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Prevention or Prosecution?

A Community Forum

Spring/Summer 2012

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Prevention or Prosecution? A Community Forum

On May 24th, Queerocracy, a New York City grassroots organization, held a community forum on HIV criminalization at the LGBT Center. Entitled "Prosecution vs. Prevention", it highlighted the many abuses the U.S. criminal justice system applies to people with HIV. With the underlying message of "HIV is not a crime", several panelists spoke on the work they do and their relationship to the HIV-specific criminal laws that many states have.

Panelists included Adrian Guzman from The Center for HIV Law and Policy, Sean Strub from the SERO Project and the Positive Justice Project, Christina Rodriguez from SMART Youth, and Robert Suttle, who was incarcerated in Louisiana for HIV non-disclosure.

Know Your Rights

Adrian Guzman provided an overview of the issue, New York State criminal laws that target people with HIV, and what to do if arrested. He noted that dozens of states have HIV-specific criminal statutes, and nondisclosure is frequently an element of the crime. Two types of behavior are most commonly targeted: spitting and biting (usually specific to police and prison officers) and sexual contact (the type is rarely specified). In most cases, transmission is not necessary -- "exposure" without disclosure is enough. Often the only defense is to state that disclosure did occur prior to sex, but that can be difficult if not impossible to prove. The actual risk of transmission (type of sex, condom use, low viral load) is rarely considered in determining intent to harm or whether prosecution is appropriate. In fact, wildly inaccurate beliefs about the actual risks of HIV transmission seem to inform these laws.

Of particular interest was the disparity in sentencing requirements: in Georgia, for example, someone convicted of not disclosing HIV status before sex faces up to 20 years in prison, whereas someone convicted of vehicular homicide in the second degree faces up to one year in prison and/or a fine of up to $1,000!

Most laws were passed in the 1990s, when HIV was considered fatal. In order to qualify for HIV funding, the Ryan White CARE Act initially required states to demonstrate that they were able to prosecute cases of intentional HIV transmission. Most of today's laws, however, are based on inaccurate beliefs about the actual risks of HIV transmission, and even criminalize actions like spitting that cannot transmit HIV. (Fortunately, New York State's highest court ruled on June 7 that the saliva of a person with HIV cannot be considered a "deadly weapon".)

In New York State, HIV-positive people are targeted using general criminal laws, including reckless endangerment and aggravated assault. At least one court has allowed access to a defendant's medical records to prove whether she was HIV positive.

"Disclosure Is Hard"

Christina Rodriguez, who was born with HIV, told her story:

Until I went to college, I never had to actually tell anyone I had HIV. It always seemed to be done for me: in magazines, newspapers, documentaries, etc., since my mother was a well-known HIV advocate. I had never gotten a bad reaction, but this was a whole new world -- college students on a small campus. On top of being a freshman, I was stressing out about disclosure. Who would I tell? When? How?

But these concerns were just a fraction of the anxiety I endured when I finally disclosed to my friend of seven years. We hadn't spoken in a couple of years and I decided that when he came back to New York I would tell him everything. I couldn't sleep. I couldn't eat. My heart raced at the thought of the moment I would tell him.

On the day we met, I remember that everything seemed to slow down. I could hear my heart in my ears. Everything went quiet. I was sweating in a fully airconditioned car. I wanted the world to swallow me whole. What did I get myself into? Should I just turn back home?

But I pushed through. I looked everywhere but at him as the topic started to emerge. I took out flashcards I had made to help me keep track of where to start and how to end. Once I couldn't think of anything else to say, we sat in silence. It was the longest, most awkward moment of my life. I prepared myself for the worst -- if he wanted me to leave, I would understand. I would take care of whatever emotions I had in the comfort of my own home. But he didn't, and we're still together. I'm extremely lucky to find someone so understanding and willing to become educated.

The moral of the story is that disclosure isn't as easy as people make it out to be. You can't just say, "Tell people, tell people, tell people." Not everyone is in as stable place as I am. You can't expect people to say things so easily, especially when there are laws out there that can put someone in jail just for being HIV positive. We need education and support -- not more stigma. Not to be labeled as "weapons of mass destruction". We are human beings, and disclosure is hard. These laws are not providing the right message in order to move forward.

Serving Time

Robert Suttle then shared his experience:

I am not a criminal. I am not a sex offender, but the state of Louisiana says that I am. I am the oldest of six children, and my grandparents instilled in me faith, discipline, and personal responsibility. After college, I tried to join the Air Force, but during my physical I discovered I had HIV and was not allowed to serve. So I began work as an assistant law clerk, and was well on my way to becoming the first black male deputy clerk in the Louisiana Second Circuit Court.

But after five years, that budding career -- and life as I knew it -- abruptly ended. A former partner from a contentious relationship filed charges against me for not having disclosed my HIV status when we first met. This wasn't about transmitting HIV -- just whether I had shared my HIV status. How do you prove that you told someone? I couldn't. So I accepted a plea bargain rather than risk a ten-year sentence. I served six months and am now required to register as a sex offender for the next 15 years.

When I was released from prison, I knew I had suffered a terrible injustice, although I didn't know it had a name: HIV criminalization. I wanted to become an advocate and help create a movement to correct the injustice. That's when I found Sean Strub, who helped get me involved in the global movement to stop the criminalization of people because of the viruses they have. Last December I went to Switzerland to speak before the UNAIDS Programme Coordinating Board, and this past February we went to Norway where I spoke at the U.N. High Level Consultation on HIV Criminalization. I'm determined to do whatever I can to prevent anyone else from suffering a miscarriage of justice like mine.

I don't understand why the gay community and the AIDS community are not talking about this. It feels like we're ashamed of it. I think criminalization is not the answer to HIV prevention. Just because you know your status, the law says that is intent. People with HIV have a right to have sex. Everyone deserves that. We're human beings.

I talk about this because I have nothing else left. I want to see things change. I want to see people with HIV hold their heads up high and not be ashamed of a disease they did not ask for. Please take what you learn here tonight and use it.

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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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