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HIV Criminalization Laws Still Defy Science, Reports Say

May 30, 2014

HIV Criminalization Laws Still Defy Science, Reports Say

Many states across the U.S. have retained HIV criminalization laws that fly in the face of what's known about HIV transmission, according to recent reports.

New maps published on Huffington Post earlier this month highlight individual states that make it a crime for someone with HIV to perform acts that pose negligible risk for transmission, such as "throwing of bodily fluids," or that have extremely low HIV risk associated with them, such as oral sex. The article also draws attention to controversial policies that are in active use in cases such as that of a woman in Florida who was jailed and faces charges of "criminal transmission of HIV" after accusations of spitting on a police officer.

The stirring stats cited in the Huffington Post article were culled from an article published in March in the journal AIDS and Behavior, written by researchers from the U.S. Centers for Disease Control and Prevention (CDC) and the Department of Justice (DOJ). In total, the article notes that "twenty-five states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission," including 11 states that criminalize spitting.

These findings come one year after the Presidential Advisory Council on HIV/AIDS (PACHA) called for an end to HIV criminalization laws that ignore current medical and scientific knowledge about HIV transmission. Many of these laws date back to the late 1980s, when the conservative think tank American Legislative Exchange Council provided a template for punitive laws to state legislatures.

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Meanwhile, another new report looks at these HIV-specific laws through a broader analysis of what's contributing to the high rates of people with HIV and LGBT people in the criminal justice system.

A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV was penned by Columbia University's Center for Gender and Sexuality Law, The Center for HIV Law and Policy, Streetwise and Safe and the Center for American Progress.

The report states that "LGBT people and PLWH, especially Native and LGBT people and PLWH of color, are significantly overrepresented in all aspects of the penal system, from policing, to adjudication, to incarceration. Yet their experiences are often overlooked, and little headway has been made in dismantling the cycles of criminalization that perpetuate poor life outcomes and push already vulnerable populations to the margins of society."

David Plunkett, who experienced HIV criminalization directly, offers his perspective within the report. "At 43 years old I never imagined how different my life would be because of my arrest and incarceration," he writes. "I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. From then until now I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness, and remain uninformed about the nature and transmission of the HIV virus."

In order to modernize current laws, practices and policies that criminalize HIV exposure, nondisclosure, and transmission, the authors recommend:

  • "The Surgeon General should create a public awareness campaign including detailed information that both explains the specific routes, relative risks, and modern-day consequence of HIV and STI infection, and dispels myths and ignorance contributing to criminalization of people with HIV.
  • "The Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC) should mandate development and support of accurate, age-appropriate and LGBT inclusive HIV and STI literacy programs for students and staff of all federally supported school systems as a condition of federal funding.
  • "HHS, the Health Resources and Services Administration (HRSA), and other responsible federal agencies should require proof of written policies and standards for the provision of sexual health care and HIV inclusive sexual health literacy programs for police lock-ups, juvenile, corrections and detention facilities receiving federal funds. Staff education should include training on avoiding discriminatory enforcement of regulations against PLWH and on maintaining confidentiality about prisoners' HIV statuses.
  • "CDC must develop and distribute more direct and explicit public service announcements on the routes, risks and consequences of all sexually transmitted diseases, including HIV, dispelling myths that fuel HIV criminalization, via mainstream and new media.
  • "CDC's and other related websites (e.g., AIDS.gov) should prominently include information on the actual routes, likely relative risks, and consequences of HIV and other STI transmission that reflect real-life risk reduction choices (e.g., oral sex as a very low-to-no-risk alternative; the impact of drug therapies on the already low transmission risk of HIV).
  • "CDC and the Department of Justice (DOJ) should fund and support trainings and information sharing about HIV transmission risks and myths to criminal justice personnel, state health departments, and the general public.
  • "CDC and DOJ should release the long-promised joint publication on the current state of HIV criminal law in the U.S., including recommendations for how states should evaluate and modernize current laws and prosecution policies relating to HIV.
  • "The Department of Defense (DOD) should discontinue use of a service member's HIV diagnosis as the basis for prosecution, enhanced penalties, or discharge from military service.
  • "CDC should create incentive mechanisms, such as research and prevention project grants, that will encourage states to modernize existing laws criminalizing HIV."

In addition to the specific recommendations on HIV criminalization, the report covers policing and law enforcement, prisons and detention centers, immigration-related issues, criminalization of youth and drivers of incarceration.

"Justice continues to be elusive and conditional for LGBT people and PLWH due to a range of unequal laws and policies that dehumanize, victimize, and criminalize these populations, even as attitudes toward and acceptance of LGBT people have reached an all-time high," the report states. "The good news is that the time is ripe, now more than ever, for the federal government to leverage this momentum and intervene to address the criminalization of LGBT people and the harms they face once within the system."

Julie "JD" Davids is the managing editor for TheBody.com and TheBodyPRO.com.

Follow JD on Twitter: @JDAtTheBody.


Copyright © 2014 Remedy Health Media, LLC. All rights reserved.


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