REPEAL Legislation Seeks to End HIV Criminalization

Spurred by the harsh criminal sentences implemented under an outdated law, on May 7, Representatives Barbara Lee (D-California) and Ileana Ros-Lehtinen (R-Florida) introduced the bipartisan legislation the REPEAL (Repeal Existing Policies That Encourage and Allow Legal) HIV Discrimination Act. They argue that although these laws were originally created to prosecute those who intentionally infected others with HIV, they have been applied far beyond this purpose and are no longer in line with current knowledge of the disease.

"These laws were written at a time of heightened anxiety and rampant misinformation about HIV transmission," said Alison Yager, supervising attorney at the HIV Law Project. "Today, the science surrounding HIV transmission is very well established, and we know that many of the acts that are criminalized pose no threat whatsoever."

In 32 states and two U.S. territories, you can be charged under attempted murder or even bioterrorism laws for allegedly exposing someone to HIV, regardless of intent or the nature of your action. Based in archaic understandings of HIV many of these laws wrongly define the routes of transmission and consider HIV to be a death sentence rather than a manageable, albeit chronic disease. They date back to the 1990 enacted Ryan White Care Act that required that states show a legal system to deal with HIV exposure. Ryan White was a teenager who contracted HIV through a hemophilia treatment.

Prosecutions for alleged exposure have been undertaken in 39 states with many people punished with harsh criminal sentences even if they displayed no intent to harm and made efforts to prevent transmission occurring. Knowledge of HIV status is used against the accused in the legal process, deterring people from getting tested and taking necessary medication in those states with such baseless and unjustified regulations.

"The medications available today are extremely effective, and play a vital role in decreasing transmissibility of HIV. Recent studies have shown us that when someone is on medication and with a suppressed viral load, the risk of HIV transmission comes very close to zero," said Yager.

HIV-Specific Laws Perpetuate Stigma

Research undertaken by the SERO Project suggests that incidences of deliberate HIV exposure with intention to harm are extremely rare. These perpetrators could also be simply prosecuted under other existing laws. In New York in 2012, a state that does not even have specific HIV-related laws, a man was released after five years in jail for assault with a dangerous instrument -- the instrument being his HIV. He was accused of biting a police officer and then urinating and defecating nearby. The Court of Appeals concluded the man's saliva, feces, and urine could not be considered dangerous.

"An HIV-specific statute is unnecessary, and the singling out of HIV, amidst a host of communicable illnesses, serves only to perpetuate HIV stigma, fear and ignorance," suggests Yager. "The laws themselves as many of them are written pose a greater threat to public health than the behavior they are meant to deter. If people fear that a positive diagnosis puts them at risk of prosecution for being sexually active, they are less likely to get tested and less likely to have confidence in the public health system."

Safe Sex May Endanger Your Freedom

People have been prosecuted despite the use of protection during consensual sex. The laws also can criminalize those with HIV for sharing a sex toy or performing oral sex. In 2008 in Iowa, a gay man who was on HIV treatment with a very low viral load was sentenced to 25 years in prison and lifetime registration as a sex offender after a one-time sexual encounter with another man during which they used a condom. A positive HIV test becomes evidence of a crime in this situation.

"HIV is actually much harder to transmit through sex than most people think. Even if you act with the intention to infect someone by having sex with them, the chances of this happening are pretty low, and you'd have no way of knowing it happened because HIV transmission is silent ," said Edwin J. Bernard of the HIV Justice Network. "Proving that one person infected another is also very difficult, as is proving someone's state of mind -- that they had the malicious intent to infect someone. Not telling someone you have HIV is not the same as wanting to infect him or her. These difficulties with proof are why so many U.S. laws lower the evidential bar to something that be easily proven i.e. the person with HIV knew they had HIV and someone alleges they didn't tell them, and that's pretty much all that's needed."

Bernard argued that the recommendations outlined by UNAIDS, the joint United Nations program on HIV and AIDS, should be adhered to instead. These state that if someone acts with malicious intent to infect someone by a method that is very likely to transmit HIV then they should be prosecuted under an existing law such as attempted assault or reckless endangerment, ensuring all criminal law principles of foreseeability, intent, causality and consent are proven.

The REPEAL HIV Discrimination Act asks that a set of best practices is established for the treatment of HIV in criminal and civil commitment cases, that this guidance is issued to states, and that it is monitored as to how states implement changes to their policies.

To provide support in the present situation the SERO Project has made available through its website a downloadable HIV Disclosure Acknowledgement Statement that can be filled out by someone in a sexual relationship with a person with HIV and makes suggestions for how to make your status known in a way that could possibly protect from prosecution.