First, the good news.
The HIV diagnosis rate is plummeting. According to recent estimates from the Centers for Disease Control (CDC), new infections nationwide declined by nearly twenty percent between 2008 and 2014. In some jurisdictions, that decline has been much more drastic. The District of Columbia, for example, witnessed a seventy-four percent decline in new cases of HIV in the past decade. This progress is inextricably linked to advancements in treatment, the expansion of needle-exchange programs, and sex education. Indeed, the good news is an AIDS-free world may only be a generation away.
So what’s the bad news?
Twenty-four states still impose criminal sanctions on people living with HIV who have consensual sex without disclosing their status to their partners. While advocates of these HIV-specific exposure laws argue that such statutes help stymie the spread of the virus, there is little to no evidence that the progress of late has anything to do with conviction rates under such statutes. Contrarily, it is much more likely that HIV transmission laws have only tempered efforts to eradicate the disease.
HIV is the only infectious disease subject to its own criminal sanction. However, it is far from the deadliest. That title is held by Hepatitis C, which killed three times as many people as HIV in 2014. But Hepatitis C, a disease that is mostly incurable and requires a lifetime of antiretroviral treatment, is not criminally sanctioned anywhere. Realistically, one can knowingly expose their sexual partner to Hepatitis C without being charged with a misdemeanor or felony, but the same cannot be said for a person living with HIV.
Why?
The most glaring reason for this discrepancy is stigma. Most HIV transmission laws on the books today were enacted in the 1980s, before the disease was fully understood. Over the past four decades, the battle against HIV/AIDS has been met, at least in part, with hysteria and misinformation. Televangelist Jerry Falwell repeatedly warned his viewers that AIDS was “God’s punishment for the society that tolerates homosexuals.” Conservative activist William F. Buckley, who once proposed tattooing all AIDS patients, helped spearhead statewide efforts to criminalize the transmission of HIV. And just this past month, Republican State Representative Betty Price of Georgia, the wife of former Health and Human Services Secretary Tom Price, asked during a public hearing whether the government, albeit “legally,” could “quarantine” people with HIV.
This past summer, Linda Villarosa, a writer for the New York Times, penned an exposé of what has been called America’s hidden HIV epidemic. The story chronicled the lives of a few of America’s black gay and bisexual men living with HIV — a demographic with a higher HIV rate than any country in the world — and their struggles pursuing treatment. As Villarosa writes, “35 years of neglect, compounded by poverty and inadequate local healthcare infrastructure, have left too many black gay and bisexual men falling through a series of safety nets.” Furthermore, Michael Kaplan, the former president and CEO of AIDS United, suggested that the fear of stigma and isolation is strong enough to “stop people from wanting to know their status…but it won't stop the sexual behavior that's happening.”
If the fear of stigma and isolation is enough to stop people from getting tested, then it is worth considering how criminal transmission laws might curtail efforts to expand testing and support services. One of the worst things a person living with HIV can do is forgo testing and continue to engage in unprotected sex. Yet there is not a single HIV transmission statute that would even remotely address this issue. So theoretically, someone who is unknowingly HIV-positive can spread the disease to dozens of partners and face no criminal penalty whatsoever. However, a person who has tested positive and is taking lifesaving antiretroviral medications, which in and of itself significantly reduces the likelihood of transmission, can be slapped with a felony for failing to disclose their status to their partner, irrespective of whether their partner even contracts the virus.
Understanding these issues, in 2011, the Presidential Advisory Council on HIV/AIDS (PACHA), a commission first formed by President Clinton to provide policy recommendations concerning the government’s response to the disease, recommended “the elimination of HIV-specific criminal laws and implored the departments of Justice and Health and Human Services to develop recommendations for approaches to HIV within the civil and criminal justice systems that are consistent with the treatment of other public health crises.” Additionally, the commission maintained that laws concerning HIV “should be consistent with current medical and scientific knowledge and accepted human rights-based approaches to disease control and prevention and avoid imposition of unwarranted punishment based on health and disability status.”
State responses to these recommendations have varied. In 2014, Iowa revised its HIV exposure law, which was previously one of the nation’s most severe. The new law, which passed with widespread bipartisan support, established multiple tiers of punishment that consider whether a defendant intended to infect their partner or simply acted recklessly. Although this revision softened the application of the law, it left preexisting criminal sanctions mostly intact. California, on the other hand, just this past month lowered the penalty of exposing partners to HIV from a felony to a misdemeanor. But the bill was met with fierce opposition, with one Republican lawmaker calling it “absolutely crazy,” and one writer for the National Review to decry the law as “radical and accepting of dysfunctional and anti-social behavior.”
While many activists welcome California and Iowa’s recent changes to their HIV transmission laws, there is still a tremendous amount of work to be done. In the pursuit of an AIDS-free world, state legislators are mostly failing to keep up with modern science and the medical community while the Trump administration is hard at work dismantling Obama-era initiatives aimed at curbing the spread of the disease. The plain and simple truth is that America cannot convict its way out of HIV. The key to creating a generation without HIV/AIDS lies with reaching those who have fallen through the cracks; ensuring that everyone who is at high-risk of contracting the virus gets tested, knows their status, and seeks treatment. Criminally sanctioning the transmission of HIV needlessly complicates that task.