Don't Tell, Go to Jail

Two Maryland legislators hoping to raise the classification of knowingly transmitting HIV from misdemeanor to felony

by John Riley
Published on January 19, 2012, 6:35am | Comments

Two bills – one already introduced, one being drafted – in the Maryland General Assembly would classify transferring the HIV virus to another individual as a felony in Maryland.

Senate Bill 60, introduced Jan. 16, would change the classification of knowing transmission of HIV, currently a misdemeanor under Maryland law, to a felony. Starting Oct. 1, the penalty for violating the law would increase from a $2,500 fine to a $10,000 fine. Jail time would go from up to three years to up to 25 years, which is equivalent to a sentence imposed for first-degree assault.

The bill's sponsor, Sen. Norman Stone (D-Baltimore Co.), called the bill a preventative measure to stop people from intentionally spreading the virus to someone else. When asked if he had received support from his colleagues, he said he had not, but that it was still early in the legislative session.

SB 60 does not have any co-sponsors in the Senate, but has gone through a first reading before the Committee on Judicial Proceedings. According to the General Assembly's website, no hearing date for the bill has yet been scheduled.

News of Stone's bill initially generated many responses from LGBT activists on social media networks such as Facebook and Twitter.

Carrie Evans, director of the Maryland LGBT rights organization Equality Maryland, says her organization generally opposes these kinds of measures because they interfere with public health measures and discourage some people from getting tested to know their HIV status.

Evans says such HIV-related laws are often vague and don't take into account people who don't know they are infected with the virus, a number she says is estimated to be up to one-third of all people with HIV.

''Our goal is to get people tested to know their status,'' says Evans.

Currently, 34 states and two U.S. territories, including Maryland and Virginia, criminalize HIV exposure through sex, shared needles, and, in some cases, such as in Texas, ''bodily fluids,'' including saliva.

However, Virginia makes distinctions in its law, which pertains only to exposure through sexual acts, says Claire Guthrie Gastañaga, legislative counsel for Equality Virginia. Gastañaga says that under a 2000 Virginia law, the ''knowing transmission'' of HIV, syphilis and hepatitis B is treated as infected sexual battery with intent to infect, which is a class 6 felony.

Virginia law also distinguishes based on whether intent to infect can be proven. For example, failing to disclose one's status when engaging in consensual sexual relations can be prosecuted as a class 1 misdemeanor. And consensual sex between consenting adult partners with disclosure of HIV status is not considered a crime.

However, Maryland's existing statute is more vague than Virginia's. Although knowingly transmitting HIV is currently a misdemeanor, the law does not make distinctions between consensual sexual consent and intentional infection, nor does it only limit the prosecution of HIV transmission to sexual contact.

Del. C. T. Wilson (D-Charles Co.) tells Metro Weekly that he has been planning to introduce a similar bill criminalizing knowingly transmitting HIV in the House of Delegates, but that he was surprised when told that Stone had already introduced a bill on that topic, and did not submit a bill at that time.

He says the reason he wanted to sponsor the HIV-criminalization bill was his outrage after reading and hearing about a Maryland man who knowingly infected a young woman from Georgia, and realized that, had the man been tried in Maryland under current law, would only have been charged with a misdemeanor.

Wilson says, however, that some people's objections to Stone's bill raised issues he had not previously considered. He says it was not his intention to criminalize consensual sexual acts, and that he wants to write a law spelling out distinctions between intentional and accidental transmission.

''The goal is not to penalize or prosecute people with HIV from having sex,'' Wilson says. ''It is to make them disclose they are HIV-positive and ensure they are being safe.''

Wilson adds he never thought that such a law could be used to oppressively prosecute gay HIV-positive people, because he doesn't see HIV as a disease solely affecting the gay community, but instead, affecting significant numbers of African-Americans, regardless of sexual orientation.

As a result, he wants to amend his originally intended legislation to specifically target those who knowingly and intentionally transmit HIV with the intent to harm through sexual contact or blood-to-blood contact, as with a syringe.

Wilson, who works as a Prince George's County prosecutor, says he wants to be sure the language of such a bill is precise before he submits it for consideration. Wilson also says that HIV/AIDS and LGBT rights organizations who oppose Stone's bill are welcome to help him draft his House bill to distinguish between criminal acts and sexual acts between consenting, informed adults.

''I don't like putting out law that's half-assed and say, 'We'll fix it next year,' because a lot of harm can be done in that year,'' he says. ''My goal is not just to lock somebody with HIV up. It's to prosecute individuals who knowingly transfer or transmit HIV.''