HIV Criminalization Update: Some U.S. Nondisclosure Laws Advance, While Others Recede

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Table of Contents

First, the good:

California Law Modernizing HIV Criminalization Awaits Governor's Signature

On Sept. 11, 2017, California lawmakers passed SB 239. As reported previously, the bill reduces HIV transmission from a felony to a misdemeanor. This means that people who are convicted will face no more than six months in jail rather than years in prison. The bill also eliminates several HIV-specific criminal laws that carry severe penalties, even for activities that do not risk exposure to HIV. SB 239 now awaits Governor Brown's signature, the final step before becoming law.

For Nestor Rogel, a California activist living with HIV, the bill's passage brings a sense of freedom. Rogel, who was born HIV positive, has always had to take numerous precautions to document his disclosure in order to avoid potential prosecution. Not only does the bill bring a sense of personal relief, but he's hoping for broader changes in societal attitudes. "Decriminalization is a good step to destigmatization," he told "California is used as a model for so many things. I'm hoping that other states will take California as a model in this, as well."

Idaho Statewide Coalition Created to Modernize HIV Criminalization Laws

In 2013, fewer than 30 people were diagnosed in Idaho, ranking the state 45th in the nation for HIV cases. That's fewer than the number of state HIV criminalization prosecutions since its nondisclosure laws were enacted in 1988. It should be noted that, in Idaho, actual transmission is not required for prosecution.

Kerry Thomas was the first person ever prosecuted under these laws; in 1999, Thomas was convicted and sentenced to 15 years in prison for nondisclosure. In 2009, Thomas was prosecuted and again pled guilty to nondisclosure. This time, the judge sentenced him to 30 years. Thomas is not eligible for parole until at least March 2029.

In 2016, after attending the HIV Is Not a Crime conference, Kevin Lish of All Under One Roof LGBT Advocates of Southern Idaho began pulling together a statewide coalition to modernize laws and address the harsh penalties in the state's HIV-specific codes. "We need laws that encourage people to be tested, know their status and have honest conversations with potential partners so that we can start curbing the number of new cases in Idaho," he told A&U Magazine.

Now, the bad:

Massachusetts Bill Would Criminalize Nondisclosure

Ten Massachusetts lawmakers are sponsoring H2295, which criminalizes HIV nondisclosure before sex or sharing needles. It also further criminalizes engaging in sex work (which is already a crime punishable by prison sentence) if the person is HIV positive, as well as donating or selling blood, organs, tissue and other bodily fluids or body parts. The proposed penalty would be a minimum of five years in prison (and a maximum of 15 years).

The bill has remained in the Joint Committee on the Judiciary since its introduction in January.

Maryland Adopts Law Authorizing Court-Ordered HIV and HCV Testing

In May, Governor Larry Hogan signed HB 1375 into law. The law authorizes judges to issue "emergency orders" for HIV and hepatitis C testing if the person is believed to have "caused exposure to a victim." Victims include law enforcement officers, firefighters, emergency medical technicians (EMT), forensic scientists and health care workers collecting medical evidence of sexual assault. The law authorizes the test to be conducted via oral swab.

Tennessee Adopts Law Authorizing HIV, Hepatitis Testing of Arrested Individuals

May seems to have been a bad month for HIV criminalization. Tennessee also enacted a law requiring HIV and hepatitis testing. HB 1283 requires HIV and hepatitis testing for any arrested person if requested by a law enforcement officer, firefighter or EMT exposed to blood or bodily fluids "in any manner that presents a significant risk of transmission." It also allows any employee of the state's bureau of investigation's crime laboratories who might have been exposed to bodily fluids to request such a test. Unlike the Maryland law, HB 1283 requires a blood test rather than an oral swab.

Maggi Duncan, executive director of the Tennessee Association of Police Chiefs helped draft the legislation. "We're talking about a criminal," she reportedly said, ignoring the fact that arrests do not automatically mean convictions or guilt. "In the course of being arrested, they could have possibly exposed a first responder."

