He Said, She Said -- and What the Law Says
A Doctor Who Works With People With HIV Who Are Incarcerated Looks at Two Cases
Enacted in 1989, Illinois' HIV Criminal Transmission Law has undergone minor revisions since then, but remains no less controversial. In the era of U=U (Undetectable=Untransmittable), PrEP, treatment as prevention (TasP, e.g., HPTN 052 and other studies), as well as enlightenment about HIV in general, it is time to reconsider the consequences of this law.
I have worked at the Cook County Jail in Chicago for 14 years. In that time, I have provided HIV medical services to a number of patients who were in custody awaiting trial over alleged violation of the HIV Criminal Transmission Law. The purpose of this article is not to suggest innocence or guilt of the alleged, but to provide real-world examples of how this law has affected patients from the perspective of the incarcerated and those who care for them. Names and specific details of criminal allegations have been modified to protect privacy.
Mr. Xavier has been in jail since 2014, charged with HIV Criminal Transmission. During a slow day in clinic, he decided to share his version of the allegations with me. He had been in a long-term relationship with his girlfriend. They have one child together, and he has two other children from a previous partner. The two of them apparently got into a heated argument ultimately leading to the end of their relationship. However, that was not the end of the fight's consequences.
Xavier alleged that out of spite, his now ex-girlfriend called the police and stated that he intentionally tried to infect her with HIV by not disclosing his status. She alleged that she discovered his medications, researched what they were, realized she was unaware, and had been having unprotected sex for years. Despite not contracting HIV, she was able to have Xavier incarcerated.
Xavier told me his girlfriend had always been aware of his status. He said she even came with him from time to time to his medical appointments with his HIV specialist, as it was part of their family planning to minimize her risk while trying to conceive. He was adherent to his medication and had an undetectable viral load. Despite this, he has spent nearly four years behind bars awaiting trial.
During his lengthy incarceration, Xavier has lamented not being there for his children, particularly his then three-, now seven-year-old, son he had with his now ex-girlfriend. He told me the prospect of a felony conviction would "destroy" his future. He has lost his job, his apartment, his car, and some of his friends. His reputation in the community has been damaged. His HIV status is no longer private information among his family and friends. At times, he told me, he was so depressed he had considered suicide.
In a different state correctional institution, another example of HIV criminal transmission occurred. In this case, Angelica, a 21-year-old transgender female who is HIV-positive, was incarcerated for theft. She refused to take antiretroviral medications during her sentence for personal reasons, and had a very high plasma viral load. She was "ticketed" by the Department of Corrections for having sexual relations with multiple partners during her incarceration.
One of her sex partners had been in the system since 2013. Max had been tested for HIV at least annually during his incarceration, negative each time. In 2017 he tested positive. During an inquiry, he acknowledged his most recent sex partner was Angelica. Max stated he was not aware of her HIV status, and denied being with any other partners since his last negative test. All the sex was consensual, but due to condoms being contraband at this institution, it was unprotected. PrEP was not offered or available.
The medical provider felt he had an ethical dilemma. He knew both patients. He knew the infection most likely resulted from Angelica declining to take medications. Max claimed he did not have any discussion with any of his partners about HIV or other sexually transmitted infections. Angelica stated she did not disclose her HIV status prior to or after sexual activity with any of her partners. Max and Angelica were not married or civil partners (in Illinois, the AIDS Confidentiality Act gives a medical provider the right to disclose without consent in the instances of marriage and civil partnerships, but not other relationships).
Knowing the criminal transmission laws in his state, this doctor was torn between strictly observing medical confidentiality, or informing Max of the law in the context of his new infection. Moreover, was it even his role to get involved in such a legal issue when his job was to provide medical care? Was he obligated to notify the Department of Corrections in some manner to consider housing Angelica separately from other inmates to minimize the risk of additional new sexual exposures? Should he have considered the possibility of inmate retaliation against Angelica?
These cases illustrate some additional perspectives of the impact of criminalizing being HIV-positive. However, they also bring up numerous related points for discussion:
- If any intimate partner can report someone else's HIV status to the police, do all HIV positive people need to consider if they need some sort of "evidence" to support their disclosure? This would include everyone who has ever used hook-up apps or the internet to find sex partners.
- What role/responsibility does a Department of Corrections have in providing access to HIV prevention during incarceration?
- Why is HIV singled out as the only sexually communicable disease that is criminalized for lack of disclosure? Many if not most sexually communicable diseases can cause lifelong complications and even death (e.g., hepatitis B and C, human papillomavirus, herpes simplex, syphilis, chlamydia, gonorrhea, MRSA).
- Who is ultimately responsible for protecting one's health? You? Your partner? The legal system? The healthcare system?
- Is disclosing someone's HIV status without consent (e.g., calling the police) a violation of the Illinois AIDS Confidentiality Act (or the laws of other states)?
- In the era of PrEP, PEP, U=U, and treatment as prevention, does the science of HIV transmission still align with real-world risk warranting incarceration?
- How does one prove intent to infect a sexual partner? Would wearing a condom be proof of lack of intent? Would taking one's medications and having an undetectable viral load? Would an HIV-negative partner taking PrEP be at inordinate risk?
- Should the Criminal Transmission law be revised again to reflect our current science regarding the real risk of HIV transmission? Should the law be eliminated altogether?
I do not have answers to clear the air, but I do understand the science behind disease transmission. The way the law currently exists, it may simply boil down to "He said, she said." May the most compelling story to the judge and jury "win"?
Chad Zawitz, M.D., is a Board Certified Infectious Diseases specialist at Cook County Jail in Chicago. He received his Infectious Diseases training at Rush University Medical Center in Chicago and Internal Medicine training at the University of Pittsburgh. He is the Director of the Continuity of Care Clinic for HIV-positive detainees at both the jail and the nearby county-run CORE Center. He is also a Certified Correctional Healthcare Provider (CCHP). Dr. Zawitz has worked exclusively with the incarcerated population in Chicago for more than 10 years. His academic interests include virology (HIV/HCV), correctional healthcare, public health, and LGTBQ health.
[Note from TheBody: This article was originally published by Positively Aware in Sept. 2018. We have cross-posted it with their permission.]