What's New in HIV Criminalization in the United States: The Good, the Bad and the Ugly
Table of Contents
- California Senate Passes Bill Modernizing HIV Criminalization Laws
- Missouri Supreme Court Upholds Michael Johnson's Right to a New Trial
- Florida Says "Sex" Can Be Non-Vaginal -- When Prosecuting HIV Exposure
- Pennsylvania Bills Would Slash Medical Confidentiality of Incarcerated People With HIV
- Ohio Supreme Court Hears Challenge to State's HIV Criminalization Statute
- HIV Is Not a Crime 2018 Conference Planning Has Begun
HIV activists in California rejoiced when SB 239 passed the Senate on May 31.
The bill amends the state's existing criminalization laws to incorporate current understanding of HIV and treatment. It reduces HIV transmission from a felony to a misdemeanor, meaning that people convicted 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.
"There's no evidence that criminalization inhibits HIV transmission," stated Naina Khanna, the executive director of Positive Women's Network-USA. Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment. Criminalization can be, and often is, used "as tools of coercion and control, particularly for women," said Khanna. "The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships." That fear is not unfounded: While women make up only 13% of Californians with HIV, they make up 43% of those criminalized under the state's HIV laws.
Furthermore, criminalization disproportionately targets people of color. Though blacks and Latinx people make up only 51% of Californians living with HIV, they are 67% of those prosecuted based on their HIV status. "These laws target the most vulnerable communities, pushing them back into the shadows," said Khanna.
SB239 now moves on to the Assembly.
On April 4, the Missouri Supreme Court voted to uphold a lower court's decision that Michael Johnson, a college wrestler sentenced to 30 years in prison, is entitled to a new trial.
In July 2015, Johnson was convicted on four counts of HIV exposure and one count of HIV transmission. HIV transmission is a Class A felony in Missouri. Johnson, a young black college student, was tried in a nearly all-white town. His race and sexuality were front and center throughout the entire court process. During jury selection, prosecutors asked prospective jurors whether they believed that being gay was a choice. During trial, graphic descriptions and images of Johnson's penis were admitted as evidence. Most of Johnson's partners were white.
Both in Missouri and across the country, advocates rallied to his defense, pointing to Johnson's sentence as a collision of racism, homophobia and HIV criminalization. In December 2016, an appeals court ordered that Johnson receive a new trial. At issue was the fact that prosecutors withheld more than 24 hours of recordings of Johnson's phone conversations from jail until the first day of trial. By then, it was too late for Johnson's legal team to mount an appropriate defense. Calling the state's violation "knowing and intentional," the judge wrote that the prosecution's actions were "part of a trial-by-ambush strategy that this Court does not condone." The decision was upheld by the state's Supreme Court.
Johnson, now age 25, has already spent four years behind bars. Two of those years were because Johnson and his family were unable to afford the $100,000 cash-only bail that would have enabled him to stay out of jail -- and participate in his defense -- while awaiting trial. He remains behind bars while he awaits his new day in court.
Under Florida law, it is a crime not to inform a sexual partner about HIV status before engaging in sexual intercourse. Until recently, another Florida law defined sex to be between a man and a woman. This is what 65-year-old Gary DeBaun used to overturn his conviction of unlawful sexual transmission of a disease after he created a false report for a partner stating that he was HIV-negative. Since DeBaun's partner was another man, he and his lawyer argued that the criminalization statute did not apply to him. A lower court agreed and dismissed the case.
While the HIV criminalization law still stands, the law narrowly defining sexual intercourse does not. The Florida Supreme Court ruled that, for purposes of HIV criminalization, sexual intercourse also encompasses anal and oral sex. The prosecutor announced that charges would be brought against DeBaun.
SB 628, a bill that would update existing HIV criminalization laws to acknowledge treatment and prevention efforts, died in the Senate's Health Policy committee in early May.
In Pennsylvania, Representative Dom Costa has introduced HB305 and HB306, which expand the current laws criminalizing people living with HIV or suspected of having HIV in the state's prison system.
HB305 circumvents medical confidentiality if a prison staff member has direct contact with the blood or bodily fluids of an incarcerated person. The bill allows the staff member to learn the incarcerated person's HIV, hepatitis B and hepatitis C status. If the incarcerated person's status is unknown, the staff member can request that the person's blood be tested. If the incarcerated person does not agree to be tested, the prison is allowed to test the person's available blood if a physician agrees that the staff member had significant exposure to the blood, that tests are needed to treat the staff member and the staff member requests that the blood be tested.
HB 305 defines prison staff members to include health care staff, correctional officers (or guards) and volunteers.
HB 306 amends the state's Confidentiality of HIV-Related Information Act for people in prison. If passed, the state Department of Corrections must disclose an incarcerated person's HIV, hepatitis B and hepatitis C status to all corrections officers required to interact with the person. While the bill prohibits corrections officers from disclosing this information to others, incarcerated people across the country have noted that staff members often gossip about medical and other confidential information they overhear or learn, often within earshot of others.
Both HB 305 and HB 306 have been in the state's House Committee on Judiciary since February 3.
In May, the Ohio Supreme Court heard arguments in State of Ohio v. Orlando Batista, challenging the legality of the state's HIV criminalization statute. Under the state's 2000 HIV law, which classifies non-disclosure as felonious assault, Batista was convicted of not disclosing his HIV status to his girlfriend before they had sex. She later tested HIV-positive. Batista was arrested and, after pleading no contest and admitting to transmitting HIV to at least two other women, was sentenced to eight years in prison.
Batista appealed, arguing that requiring a person to disclose his or her status to potential sexual partners is a violation of free speech and that, because HIV is the only disease that is criminalized, the law is also a violation of equal protection. He lost his appeal, but the Ohio Supreme Court agreed to review the issue.
Ohio had 356 HIV-related prosecutions and 59 convictions between 2003 and 2013, giving it the fourth highest HIV-related conviction rate in the U.S. As of 2015, more than 22,300 people in Ohio were living with HIV]].
HIV advocates will be heading to Indiana next summer to share strategies, insights and best practices on repealing and modernizing HIV criminalization laws. The third HIV Is Not a Crime National Training Academy will be held at Indiana University-Purdue University (IUPUI) from June 3-6, 2018.
The conference will offer skills-building training, with an emphasis on grassroots organizing, advocacy, coalition-building and campaign planning.
"The HIV Modernization Movement (HMM) is excited to welcome HIV Is Not a Crime III to the IUPUI campus! Science has made extraordinary advances since the HIV epidemic began in the 1980s, but one area that hasn't kept up is the body of laws that criminalize HIV. Lacking in scientific merit, these harmful laws stigmatize people living with HIV and are counterproductive to HIV treatment and prevention efforts. Organized activities like this one, that bring together people living with HIV and their allies to collectively strategize on reforming these draconian laws, are critical to ending the HIV epidemic," said Carrie Foote, Ph.D., HMM Chair and an associate professor at the university, in a press release.
"We hope that hosting the Training Academy in Indiana will highlight the archaic HIV-specific laws and empower advocates and allies to modernize Indiana's statues," added Tami Haight, conference coordinator with the Sero Project.
Interested in helping to organize the conference? Sign up here to participate in one of the conference's planning work groups.