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HIV/AIDS Blog Central

Three Reasons Why Criminalizing HIV Is So Wrong

By Candace Y.A. Montague

December 19, 2010

Ok. So there's been a lot of talk about the criminalization of HIV lately and this article is a late addition to the debate. For those who are not aware of what criminalizing HIV means, here's a simple explanation. It means that when people who are HIV positive perform an unprotected sex act, or try to expose another person to the virus by biting, spitting or purposely cutting themselves, they should be given the harshest punishment by law. For some, this seems reasonable given the fact that the person has a potentially deadly and incurable disease. However, activists and advocates in the AIDS education field feel that this is over the top and completely unnecessary. The Positive Justice Project summed it up best by stating, "The use of criminal law as a way to stop or slow HIV transmission invariably is ineffective. The reasons why individuals take risks with their health, and how they assess risk, are many and complex. Arresting and prosecuting people with HIV for consensual sexual relationships or no-risk conduct, such as spitting, does nothing to take these reasons into account, or to assess risks based on the specific circumstances of the case at hand, such as viral load or even basic issues of intent or mutual responsibility."

Currently, there are no statutes explicitly criminalizing HIV transmission or exposure in DC but in the right hands of a paranoid, uninformed "advocate" that could all change. Here are three reasons why the criminalization of HIV just isn't right.

1. Criminalizing HIV adds to the insurmountable stigma. Just because someone has HIV that does not mean that they are assuredly going to die or even progress to AIDS. Thanks to modern science, people have been living with HIV for many, many years. HIV is only transmitted through bodily fluids such as blood, semen (and pre-ejaculation fluid), breast milk, and vaginal secretions. So if a man spits on someone, no matter how common and disgusting that is, the person will probably not contract HIV. Putting him in jail for it, however, creates a sense of fear within the community that if a person comes in contact with any bodily fluid from an infected person it will lead to death. Contracting HIV is not a death sentence and it's certainly not worth jail time.

2. Locking up people with HIV means that people with other kinds of STDs such as herpes, gonorrhea and syphilis should be locked up too. HIV is classified as a sexually transmitted disease. If people can be sent to prison for transmitting STDs there won't be many free people left in the world. Look at the numbers. According to the Center for Disease Control, more than 700,000 persons in the U.S. get new gonorrheal infections each year and 20 million Americans are currently infected with Human Papillomavirus or HPV ,which could lead to cervical cancer. If giving an STD to another person is a crime punishable by imprisonment, then "Ron Mexico" won't be winning any championship games for the Philadelphia Eagles. Imagine that.

3. In this Examiner's point of view, adults have to take responsibility for their own actions. Although this may be the unpopular opinion, some of the onus for contracting HIV has to be placed on the "victim". Barring rape, abuse, or feeling comfortable within the sanctuary of marriage, no one is forcing people to have unprotected sex with their partner. When adults agree to have unprotected sex, it doesn't just mean that one is consenting to the act of sex. It also means that they are aware of the risks in having unprotected sex and are willing to handle the consequences of their decision. This includes pregnancy, emotional letdowns, or contracting HIV. This is why comprehensive sex education is so critical. Educating young people (or even adults) on the birds and the bees and the snakes that can cost them their lives can shape their decision-making and create a more emotionally intelligent person in the long run. Everyone makes mistakes. Everyone. But the government should not get involved in the blame game and send people to prison for poor judgement calls.

The average cost of imprisoning an inmate is $20,000 a year. Judging from the current state of the economy, no state has that much wiggle room to afford to lock up a person for biting a police officer and being considered a "biological weapon. Lawsuits are definitely more in order for these types of cases especially if the person knew that they were infected and didn't say anything. But imprisoning people for infecting others is really getting us nowhere. Bottom line: Sending people to jail for purposely infecting others won't do more for ending the epidemic than the death sentence has done for stopping murder.

