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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?

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 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 HIVrelated stigma and discrimination.

Bad Public Health Policy

Prosecuting HIV: Take the Test and Risk Arrest?

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 ref lects 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.


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 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 combating 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 a project of The Center for HIV Law & Policy, a resource for leaders, attorneys, and advocates interested in HIV-related discrimination and criminalization. PJP's Resource Bank ( is a comprehensive database of research, reports, court decisions, briefs, policy analyses, and other materials of importance to people with HIV.

Sean Strub is a co-founder of and Senior Advisor to the Positive Justice Project, founder of, and a member of the board of directors of the Global Network of People with HIV/AIDS/North America.

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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's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More on U.S. Laws/News Regarding HIV Disclosure

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