Blood Criminals: Outdated HIV Laws
Even with scientific advances in treatment and prevention, U.S. laws on HIV remain woefully stuck in the 1980s
Each year, December opens on World AIDS Day. It’s a time for mourning, as activists from some of the communities hardest hit by the AIDS epidemic — as well as healthcare workers, researchers, HIV-related organizations and others — hold vigils memorializing those lost to the ravages of the disease. But it’s also a time for celebration, as we recognize those who survived the epidemic, as well as the advances made in HIV treatment and prevention.
Unfortunately, for those who are HIV-positive, the legal landscape doesn’t reflect the incredibly rapid progress made in treating HIV. The bulk of states’ laws have failed to keep pace with the scientific field, resulting in a patchwork of laws across the country — many of which still treat HIV as if it were a deadly disease and can be used to punish people with HIV.
“The problem with these state laws is that they’re not really up-to-date with what we know about medical science related to HIV transmission, related to the actual risks or routes or care of HIV,” says Pepis Rodriguez, Teen SENSE Project Coordinator for the Center for HIV Law and Policy (CHLP). His organization has partnered with the Human Rights Campaign Foundation and the National Center for Lesbian Rights to launch a public education campaign calling attention to the issue.
“A lot of this has to do with a lack of sexual health literacy, and I see that broadly, as a problem for the general population, but also our elected officials,” says Rodriguez. “There tends to be this overreaction to anything related to HIV, and it’s part of the stigma that comes along with that lack of education.”
Scott Schoettes, HIV Project Director for Lambda Legal, notes that many current laws were adopted at the height of the AIDS epidemic. As written, people with HIV can be prosecuted just for exposing others to HIV, regardless of whether transmission occurred or other steps — such as condom use or successful suppression of the virus through antiretrovirals — were taken to protect against transmission.
Such was the case with Nick Rhoades, a gay Iowa man who was sentenced to 25 years in prison when, after receiving bad legal advice, he pleaded guilty to criminal transmission of HIV, even though he used a condom, had a low viral load, and his sexual partner never contracted the virus. Rhoades ended up serving more than a year in jail before his case made its way to the Iowa Supreme Court, which overturned his sentence. As a result of the publicity from Rhoades’ case, the Iowa legislature amended its statute on HIV transmission to take into account whether a person intended to expose a partner to the virus or took proper precautions to safeguard against that.
“It’s a problem everywhere,” Schoettes says. “There are 34 states that have an HIV-specific criminal exposure nondisclosure statute. In those states, most of them result in a felony conviction…. And they result in sentences of sometimes decades, as well as the consequences that flow from having a felony conviction, and then sex offender registration.
“Then, there are an additional number of states where there are no actual HIV-specific laws on the books, but there have been prosecutions for the same conduct under the general criminal laws, such as reckless endangerment laws, assault, assault with a deadly weapon,” Schoettes continues. “They’ve tried attempted murder in places, and one case they brought under a bioterrorism law, in Michigan…. So you can imagine the environment this creates for people living with HIV, where you know, really, in any state in the U.S., that it is possible that you will be prosecuted if you are sexually active and cannot prove that you disclosed your HIV status. And because we’re talking about the courts here, you’ve got to be able to prove you’ve disclosed.”
CHLP’s Rodriguez says that because the HIV criminalization laws are so stigmatizing for those who know their HIV status, but do not hold people liable for not knowing their status, it can lead to bad public health outcomes by encouraging people not to get tested or get on treatment — which potentially increases the likelihood of transmission.
To protect themselves legally, Schoettes advises HIV-positive people document their disclosure via a text message, email or recording where a potential sex partner acknowledges that they know about the person’s HIV status. He also advises that people who list their status in online profiles have a conversation where they specifically call attention to their HIV status so the other person cannot claim ignorance or lack of knowledge down the road.
Some people also attempt to have potential partners sign a form or affidavit that acknowledges their partner’s HIV status, but Schoettes points out that such a move is often impractical in real life situations. As a last resort, Schoettes says potential partners can also hold the conversation about their status in front of a third-party witness or a medical provider who can answer questions about HIV and attest that the HIV-positive individual disclosed his or her status.
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