The Criminalization of HIV

By Barbara J. Roman, J.D. Class of 2018 Touro Law Review Associate Editor

From the start of the HIV epidemic, fear and ignorance about HIV’s modes and risks of transmission[1] have fueled a backlash against people living with HIV/AIDS.[2] This backlash is most evident in existing laws that punish those living with HIV for engaging in consensual sex or other activities that pose no risk of HIV transmission.[3] These laws penalize “alleged, perceived or potential HIV exposure; alleged nondisclosure of a known HIV-positive status before any sexual contact (including acts that do not risk HIV transmission); or non-intentional HIV transmission.”[4] In the 1980s and early 1990s, HIV/AIDS was a leading cause of death among adults in the U.S., with the mortality rate climbing every year from 1987 to 1994.[5] By the latter year, the disease had become the leading cause of death among adults 25-44 years of age.[6] In 1990, Congress passed the Ryan White Comprehensive AIDS Resources Emergency Act requiring each state to enact criminal laws to prosecute any HIV-infected individual who knowingly exposed another person to HIV.[7] The states obliged, but some forced HIV-positive people to disclose their status before every sex act and many made any possible exposure to HIV a felony.[8] By 2011, a total of sixty-seven laws explicitly focused on persons living with HIV had been enacted in thirty-three states.[9] There are, however, problems with these HIV laws.[10]

Many HIV laws are unjust and the penalties are wildly disproportionate to the offense.[11] Long jail terms are imposed for HIV convictions even when there is no real risk of transmission and no actual injury.[12] For example, in Iowa, Nick Rhoades plead guilty to a Class B felony after a one-time, consensual sexual encounter in which he wore a condom.[13] Mr. Rhodes received a sentence of twenty-five years and was required to register as a sex offender.[14] Other Class B felonies in Iowa include manslaughter, kidnapping, and robbery.[15] Engaging in sexual intercourse while having HIV or AIDS is a Class A felony in Arkansas and carries a sentence of six to thirty years.[16] In comparison, intentionally using a deadly weapon to cause serious injury to a family member is a Class B felony with a sentence of only five to twenty years.[17] A felony conviction and registration as a sex offender adds additional burdens to someone already dealing with the stresses of living with HIV.[18]

Advocates of the criminalization of HIV/AIDS argue that criminal laws deter HIV-positive individuals from risk taking behavior, as well as punish individuals who place others at risk of infection.[19] Unlike criminals of violent sexual assaults, most people who spread HIV do so through carelessness or ignorance, not malevolence.[20]   HIV laws create a culture of fear, and often discourage people from knowing their HIV status, seeking treatment, or disclosing their HIV status in appropriate circumstances, all of which are counterproductive in terms of curbing the transmission of HIV.[21] HIV experts from around the country have concluded that HIV criminalization statutes do nothing to curb the spread of the virus.[22] Instead, these laws “undermine the public health goals of promoting HIV screening and treatment” by scaring people away from learning their status. [23] Additionally, if a person thinks he or she may land in prison for sharing his or her status, he or she might be disinclined to share that information with potential partners.[24] Moreover, most HIV criminalization laws target people who spread HIV to a partner who consented to have sex in the first place.[25] While status disclosure is important, the burden should remain on the HIV-negative population to protect themselves from exposure.[26] By placing exclusive responsibility on the person living with HIV, these laws undermine the public health messages regarding shared responsibilities for safe sex.[27]

Many of these laws have not been updated since the early ’90s, and thus reflect a misunderstanding of the virus at the time.[28] Most states maintain laws based on outdated science[29] and have not assessed how their laws stand up to current evidence regarding HIV transmission risk.[30] The majority of HIV laws were passed before studies showed that antiretroviral therapy (ART) significantly reduced viral load.[31] Having a suppressed or undetectable viral load makes it very unlikely that an individual can transmit the HIV virus.[32]

Some laws criminalize spitting, biting, and “throwing of body fluids.”[33] An HIV positive homeless man in Dallas was sentenced to thirty-five years in prison for harassing a public servant with a deadly weapon: his saliva.[34] The Centers for Disease Control and Prevention categorizes the risk of transmission of HIV from spitting as negligible, and the exposure unlikely.[35]

