Posted on June 6, 2014 at 10:58 AM
by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership
It went largely unnoticed by the public and the press, but last month Iowa’s Senate and House of Representatives did something groundbreaking. With broad bipartisan support, that state became the first in the country to repeal and replace its existing HIV criminalization law.
Prior to this repeal, Iowa was one of 34 states to have a law that explicitly criminalized exposing an uninfected individual to HIV through sex, shared needles or other routes of transmission. Those of us who reside in the Northeast — particularly those living with HIV/AIDS — are fortunate in that the states in this region of the US do not criminalize HIV. Others are not so lucky.
States such as Iowa, Michigan and Texas passed these criminalization laws in response to the 1990 Ryan White Comprehensive AIDS Resources Emergency (CARE) Act. That Act, which proved public funds for treatment and care of those living with HIV/AIDS, also required each state to certify that it had laws that could be used prosecute those who knowingly exposed others to HIV.
The states already had adequate criminal laws to prosecute the malicious transmission of HIV, usually through existing assault statutes. Despite this, in accordance with the requirements of the Ryan White CARE Act and in response to several high-profile transmission cases (including the 1996 incident when Nushawn Williams was charged with intentionally infecting 13 women and girls with HIV in New York), legislators were quick to pass laws that explicitly focused on persons living with HIV/AIDS.
Twenty-four states, for example, passed legislation that required people with HIV to notify their sexual partners of their serostatus. Fourteen states also passed laws requiring disclosure of HIV status to needle-sharing partners. Other states also make it a crime for an HIV infected person to spit or to touch another person with their blood or saliva.
Until last month, Iowa had one of the strictest laws on the books. Iowans living with HIV/AIDS faced up to 25 years in prison and inclusion on the state’s sex offender registry if they could not prove that they had disclosed their HIV status to a sexual partner. This was true even if they practiced safer sex and even if that person remained uninfected.
Moreover, the burden of proof was on the accused. Iowans living with HIV/AIDS were ‘guilty until proven innocent,’ as persons charged with violating the transmission statute had to show that they disclosed their status to the sexual partner rather than the other way around.
Thankfully, that law has been replaced. Iowa’s new statute takes into account such important factors as whether or not safer sex precautions were used, whether or not transmission of the virus actually occurred, and whether or not the person intended to transmit HIV. The names of those convicted under the old law have also been expunged from the sex offender registry.
Hopefully, the 33 other states that still have HIV criminalization laws will soon follow suit. This is because such criminalization statutes do little to prevent the spread of HIV. In fact, they may even exacerbate the very problem they were intended to prevent.
Currently, the only successful defense to prosecution under most HIV criminalization statutes is either a claim of disclosure (often hard to prove given the one-on-one nature of most sexual encounters) or ignorance of one’s HIV-positive status. Seeking voluntary HIV testing can make a person criminally liable for normally legal conduct: consensual sexual activity. This not only adds to the still rampant discrimination and stigmatization of those living with HIV/AIDS, but also discourages at-risk individuals from seeking testing because of fears of legal prosecution.
Those who know they are HIV-infected become legally obliged to disclose their HIV status to long-time, casual and even anonymous sexual partners. By contrast, people who frequently engage in unsafe sexual encounters but who do not know that they are HIV infected — even if they have a strong reason to assume so, based on behavior — are under no legal obligation to disclose this information to a sexual partner.
There can be no doubt that is a deterrent to HIV testing. Many at risk-individuals may be discouraged from seeking HIV testing because of fears of legal prosecution, despite the fact that testing and treatment could not only preserve the lives of those with HIV but also reduce the likelihood that they will transmit the virus to others.
We know, for example, that treatment of those living with HIV/AIDS is as effective in terms of reducing the risk of HIV transmission as using condoms. New antiretroviral drugs can essentially render a person non-infectious, but that can only achieved if people seek testing and treatment. HIV criminalization laws discourage this.
This is not to say that particularly egregious, intentional and malicious cases of HIV transmission shouldn’t be prosecuted, but existing criminal assault laws cover that. But it is unreasonable to continue to require HIV-infected people to disclosure their serostatus to sexual partners if they have undertaken the necessary precautions — practicing safer sex and seeking treatment — that makes transmission exceedingly unlikely.
It is ironic that these criminalization laws actually encourage the very act that they were designed to prevent: the wanton and callous spread of HIV.
[This blog entry was originally presented as an oral commentary on Northeast Public Radio on June 5, 2014, and is available on the WAMC website. Portions are also adapted from an article written by Drs. Udo Schüklenk and ean Philpott-Jones and published in the August 2011 Issue of the International Journal of Law in Context. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]