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It Oughtta Be A Crime?
Criminalizing HIV

By Laura Engle

January 1999

Nushawn Williams. It's the name most often invoked to justify legislative efforts aimed at punishing people with HIV for the spread of the virus.

Nushawn Williams is the young man who allegedly had unsafe sex with at least 48 women and girls in upstate New York after having tested positive for HIV and receiving post-test counseling. After Williams was arrested, most of the his identified partners were tested, and more than a dozen of them were found to be HIV-positive. Williams is currently awaiting trial on a variety of charges, including assault in the first degree and "reckless endangerment with depraved indifference to human life." If convicted, he could go to prison for fifteen years.

The resulting furor has led to the introduction in the New York State legislature of a grab bag of bills that would make knowingly transmitting HIV a crime -- bills that AIDS activists and civil libertarians argue are unnecessary, unjust, and, ultimately, counterproductive.

The leader of the pack, introduced by Assemblymember Steven Kaufman and Senator Serphin Maltese, creates the new offense of "aggravated reckless endangerment," a Class C felony punishable by up to fifteen years in prison. The Kaufman/Maltese bill would impose criminal penalties on an individual who, "knowing that he or she is infected with the human immunodeficiency virus," does not inform a sexual or needle-sharing partner of his or her HIV status.


Is the Proposed Law Necessary?

Critics of the bill point out that the existing law is more than adequate to deal with those rare individuals who seek to infect others with HIV. The existing reckless endangerment law, which does not require the prosecution to prove either the intent to harm or actual transmission of the virus, carries a seven-year penalty. Where actual transmission occurs, the more severe charge of assault in the first degree, with its fifteen-year sentence, is an option. In the case of Nushawn Williams, conviction would subject him to the same fifteen years whether under the existing law or under a new one enacted in response to his alleged crime.


Is the Proposed Law Fair?

Opponents of the Kaufman/Maltese bill are also concerned that the new law would criminalize behavior that poses little or no risk. As far as sexual activity is concerned, for example, an HIV-positive individual would be guilty of aggravated reckless endangerment for engaging in "sexual intercourse" or "deviate sexual intercourse," the latter defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and vulva." While it is accepted that both anal and vaginal sex, if unprotected, pose the threat of HIV transmission, it is not clear to what extent oral sex is risky to an uninfected person, particularly when the negative partner is in the receptive role.

The bill would also subject an HIV-positive person to the same fifteen-year penalty if she or he "offers or agrees to engage in sexual intercourse or deviate sexual intercourse with another person in return for a fee," regardless of whether any sex act actually takes place.

It is likely that, if passed, the validity of Kaufman/Maltese will be challenged on constitutional grounds. The due process clauses of the fifth and fourteenth amendments require specificity in criminal statutes, and civil libertarians point to the vagueness of such terms as "exposure," "sexual intercourse," "deviate sexual intercourse," and "offering" or "agreeing" to engage in sexual intercourse as grounds for constitutional challenge.


Will the Proposed Law Help Prevent the Spread of HIV?

The likelihood, according to many in the HIV/AIDS community is that it will do just the opposite.

The major difference between existing law and the Kaufman/Maltese bill is that the former punishes "intent" while the latter punishes "knowledge." Proponents of the new legislation argue that intent is hard to prove. Opponents assert that the latter could actually dissuade people from being tested. After all, if they haven't been tested, they have no "knowledge' of their HIV status, and cannot be held criminally responsible under the proposed law.


Will the Proposed Law Be Passed?

With a staggering 54 transmission-related bills pending in Albany, it is obvious that lawmakers are in wagon-circling mode, even as they continue to obstruct such things as condom information and distribution in the schools. And New York is not unique. Across the country, the mood is one of punishment -- or what some would call "deterrence" -- and away from more effective but more difficult and less politically acceptable prevention efforts.


Laura Engle is editor of Body Positive.


Back to the January 1999 Issue of Body Positive Magazine




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