The Civil Rights Division of the United States Department of Justice issued a best practices guide to help states reform their laws and ensure that their policies do not place unnecessary burdens on people who are living with HIV.[36] These best practices suggest that, among other things, criminal laws regarding HIV transmission and prevention be scientifically based, and that prosecutors and others in law enforcement have an accurate understanding of transmission risks.[37] In addition, Federal legislation has been introduced that would address discrimination in criminal laws against people with HIV.[38] The Repeal Existing Policies that Encourage and Allow Legal Discrimination Act (“REPEAL HIV”) was introduced in the House in March 2015.[39] The bill recommends that state attorney general’s work with public health officials to ensure that laws, regulations, and policies are all in line with the bill’s provisions regarding people living with HIV/AIDS.[40]

An important component to preventing the spread of HIV is to consider whether many of the HIV criminal laws run counter to our current understanding of best public health of scientific evidence about HIV transmission. States must also ensure that the laws do not undermine the public health goals of promoting HIV screening and treatment. While HIV-specific state criminal laws once were initially well-intentioned and necessary law enforcement tools, most are unjust or do not reflect the current state of the science of HIV. Laws that punish people for consensual behavior, or for behavior that pose no risk of HIV transmission, serve only to further stigmatize a community that is already marginalized while missing opportunities for prevention education.[41] States that choose to retain HIV-specific criminal laws should reform and modernize their laws so that they accurately reflect the current science of risk and modes of transmission and ensure they are the desired vehicle to achieve the states’ intended public health goals.

[1] See Lawrence K. Altman, AIDS Studies Hint Saliva May Transmit Infection, N.Y. Times, Oct. 9, 1984, at C1.

[2] Poll Indicates Majority Favor Quarantine for AIDS Victims, N.Y. Times, http://www.nytimes.com/1985/12/20/us/poll-indicates-majority-favor-quarantine-for-aids-victims.html (last visited Feb. 5, 2017).

[3]See HIV Criminalization: A Challenge to Public Health and Ending AIDS, Scribd, https://www.scribd.com/document/217500583/2014-AIDSWatch-HIV-Criminalization-Fact-Sheet (last visited Feb. 5, 2017).

[4] Id.

[5] Thirty Years of HIV/AIDS: Snapshots of an Epidemic, Amfar, http://www.amfar.org/thirty-years-of-hiv/aids-snapshots-of-an-epidemic (last visited Feb. 5, 2017).

[6] Lawrence K. Altman, AIDS Is Now the Leading Killer of Americans From 25 to 44, N.Y. Times, Jan. 31, 1995, at C2.

[7] Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Pub. L. 101-381; 104 Stat. 576).

[8] See, e.g., Cal. Health & Safety Code § 120600 (West 2014); LA. Rev. Stat. Ann. § 40:1062 (2014); Mont. Code Ann. § 50-18-112 (2013); N.Y. Pub. Health Law § 2307 (McKinney 2014); S.C. Code Ann. § 44-29-60 (2014); Tenn. Code. Ann. § 68-10-107 (2014); VT. Stat. Ann. tit. 18 § 1106 (2014); W. VA. Code § 16-4-20 (2014); see also Chart: State –by-State Criminal Laws Used to Prosecute People with HIV, The Ctr. for HIV Law and Pol’y, (2013), http://hivlawandpolicy.org/resources/chart-state-state-criminal-laws-used-prosecute-people-hiv-center-hiv-law-and-policy-2012.

[9] See J. Stan Lehman et al., Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States, AIDS Behav., Jun 2014, Vol. 18, 997.

[10] See Best Practices Guide to Reform HIV-Specific Laws to Align with Scientifically-Supported Factors, U.S. Dep’t. of Just., C.R. Div., https://www.aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf (last visited Feb. 5, 2017).

[11] Infectious Diseases Society of America (IDSA) and HIV Medicine Association Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases, HIV Med. Ass’n (Mar. 2015), http://www.hivma.org/uploadedFiles/HIVMA/Policy_and_Advocacy/HIVMA-IDSA-Communicable%20Disease%20Criminalization%20Statement%20Final.pdf.

