behavior than those who are unaware they have HIV. Testing is a basic tool of HIV prevention as well as an essential gateway to care.

Criminalization statutes also make it more difficult for people with HIV to disclose their status. Disclosing can be emotionally difficult, risking rejection from family and friends -- often with great insult or abuse -- and can jeopardize one's employment, housing, relationships, or personal safety.

Criminalization of HIV legitimizes the ignorance, homophobia, racism, and sex-phobia that fuel the inflated fears of those with HIV. It undermines efforts to prevent new HIV infections and provide access to care in many ways:

• It undercuts the most basic HIV and STD prevention message: that every person must take responsibility for his or her own sexual health.
• Prosecuting the failure to disclose values the "right" to an illusion of safety over the privacy rights of those with HIV.
• Most new infections are caused by sexual contact with people who are unaware they have HIV, yet only those who have taken responsibility and gotten tested are subject to prosecution.
• Ignorance of one's HIV status is the best defense against a "failure to disclose" prosecution, a powerful disincentive to getting tested and learning one's HIV status.
• Young African American men who have sex with men are among those at highest risk of acquiring HIV, yet also among the most difficult to persuade to get tested. The prospect of prosecution for failing to disclose -- especially since these prosecutions often boil down to a "he-said/he-said" or "he-said/she-said" situation -- is a powerful disincentive to disclosure. "Take the test and risk arrest" is the message increasingly being heard on the streets.

Racism and Homophobia

Prosecuting HIV nondisclosure but not prosecuting the failure to disclose other STDs also reflects an unconscious racism and homophobia. Human papilloma virus (HPV) provides a useful contrast. HPV causes a variety of cancers, including almost all cervical, genital, and anal cancers. Cervical cancer alone killed 4,000 women in the U.S. in 2009; every year hundreds of thousands of women in the U.S. get diagnosed with cervical dysplasia, which is caused by HPV and is a precursor to cervical cancer.

By the age of 50 more than 80% of American women will have contracted at least one strain of HPV. Yet unlike HIV, HPV is not associated with "outlaw sexuality" or with specific minority groups. HIV is associated with anal intercourse, gay men, African-Americans, and injection drug users, so racism and homophobia are inextricably linked with HIV stigma, discrimination, and criminalization.

Conclusion

Since the earliest days of the epidemic, stigma and ignorance have hindered an effective response to the HIV epidemic. Stigma and ignorance sanctioned in the law are its most extreme manifestation and are inherently unjust. HIV-specific criminal statutes do not slow the transmission of HIV but may facilitate its further spread. Reducing HIV transmission can be achieved only when combatting HIV criminalization and ignorance, and the associated stigma, are part of the approach.

To this end, nearly 40 HIV, human rights, public health, and other organizations founded the Positive Justice Project (PJP) in the fall of 2010 to end government reliance on a positive HIV test result as proof of intent to harm. PJP is housed at The Center for HIV Law & Policy, a resource for leaders, attorneys, and advocates interested in HIV-related discrimination and criminalization. PJP's Resource Bank (hivlawandpolicy.org) is a comprehensive database of research, reports, court decisions, briefs, policy analyses, and other materials of importance to people with HIV.

Update: In recent weeks, there have been a number of new developments concerning criminalization. Iowa State Senator Matthew McCoy introduced legislation to amend that state's HIV statute to make it apply only in cases where there is a malicious intent to harm the other party, differentiate the penalty depending on whether or not the virus was transmitted, and remove the requirement that those convicted under the statute must be placed on the state's sex offender registry. Meanwhile, several Maryland legislators have introduced legislation to dramatically increase the penalties under their statute, from three to a maximum of 25 years. Advocates in a number of states have begun to organize to build statewide coalitions to work for reform of their statutes.

Go to YouTube.com to watch HIV is Not a Crime, the short film about three people who were prosecuted for non-disclosure, including Nick Rhoades, the Iowa man sentenced to 25 years and lifetime sex offender registration.

Reprinted with permission from Achieve, a publication of ACRIA and GMHC.

Sean Strub is executive director of The Sero Project, Senior Advisor to and a co-founder of the Positive Justice Project, founder of POZ.com, and co-chairs the board of directors of the Global Network of People with HIV/AIDS/North America. He has been living with HIV for more than 30 years.

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