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Prosecuting HIV: Take the Test and Risk Arrest?

Summer 2011

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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 charged nearly 2% of all Iowans with HIV with similar crimes.

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There have been hundreds of prosecutions for HIV crimes in the U.S., all over the country. As of today, 34 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 2/3 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.

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This article was provided by ACRIA and GMHC. It is a part of the publication Achieve. Visit ACRIA's website and GMHC's website to find out more about their activities, publications and services.
 
See Also
TheBody.com's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More on U.S. Laws/News Regarding HIV Disclosure

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