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Ask a Lawyer: The Injustice of HIV Criminalization

, by Ari Ezra Waldman

In Georgia, a woman was sentenced to eight years in jail for failing to disclose her HIV status to a male partner, despite witnesses’ statements that he already knew she was HIV positive. There’s a man in Ohio who is serving 40 years for failing to tell his ex-girlfriend that he was HIV positive, even though the case was motivated by an ex-lover’s jealous rage. And an Iowa jury ignored two essential facts—an undetectable viral load and condom use—when it sentenced a young man to 25 years after a one-time sexual encounter with another man. These cases are not aberrations. They are products of outdated laws and irrational legal standards that are ostensibly justified on the grounds of preventing the spread of HIV, but bear little connection to that or any other legitimate public health goal.

A tight thicket of state laws, military regulations, and discriminatory applications of legal standards brings unprecedented scrutiny and control to the intimate conduct of nearly everyone who has HIV. This legal regime treats the innocent—those who take highly active antiretroviral therapy (HAART) that reduces their viral loads to undetectable levels and those who practice protected sex with their partners—just like it treats those who act with the explicit goal of infecting their sexual partners with HIV. It ignores testing technology that can distinguish between those who can and those who virtually cannot transmit HIV. It assumes that an HIV diagnosis is akin to a death sentence. And it stigmatizes anyone with undisclosed HIV as criminal, irresponsible, and purely self-interested.

Those who support these laws make three arguments: First, widespread application and strict penalties are necessary to stem the spread of HIV. Second, regardless of certain recent scientific advancements, an HIV diagnosis is devastating, can result in hundreds of thousands of dollars in medical costs, and causes severe emotional distress. Even the uncertainty and anxiety surrounding mere exposure causes damage, they argue, and someone needs to be held responsible for that harm. Third, individuals have a right to know the HIV status of their sexual partners and these laws only criminalize HIV-positive individuals when they refuse to disclose their status. Why else would someone refuse to disclose, the argument goes, if not to deceive, intentionally harm, or worse?

These arguments are hollow. First, criminalizing attempted HIV transmission has the perverse effect of discouraging testing, which, contrary to the ostensible goal of these laws, actually makes it easier to spread HIV. Criminalization, therefore, not only takes HIV out of the public health arena, it makes it harder for public health efforts to work. Second, although an HIV diagnosis would mark a significant change in a person’s life, that fact is no excuse to violate the rights of HIV-positive defendants by crafting laws that deprive them of the protections guaranteed to all criminal defendants under the United States Constitution. And third, there are myriad good and valid reasons why someone might not volunteer his or her HIV status. These laws do not simply capture bad actors; they turn all HIV-positive individuals into presumptive criminals.

Attempting to Spread HIV and Failing to Disclose HIV Status are Criminalized, and Harshly Punished, in Almost Every U.S. Jurisdiction

The Center for HIV Law and Policy, a national legal and policy resource and strategy center for people with HIV, has compiled several detailed summaries of the laws that most U.S. jurisdictions use to criminalize the intimate conduct of HIV-positive individuals, as well as the discriminatory statutes and customs that the HIV-positive community faces when seeking employment, housing, and medical care, to name just a few loci of discrimination. (Available here, the organization’s publications are easy to understand and accessible to any audience.) Taken together, they show that despite our progress in so many other areas, it is still the case that to be HIV positive is to be burdened with multiple layers of discrimination.

Consider California’s HIV-related laws: The state has eight different laws—with 45 clauses and subclauses totaling more than 13,000 words—that constitute the complex web of HIV exposure criminalization. According to the center’s summary, an HIV-positive person can be imprisoned for anywhere between one and eight years for having unprotected sex without disclosure. The state also bumps up sentences and penalties when HIV-positive individuals commit physical assault or sex crimes. By comparison, where California’s HIV exposure laws subject an HIV-positive individual who has one sexual encounter with another person to up to eight years in prison, one of the statutes that makes it a crime to kill someone while driving drunk maxes out at one year in jail. And yet, whereas the average risk of transmission for a single act of unprotected sex between a man and a woman has been estimated at less than 0.1% (and even lower where sexual partners use condoms and the HIV-positive individual is on a successful HAART regimen), there were 1,072 alcohol-related crash fatalities in California in 2010 alone.

