Ending HIV Panic Laws

Outlaws No More?

A new push to end “HIV Panic Laws”
by Larry Buhl

They’re called HIV criminal transmission laws, but some call them HIV Panic Laws and many now believe they’re too draconian, too onerous, and should be modernized or repealed. While some prosecutors defend the laws as appropriate, HIV activists say they can fail in their intent to stop transmission and even help fuel the spread of the virus.

In thirty-six states, HIV-positive people can be charged with criminal transmission of HIV, assault, manslaughter or even murder, according to Center for HIV Law and Policy. Despite their name and alleged intent, none of these laws requires that transmission of HIV actually occur. Instead, the laws usually punish failure to disclose HIV-positive status to a sexual partner (or, sometimes, anyone who comes in contact with body fluids) as intent to do bodily harm, whether or not HIV was transmitted. And the use of condoms or other prevention measures does not necessarily protect the HIV-positive partner from prosecution.

Some states go beyond prosecuting for sexual encounters. Thirteen states have laws against HIV-positive people spitting on or biting someone, neither of which has ever been proven to transmit HIV.

Most of these laws were passed after the federal Ryan White CARE Act of 1990 (RWCA) funded local and state HIV treatment and prevention programs only if states criminalized the intentional transmission of HIV. Many state laws went further than the federal law required, defining intentional transmission as failing to disclose positive status to a sexual partner. Although RWCA was reauthorized in 2000 without the criminalization requirement, the state laws are on the books.

The inherent problem with these laws, activists and many lawyers say, is that they focus primarily on the existence or lack of proof of disclosure (and on the health status of the person who has been tested for HIV), not on the nature of the exposure, the level of risk, or whether HIV was transmitted.

There have been several high-profile cases that many consider to be evidence of prosecutorial overreach:

• Texas convicted Willie Campbell, an HIV-positive man, for assault with a deadly weapon—his saliva—and sentenced him to thirty-five years in prison after he spat on the police officer arresting him for public intoxication.

• Gregory Smith was serving time in a New Jersey prison for burglary when he was charged with attempted murder for allegedly biting and spitting on a guard. An additional twenty-five years was added to his sentence, and he subsequently died of AIDS while locked up.

• Michigan charged Daniel Allen, an HIV-positive man who was involved in a fight with a neighbor, under laws designed to combat terrorism, including “possession of a harmful biological agent.” The harmful agent was HIV.

• Nick Rhoades, an Iowa man with HIV, was charged with failing to disclose his status to a sexual partner, although Rhoades was on antiretroviral therapy, had an undetectable viral load, and used a condom for anal sex. He was convicted and sentenced to twenty-five years in prison. Advocates got his sentence reduced and, after serving eleven months, he was released on five years’ probation. However, he still must register as a sex offender for the rest of his life.

Even in states without HIV-specific statutes, criminal law (and in one recent case, an anti-terrorism statute) has been used to prosecute and incarcerate people with HIV for behavior that posed little risk of transmission. In these cases, HIV, or the blood, semen or saliva of a person with HIV, often is characterized as a deadly weapon.

In some states such as New York, there is not an HIV-specific criminal law but people with HIV are charged under reckless endangerment or assault charges.

This is why the Global Network of People Living with HIV/AIDS (GNP+) decided to put the United States at the top of its list of “hot spots” for HIV criminalization.

Public protection or AIDS hysteria?
“Much of what has happened at the state level was significantly affected by sensationalist, inaccurate, and HIV-ignorant reports of supposed predators with HIV, suggesting that intentional HIV infection was and is a significant problem that required laws in response,” Catherine Hanssens, executive director at the Center for HIV Law and Policy, tells A&U. “There has never been any evidence to support that belief, and in fact all but a couple of state laws do not require either proof on intent or actual infection.”

Hanssens says several factors fostered and perpetuate support for state criminal laws that treat HIV as a deadly weapon and evidence of criminal intent.