[12] See, e.g., People v. Plunkett, 77 A.D.3d 1442, 1443, 907 N.Y.S.2d 919, 920 (2010), aff’d as modified, 19 N.Y.3d 400, 971 N.E.2d 363 (2012). An HIV-positive man was sentenced to 10 years in prison for aggravated assault after biting a police officer. His saliva was considered a dangerous instrument for the purposed of the “aggravated” portion of the charge; see, e.g., State v. Hinkhouse, 915 P.2d 489, 489 (1996). A man was convicted of ten counts of attempted murder and ten counts of attempted assault based on allegations that he engaged in unprotected sexual intercourse without disclosing his medical condition.

[13] Rhoades v. State, 840 N.2d 726 (Iowa Ct. App. 2013), vacated, 848 N.W.2d 22 (Iowa 2014) (plead to violating Criminal Transmission of Human Immunodeficiency Virus, Iowa Code § 709C.1(1994)).

[14] Id.

[15] Iowa Code Ann. § 709.3 (West 2013).

[16] Ark. Code Ann. §§ 5-14-123, 5-4-401, 5-4-201 (West 2010).

[17] Id.

[18] See US Dep’t. of Just., supra note 10; see, e.g., Saundra Young, Imprisoned Over HIV: One Man’s Story, CNN (Nov. 9, 2012, 8:42 PM), http://www.cnn.com/2012/08/02/health/criminalizing-hiv; Twenty states (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin) and the District of Columbia have enacted laws regarding the post-incarceration involuntary civil commitment of individuals convicted of certain sex offenses under certain circumstances, including HIV crimes. In addition, the Adam Walsh Child Protection Safety Act of 2006, 42 USC § 1691, et seq., authorizes the federal government to institute involuntary civil commitment proceedings for federal sex offenders under certain circumstances.

[19] See Winifred H. Holland, HIV/AIDS and The Criminal Law, 36 Crim. L.Q. 279 (1993-1994).

[20] Robert Klitzman & Ronald Bayer, Mortal Secrets: Truth and Lies in the Age of AIDS 197 (Johns Hopkins University Press 2003).

[21] Brad Barber & Browen Lichtenstein, Support for HIV Testing and HIV Criminalization Among Offenders Under Community Supervision, Res. in the Soc. of Health Care, 33 (2015), http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/BARBER_LICHTENSTEIN%20SUPPORT%20HIV%20TESTING%20AND%20CRIMINALIZATION%202015-2.pdf.

[22] National HIV/AIDS Strategy for the United States, The White House (July 2010), https://obamawhitehouse.archives.gov/sites/default/files/uploads/NHAS.pdf.

[23] Id.

[24] LGBT Policy Spotlight: HIV Criminalization Laws (2016), Movement Advancement Project, https://www.lgbtmap.org/file/policy-spotlight-HIV-criminalization.pdf.

[25] Lower your Sexual Risk for HIV, Aids.gov, https://www.aids.gov/hiv-aids-basics/prevention/reduce-your-risk/sexual-risk-factors/ (last visited Feb 5, 2017).

[26] Id.

[27] The White House, supra note 22, at 37.

[28] See US Dep’t. of Just., supra note 10.

[29]HIV-Specific Criminal Laws Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/policies/law/states/exposure.html (last visited Feb. 5, 2017).

[30] See US Dep’t. of Just., supra note 10.

[31] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/risk/estimates/riskbehaviors.html (last visited Feb. 5, 2017).

[32] Id.

[33] See The White House supra note 22, at 36; Eleven states still have statutes that criminalize spitting, biting and throwing while HIV positive (Georgia, Indiana, Louisiana, Missouri, Mississippi, Nebraska, Ohio, Pennsylvania, South Carolina, South Dakota, Utah).

[34] Campbell v. State, No. 05-08-00736-CR, 2009 WL 2025344, at 1 (Tex. App. Jul. 14, 2009).

[35] HIV Transmission Risk: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/hiv/risk/estimates/riskbehaviors.html (last visited Feb. 5, 2017).

[36] U.S. Dep’t. of Just., supra note 10.

[37] U.S. Dep’t. of Just., supra note 10.

[38] H.R. 1586, 114th Cong. REPEAL HIV Discrimination Act of 2015 (2015-2016).

[39] Id.

[40] Id.

[41] U.S. Dep’t. of Just., supra note 10.

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