July 9, 2013
Every day in support groups and therapists' offices and on their own, people diagnosed with HIV ponder disclosing their status to others. Despite decades of awareness-raising, stigma -- experienced and internalized -- makes it difficult for many people to reveal their HIV-positive status. Most are keenly aware of their responsibility to avoid transmitting the virus, including adhering to laws that govern nondisclosure, especially to sex partners. These responsibilities, however, should not cost people due protection from discrimination or cause the criminal code to be applied to them unfairly, as is currently taking place.
Prosecuting HIV-positive individuals for not disclosing their status and potentially transmitting the virus was one of the first public health measures enacted in the atmosphere of fear and stigma that developed as the virus spread during the 1980s. In 1990 the Ryan White CARE Act -- the most comprehensive federal legislation to ensure HIV-related services -- mandated that states implement statues governing HIV disclosure. To receive Ryan White funding, states had to demonstrate that they could effectively prosecute any HIV-positive individual who knew his or her status and exposed someone else to HIV, whether or not the person became infected. Said another way, the earliest services for people living with HIV were linked to compulsory disclosure.
Today, some 33 states have HIV-specific criminal laws covering behaviors ranging from having consensual sex and sharing needles to spitting or throwing body fluids on someone and exchanging sex for money, either as a sex worker or a customer. States without HIV-related statutes have used general laws such as reckless endangerment to prosecute HIV-positive people. None requires either the intent to infect or the actual infection of another person. And neither using a condom or other protection nor having a low viral load -- and therefore a low risk of transmission -- qualifies as a defense.
Georgia Code 16-5-60, for example, stipulates that a person living with HIV who knows his or her status and engages in sexual intercourse, solicitation or prostitution -- or donates blood or organs -- and does not disclose that status is guilty of a felony. Emory University student Garry Carriker was imprisoned for breaking this law. Carriker had unprotected sex with John Withrow for five months before revealing his HIV-positive status after their relationship ended in April 2004. Withrow pressed charges, and Carriker was arrested. Later that year he was arrested again after two Atlanta men charged him with the same offense. Because his partners were HIV negative, Georgia law regarded them as victims, even though their sexual relationships with Carriker were consensual and none claimed to have been infected by their sexual encounters with him.
Many people believe that an HIV-positive person should tell potential sexual partners about his or her status up front, whether before a late-night hookup, a spring fling or a long-term partnership. According to this school of thought, even though both parties presumably consent to take the risk, the person with the virus has the responsibility to disclose; the person's partner doesn't even have to ask.
Partly as a result of such beliefs, PLWHA are often stereotyped as predatory or irresponsible spreaders of disease. Consider Robert Suttles, a young Black gay man whose partner charged him under Louisiana's HIV-specific criminal law for not disclosing his status. Suttles served six months in a Louisiana prison and had to register with the state as a sex offender.
Some even regard the bodies of HIV-positive people as weapons, and their body fluids as lethal projectiles. When Cicely Bolden, a Black 28-year-old Dallas mother of two, allegedly disclosed her HIV status to Larry Dunn after they had sex, he stabbed her to death. "She killed me, so I killed her," Dunn reportedly explained to the police.
But placing the entire responsibility for disclosure on the person with HIV raises a number of difficult questions. Among them: Where do notions of mutual consent and individual responsibility for one's decisions, including those that entail risk, come into play? Can the law mandate disclosure between bedfellows? And given this heightened responsibility, why would the 20 percent of infected Americans who do not know their status seek to learn it?
Criminalizing HIV is an ineffective misuse of law. It enables ignorance about HIV and fear of people living with it, in the process dangerously thwarting its own presumed goal by deepening disparities. To eradicate HIV/AIDS, not only do we need to treat the disease, but we must also treat the stigma and discrimination that accompany it. Indeed, a lack of disclosure is not driving HIV-infection rates; the key structural drivers are poverty, homelessness, ignorance, stigma and fear.
In May, Congresswomen Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) introduced H.R. 1843: the Repeal Existing Policies That Encourage and Allow Legal (REPEAL) HIV Discrimination Act.
The REPEAL HIV Discrimination Act would mobilize stakeholders -- attorneys, PLWHA, public health officials -- to review laws and policies that criminally prosecute HIV-related offenses. It would provide best practices to guide how HIV is treated in criminal and civil cases and monitor states' responses to that guidance. If passed, the act would help bring an end to the unjust criminalization of Americans living with HIV.
Urge your member of Congress to co-sponsor the act. Click here for the REPEAL HIV Discrimination Act Outreach Toolkit, which can help you effectively engage your state representatives.