Positive & Penalized

When you medical condition is illegal

by John Francis Leonard

HIV criminalization is a complex issue that plagues our community. It seems to be a crime for which the claims of another person can be enough for a conviction that destroys the life of an alleged perpetrator who hardly bore sole responsibility for the events that transpired. As defined by The Elizabeth Taylor AIDS Foundation, HIV criminalization refers to the use of criminal law to penalize alleged, perceived, or potential HIV exposure. And, it’s simply exposure, not definitive transmission, that is criminalized.

To make matters worse, these laws vary greatly from state to state with a mere six states having repealed or reformed their laws to reflect current realities in treatment and transmission, according to The Center for HIV Law and Policy. It is perfectly sound science that a person under successful treatment who is undetectable cannot transmit HIV, and, besides, with prophylactic medication (PrEP) now available, transmission can be avoided with or without a condom. But of course the law hasn’t caught up; in many cases, it never even took the realities of traditional methods of safe sex into account. Also not taken into account is the fact that, while no one wants or should acquire HIV needlessly, it’s been decades since it was considered an automatic death sentence.

To put it in numbers, HIV criminalization fails to take into account that about fifty percent of people with HIV are on effective treatment, with numbers always increasing. That means that fifty percent of HIV-positive individuals can’t transmit the virus in the first place. Those are real numbers backed up by organizations as trusted as the CDC. Other organizations, such as the American Psychological Association and most of our major HIV/AIDS organizations have come out opposing these laws.

The Center for HIV law and policy further breaks these laws down state by state on their website. Thirty-four states have HIV-specific criminal laws; eight of those having sentencing enhancements in place. Twenty-three states have prosecuted persons living with HIV under nonspecific general criminalization laws. Six states require the registration as a sex offender for persons convicted. The laws are being interpreted and applied with a variety of consequences that too often punish a person for simply being HIV-positive.
I came of age in the late eighties in New York City, which was a ground zero at the height of the crisis. The LGBT community at the time had it practically drilled into us by various agencies and organizations fighting the plague that we were responsible for our own health. The choice to have safe sex was entirely in our own hands and we needed to assume that every sexual encounter put us at risk. I still feel that there is no excuse in this modern age where HIV has long been a reality, that we are not responsible for our own health. In most cases other than rape or perhaps an unfaithful spouse, that is the standard that should be applied. Regardless, by 2016 there were 279 cases prosecuted under current laws in which actual transmission, most often, never occurred. No other transmittable disease is subject to such law.

I recently spoke to HIV advocate and activist Ken Pinkela [A&U, October 2016], who said to me, “People living with HIV are already under attack by the very existence of these laws…declaring all as ‘predators’ or ‘viral vectors’ just for the very fact that we are living and loving with HIV. The fact that these laws remain at all does nothing but fuel stigma. Sadly I know that we can all agree that HIV stigma is more deadly than the virus itself.” Ken himself was criminalized and dishonorably discharged and detained by the U.S. military, where he honorably served for twenty-nine years and has only recently had his medical benefits reinstated after a prolonged legal battle.

In another recent conversation I asked television producer and writer Our Lady J [A&U, November 2018] what we can do to address the problem of HIV in the trans community. She answered, without hesitation, “I think the one thing we can do is decriminalize HIV. When HIV is criminalized, it’s not the HIV itself that is criminalized, it’s the diagnosis. It keeps people from being tested and when people can’t be tested, they can’t take meds. They can’t stay healthy and undetectable and the virus spreads.”

I myself try to always disclose my status and in my smaller community that has meant a lot of rejection based on fear and lack of knowledge. I have to admit, however, that there have been several times in the past where I did not hold true to that ideal. Now, it was after the first PARTNER study, and I was confident that I could not transmit or the sex itself was safe by definition (i.e., the use of condoms). But neither fact might protect me under current law if one of my partners were to retaliate. That has haunted me and I have not failed to disclose after those three times. In one of the three cases I ended up staying in touch with the man and did disclose, my heart in my throat as I did so. Nonetheless, after further years of study, we now know for a fact that undetectable means untransmittable but still, rather than someday finding myself in court and having my life destroyed, I always disclose well before any sexual encounter occurs. I’d rather live with the possibility of rejection than face a jail sentence.

John Francis Leonard is an advocate and writer, as well as a voracious reader of literature, which helps to feed his love of the English language. He has been living with HIV for fifteen years. His fiction has been published in the ImageOutWrite literary journal and is a literary critic for Lambda Literary. Follow him on Twitter @JohnFrancisleo2.