Though I argue that these statutes are unduly harsh and discriminatory and undermine fundamental constitutional principles, some may misinterpret the argument to suggest that I am defending those who intentionally try to transmit HIV. That is not the case. Cases like that of Philippe Padieu, who knowingly infected six women with HIV, and Nushawn Williams, who is alleged to have exposed between 48 and 123 women to HIV, stir a natural emotional and punitive response. But the outcry for criminalization has caused overreach.

California requires what lawyers call an “intent element,” that is, proof of a specific plan or purpose to infect others with HIV. But like many other jurisdictions, California accepts meager and insufficient evidence of intent. As a result, California and many other states have prosecuted HIV-positive individuals who had a good faith belief that they could not transmit the disease, had used protection, and had no intent to harm. That is manifestly unjust.

HIV-Specific Laws and Other Criminal Statutes Violate the Rights of HIV-Positive Defendants

One common tool states use to criminalize HIV exposure is through a generally applicable law called aggravated assault. Aggravated assaults involve deadly weapons, like hitting someone with brass knuckles or a lead pipe. If the victim dies, the act becomes a homicide. But if the aggressor uses a weapon in a way that is likely to cause serious harm to the victim—regardless of whether it causes actual harm—it remains an aggravated assault and could carry sentences of 20 to 25 years in jail. The shibboleth of this crime is likelihood: To prove an HIV-related aggravated assault, prosecutors have to show that the sex was likely to produce serious harm or death, and yet, in many jurisdictions, prosecutors do nothing of the sort.

“Infectiousness,” or the likelihood of transmission, is directly associated with the amount of virus present in a person’s blood, or “viral load.” Yet, despite the availability of simple tests that can determine that viral load, jurisdictions that use the traditional criminal law to criminalize HIV exposure tend to think that all HIV-positive individuals can spread the virus with the same likelihood. They rely on generalized evidence that refers to the average HIV-positive individual, and some simply rely on the general rule of thumb that HIV is spread by sexual contact. Some courts will even apply that rule of thumb to a case they know is unique, e.g., one in which the defendant has an undetectable viral load and is virtually incapable of transmitting HIV. In these jurisdictions, no one seems to care that the likelihood of HIV transmission varies with several factors, including viral load, condom use, drug therapy, and sexual role. This evidence should be introduced in every HIV-related case, and a defendant who has an undetectable viral load, used a condom, is on effective HAART, and was the receptive partner during the sexual encounter should never be convicted of a crime related to HIV exposure.

Otherwise, innocent people would be convicted of crimes on the basis of non-specific proof, which is nothing more than using a general rule of thumb as evidence in a criminal trial. A principle that lawyers call “due process”—namely, that each person be treated fairly by the government and guaranteed the same procedural and substantive safeguards—requires that prosecutors offer specific evidence that the given defendant on trial committed the precise crime with which he or she is charged. To convict someone of aggravated assault without proving that the defendant’s behavior could likely transmit HIV violates that fundamental tenet of fair play in a free society.

Consider the case of United States v. Johnson. Johnson was convicted of aggravated assault for performing oral sex while HIV-positive. We know that the risk of transmission through oral sex is extremely low, but the prosecutor’s medical expert gave irrelevant and generalized evidence to prove the likelihood of transmission: the rate of progression from HIV to AIDS, the mortality rate, and the general rule that exchange of bodily fluids is one of the major ways that HIV is transmitted. In a more recent case, Iowa v. Rhodes, a jury ignored Rhodes’s undetectable viral load and his condom use and convicted him of aggravated assault, relying on the general rule of thumb that HIV can be transmitted through sexual intercourse.

The injustice is obvious in these cases; Johnson and Rhodes simply didn’t do anything that was likely to harm another person. What makes their convictions arguably unconstitutional is the use of general rules of thumb. Rules of thumb are good shorthand heuristics when details don’t matter. But details matter when someone’s freedom is at stake and when the penalties for getting those details wrong could mean a criminal conviction and 25 years in jail.

