It's a Virus, Not a Crime!
Criminalizing HIV Nondisclosure: Effective HIV-Prevention Method or Fanning the Flames of the Pandemic?
By Bob Frascino, M.D.
October 31, 2010
In my last blog entry, "A Telling Tale of Trick or Treat," I mentioned a gaggle of horned-up hotties in a Jacuzzi who might very well wind up exchanging bodily fluids prior to exchanging detailed medical information, such as HIV status. I discussed some of the reasons disclosure is such a thorny issue: rejection, stigma, possible dissemination of confidential information, etc. So what could happen to those hotties if they chose not to disclose -- or to delay disclosure until mutual trust was established with a partner?
Well, that would depend on what state or country the hot hot tub of hotties was located. In Iowa, an HIVer who had an undetectable viral load was sentenced to 25 years in prison following a one-time sexual encounter during which he used a condom! WOWZA! An HIV-positive woman in Georgia was given eight years for failing to disclose her viral status even though her HIV status had been published on the front page of the local newspaper (how's that for disclosure?!) and two witnesses testified her sexual partner was well aware of her HIV-positive status.
Please note these prosecutions are not for HIV transmission, but rather for failure to disclose one's HIV-positive status prior to intimate contact between consenting adults who both agreed to do the unsafe dance with no pants.
Making matters even worse, criminalization of HIV has now expanded beyond the boudoir (whoa! did I really say boudoir?) into far distant realms. For example, an HIV-positive guy in Texas is now serving 35 years for spitting at a police officer, and a positively charged Michigan man was charged under that state's anti-terrorism statute with possession of a "biological weapon" following an altercation with a neighbor! So HIV is now linked to bioterrorism in the eyes of Lady Justice? OMG!
As the number of these cases grows, so does the debate surrounding the criminalization of HIV. The debate lines are clearly drawn and delineated as follows:
Why Should HIV Nondisclosure be Criminalized?
- Intentionally not disclosing HIV infection to sexual partners puts the partners in harm's way.
- Without forced disclosure, more and more people will be infected with HIV; in essence, the public health would be jeopardized.
Why Should HIV Nondisclosure Laws Be Overturned?
- HIV criminalization laws do nothing to reduce the rate of new HIV infections.
- Such laws undermine HIV-prevention efforts by deterring people from being tested. ("Hey, if I don't get tested and don't know my status, I can't be charged or prosecuted.")
- They increase fear and stigma surrounding HIVers.
- They result in punishment (often severe) under circumstances that are not blameworthy and where no harm (and in some cases even potential harm) was done.
- Such laws are often applied unfairly and at best inconsistently.
- There are laws already on the books that can be used to prosecute the extremely rare cases where someone transmits HIV with the intent to do harm.
Despite the visceral response and what, at first glance, may seem like a reasonable concept to force HIV disclosure with nondisclosure laws, on more careful reflection it becomes evident that the criminal law is an ineffective and inappropriate tool with which to address the problem of HIV exposure. There is no evidence to support that criminal prosecutions for HIV nondisclosure offer any benefit in terms of HIV prevention. On the other hand, it is clear these actions have negative effects, including disincentivizing HIV testing and knowing one's status; spreading misinformation about HIV-transmission risk (the Texas guy in jail for 35 years for spitting at a cop is a good example); increased discrimination against HIVers; and invasion of privacy.
Studies have shown that the vast majority of HIVers practice safer sex and/or disclose their HIV status to sexual partners. It is also an important public health priority for everyone to take personal responsibility, whether they know their HIV status or not, to ensure that HIV and other STDs are not transmitted. Criminalization places the responsibility for preventing HIV transmission disproportionately on HIVers.
HIV nondisclosure criminal laws fail to acknowledge many complicating factors surrounding HIV disclosure, including:
- Awareness of HIV
- HIV stigma and discrimination
- Health reasons that might impact ability to disclose (psychiatric illness, cognitive dysfunction, psychological impairment, fear of retaliation and/or physical harm, etc.)
HIV nondisclosure criminalization cases often attract sensational media coverage. (The case of Nadja Benaissa, an HIV-positive German pop star who recently barely escaped a prison sentence for nondisclosure, is an example.) Portraying of HIVers as potential criminals results in increased stigmatization. Perhaps even more important is that given the lack of awareness of -- and in some cases frank bias against -- HIV/AIDS, HIV transmission and HIVers among some police, prosecutors, judges and correctional institutions, the criminal justice system is not the appropriate venue for addressing HIV-exposure issues. HIV/AIDS is an individual- and a public-health issue. There are public-health mechanisms in place to address communicable diseases. Interventions aimed at preventing the spread of HIV should be public-health and human-rights based. Strengthening policies and initiatives that have been proven to reduce HIV transmission, such as increasing HIV/AIDS awareness and education programs, encouraging testing, increasing access to support services and safer sex/harm-reduction materials, and providing clean needle exchange programs, should be the public-health focus. Criminal charges do nothing to stem the spread of HIV, but do divert resources and public attention away from these proven public-health policies and programs.
Utilizing criminal law to prevent HIV transmission is based on faulty assumptions about the efficacy of this approach and does not address the many complex factors associated with unsafe behaviors and HIV disclosure. It undercuts the most basic HIV-prevention message: to know your HIV status and take responsibility for your own sexual choices and health. Studies have shown that getting HIV tested and learning one's HIV status leads to increased adherence to safer sex techniques. Criminalization of HIV nondisclosure is counterproductive in containing the further spread of HIV, particularly because it markedly decreases willingness to access testing and learn one's HIV status.
This topic comes up frequently in The Body's Safer Sex and HIV Prevention Expert Forum. Here is a link to a small sample of what can be found in the chapter in the archives devoted to HIV disclosure. Check it out!
The concept we must always remember is a simple one: HIV is a virus, not a crime!
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