Looking at the Dangers of HIV Criminalization

A non-profit's recent presentation before the Presidential Advisory Council on HIV/AIDS has helped put the spotlight on HIV criminalization statutes. The organization, Sero, is a non-profit that works to empower people living with HIV and battle stigma relating to HIV. Their stated focus is on ending inappropriate criminal prosecutions of people with HIV for non-disclosure of their HIV status, potential or perceived HIV exposure or HIV transmission.

"These laws were passed to reduce transmission; there's no evidence they do this and a growing body of evidence demonstrating how they make the epidemic worse," said Sero's Executive Director, Sean Strub. "They are horrible public health policy, and further the spread of HIV rather than restricting it. They do not facilitate disclosure, they make it more difficult."

Sero's most recent activism took place in late October of this year during the Presidential Advisory Council on HIV/AIDS meeting in Washington, D.C. PACHA was formed to provide information and recommendations regarding programs and policies to reduce HIV incidence, advance research on HIV/AIDS, address HIV-related health disparities and provide global leadership in responding to the HIV pandemic and expand access to treatment, care, and prevention for people infected with and affected by HIV/AIDS around the world.

"Our main objective was to educate PACHA members about how criminalization actually plays out in the lives of people with HIV -- those specifically prosecuted as well as those who just suffer from the stigma driven by criminalization -- and to make the issue more of a priority for PACHA," Strub told EDGE.

During the meeting, Sero actively sought to frame the issue around the effects that criminalization laws have on individuals with HIV.

The organization screened the self-produced short film, "HIV is Not a Crime," which not only added a human element to the issue, but also highlighted a number of troubling facts regarding HIV criminalization. According to the video, 25 percent of cases are for spitting and biting, even though HIV is not carried through saliva.

"The punishments inflicted in these cases typically vastly exceed any appropriate relationship to the harm inflicted. Many of these cases are for behaviors like spitting, biting or scratching that do not transmit HIV. Many are in situations where the person with HIV used a condom or had an undetectable viral load. HIV transmission occurs in only a small percentage, certainly less than 10 percent of criminalization cases," said Strub.

PACHA also heard from several individuals affiliated with Sero during public comments. Among those who spoke was Monique Moree, who was in the Army and pregnant when she discovered that she was HIV-positive. After having protected sex with a fellow soldier, she faced up to 12 years for not initially disclosing her HIV status. The charges were eventually dropped, but Moree was no longer allowed to serve in the Army.

Data was also presented on the effects of HIV criminalization laws obtained via survey. Conducted by Sero's Research Director Laurel Sprague, the survey discovered a number of trends regarding the effects of HIV criminalization.

According to the survey, 24 percent of respondents stated that they knew at least one person who decided not to take an HIV test for fear of prosecution while 42 percent of male and female participants, and 47 percent of transgender respondents, said that it was "very" or "somewhat" reasonable for people living with HIV to refuse treatment for fear of prosecution resulting from others discovering their HIV status.

"There is a clear mismatch between the intention to reduce HIV transmission and deaths and the laws that criminalize HIV non-disclosure or exposure. Instead of working to create a social and legal environment within which people can safely disclose, the laws make people living with HIV deeply vulnerable to violations by the legal system and by partners or former partners," said Sprague.

HIV criminalization laws present unique challenges for individuals already in a difficult situation. HIV-related laws vary from state to state and even the absence of HIV-specific laws cannot guarantee safety. This fact, combined with the fact that HIV-positive individuals are not often informed about the specific laws of their state, can lead to confusion regarding the best method of protecting oneself legally.

In the survey conducted by Sero, a surprising 46 percent of those surveyed stated that they were unclear about what was required to protect themselves from prosecution.

Criminalization laws also open the door for possible manipulation and extortion. If a person who is HIV-positive discloses their status to their sexual partner, but has no proof, the opportunity exists for that partner to later claim that the conversation never took place.

A case such as this can quickly come down to a battle of "he said, she said," in which a person's freedom is on the line. In such a scenario, even admitting that a sexual encounter took place can stack the odds against the individual with HIV.

Sero's online protection center resource provides valuable information on what individuals can do to minimize their risk of prosecution including preventative measures and, if necessary, contact information for legal representation.

For the time being, the best method for people with HIV living in the U.S. to protect themselves is to learn as much as possible about the HIV-laws relating to their state and to keep a record of disclosing their HIV status to their partners.