In an essay published yesterday for World AIDS Day, the director of the Centers for Disease Control painted a bleak picture of the United States’ effort to fight the epidemic. Although medical advances have turned a positive HIV diagnosis from a death sentence into a survivable condition, there are more than 45,000 new cases of infection every year, and 156,000 of the 1.2 million Americans living with HIV are undiagnosed. CDC director Thomas Frieden called on public-health officials to increase their efforts in ending the disease, including notifying partners of people who test positive.
But neither the CDC nor the White House called for what many activists say is the most important measure to stop AIDS: ending laws that criminalize people with HIV.
Thirty-three states have at least one law that specifically criminalizes behavior for an HIV-positive person that would otherwise be legal, according to the Centers for Disease Control. Most of these laws focus on disclosure of HIV status prior to sexual contact, but 25 states also criminalize behaviors “that pose a low or negligible risk for HIV transmission.” According to Sean Strub, executive director of Sero Project, a network that combats HIV stigma, that can mean “spitting, biting, scratching, or other behaviors that don’t transmit HIV.” Since a person has to know their status to be held criminally liable, Strub says the laws have the perverse effect of encouraging ignorance. “The threat of prosecution is stigmatizing, makes people less willing to get tested (‘take the test and risk arrest’), [and] penalize[s] the responsible behavior of knowing your HIV status while privileging the ignorance of not knowing it,” he said in an e-mail.
Many of these laws were passed in the 1980s and 1990s, when public fear of HIV and AIDS was at its height, and are closely linked to homophobia and fear of drug users. In some cases, the sentences handed down for violating the HIV laws can lead to decades behind bars. A Missouri jury sentenced former college wrestler Michael Johnson to 30 years in prison after finding him guilty of transmitting HIV to one man and exposing or attempting to expose four others. Proponents of the laws argue they serve as a deterrent to HIV-positive people seeking to actively spread the disease. “I think I speak for most prosecutors in stating that in certain circumstances, there certainly should be a criminal statute where people should be punished for knowingly, intentionally infecting someone with the HIV virus,” Scott Burns, executive director of the National District Attorneys Association, told CNN in 2012.
In practice, activists say, that’s rarely how the statutes are applied. “In Sero’s research, we’ve identified more than 1,000 instances when charges were filed under HIV specific statutes, yet HIV transmission was a factor in only a very small percentage (significantly less than 10% of the cases),” Strub said.