Are We Punishing Diseases or Punishing People? An Interview With Trevor Hoppe
December 8, 2017
KF: Absolutely. Yeah. Oh, my God. I said that. In New York state, before I was in my previous job at Treatment Action Group, I was on a panel discussion about what an end-the-epidemic plan would look like for the state. I was on a criminal justice panel. And I said to people in the health department and [who] live in New York City that [when] contact-tracing and partner notification practices stop looking like the NYPD, they might actually have better outcomes.
TH: Yeah, exactly. This is anecdotal. It's not in the book, but I think it represents so much. I have a friend who is living with HIV in Michigan. He tested positive for -- or believed that he might have been infected with -- syphilis. So, he called the health department to try to schedule testing and treatment. He's doing the right thing.
The nurse who was answering the phone essentially looked up his file and said: "Well, we know that you're living with HIV. We know that you've been going around having sex with other people and not telling your status. We could really call the police and have you arrested."
And it's, like, what public health outcome is that serving, other than deterring this individual from ever seeking treatment or testing from you again in the future? I think in New York City -- I hope -- that it's a little bit better. I would imagine it is. But there are probably less extreme versions of that story, where either you get judgment, or you get suspicion at the very least.
But in these small towns in America, really, the gloves are off when it comes to dealing with people living with HIV, for a local health department.
KF: In Punishing Disease, you talk a lot about punitive disease control through public health, but then you also shift the focus to the criminalization of sickness as a specific frame. If you could talk a little bit about the beginning of the epidemic and the way in which we started to see the specific kind of criminal law come into being.
TH: Well, right at the very beginning of the epidemic, there was really this free-for-all at the local level for prosecutors and police to try to figure out ways to punish people living with HIV, using existing law. There were cases around the country where people living with HIV would be charged with crimes such as assault with a deadly weapon or attempted murder. And pretty consistently, those attempts failed, because they could not prove that the defendant had an intent to harm their partner. It is just unusual that you can show intent in these cases. So, those attempts failed.
Now, those failures received a great deal of media attention. You had a growing sense, among police and prosecutors, that they needed new laws that did not have that problem of intent built in, [so] they could punish people without having to prove intent, because that posed a problem. So, there was that general thirst, that general sense that we needed new laws.
Then, you have a series of high-profile arrests in states around the country of sex workers living with HIV, all women. Police were pissed. They were furious that they could not put these women behind bars for more than 30 days or so, because prosecution was a misdemeanor under most state codes at the time. And so, police actively began lobbying lawmakers in their states to pass new HIV-specific felony laws.
In some states, such as Colorado, we got HIV-specific felony prostitution laws. But in other states, such as New Jersey, we got broader felony laws introduced, targeting people living with HIV -- but all driven by a fear of sex workers in particular and the threat that they allegedly posed. We know now that they did not pose this threat. But, allegedly, they posed the threat that they were going to provide a bridge from high-risk communities to the general public. That's how they were described. You know, a John was going to get HIV from a prostitute [and] go home and infect his wife, who was then going to have a baby and infect their baby. That was the great fear.
To my knowledge, that never happened or, if it did, it wasn't reported. But that's how it was depicted in the media.
So, it's really sex workers, and fear of sex work, that drove the early efforts. And then, it kind of transformed in some states into homophobia and, in particular, debates about whether or not states should repeal their sodomy laws. In most states, it was a crime to have sex if you were a gay man at that time.
As states debated whether they should repeal their sodomy laws, in some cases, such as Nevada, they decided: "Well, if we're going to repeal the sodomy law, we have to criminalize HIV. Otherwise there will be this huge outbreak." You know, allegedly, that was, at least on paper, their concern.
Really, it's a story that plays out at the state level, mostly. As I argue, the federal law really has a very minimal role to play. It's more of a disseminator of ideas, rather than an impetus, you know. By the time the presidential commission [on the HIV epidemic] comes out with the recommendation that states consider adopting criminal statutes targeting people living with HIV in 1988, dozens of states had already introduced legislation that would criminalize people living with HIV.
So, it's really a state story, I think -- which is true for the criminal laws, in general, mostly because most people behind bars are behind bars at the state level or the local level -- because the police power is the power of the state, not of the federal government. That makes it really hard for reformers. It's not something that can happen at the federal level; it's something that happens at the state level.
This interview has been lightly edited for clarity.
Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com.
Follow Kenyon on Twitter: @kenyonfarrow.
This article was provided by TheBody.
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