With a low prevalence of HIV and some high-profile prosecutions, Idaho moves toward decriminalizing HIV
by Chip Alfred
It’s a state with one of the fewest HIV cases in the country. In 2013, according to the CDC, fewer than thirty individuals were diagnosed with HIV in Idaho, ranking it forty-fifth among the fifty states in the number of new HIV diagnoses that year. With only about thirty documented criminalization prosecutions since the laws were enacted in 1988, Idaho has doled out some of the nation’s harshest penalties for low or no-risk behavior. Kerry Thomas, the state’s most high-profile defendant, is the first person ever prosecuted under Idaho’s nondisclosure laws. After a 1999 conviction and a fifteen-year sentence for not disclosing his status, Thomas pleaded guilty to two charges of exposing women to HIV in 2009. A judge berated him for giving his sexual partners “a potential death sentence” and slapped him with a thirty-year sentence.
The movement to reform Idaho’s draconian HIV statutes began in 2016 at an HIV criminalization discussion in Boise presented by the Idaho Advisory Council on HIV and AIDS (IACHA). Presenter Sean Strub, executive director of the SERO Project, met Kevin Lish, a board member of All Under One Roof LGBT Advocates of Southern Idaho in Pocatello. “I am embarrassed to say that after living with the disease for nearly twenty years, I had no idea that this was a problem anywhere, let alone in Idaho,” admits Lish. After attending the HIV is Not a Crime II conference later that year, he took the lead on building the infrastructure to begin the process of reforming Idaho’s laws.
The first steps involve building a broad, diverse statewide coalition. A steering committee of community leaders and advocates has been meeting via video conferencing to develop strategies around community educational forums, messaging, and planning an Idaho-specific video to create awareness of how HIV criminalization is affecting Idahoans. On the committee there is one high-profile member uniquely positioned to introduce legislation. Idaho’s only openly gay legislator, State Representative John McCrostie, (D-District 16), which includes Boise, says he was honored to be asked to join the effort early on. “I hope that Idahoans can learn that people with HIV are not just gay men but people from all walks of life, and that people who are HIV-positive can feel safe in Idaho,” he tells A&U.
“Ultimately, we would like to decriminalize living with HIV in Idaho,” Lish, fifty-five, asserts. For now, the objective is to modernize what he calls Idaho’s “horrifically bad” laws to reflect current scientific knowledge of HIV transmission. Acknowledging that drafting legislation may take more than a year, he says the coalition will focus on addressing the harsh penalties in some of Idaho’s HIV-specific codes, including the “Transfer of body fluid which may contain the HIV virus” statute, an automatic felony (maximum fifteen-year sentence and/or $5,000 fine). The bodily fluids referenced are semen, blood, saliva, vaginal secretion, breast milk, and urine. He emphasizes that new laws need to go further than just eliminating saliva and urine from the list, both of which are not widely recognized as HIV transmission routes. The same automatic felony guidelines and penalties apply to HIV nondisclosure. The law states that it is a felony “for an HIV positive person to act with the intent to transfer or attempt to transfer bodily fluids through any genital-to-genital, mouth-to-genital, or genital-anal contact. Though intent to transfer HIV is an element of the crime, simply knowing one’s HIV status and failing to disclose that status is enough for prosecution. Actual transmission is not required.”
Kevin Lish says the coalition’s overarching goal is to enact legislation that places all of this in the public health realm. “We need laws that encourage people to be tested, know their status, and have honest conversations with potential partners so that we can start curbing the number of new cases in Idaho.” Flashing back to the early days of the epidemic and his own diagnosis, he recalls, “I’ll never forget what my doctor said when he gave me my first prescription. It was, ‘Gosh, I hope these work.’ Now we have a tool box of options [Treatment as Prevention, PEP, PrEP] that we can use to move forward on our path to an AIDS-free generation.” He would like to see more people like him stand up and speak out. “Those of us living with the disease deserve a seat at the table to help write laws that affect us. I hope this gives people living with HIV the opportunity to join this initiative at their own pace and find their voice.”
A&U welcomes your HIV criminalization story ideas or suggestions. Please contact Chip Alfred, Editor at Large, at [email protected].