Prosecuting HIV: Take the Test and Risk Arrest?
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 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 people with 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 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.
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-yearold 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."
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.
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