Laws that penalize intimate partner contact wherein one person has failed to inform the other that they are HIV-positive are viewed by many advocates and service providers as retrograde, unnecessary and even harmful, according to members of a panel that spoke Feb. 15 at Center on Halsted.
"Science has not been translated into American courtrooms," said participant Trevor Hoppe, assistant professor of sociology at University of Albany-State University of New York and author of the book Punishing Disease, which provides accounts of prosecutions made under such laws.
Hoppe noted that recent advances in HIV-prevention technology, specifically medications that can suppress a person's HIV virus to undetectable levels, oftentimes don't factor into law enforcement officials' decisions over whether to prosecute such cases, even though there is no medically-sound scenario in which the infection can be passed along.
"Why hold people responsible for not disclosing a non-transmittable disease?" Hoppe asked.
Scott Schoettes—HIV project director at Lambda Legal, who works extensively on the issue—listed three harmful effects of such laws. First, they provide a significant detriment to public health: One of the most effective tools in HIV-prevention is when large segments of a population know their HIV status. Since a person cannot be prosecuted if they knowingly transmit the disease, they therefore have an incentive to not be tested for infection.
"It has the perverse effect of dampening down disclosure," he said.
Another effect is a perversion of the legal process, which in these cases often downplays any aspect of malicious intent. Illinois raised the bar on such proof some years back, and the law here now requires law enforcement demonstrate such intent. But Schoettes noted that prosecutors have been creative in how they apply that concept; some have argued that they only need argue an "intent to have sex" and not an intention to transmit HIV.
The third effect is perpetuating stigmatization of HIV-positive individuals. Schottes said that immigrants and women and persons of color can particularly feel the impact of such laws more than others. The laws are sometimes also deployed as instruments of emotional violence by intimate partners of HIV-positive persons, who can bully the other by threatening to report that they've "exposed" them to HIV.
Vera Lamarr, an advocate who works on behalf of sex workers' rights, added that sex workers and persons of color are hit hard by the laws as well. She said that sex work is a misdemeanor that is "upgradable" to a felony if a defendant has HIV in 12 states. According to Lamarr, criminalizing sex work proves detrimental to community-wide HIV-prevention efforts; in the long run, sex-workers will have difficulty accessing, or won't try to access, health services.
"You're being criminalized for being sick, and, in most cases, being poor," she said.
Schoettes said bluntly that gay men need to "grapple" with such laws as well, pointing to a California survey indicating that the gay community supports HIV-criminalization laws even more widely than the general population does.
Despite some increased awareness about the egregiousness of such regulations, the laws continue to evolve in some parts of the country. While states such as California and Colorado, for example, have loosened their regulations, other states in the South and Midwest have doubled down on theirs, introducing new regulations that criminalize transmission of of other infections, such as Hepatitis C, as well.
"Each state has its own varying laws," said HIV/AIDS advocate Maurice Chapman, who tied HIV-criminalization laws into issues associated with the prison industry during the presentation.
Many states' laws came about because legislation such as the Ryan White Act required prosecution of intentional transmission, according to Schoettes. Though the act did not require them to do so, some states codified that rule in their own legislation. Some laws even came about only in the '90s, presumably after much anti-HIV/AIDS paranoia from the '80s had subsided and just shortly after anti-retroviral therapies became widely available. Lawmakers often felt that the laws would provide constituents further protections and incentives toward guarding against infection.
The panelists noted that legislators are often hesitant to roll back criminal laws for fear of looking soft on crime. Schoettes said that efforts to repeal transmission laws can prove problematic; with no laws providing a legal framework on the books, prosecutors could tie future instances of alleged HIV exposure to crimes such as attempted murder or bioterrorism. Rather, advocates would be well served focusing on introducing burdens of proof into existing laws, he explained; prosecutors might be forced to determine a specific intent to harm or whether or not the assailant was virally-suppressed, for example.
"We shouldn't be trying to address a public health problem with a criminal law solution," Schoettes added.
The panel was introduced by Justin Hayford, a senior legal advocate for AIDS Legal Council, which is part of Legal Council for Health Justice (LCHJ), and moderated by Jeff Berry of Test Positive Aware Network ( TPAN ) and Positively Aware magazine. LCHJ and TPAN organized and sponsored the forum.
