A gay man with HIV is appealing a court ruling requiring him to register as a “sex offender” due to having been prosecuted under a 1987 Louisiana law that effectively criminalizes any person with HIV who has sex.

In 2009, Robert Suttle, a gay Black man who was working as an assistant court clerk, was accused by an ex-boyfriend of not disclosing his HIV status before the two engaged in consensual sex. As a result, Suttle found himself charged under Louisiana’s “Intentional Exposure to AIDS Virus” statute — adopted at the height of the AIDS epidemic, when little was known about HIV — which can carry a penalty of up to 10 years in prison.

Under the “intentional exposure” law, an accuser merely has to allege that their former sexual partner failed to disclose their HIV status to them, even if there was no risk of transmission (due to using condoms, PrEP by the HIV-negative partner, or the use of antiretrovirals by the HIV-positive partner) or if no actual transmission of the virus ever occurred.

Rather than face 10 years in jail, Suttle pled guilty to the charge against him and served six months in jail. As a result of his conviction, upon his release, Suttle was placed on the state’s sex offender registry until 2023, due to Louisiana being one of only five states requiring those convicted under HIV “exposure” statutes to register as sex offenders.

In 2014, Suttle moved to New York, which does not have specific felony criminal penalties for HIV non-disclosure. However, lower courts found that New York’s Sex Offender Registration Act — which requires people convicted of sex crimes in other jurisdictions to register in New York — requires Suttle to be placed on the sex offender registry until 2028 — five years longer than if he had stayed in Louisiana.

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Suttle has since appealed that decision to the Court of Appeals, the highest court in New York State. 

Due to advances in science and an evolution in understanding how HIV is transmitted, as well as developments that have made living with HIV more manageable, 13 states have repealed or reformed HIV exposure laws to better reflect that understanding. Those changes have included removing HIV from the criminal code, requiring evidence of intent to transmit the virus or actual transmission, and allowing defendants to provide evidence they took steps to reduce or prevent transmission of the virus, such as antiretrovirals, condom use, or PrEP.

Critics of HIV criminalization laws have argued that such laws prevent people from seeking treatment, stigmatize and discriminate against those living with HIV and place the burden of prevention disproportionately on them by requiring them to provide evidence to refute charges that they didn’t disclose their status, while accusers’ words are often taken at face value.

Additionally, some laws are disproportionately enforced and have been weaponized against people of color. For instance, a recent study by the Williams Institute, an LGBTQ think tank at the UCLA School of Law, found that Louisiana’s statute has been almost exclusively used to prosecute Black men, who account for 91% of those arrested under the “exposure” statute.

“The HIV-specific law in Louisiana is another tool used to systematically prosecute and criminalize Black communities. The fact that the law remains on the books represents a lack of sexual health and infectious disease literacy surrounding the routes, risks, prevention tools, and treatment realities for the transmission of HIV and other infectious diseases that we have today,” Jada Hicks, a staff attorney for the Center for HIV Law and Policy, which filed an amicus brief in support of Suttle’s appeal, said in a statement.

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In its brief, submitted last month, the Center for HIV Law and Policy argued that enforcing HIV criminalization statutes like Louisiana’s — including its requirement that people convicted of engaging in consensual sex while living with HIV register as sex offenders — discriminates against people living with HIV, in violation of New York’s own HIV-related statutes and the Americans with Disabilities Act.

HIV is a covered disability under the ADA, due to the impacts the virus can have on a person’s health if it substantially limits them from carrying out regular activities. People with HIV who are discriminated against because of their serostatus are also protected under the ADA.

In its brief, the Center for HIV Law and Policy argued that the lower courts failed to engage in any kind of individualized analysis of Suttle’s situation, as required by the ADA.

It also argued that the court’s finding that Suttle must register as a sex offender due to his conviction in Louisiana — as well as the conviction itself — is a violation of the ADA.

While New York District Attorney Alvin Bragg has publicly signaled an openness to not criminalizing people living with HIV, his office has also declined to intervene in Suttle’s case by arguing that Louisiana’s “exposure” law does not comport with New York’s laws regarding HIV transmission.

According to the HIV-focused publication The Body, Bragg’s office has claimed that its hands are tied by a 2014 opinion from the New York Attorney General’s office claiming that district attorneys have no discretion to overturn the offender registry board’s decisions regarding registration.

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As such, Bragg’s office argues, it has no choice but to argue against Suttle’s appeal. But by failing to intervene, HIV advocates say Bragg’s office is complicit in the ongoing violation of Suttle’s rights under the ADA.

Lorca Morello, one of Suttle’s attorneys and a staff attorney at the Legal Aid Society, told The Body that Bragg could have conceded that the law was unconstitutional as applied to Suttle, but went further and argued, in a legal brief, that Suttle was a dangerous offender who had intentionally exposed his ex to HIV.

As such, Morello says Bragg is engaging in double-speak, campaigning on one position publicly to appeal to liberal Manhattan voters and reversing that position in his professional capacity.

“The attempt to ‘pass the buck’ by DA Bragg’s office, the Attorney General, and the courts, in this case, fly directly in the face of well-established New York public policy that encourages the protection of people living with HIV and the use of actual public health-based approaches to end the epidemic,” Kae Greenberg, a staff attorney at the Center for HIV Law and Policy, said in a statement. 

“As the New York legislature has acknowledged through the passage of laws affirmatively protecting the rights of New Yorkers and those seeking reproductive care and abortions in New York, in our post-Dobbs world it is likely that New York will need to be a bulwark against the discriminatory and anti-scientific laws passed or newly enforced by other states,” Greenberg added. “The Court of Appeals should hear this case and echo the legislature as well as the citizens of New York in unequivocally declaring that ‘the buck stops here.'”

A spokesperson for the New York District Attorney’s Office told Metro Weekly in a statement: “D.A. Bragg does not support HIV-specific exposure laws, which were enacted based on outdated science. The Office is doing everything we can within the confines of the law, and we decline further comment given pending litigation.”

The spokesperson also directed Metro Weekly to a brief filed by the office arguing against HIV criminalization laws and stating its support for amending the Sex Offender Registration Act’s foreign registration provision to no longer require registration in cases with circumstances similar to Suttle’s case. For example, such an amendment could involve excluding HIV-specific criminal statutes from the law’s foreign registration provision or providing the sex offender registry board with discretion to exempt an out-of-state offender from registration.

However, the district attorney’s office noted in that filing that, as currently enacted, the law requires Suttle to register as a sex offender. As such, any changes to the Sex Offender Registration Act, such as allowing for the aforementioned exceptions, would have to be passed by the Legislature and signed into law by the governor.

Bragg’s office has reportedly shared a proposal with state lawmakers that would allow for such exceptions, but no such bill has been introduced so far this session. In fact, Republicans in both the House and Senate have proposed laws that would do the opposite by creating a new crime of “reckless endangerment of public health” with respect to HIV transmission. 

The New York Attorney General’s Office did not respond to a request for comment.

Editor’s note: This story was updated to include comment from the New York District Attorney’s Office.