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This Month in HIV: A Podcast of Critical News in HIV

This Month in HIV: Sex, Privacy and the Law When You're HIV-Positive

An Interview With Catherine Hanssens, Esq., Executive Director of the Center for HIV Law and Policy

October 2007

This podcast is a part of the series This Month in HIV. To subscribe to this series, click here.

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Catharine Hanssens, Esq., Executive Director, Center for HIV Law and Policy

This is Bonnie Goldman, Editorial Director of The Body. I'd like to welcome you to This Month in HIV. This month's topic: Sex, Privacy and the Law When You're HIV Positive.

For as long as humanity has known about the existence of HIV, there's been discrimination against HIV-positive people. Since the mid-1980s, people with HIV have been fired, evicted, injured, imprisoned, ostracized and even killed simply for having the virus in their blood. People with HIV have gone to prison for having protected sex without disclosing, or even just for spitting on an HIV-negative person. And they've been fired from their jobs for even less.

So as an HIV-positive person, what can you do to protect yourself -- in life, in love, at work and elsewhere? This month, we're pleased to have Catherine Hanssens, Esq., here to explain the law to us. Catherine is an attorney who has worked tirelessly on HIV-related legal and policy issues since 1984. She is the executive director of the Center for HIV Law and Policy, the first nationwide legal resource and strategy center for people with HIV and their advocates. She has an encyclopedic knowledge of HIV and the law. We're honored to have her as our guest for This Month in HIV. Welcome, Catherine, to This Month in HIV.

Thank you, Bonnie. Glad to join you.

If someone with HIV does not disclose to a sexual partner that they are HIV positive, even if they have protected sex, what are the laws? Is there a federal law about this? Or is it state by state?

There are currently, I would say, about 24 to 27 states -- of course, that can vary, depending on the month and what state legislatures decide to do -- with state laws that specifically criminalize certain behaviors when people with HIV engage in them.

In addition to those specific laws, of course, every state has a criminal code that prohibits violent crimes, from attempted murder to assault. Then there is a third group of laws, many of which have been in existence since the early 1930s, that will make it a crime if someone with a communicable or infectious disease exposes another person to that disease.

So there are, at least in theory, multiple ways that people with HIV can be and, in fact, have been prosecuted. But again, your risk varies from state to state.

"From ... 1986 to 2001, there have been 316 known HIV-related prosecutions [in the United States]. However, the conviction rate on those prosecutions has been pretty high, around 80 percent."

From the period between roughly 1986 to 2001, there have been 316 known HIV-related prosecutions [in the United States]. However, the conviction rate on those prosecutions has been pretty high, around 80 percent, which is certainly considerably higher than prosecutions in other categories.

Unfortunately, a significant number of those prosecutions deal with low-risk behavior. A significant number of those prosecutions have targeted people who are already politically unpopular, such as sex workers. And, a very significant percentage of those have also targeted people of color, particularly when the supposed victim was someone who is white.

Can you give me some examples of these prosecutions?

Some of them range from the ridiculous to the tragic. There are individuals who have been successfully prosecuted for supposedly spitting at someone who is a member of the criminal justice system -- whether it's a corrections officer or a police officer, this carries a higher than average risk that you will be prosecuted.

There was an individual [named Greg Smith] who was prosecuted and convicted and sentenced in the late 1980s in New Jersey, for allegedly biting a corrections officer. He received a 20-year sentence for attempted murder, even though the virus was not transmitted, and even though there were numerous facts suggesting that the inmate had not attacked anyone, but had been assaulted, and the prosecution was a product of a cover-up of that activity.

Have there been recent cases similar to that? Or was that a reflection of the paranoia of a long time ago?

I wish it was a long time ago. I think a lot of people here in New York, where we're having this conversation, may remember an individual named Nushawn Williams in upstate New York, who was prosecuted for allegedly transmitting HIV to a number of young women who, it should be mentioned, were white. [For more on this case, click here.] Basically, the knowledge of his relationships was a product of his voluntarily providing a lot of information during partner notification activities.

As I mentioned, a lot of these cases have involved low-risk activity. One prosecution that got a fair amount of press back in the 1990s involved the prosecution of a female sex worker based on the allegations of an older gentleman, who claimed that he was attacked and bitten by the sex worker in the course of a robbery. [For more on this case, click here.] The sex worker said that, in fact, this gentleman was a client of hers, and was basically accepting services and refusing to pay for them. She was successfully prosecuted for assault.

I think that case and the majority of these HIV-related prosecutions demonstrate that they are rooted in very significant differences in views and values related to drug use, sex, gay sex, sex work ... and the clash of those values.

