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There Is No There There: The False Framing of HIV Criminalization Laws

By Sunny Bjerk

July 26, 2012

Fight AIDS - Not People With AIDS. Image courtesy of iusy.com.

Image courtesy of iusy.com.

Earlier this week, the Center for Disease Control (CDC) quietly released a new "HIV and Law" portal on their website, listing the states that currently have HIV-specific criminal exposure laws, as well as the probability of HIV transmission during specific activities. The acts ranged from high risk to little-to-no risk, with spitting, biting, throwing bodily fluids, and sharing sex toys as having negligible risk of transmitting HIV.

Yet today in an IAC session titled "Is HIV a Crime? Race, Sexuality, Poverty, and the Impact of Criminalization," over 25% of HIV-criminalization prosecutions in the country have involved biting or spitting, acts -- while violent -- do not pose risks to HIV transmission. Others, like panelist Robert Suttle, can be tried and convicted as a felon for having consensual, protected sex with an adult if they know they have HIV, regardless of whether or not the virus is actually transmitted. In fact, even when no transmission has taken place and/or sexual protection was used, people living with HIV/AIDS can still be charged with assault with a deadly weapon, attempted murder, and even murder just for having contact with another person. What this means is that a person living with HIV/AIDS who has consensual, protected sex with another adult can be tried as a felon and forced to register as a sex offender in over 33 states.

This leads to a paradox that activists call take the test, risk arrest, where, under certain state laws, individuals cannot be prosecuted if they are unaware of their HIV status. I don't have to tell you that this terrible loophole leads to less people getting tested, less people knowing their status, and more people unknowingly being exposed to the virus.

Clearly, this is bogus. We certainly don't have criminalization statues for people who transmit strains of HPV -- which can lead to cervical cancer in women -- to someone else, but that's because the stigma, fear, and misinformation about HIV is unparalleled. No chronic disease strikes fear into the hearts of people quite like HIV/AIDS does; no one kills their partner because they have diabetes, but this fear for one's safety and life is still a concern for people living with HIV/AIDS. And that fear of rejection, fear of being hurt, and fear of being persecuted for having a virus is truly what is criminal.

Sean Strub, founder of POZ magazine, says that HIV criminalization laws "have created a viral under class" of people, further perpetuating stigma and a misunderstanding of how the virus is and is not transmitted. While some might think, or hope, that thirty years after the beginning of the AIDS epidemic that people are better informed about HIV and the ways in which it is and is not transmitted, you might be surprised to find that misinformation, and hysteria, still exists in large segments of our population.

In a 2012 study released just this month, an eye-opening percentage of people still believed you could get HIV by sharing a drinking glass, sitting on a toilet seat, and or swimming in a pool with someone who is positive. This tells me that even with the social and scientific advancements that AIDS activists and professionals have made, we still have a lot of work to do.

Indeed, in this afternoon's session during Q&A, a woman stood up and asked speaker Robert Suttle why he did not disclose his status to his partner, who ended up pressing charges against him when Suttle disclosed he was positive. "Did you ever think or wish that you disclosed to him sooner, to try to avoid your jail sentence?" Suttle responded politely, though he, like many in the audience, seemed surprised by the question and what seemed to be a subtle sentiment of shaming. The woman's question, while delivered with sympathy, appeared to highlight a vein of thinking that reinforces the idea that HIV is a concealed weapon that carriers have an obligation to report. And it's the same sentiment that we must continue to fight, question, and refute, when it comes up in AIDS activists circles or in Louisiana law.




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