Spreading HIV Is Still a Felony, Which May Abet Its Spread

Today the U.S. Senate will hear a bill to change the way many laws regard people with a chronic, treatable illness. Do laws that categorically criminalize HIV exposure, however unlikely the risk of transmission, actually increase its spread?
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At least 35 states have criminal laws that punish HIV-positive people for exposing others to the virus, even if they take precautions such as using a condom. (ProPublica)

In many states, HIV-positive people can still be (and are) arrested and prosecuted for consensual sex, biting, spitting, or scratching. In the last two years, Kate Nocera notes, the Center for HIV Law and Policy has documented more than 80 such cases.

Today Delaware Senator Chris Coons is introducing the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act. It calls for reviews of state laws that discriminate against people with HIV. In 29 states it is a felony to expose someone to HIV, even when transmission does not occur. Some of the laws include things like spitting or scratching, through which transmission is not realistically possible. ProPublica recently reviewed records from 19 states and found 541 cases in the last ten years in which people were convicted of criminal charges for not disclosing that they were HIV-positive.

"It's simply not fair," Coons said, "that someone having been diagnosed with a chronic, treatable medical condition should automatically be subjected to a different set of criminal laws."

Most people, by a wide margin, say that HIV-positive people should be required to disclose their status to sexual partners. But, as Sergio Hernandez noted earlier this month a lengthy ProPublica profile of Nick Rhoades—an HIV-positive Iowa man who was convicted under one such law for having sex using a condom while his HIV levels were so low that the risk of transmission was practically zero—criminalizing exposure is not a straightforward proposition.

The counterintuitive concern is that specific criminal penalties around HIV transmission actually increase its spread. They perpetuate stigma around the virus and make people silent or willfully ignorant of their own status, when openness and communication is critical. "In rare cases when someone intentionally tries to spread a virus," Hernandez wrote, "prosecutors have been able to put them away using ordinary criminal laws, such as assault or reckless endangerment."

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James Hamblin, MD, is a senior editor at The Atlantic. He writes the health column for the monthly magazine and hosts the video series If Our Bodies Could Talk.

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