So most of the prosecutions happen in that world -- whether it's among very poor people, or marginalized people. Have there been cases of wealthy people being prosecuted?

I'm not aware of any. There have been a number of prosecutions in the context of the military. I think what one can say about these prosecutions is that, if the criminal law was an effective tool of HIV prevention, and if in fact it served that purpose, then it would have to stop or deter the behavior of people who are responsible for the major proportion of new cases. Which means that those behaviors which are most responsible for spreading the virus -- voluntary sex and needle sharing -- would be affected by criminal laws. In fact, there is absolutely no evidence that that happens.

The behavior that most people accept as wrong, and perhaps even appropriate for criminal law penalties -- someone deliberately using HIV, or trying to use HIV status, as a tool to harm or terrorize somebody else -- is in fact extraordinarily rare, and is certainly not a significant factor in HIV transmission rates.

The behaviors that do drive the epidemic, which I mentioned are voluntary sex and needle sharing, are difficult, if not impossible, to prohibit and control. If these laws and these prosecutions were really intended, as their proponents say, to stop or slow the spread of HIV, then there would be some attention, or certainly more attention, to whether or not transmission actually occurs. But in the overwhelming number of prosecutions, there was no transmission.

"In many of the state laws, whether or not transmission occurs has nothing to do with the elements of proving a crime."

In many of the state laws, whether or not transmission occurs has nothing to do with the elements of proving a crime. Only a small handful of the roughly 25 states that have HIV-specific criminal laws actually require that the prosecutor show that the person intended to infect someone in order to get that conviction and send somebody to jail.

So, basically, what is being targeted is the sex lives of people with HIV, and the addiction of people with HIV, regardless of intent, regardless of whether they use protection. As I may have mentioned, only two of all of these laws make any distinction between protected and unprotected sex as an element of a crime, and whether you will wind up in prison. Only half of them make informed consent an affirmative defense to a prosecution.

When you say affirmative defense, what do you mean by that?

What that means is that if the person being prosecuted can turn around and prove that the person with whom they slept or shared a needle knew of their HIV status, knew of the risk that sleeping with someone with HIV poses, and then consented, then and only then can they raise that as a defense. But again, the burden is on the person who is being prosecuted, and that is available as a defense in fewer than half of the states that have HIV-specific laws.

Why is it only available in half?

I can venture a guess. I think it is because, again, what's being targeted is not a real public health problem -- which is people engaging in activities that expose them to infection without protecting themselves, regardless of what they know about their status -- but the notion that people with HIV should not be having sex, should not be sexually active.

In illustration of that, there are a couple of different states that we can look at. One state that I think proves that point is Illinois, where their statute makes the knowledge of infection and the engaging in intimate contact with another in and of itself a crime.

Explain that in real-person speak.

What that means is, if I am a woman in Illinois and I am HIV positive, if I get pregnant, that pregnancy, that fetus, could be evidence of criminal activity. It doesn't matter whether the other person knew [my HIV status]. It doesn't matter whether the partner willingly engaged in the act of impregnating me, knowing the risks and benefits. The fact of that pregnancy would make me a criminal in Illinois. Another example: If I were a gay man and I engaged in a relatively low-risk activity -- oral sex with a condom -- and no transmission occurs, I still am a potential felon.

Because you have HIV?

"If you are extraordinarily sexually active and engage in every imaginable kind of risk, but do not get tested, you are not likely to be liable, because you do not know that you are infected. So most of these statutes actually reward ignorance."

Because I know that I am infected. The focus is on people who have gotten tested. If you are extraordinarily sexually active and engage in every imaginable kind of risk, but do not get tested, you are not likely to be liable, because you do not know that you are infected. So most of these statutes actually reward ignorance. They penalize getting tested. You are generally only going to be subject to prosecution if you have been tested and know that you are positive.

How is that proven?

By the record of an HIV test result.

Meaning the record. If you go for a "confidential" test at a doctor's office, they could ask to see that?


Without your permission ... they could do it legally?

In most states, if there is a court order. In many states, if there were simply a request or a subpoena for it, that information would be turned over.

The allegation would be that this person knew, or should have known, that they were HIV positive. In fact, that was done in the case of Nushawn Williams. The Department of Health, apparently with very little consideration about it, turned over all sorts of confidential information about Nushawn, certainly not with his consent or with even his knowledge or prior notice.

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Copyright © 2007 Body Health Resources Corporation. All rights reserved. Podcast disclaimer.

This podcast is a part of the series This Month in HIV. To subscribe to this series, click here.


This article was provided by TheBody. It is a part of the publication This Month in HIV.
See Also
More Info on Basic Legal Rights for HIV-Positive People


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