The general rule that HIV is spread through sexual contact with an infected person may be true, but it fails to account for infected persons who, by virtue of their low viral loads, HAART regimens, and condom use are virtually unable to transmit HIV during sexual contact. Admittedly, “virtually unable” and “unable” are two different things. To be absolutely certain that someone cannot transmit the disease would require a cure or a broadly effective vaccine, without which there is always some possibility of transmission. However, that something is medically possible is not sufficient in a legal sense. Aggravated assault requires a means likely to cause substantial harm or death. A prosecutor should not be able to use evidence of a statistically insignificant possibility or, for that matter, the mere fact of an HIV-positive diagnosis, in order to prove likelihood.

HIV Criminalization Does Not Advance Public Health Goals

That statutes criminalizing HIV exposure survive despite these legal deficiencies is even more surprising given the dramatic disconnect between the laws’ consequences and the legitimate public health goal of stemming the spread of HIV. Scott Schoettes, the HIV Project Director at the Lambda Legal Defense and Education Fund, arguably the country’s most successful and important legal aid organization dedicated to guaranteeing equal rights for LGBT Americans, has identified several ways in which criminalization does not advance public health objectives: It does not stem the spread of HIV, actually potentially discourages testing, and creates distance between patients and their health care providers.

There is no evidence that making HIV exposure a crime actually deters anyone from having sex with the intent of spreading HIV and, in fact, it may encourage nondisclosure. There is not a single study showing any correlation between the implementation of harsh criminal penalties or increases in prosecutions with reductions in the HIV infection rate. There are also myriad reasons why someone might not disclose his or her HIV status in the anticipatory heat of a sexual encounter. Once nondisclosure “happens,” these laws discourage subsequent honesty; therefore, the fear of prosecution incentivizes concealment at all stages even though we know that honesty about HIV status is an important tool in preventing the spread of the virus.

HIV criminalization doubles down on its perverse incentives by discouraging testing in addition to discouraging disclosure: You cannot be guilty of knowingly failing to disclose your status as an HIV-positive person, for example, if you do not know you’re HIV positive. The Centers for Disease Control and Prevention estimates that of the 1.1 million Americans with HIV, nearly 20 percent don’t know it. Blindness to your status carries personal risks—without treatment, an HIV infection can worsen and develop into AIDS—and can cause social harm, especially if you engage in risky behaviors. Laws that perpetuate this ignorance by making it an absolute defense to a criminal conviction serve no legitimate purpose.

By disincentivizing testing and elevating ignorance, HIV exposure statutes also impede effective communication between HIV-positive individuals and their health care providers. Unique among us, individuals with all manner of chronic conditions—from Crohn’s disease to multiple sclerosis to HIV—require close relationships with doctors they can trust. But when laws discourage us from getting tested, physicians are denied access to crucial diagnostic information and could, as a result, fail to catch important symptoms, misdiagnose, or do more harm than good. What’s more, even those who do get tested may decline to disclose their status to their physicians out of fear, embarrassment, or shame, further alienating a key ally in the HIV-positive journey.

Criminalization Both Reflects and Reinforces the Stigmatization of the HIV-Positive Community

The fourth, and perhaps most devastating, effect of criminalizing HIV exposure is that it stigmatizes HIV-positive individuals as vectors of disease. Stigma, as United Nations Secretary-General Ban Ki-moon has said, is “the single most important barrier to public action” on seeking treatment and stemming the spread of HIV. As a result, stigma “helps make AIDS the silent killer because people fear the social disgrace of speaking about it, or taking easily available precautions.” San Francisco AIDS Foundation CEO Neil Giuliano has called stigma “a lethal wingman” that allows HIV to thrive on the margins. Turning HIV into the tool of a crime makes those margins wider and provides tacit endorsement to stigma’s attendant discrimination. As Sean Strub, an HIV/AIDS activist and executive director of the Sero Project, told me, “There’s no more extreme manifestation of stigma than when the government enshrines it in the law—creating a different set of criminal laws for one part of the population based on an immutable characteristic.” This is why The Sero Project has focused on criminalization as the entry into its anti-stigma and empowerment work.

