After 30-plus years of states using laws to criminalize people living with HIV for exposure or transmission, the movement to change these laws has gained momentum. TheBody.com's senior editor, Kenyon Farrow, sat down with Trevor Hoppe, Ph.D., an assistant professor of sociology at the University at Albany, State University of New York (SUNY), to discuss the history and present-day activism detailed in his new book, Punishing Disease: HIV and the Criminalization of Sickness (University of California Press, 2017).
Kenyon Farrow: Part of what I want to talk about is the kind of current activism movement that is beginning to emerge to take on these laws -- some federal attempts and some state-level organizing. I think the dominant framework here is that the Ryan White Care Act is the reason why we have state laws criminalizing HIV, in that the first iteration of the bill told states that they had to have these laws on the books in order to get the money.
Trevor Hoppe: To certify, yeah.
KF: Right. But what you're suggesting is, actually, these laws were already pretty well established by the time we even got to the Ryan White CARE Act for that to even have been the case.
TH: Yeah. You know, this is really a problem with the legal literature -- where you can just sort of say anything and claim that it's true. And so, we've had legal scholars making this argument without any evidence for decades now, where they just say, "Oh, it must have been the Ryan White Act."
But Ryan White was in the 1990s and, by that point, almost all the states that were going to criminalize HIV had already done so. When I look at other states -- such as Alaska, for example, they were debating whether to add an HIV-specific felony law. And they said, "Well, do we have to do this because of Ryan White?"
The lawmakers said: "No, no. We looked into it. All we have to do is certify that we could punish someone living with HIV under any law, whether or not it's specific to HIV. So, no. Ryan White is not a reason to enact this law."
So, you have lawmakers even acknowledging that Ryan White was not a factor in their decision. So, yeah. I think that's a farce, really, that Ryan White is to blame.
Related: Are We Punishing Diseases or Punishing People? An Interview With Trevor Hoppe
KF: Got you. Yeah, so let's talk more about the current moment. We've had a number of both national organizations that are taking on more of the work, either repealing or [creating] the framework of modernizing the HIV criminal codes, and then some local efforts to do so, as well. They have had a couple of recent legal successes. Well, I'll say legal reforms -- we can debate the level of whether it's a success or a win, or some phase. So, you know, Iowa kind of being the first state, and now California and some other places are looking at reform bills.
So much of the narrative and the messaging around reforming the HIV criminal legal code is around this idea of modernization. What I hear a lot of advocates saying -- and using to speak to lawmakers -- is that these laws were created when we didn't know how HIV was spread and there was a lot of panic and fear in the country. Now that we know that people who are on treatment and get to be undetectable can't transmit the virus, then a number of other things that we understand about treatment and disease progression, and what have you -- these are reasons why we need to reform the laws.
I'm curious to hear your take on the current moment. There’s more energy and focus on criminalization laws where HIV is concerned, and particularly this sort of modernization framework. How do you respond to it, based on your research?
TH: I guess what immediately comes to mind is: Who do you think is being punished under these laws? Do you think it's really the middle class gay man living in San Francisco who's being arrested? No. It's the poor white woman living in the middle of Michigan: The people who are least likely to be on treatment and have access to treatment are being caught up in this wave of criminalization.
So, I am very wary of attempts to just tweak these laws -- to only punish people, for example, who have detectable viral loads -- because I think that's really just kicking the can down the road. It avoids the hard question, which is: Is the criminal justice system the best tool, the right tool, the appropriate tool, to respond to these cases? Or are there public health interventions that might be better suited to respond to these individuals, who may not be disclosing their status or, you know, may be accused, at least, of doing so.
I really think that we have two possibilities emerging. We have states like California and Colorado, who have fully repealed several of their HIV-specific felony laws. Those were huge successes, I think. They were repealed, and that's rare. Lawmakers do not like to repeal criminal statutes because they're worried about looking soft on crime.
On the other hand, we have states like Iowa and Tennessee, in the Midwest and the South -- which is really the hotbed of criminalization in the U.S. We see there that state legislatures are moving to expand their laws to include other diseases. Now, in Iowa, they also reduce the penalties in the most harmless cases to much lower levels. And that is a success. But I think the expansion to other diseases is a huge failure, in the sense that all you're doing there is just further entrenching the idea that the criminal justice system is the right tool to handle these situations.
I think that's wrong. I hope we don't see more Iowas and Tennessees out there. I hope we see more Californias and Colorados.
KF: Thank you. I got into a lot of trouble for saying that a few years back.
TH: I get [it]. I understand; I know some of those activists on the ground in Iowa. I understand that they really felt like that was the best outcome that they could achieve in that political moment. So, I understand the political realities are challenging. That's going to be true in all of the states where criminalization is most extreme. It's really not the Californias and New Yorks of the world where we're locking up dozens or hundreds of people living with HIV; it's the Michigans and the Floridas and the Missouris of the country [where] we're seeing those outcomes.
Getting a bill, a repeal bill, passed in Michigan and Florida --that's a different beast altogether. So, I get why Iowa activists celebrated that move. I just think it's ultimately shortsighted. But, for people like Nick Rhoades, who was convicted under Iowa statute and had that conviction tossed out after that reform, obviously, it was a huge victory.
But it's a question to see who are going to be the future Nick Rhoades of the world under the new law. We don't know that yet. But I would suspect there will be more cases down the road, rather than less cases, under this new law.