And finally, the hopeful:

Ohio Supreme Court Hears Free Speech and Discrimination Arguments Against HIV Disclosure Law

Ohio law requires a person living with HIV to disclose their status before having sex or else risk charges of felonious assault and up to eight years in prison. But that might change as the state Supreme Court considers arguments it heard in May that the law violates free speech rights by focusing only on disclosure and not actual transmission.

The plaintiff, Orlando Batista, was convicted of not disclosing his HIV status to his girlfriend before the two had sex. His girlfriend later tested HIV positive and Batista was arrested. He pled no contest and admitted to transmitting HIV to at least two other women. He was sentenced to eight years in prison.

The state Supreme Court decision will affect not only Batista but also potentially tens of thousands of Ohioans. As of 2015, more than 22,300 people in Ohio were living with HIV.

Canadian Federal Justice Minister Reviewing "Over-Criminalization of HIV Nondisclosure"

In Canada, a person living with HIV who has sex without a condom and does not have a low viral load must disclose their status to a sexual partner. If they don't, they risk charges of aggravated sexual assault and imprisonment.

Canada's criminal code contains no laws specific to HIV nondisclosure; instead, charges of aggravated sexual assault are filed in cases of nondisclosure.

According to the Canadian HIV/AIDS Legal Network, at least 184 people in 200 cases have been charged since 1989. In 2012, the Supreme Court of Canada ruled that a person must disclose if there is a "realistic possibility of transmission." The vague wording and lack of official prosecutorial guidelines in Ontario have left prosecutors to their own devices when deciding how to approach HIV cases, or whether to even prosecute. Since 2012, at least nine cases have been taken to court in Ontario, according to the Canadian HIV/AIDS Legal Network.

What Ontario prosecutors do have is a 72-page document on how to secure a conviction, including what kinds of information should be sought from public health officials. In other words, health records can be used against a defendant, which undoubtedly discourages people from seeking medical care.

Federal Justice Minister Jody Wilson-Raybould has called it an "over-criminalization of HIV nondisclosure" and is looking at introducing changes.

What Does Criminalization Mean for People Living With HIV and for Public Health in General?

Between 2014 and 2016, the People Living with HIV Stigma Index surveyed 70 people in Michigan.

Among its findings, the index found that "a significant number of the respondents to our questionnaire didn't trust Michigan courts to give them a fair trial, if they were accused of nondisclosure. They cited the, 'New Jim Crow' which often leads to discretionary adjudication, causing disparities along racial lines, and dissuades many of those at risk from getting tested, because, what they don't know won't hurt them."

Nearly half (46%) believed it is reasonable for a person with HIV to not disclose to a sexual partner for fear of prosecution. Given the disproportionate criminalization of black people, 67% of black respondents compared with 9% of white respondents believed that nondisclosure for fear of prosecution is reasonable. Furthermore, people who had previously been detained (62%) were more likely than those who had never been detained (42%) to agree.

The survey also asked, "If someone were to file charges against you claiming that you were a sexual partner and you did not disclose your HIV status to him or her, do you trust that you would be given a fair hearing in Michigan's criminal justice system?" Interestingly, nearly 60% of respondents, regardless of race, said no.

Finally, 51% of the people surveyed believed it was somewhat (33%) or very reasonable (18%) to delay care for fear of being prosecuted for nondisclosure. In other words, HIV criminalization deters people from testing and seeking care.

According to the Centers for Disease Control and Prevention (CDC)'s most recent data (from 2014), an estimated 1.1 million people are living with HIV in the United States. Eighty-five percent have been diagnosed and know that they have HIV. Nearly half (49%) are living with a suppressed viral load, meaning that they not only are able to live longer, healthier lives, but they have a dramatically reduced risk for spreading HIV to others.

The CDC says that nine out of ten HIV transmissions are spread by people who have not been diagnosed or are not in care. Therefore, "[r]educing the number of undiagnosed HIV infections and getting more people into care present the greatest opportunities to improve viral suppression in America."

However, as the People Living with HIV Stigma Index has noted, continuing -- and expanding --HIV criminalization works against this goal.