Countless studies prove the connection between HIV stigma and discrimination. For example, according to surveys conducted between 2005 and 2010, an estimated 27 percent of Americans would prefer not to work closely with a woman living with HIV. The number is even higher for men. More than 17 percent of respondents living with HIV in the United Kingdom had been denied health care, and 21 percent report experiencing verbal and physical assaults. In the United States, nearly 25 percent of HIV-positive survey respondents have reported some discrimination at work or in the provision of health care, with employers and physicians justifying their behavior on the stigmas associated with being HIV positive.

And, by any good measure, stigma is actually worse today than it was 20 years ago. This might sound counterintuitive to some: When we think of stigmatization, we think of “fear of casual contagion” through touching toilet seats or drinking glasses, as Mr. Strub noted to me in an e-mail. Although that is still remarkably high (11% for toilet seats and 20% for drinking glasses), this is a fraction of the whole story. “Stigma is pre-judgment, marginalization, ‘othering’ and ways of diminishing the humanity, voice and importance of a section of society.” Criminalization helps make Mr. Strub’s case that this kind of stigma is indeed worse today.

I would like to go one step further. Stigma and criminalization are actually partners in a devastating reinforcing matrix: HIV-positive individuals are stigmatized as promiscuous and immoral carriers of a public health nightmare. Those erroneous perceptions ostensibly justify criminalizing and regulating the sexual conduct of HIV-positive individuals. By making the intimate behavior of an entire community subject to decades of imprisonment, criminalization codifies the dangerous and offensive notion that being HIV positive is just like being a criminal, which gives credence to discrimination and reinforces the stigma that justified criminalization in the first place. Stigma and criminalization are, therefore, the two worst enemies of an HIV-free world.

What Can We Do About This Problem?

Stigma cannot be legislated away, but criminal laws can be repealed or refocused. HIV criminalization was born of fear, in a time of crisis and great anxiety. It stems from ignorance and frustration. Our response has to be to alleviate those fears by educating policymakers about the state of the U.S. HIV epidemic and the reduced risk of HIV transmission with effective antiretroviral treatment, and to provide alternatives to a legal policy that is making things worse. We cannot hope to succeed in ending so many governments’ reliance on the criminal law simply by making the arguments that the laws discriminate, deny defendants due process, and help spread the virus by stigmatizing HIV-positive individuals. We need a multidisciplinary approach that includes community stakeholders, legal advocates, and political muscle.

Education. The public needs to understand how criminalization of HIV exposure is actually harmful to legitimate public health goals. Supporters of criminalization point to surveys showing people tend to support criminal punishments and harsh sentences for individuals who spread HIV, but these visceral reactions are the product of fear and ignorance—fear of infectious diseases, ignorance of transmission routes and likelihood of infection, and ignorance of the discriminatory and counterproductive impact of these laws. AIDS services organizations and legal aid groups should broaden their educational and outreach programs to educate the public and recruit necessary allies in the legal, political, and activist communities.

Non-lawyers have a significant role to play here, as well. Lambda Legal, the Center for HIV Law & Policy, and amfAR, the Foundation for AIDS Research, have accessible and informative website pages dedicated to criminalization, stigma, and discrimination. Our job is to get informed and spread the word to friends, neighbors, and coworkers.

Come out. It would be quite a bit easier to educate friends and neighbors if our friends and neighbors knew that HIV-positive individuals are all around them. In the years after Stonewall, gay rights leaders encouraged gays and lesbians to come out because continuing to live in hiding made us complicit in the stigmatization and discrimination of gay persons. We also knew that knowing someone who is gay is the most effective way of changing hearts and minds about gay rights. The same may be true for the HIV-positive community. The more families, social networks, and workplaces know that they have been living and working alongside HIV-positive individuals, the more HIV becomes real and the less it becomes the stuff of fear, uncertainty, and discrimination. It is also incumbent upon those of us who are HIV-negative to provide the personal and institutional support that would make it easier to come out as HIV positive.

Community response to HIV/AIDS. A wider presence in society gives the HIV-positive community access to allies who can join in the fight against the spread of HIV. Beyond fear, some governments rely on criminal laws in a misguided attempt to stem the spread of HIV because the law seems like a handy tool in the face of other frustratingly ineffective tactics. Therefore, in addition to highlighting the government’s failures, we have to do our part to realize an HIV-free world to make recourse to the criminal law unnecessary. Organizations across the country should take their cues from the San Francisco AIDS Foundation, which is successfully targeting specific communities—gays, African-Americans, low income people, youth, and others at high risk of infection—with renewed pushes for testing, outreach, and safer-sex practices. We need to extend their work and do more.