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See Also's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More on U.S. Laws/News Regarding HIV Disclosure

Reader Comments:

Comment by: Renee (Michigan) Fri., Dec. 31, 2010 at 7:42 am UTC
I don't believe that biting or spitting should be included in this criminalization,once again misinformation on societies part! I do however fully agree that anyone who knowingly has HIV/AIDS & does not disclose should be prosecuted to the fullest! True it's each individuals responsibilty/decision to have protected/unprotected sex however I can attest that I was never made aware that 1 in 8 have this virus nor do many others that I've educated since my diagnoses! This is another issue in itself as the world needs to be educated more to understand the importance if using protection at all times! I'm not sure how all states work but as far as other std's in Florida they are ALL included in the criminalization not just HIV/AIDS. Same for the state I'm now living in as well so we are not the only ones included in this law. It's one thing if someone contracted this virus & does not know but it's quite another for someone who knows they have been exposed, are participating in risky sexual behaviors while potentionally exposing others because they are ignorant to the virus or simply because they do not want to be tested out of fear. The other issue with this law is that it's very hard to prove whom the person is that gave you this anyway as some go undiagnosed for years. I was able to indentify the person who infected me since took my partners to get tested prior to having unprtected sex in my relationships. Unfortunately there was one I did not & well here I am! I was unable to press charges on this man who KNEW he was exposed, possibly even knew he tested poz & just did not care. He Passed this virus not only to myself but at least 2 others, 1 of them having a child with, STILL not disclosing putting both Mom & Baby at risk. Thank god she opted for the test & found out early enough to save the baby!! He also had his little "book of names" that included at least 10 other women he had KNOWINGLY put at risk. Now you tell me should this person not be treated as a criminal??
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Comment by: Mindy (Dallas texas) Fri., Dec. 31, 2010 at 1:37 am UTC
The point of criminilization is NOT necessarily to stop the spread of HIV-- maybe it does maybe not. But it's NOT THE POINT!!! the point is to punish those who knowingly intentionally or recklessly harm another human being. HIV is not a death sentence, neither is a gunshot wounds but BOTH are assaults on the well being of another person and should be punished accoding to harm caused. Make the vic be responsible?? OK. When somebody shoots you in a drive by see how you feel about being blamed for not wearing Kevlar.
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Comment by: ScotCharles (Los Angeles) Fri., Dec. 24, 2010 at 2:20 pm UTC
Good post on a timely topic. I agree with you that if a person knowingly infects another person with HIV a tort occurs. However, I have trouble with the notion that knowingly infecting another person with HIV through a known infective act like unprotected sex is not a crime. To me it is immaterial that an HIV infection does not cause immediate death. HIV is incurable and no one knows for a certainty the consequences of long term infection. I don't think you could argue that a person's longevity is the same after infection as before. A knowing act of HIV infection may not be a form of murder or manslaughter; however, it does seem to me to an act of reckless endangerment for which criminal penalties could be imposed.
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Replies to this comment:
Comment by: Candace Montague (Washington DC) Wed., Dec. 29, 2010 at 6:20 pm UTC
Thank you Scott for reading my post. And thank you for bringing up that very valid point. Of course, the reckless endangerment would be suitable for any person infecting another with an STD.

I appreciate that (really).

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D.C. HIV/AIDS Examiner

Candace Y.A. Montague

Candace Y.A. Montague

Candace Y.A. Montague has been learning about HIV since 1988 (and she has the certificates from the American Red Cross to prove it). Health is a high priority to Candace because she believes that nothing can come of your life if you're not healthy enough to enjoy it. One of her two master's degrees is in Community Health Promotion and Education. Candace was inspired to act against HIV after seeing a documentary in 2008 about African-American women and HIV. She knew that writing was the best way for her to make a difference and help inform others. Candace is a native Washingtonian and covers HIV news all around D.C. She has covered fundraisers, motorcycle rides, town hall meetings, house balls, Capitol Hill press conferences, election campaigns and protests for The DC and emPower News Magazine.

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