Eighteen months ago, in September 2017, the Centers for Disease Control (CDC) finally recognized reality, posting on their website that “suppressing HIV through antiretroviral therapy (ART) prevents sexual transmission of HIV.” This was a huge victory for HIV activists whose campaign, Undetectable Equals Untransmittable, or U=U, has long demanded that public policy catch up to advances in treatment of the disease and acknowledge that those with no viral load pose no risk of giving the virus to their sexual partners.
But despite the CDC’s concession, laws remain on the books in more than 30 states making the possible transmission of HIV a criminal act punishable by fines, incarceration or both.
“In order to understand HIV criminalization, you need to understand that the stigmatization of people with HIV has changed,” Sean Strub, executive director of the SERO Project, a national network of HIV-positive men and women, told Truthout. “In the old days, people didn’t keep their status secret. There were networks of people who were HIV-positive all over the country and we would get together and support each other. People who did not have the virus by and large treated us with compassion because they thought we were likely to die quick, horrific deaths.”
This changed, Strub says, with the advent of combination or antiretroviral therapies — ART — in the 1990s. Almost overnight, he says, it became apparent that people living with HIV could live long, productive lives. At the same time, he adds, “it also meant that we would be around to infect others.”
The 1990 Ryan White Comprehensive AIDS Resources Emergency Act, Strub continues, increased the stigma toward people with HIV when it mandated that in order for states to qualify for funding, they had to certify that “their criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.” According to the CDC, by 2011, 67 laws that explicitly targeted HIV transmission — impacting the country’s 1.1 million HIV-positive people — had been enacted in 33 states. Twenty-one make it a crime for someone with HIV to have sex — anal, oral or vaginal — without first telling a would-be partner that they have the virus; 14 states require prior disclosure before IV-drug needles are shared. Charges ranging from assault and battery to reckless endangerment to attempted murder have been levied against individuals arrested on these grounds — typically without regard to whether or not HIV was actually transmitted.
There is evidence, Strub says, that this policy has done the opposite of what it was intended to do, leading people to avoid getting tested because a person who is unaware of his or her status cannot be prosecuted. This, of course, delays treatment with antiretroviral medications, unwittingly allowing the virus to worsen and, perhaps, spread.
A State, Not Federal, Issue
“Specific criminal laws that apply to people with HIV are the rule rather than the exception in states across the country,” Kate Boulton, staff attorney at the Center for HIV Law and Policy reports. “They were passed in the peak years of AIDS hysteria and have basically remained unchanged for 30 years. HIV criminalization is a state issue and the laws that govern it need to be reframed at the state level.”
Let’s look at Tennessee as an example of current law. The “volunteer state” makes it a Class C felony “for a person who knows he or she has HIV to engage in intimate contact with another person” unless they receive consent prior to initiating sexual activity. Conviction can result in up to 15 years in jail, fines of up to $10,000 and permanent placement on the state’s sex offender registry.
Tennessee also makes “aggravated prostitution” — defined as sex work while knowing one has HIV — a crime, subject to the same penalties. As written, “exposure to HIV is not required, nor is sexual or even physical contact” for an aggravated prostitution arrest to be made. It is enough for a sex worker to approach someone and offer sex for money for the charge to stick.
Lastly, knowingly donating infected blood or tissue is deemed a criminal act.
A study of Tennessee arrests between January 1, 2000, and December 31, 2010, revealed that 74 percent of those charged with HIV exposure were male, as were 56 percent of the complainants, most of them police officers or hospital emergency room staff who feared infection because of exposure to blood, urine, feces or saliva. Sixty percent of those arrested on this charge were convicted, with prison sentences ranging from one month to eight years — even though by all accounts, saliva, urine and feces do not transmit the virus.
On the aggravated prostitution charges, more than two-third of those arrested — 68 percent — were female; nearly half, 44 percent, were simultaneously charged with illegal drug possession. The conviction rate was 92 percent, with prison sentences ranging from two to six years.
The study further revealed that half of those convicted were arrested for offering oral sex, an activity widely known to pose absolutely no danger of HIV transmission. What’s more, having HIV results in what is called “enhanced” penalties since “solicitation of sex for money” by a person who is HIV-negative is typically a Class A or Class B misdemeanor, charges that carry a still-steep maximum penalty of six months in jail and a $500 fine.
Larry Frampton, director of public policy at Nashville Cares — an educational, advocacy and support group for those living with HIV in Middle Tennessee — says there are blatant disparities in his state’s arrest policies. “The police generally don’t go after the middle-class gay community,” he explains. “They mostly go after trans people, African Americans, sex workers and IV drug users. They’re easy targets. Once in a blue moon, a vindictive ex-lover will complain to the police that he got HIV from a former partner, but that’s rare.”
Indeed, a study of HIV-related prosecutions by the Williams Institute at UCLA Law School, released in January 2018, confirms Frampton’s conclusion: Black men in the two states studied — Georgia and California — were twice as likely as white men to be convicted of HIV offenses.
Nashville Cares, Frampton adds, sees approximately 25 arrest cases a year and they are currently working with other state organizations to change the way law enforcement personnel treat those with HIV. “We would like to slide HIV into the existing STD Code,” he says, referring to state laws that criminalize transmission of most sexually transmitted diseases but that vary from state to state. In Tennessee, the Code governs the transmission of Hepatitis C, gonorrhea and syphilis. Those arrested are subject to a $50 fine and it is incumbent on the prosecutor to prove intent to transmit.