Effective community outreach has to adapt to a rapidly changing world. Since the AIDS crisis hit New York and San Francisco in the 1980s, the gay and lesbian communities have been natural allies of the HIV-positive community: The former were uniquely brutalized by HIV and all members of these groups, gay or straight, sought an end to stigmatization and discrimination. But the remarkable progress toward normalizing gays in American society, the dissipation of the urgency of an AIDS crisis in America, and generational and other demographic shifts have wrought cleavages between these communities. More recently, HIV has become more prevalent among minority and poor communities, with increased infection rates among gay men in their 30s, as well. Appeals for testing and personal responsibility should vary with the governing social norms of these divergent groups.

Impact litigation and specific legislative reforms. There is also a role for the law. As I have argued, many HIV criminal laws violate due process by using the mere fact of an HIV diagnosis as evidence of intent to infect and likelihood of transmission. Knowing you have HIV is not evidence of intent to spread the disease, so any jurisdiction that assumes intent based on HIV status awareness is not only discouraging awareness, it is violating basic principles of the Constitution. Today, Lambda Legal is litigating an HIV criminalization case in Iowa, defending the young man who was sentenced to 25 years even though he has an undetectable viral load and used a condom during his sexual encounter. A defense attorney in the Air Force is defending a young airman in the same situation. We need to start challenging more of these laws in the courts alongside a concerted lobbying effort to change these discriminatory laws in state legislatures and in Congress.

Ari Ezra Waldman is a graduate of Harvard Law School and Harvard College. He now teaches at New York Law School and is the Paul F. Lazarsfeld Fellow and Ph.D. candidate at Columbia University. Professor Waldman is also the legal editor at Towleroad, where he writes a weekly column on law and sexuality. His archive is available at www.towleroad.com/ari_ezra_waldman.html. You can also follow him on Twitter at @ariezrawaldman.

Selected Sources

Cases

Iowa v. Rhodes

State v. Musser, 721 N.W.2d 734, 741–50 (Iowa 2006).

United States v. Dacus, 66 M.J. 235 (C.A.A.F. 2008).

United States v. Johnson

Statutes

Article 28, Uniform Code of Military Justice (UCMJ).

California Health & Safety Code §§ 1202.1, 1621.5, 120290, 120291.

California Penal Code §§ 18(a), (b); 647(F); 684(b); 12022.85.

Other Sources

AVERT. HIV & AIDS stigma and discrimination.

Baggaley, R. and others. Systematic review of orogenital HIV-1 transmission probabilities. International Journal of Epidemiology 37(6): 1255–65. July 2008.

Boily M-C and others. Heterosexual risk of HIV-1 infection per sexual act: Systematic review and meta-analysis of observational studies. Lancet Infectious Diseases 9(2):118–29. February 2009.

California Department of Motor Vehicles. Annual Report of the California DUI Management System. January 2012.

Center for HIV Law and Policy. Comparative Sentencing on HIV Criminalization in the United States, Center for HIV Law and Policy (2012). May 2012.

Center for HIV Law and Policy. Ending & Defending Against HIV Criminalization: A Manual for Advocates, Vol. 1. Fall 2010 (revised through 2012).

Jennings, D. Man who spread HIV gets 45 years. Dallas Morning News. May 30, 2009.

Loufty, M. and others. Systematic review of HIV transmission between heterosexual serodiscordant couples where the HIV-positive partner is fully suppressed on antiretroviral therapy. PLoS One 8(2): e55747. February 2013.

Richardson, L. Man faces felony charge of exposing girl to HIV. New York Times. August 20, 1998.

San Francisco AIDS Foundation. The View from Here: CEO Neil Giuliano. Status. January 2011.

Schoettes, S. When sex is a crime and spit is a dangerous weapon. Presentation to the Chicago Bar Association LGBT Committee. October 19, 2011.

UNAIDS. Report on the Global AIDS Epidemic, 2008. July 2008.

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