It is true that we have come a long way since 1981 in addressing HIV (human immunodeficiency virus). Because so little was known about the disease then, doctors and the public concluded that HIV was a gay-related disease, even calling it “gay-related immune deficiency” or GRID. More and more cases were discovered with time. By 1983, the vulnerable populations at-risk of HIV were referred to as the “4-H Club”, comprised of homosexuals, hemophiliacs, heroin addicts, and Haitians.
While such programs have been relatively successful, the role of the law in regards to HIV and AIDS is critical in defining and shaping our approach to the disease. Given that the law is a direct reflection of a nation’s standards, values, and outlook, it plays a powerful role in either positively or negatively influencing both the HIV prevalence rate and also the level of discrimination in a nation.
Currently, the laws and policies regarding HIV vary significantly throughout the United States. According to the Henry J. Kaiser Family Foundation statistics from 2008, 37 states criminalize HIV transmission, 9 have a legal requirement prohibiting anonymous HIV testing, 6 states have routing HIV testing/screening for adolescents and adults, 27 states have a pre-test counseling requirements, and 29 states have regulations on who can offer counseling. Not only is the variation between HIV policies a potential problem, but also the criminalization of HIV may perpetuate the stigma and discrimination of the disease.
The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination ACT (REPEAL HIV Discrimination Act), introduced by Rep. Barbara Lee (D-Calif.), would be vital in tackling these issues. Through this act, all federal and state laws, policies, and regulations that had to do with the criminal prosecution of people for HIV-related issues would be reviewed. Additionally, states would be given incentives to repeal or modify laws that target people with HIV for consensual sex or behavior that has no real risk of transmission of the virus.
Why is this necessary? Most of the state laws that criminalize HIV transmission are based on “exposure” to the disease and were adopted before effective antiretroviral treatment was available. They need to be revised based on updated knowledge and medical advances.
Furthermore, even though the Center for Disease Control (CDC) has concluded that the intentional transmission of HIV is rare, many people with the virus have been sentenced from 10 to 30 years in jail even when HIV was not transmitted. This is in contradiction to the UNAIDS Policy Brief on “Criminalization of HIV Transmission” that restricts criminalization to only cases of intentional transmission defined by, “where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it.”
The CDC has also concluded that the use of male or female condoms significantly reduces the risk of HIV transmission. Still, most state laws that are HIV-specific do not treat the use of a condom as evidence that the transmission of HIV was unintentional. Moreover, although HIV and AIDS are currently treatable and people can live with the disease for several years, the blood, semen, and saliva of HIV-positive individuals has been treated as a “deadly weapon” which causes HIV-positive defendants to be charged for aggravated assault, attempted murder, and even bioterrorism.
Finally, studies show that HIV-specific laws do not have a significant effect on people’s behavior living with or at risk of HIV. Nevertheless, some states require that those who know that they are HIV positive must inform their partners of their status even though CDC has recommended that partner notification be voluntary and confidential. Some states even register individuals convicted by HIV-specific laws as sex offenders, which in combination with media reports of people who violate HIV-specific restrictions can be detrimental to their personal and professional lives.
Criminalizing HIV exposure or transmission is not beneficial because it does not reduce the spread of HIV; undermines HIV prevention efforts; promotes fear and stigma that may drive people away from HIV testing, counseling and support, and partner notification; further endangers and oppresses women; is often drafted and applied too broadly/unfairly/selectively/ineffectively; often punishes behavior that is not blameworthy; and ignores the real challenges of HIV prevention.
The Global Commission on HIV and the Law as well as the National Alliance of State and Territorial AIDS Directors have taken steps forward to address the issue of HIV discrimination via the law so far, but we must rally behind the REPEAL HIV Discrimination Act to truly eliminate HIV related discrimination in the legal system of the United States. Though we have made a lot of progress since 1981 in addressing this disease, we have a long way to go. And utilizing the law as a vehicle of change is an imperative next step.
Gupta graduated from Yale University with a BA in Political Science, is the founder and CEO of United Against Infectious Diseases, and will graduate from Johns Hopkins Bloomberg School of Public Health with an MPH in Health Systems and Policy in May of 2013.