Modernizing the Law
California’s legislature took an incremental step similar to the one Frampton is proposing earlier this year, making engaging in sexual conduct that poses a substantial risk of HIV transmission punishable by up to six months in jail. Intent to transmit is required for conviction, and oral sex or sex while virally suppressed are both excluded. Enhanced penalties for sex workers, however, remain on the books, with an additional three years in prison tacked onto whatever sentence the arrested person receives for solicitation.
“It’s a step toward modernization,” says Kate Boulton of the Center for HIV Law and Policy. “Of course, we’d love to see all HIV criminalization laws repealed. The problem is that, in places where the impulse is to target people with HIV, police start making arrests using reckless endangerment, attempted murder, or assault or sexual assault charges instead. This is what happened in Texas after they repealed their HIV criminalization laws. By making the penalties for HIV transmission less severe, we are bringing state laws into alignment with what we now know about HIV infection and the science of HIV. This gives law enforcement a much smaller set of circumstances in which behaviors are considered blameworthy.”
That said, Boulton notes that HIV remains highly stigmatized. While the Americans with Disabilities Act considers the virus a disability, not everyone is covered by the law’s provisions. Public employees and those working for private employers with 15 or more workers, however, are covered, and at least on paper, are protected from discrimination in hiring, firing, job assignment, and wages and benefits.
This is not to say it’s easy to file a claim.
Kamilla Sjödin, managing director, legal services, at Gay Men’s Health Crisis (GMHC) in New York City, concedes that there are both barriers and obstacles that limit legal challenges to perceived discrimination. “What can you prove?” she asks. “In addition, once a claim is filed, the charge can become public and a lot of our clients don’t follow through because of stigma about HIV or fear of having their sexual preference known within their families or communities.”
She described a recent case in which a man applied for a job as an entertainer on a cruise ship, got hired, and was then sent for a medical exam. “This was when he learned he was HIV-positive,” she says. “He consulted with us but ultimately decided to withdraw his application for the position because he did not want to go through the additional medical testing that the company required. We investigated and what they were asking him to do was completely legal.”
Even when there is overt discrimination, it’s a hassle to fight back, says videographer, writer and teacher Christian Kiley. Several years ago, Kiley was working as an afterschool program coordinator at the Boys & Girls Clubs of Boston. “The kids were from the poorest parts of the city and a lot of them had experienced different kinds of trauma,” he begins. “I’d been working there for a few months and saw that World AIDS Day was coming up on December 1 so I asked the executive director if I could organize something for the kids. He said yes, and I contacted several people who agreed to come in and talk about HIV. I even made a short video that showcased people who were thriving despite living with the virus.”
Then, two hours before the program was set to launch, one of Kiley’s supervisors called him in and told him that the program could not take place. When he asked why, the answer stunned him. “What do you think would happen if people found out you have HIV?” the supervisor replied. “My head was spinning,” Kiley recalls. “I could not wrap my brain around this and it was not until a few days later that I realized that his ill will toward me was discriminatory.”
Shortly thereafter, Kiley went to the Equal Employment Opportunity Commission in Boston and filed a claim. “It was so stressful,” he says. “I knew it was going to be a long process and I was already exhausted. I eventually wanted to feel less anxiety so I withdrew the claim. I now regret doing this, but at the time I just wanted to get on track and get a better handle on other parts of my life.”
Employment and Housing Discrimination Are Common
Most discrimination, GMHC’s Sjödin says, is in the areas of housing and employment, but it can also be found in other arenas.
Sequoia Ayala, policy and advocacy program manager at Sister Love, a 30-year-old women’s health organization with offices in Atlanta and South Africa, says that she recently met a woman whose HIV status was listed on her public assistance paperwork.
“She had been living with HIV for more than 20 years but had never told her children her status. She was understandably very upset that her confidentiality had been violated,” Ayala says.
Worse, when the woman asked how to go about getting her status removed from the file, caseworkers dismissed her concerns. Similarly, Ayala says, she has seen numerous violations of the Health Insurance Portability and Accountability Act of 1996 (HIPPA).
Part of the problem, Ayala concludes, is ignorance, for despite decades of activism and work by community organizations, many people still don’t understand how HIV is contracted.
“I have a pretty telling example,” says Catherine Hanssens, executive director of the Center for HIV Law and Policy. “I recently did a training for dental students and dentists at a highly regarded university and although there has never been a documented case of HIV transmission between a patient and a dentist, there’s still a lot of fear.” Public health officials at the state, local and federal levels continue to be coy about transmission, she says, and about sexual health more generally, which increases the stigma.
“We need to speak frankly and be clear that the risk of transmission from a blowjob is little to none, that the risk of transmission from women to men is one in 1000, and that no one has gotten HIV from having an HIV-positive dental assistant clean their teeth,” Hanssens says. “Messages that present people as walking disease vectors make it seem like there is no way to be safe. We have to stop acting like having the virus is the worst thing that can happen to someone.”
Eleanor J. Bader teaches English at Kingsborough Community College in Brooklyn, New York. She is a 2015 winner of a Project Censored award for “outstanding investigative journalism” and a 2006 Independent Press Association award. The coauthor of Targets of Hatred: Anti-Abortion Terrorism, she presently contributes to Lilith, Rewire, Theasy.com and other progressive feminist blogs and print publications.