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

By Sean Strub

May/June 2012

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.


Prosecutorial States of America: Where HIV Disclosure Laws Stand in Each State


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.

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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.

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:

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.

Bad Public Health Policy

Stigma

Reducing HIV transmission can only be achieved by combating criminalization, ignorance, and the associated stigma.

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:


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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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