Questions About HIV Criminalization Law Updates, Retroactivity, and Recidivism

Tim Hinkhouse
Tim Hinkhouse
Selfie by Tim Hinkhouse

Recently, my friend in Pennsylvania, who is also a reader of my blog, sent me a printout from titled "HIV Criminalization Update: Some U.S. Nondisclosure Laws Advance, While Others Recede." The subhead that caught me was "California Law Modernizing HIV Criminalization Awaits Governor's Signature" and the line that said: "[T]he 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."

This is obviously good for Californians, but is it really? What about the people already incarcerated for decades before this bill came along? Does this bill apply retroactively to the people already serving long sentences, which gives them some hope of getting out after this bill is signed into law, as if they were engaging in this behavior today?

Lawmakers probably don't think about the people already serving time for nondisclosure and having HIV. Aren't all people with HIV entitled to equal protection under the law? Who in the free world is looking out for those of us already incarcerated for decades, making sure that we get access to equal justice and fair punishment when new bills are signed into law?

Here is another thought about this new bill: Let's just say that a person with HIV has unprotected sex with an HIV-negative person, and they fail to disclose their status. The exposed partner feels that justice would best be served by locking this person up, so they call the police. The HIV-positive person will get arrested and, while sitting in county jail, their name will get splashed all over the news, and they will be humiliated. Then will come court appearances and, ultimately, a deal will be struck between the public defender and the district attorney.

Related: Character Lessons I Learned While Imprisoned for HIV Criminalization

Because this is now a misdemeanor, which carries county time, let's say that this person serves their time and gets out. Who is to say that they learned their lesson and won't engage in the same behaviors again, knowing that only a six-month jail sentence is hanging over their head? I could see this being a deterrent for a first-time offender, but not for a veteran sex worker who is no stranger to the jail/prison way of life. There is the drug addict who will do anything to get high, including having sex with anyone to support their addiction, so how do you deter that if they are HIV positive?

One thing I have learned after spending decades in prison because of my HIV status is that, if treatment of my behavior had been the focus of the prosecutor, I would have been better off in a behavioral treatment facility staffed with mental health professionals. Instead, I was sent to prison where I learned how to be a better criminal. Who would have thought, right?

No matter what you read or hear about the Oregon Department of Corrections (ODOC), since I have been locked up, the practice has not been about rehabilitation. I am amazed what I've seen going on at the prisons I have been to. The impression given to the public by representatives of the ODOC is essentially "fake news." If what they are doing is supposed to work, then why is the rate of recidivism so high? Some would argue that recidivism in Oregon is down. Do you know how they gauge recidivism? Someone comes to prison for robbery, does their time, and gets out. Then, they get arrested for car theft just weeks after getting out and come back on a completely different charge. Had they came back on another robbery charge, that would have increased the numbers showing recidivism, otherwise … talk about padding numbers?

My whole point about all of this? Don't believe everything you read when it comes to laws and corrections as a whole. The concerns I raised at the beginning of this are very real to me, and that is why advocacy is so important! I wish HIV-positive people all over the world didn't have to worry about being jailed and persecuted because of what is in their blood stream.

To all of my HIV-positive brothers and sisters: Be careful!!! Stay safe and stay healthy.

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Read Tim's blog, HIV on the Inside.