To prevent new infections, stop criminalizing people living with HIV
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In 2009, Nick Rhoades was sentenced to 25 years in an Iowa prison and placed on a sex offender registry for not disclosing his HIV status to a sexual partner — despite the fact that he used a condom and that the amount of virus detectable in his blood was so low he could not possibly have transmitted HIV sexually. Although the partner did not test positive for HIV and was not in fact exposed to HIV, Rhoades was prosecuted and convicted under Iowa’s law criminalizing transmission of HIV as a class B felony. 

Similar laws are on the books in more than 30 states, and impose draconian penalties on people living with HIV, even for activities that carry no risk whatsoever of transmission, fueling stigma and discrimination.  Such laws run counter to public health goals; you cannot be prosecuted if you do not know your HIV status, thus, they impose a disincentive to HIV testing.

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Laws punishing people with HIV were initially enacted in states in 1990 when the federal Ryan White Care Act was passed, requiring that states criminalize intentional transmission of HIV in order to receive federal funding for HIV-related programs. However, due to lack of information about HIV transmission routes and HIV-related hysteria, many states went further than the legislative requirement – criminalizing not just transmission, but also failure to disclose HIV positive status as well as activities that cannot possibly transmit HIV, such as spitting and biting.

 

Today, it is well understood that HIV criminalization laws are based on outdated and inaccurate understandings of science and HIV transmission risks. Treatments have been developed that, when taken regularly, suppress the virus such that it is virtually impossible to transmit HIV sexually. We know that saliva does not transmit HIV, but spitting while HIV-positive remains a crime in 11 states. 

Some have alleged that HIV criminalization laws are necessary to protect women and/or people of color, who are disproportionately impacted by the HIV epidemic. But data shows that criminalization laws especially hurt these vulnerable communities. A report from the Williams Institute on application of the HIV criminal law in California demonstrates evidence of severe racial and gender disparities in conviction rates related to HIV-positive status.

As in other aspects of the criminal justice system, black and Latino communities appear to be disproportionately targeted and convicted, representing 67 percent of those who came into contact with the law based on HIV-positive status, despite the fact that they comprise less than half of those living with HIV in California.

Women represented 43 percent of those who came into contact with the law, although they are only 13 percent of the California HIV-positive population. Importantly, the report also found that in 95 percent of instances where the laws were applied, no proof of exposure or transmission was even required for prosecution. 

Just the threat of prosecution can contribute to coercion and control within the context of relationships; women living with HIV are more than twice as likely as the general population of women to experience intimate partner violence and some organizations have reported that threats of prosecution or even of having their HIV status revealed may prevent victims of domestic violence from leaving relationships with their abusers.

Laws criminalizing HIV increase shame, stigma, and isolation, making it harder for people living with HIV to access care. No evidence has ever been presented that these laws reduce new HIV infections; in fact they may present a deterrent to HIV testing and access to care for people living with HIV, since you can only be prosecuted if you know your HIV positive status.

Understanding these issues, experts and leaders have called for widespread reform of these laws. In 2010, the U.S. National HIV/AIDS Strategy called for a review of state HIV criminalization laws and statutes, and in 2014, the U.S. Department of Justice released a best practices guide to reform HIV criminal laws to align with current science.  Iowa modernized its laws in 2014, and Rhoades’s conviction was overturned by the Iowa Supreme Court. But his felony conviction will forever be part of his history. Colorado modernized several HIV criminal statutes in 2016.

To address this, a bipartisan bill was recently introduced in the House of Representatives, calling for the repeal of state laws criminalizing HIV non-disclosure and exposure. Sponsored by Congresswomen Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.), the Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2017 or REPEAL seeks to bring laws in line with current science and public health goals.

Of course, the ultimate goal of those on every side of this issue is the same: to reduce new HIV infections. But since the only way HIV is acquired is from another person already living with unsuppressed HIV, the best way to prevent new infections is to reduce every possible barrier to care and treatment, including institutionalized stigma in the form of HIV criminalization.

To achieve HIV prevention goals, states should repeal laws criminalizing HIV exposure, nondisclosure, and alleged transmission, and Congress should support the bipartisan effort to do just that.

Naina Khanna is Executive Director of Positive Women’s Network, served on President Obama’s Advisory Council on HIV/AIDS (PACHA) from 2010-2014 and is a Public Voices Fellow of The OpEd Project.


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