“One [factor] is the continuing, seemingly invincible ignorance among people of every background and stripe of the actual routes, relative risks, and consequences of HIV infection. A second is unrelenting homophobia, sex phobia, racism, and general intolerance of those whose sexual or gender identity or orientation or race puts them outside the mainstream. A third is a larger problem of over-criminalization in the U.S. in general and the long tradition of using the criminal law to isolate or punish people we fear or dislike.”

Beyond being excessively harsh, many of these laws are out of line with health and science, according to Oscar Mairena, manager, Viral Hepatitis/Policy and Legislative Affairs at National Alliance of State & Territorial AIDS Directors (NASTAD).

“For people who have suppressed viral loads, this factor is not being considered as a defense,” Mairena says. “Most of these laws don’t mention ART because it wasn’t around when they were written.”

Mairena also points out that the laws as written might backfire in their intent to discourage transmission of HIV. “If these policies state that the use of a condom doesn’t matter, that doesn’t give people the incentive to use condoms.”

And if knowledge of HIV status is key to prosecution, that doesn’t give people the incentive to get tested, either.

Modernizing the law
As activists and lawmakers can tell you, it’s usually easier to pass a law than to repeal it. Most state legislators don’t want to hear from outside groups; they want to hear from the people who put and keep them in office. And public opinion is still on the side of the laws, Mairena says.

“There’s a false sense that these laws protect people.”

Last September California Rep. Barbara Lee [A&U, October 2012] introduced the REPEAL Act, to encourage states to repeal their criminalization laws. The bill argues that intentional transmission is rare; that criminalizing transmission undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases; and that the life expectancy of people with HIV has increased in the years since most of the laws were passed, so their severity does not reflect medical advances.
“The REPEAL Act is the first piece of federal legislation introduced that calls for a review of laws that criminalize people diagnosed with HIV,” according to Ayofemi Kirby, spokesman for the Congressional Black Caucus. “Seventeen Members of the CBC cosponsored the legislation, including Congresswoman Maxine Waters, who has also been an outspoken advocate for awareness and education on the impact of HIV on the African-American community,” he added.

But as far as HIV criminalization laws go, there is little the U.S. Congress can do. Rep. Lee is a strong advocate for change, activists say, but practically speaking the REPEAL Act, if passed in Congress, would not overturn state laws.
However, there have been some repeal efforts at the state level.

This year Illinois changed its HIV disclosure law to require that prosecutors prove that an individual specifically intended to expose another individual to HIV, limit acts of transmission to only “sexual activity without the use of a condom” and not charge individuals for activities that will not transmit HIV, such as biting or spitting. The Illinois law now also clarifies the term “sexual activity” to include only sexual acts that include insertive vaginal or anal intercourse (this means no more criminal transmission cases for oral sex or kissing). And there are no more criminal charges if a person uses a condom.

In Iowa, State Senator Matt McCoy introduced a bill that largely focused on removing Iowa’s sex offender registry requirement for those convicted under the law, and reducing the penalty for cases where transmission doesn’t occur. The bill didn’t make it out of subcommittee, but McCoy plans to introduce another one next year.

Activists underscore that repealing or replacing these laws first requires public awareness and grassroots efforts.

Members of Housing Works, ACT UP, Queerocracy, and Occupy Wall Street made a splash outside the Presidential Debate last month. Nearly two hundred people camped out at Hofstra University in part to support the REPEAL Act and draw the Presidential candidates’ attention to HIV criminalization.

But larger and broader community support is needed before public officials roll back these laws, Hanssens says. “We have to engage and mobilize a broad swath of people not only in the HIV community but among faith communities, law enforcement, medicine, and advocates against over-criminalization.”

Mairena agreed. “We must continue to fight the stigma of HIV and demystify issues of transmission and living with HIV. It’s a very different situation than it was twenty-two years ago.”

Larry Buhl interviewed playwright Tony Kushner for the June cover story.

November 2012