Why We Need to Stop Treating HIV Victims Like Criminals

Laws that make exposing someone to HIV a criminal act are designed to stop the virus from spreading. But they don't.

An AIDS ribbon hangs from the North Portico of the White House. November 30, 2010. Jim Young/Reuters

This past January, a 30-year-old man was arrested in South Carolina for allegedly exposing others to HIV. Also that month, a U.S. airman from Kansas was sentenced to eight years in prison for having unprotected sex with multiple partners without telling them he was HIV-positive (none of the partners have tested positive). And in May 2008, Willie Campbell, a 42-year-old, HIV-positive man from Texas, was sentenced to 35 years in prison for spitting at a police officer who was arresting him for public intoxication. The jury ruled that he had harassed the officer with a deadly weapon (despite the fact that HIV cannot be transmitted through saliva).

At least 89 such arrests have taken place between 2008 and 2011, under the HIV criminalization laws upheld by 34 states across the US. "The purpose of the law, put in the most positive way, [is to] encourage you to disclose your HIV status to your sexual partner and punish the intentional transmission of HIV to somebody else," says Megan McLemore, senior researcher at Human Rights Watch. Similar policies are upheld around the world. But after more than 20 years since the laws were introduced, the evidence is clear: they don't work. Changing them, however, is not so easy.

"For 99 percent of prosecutions, there was no transmission that actually occurred," McLemore says. "So [the laws] are not accomplishing any public health purpose or criminal justice."

The laws date back to the early days of the HIV/AIDS epidemic, and at first glance, they almost make sense. When little was known about how the virus was transmitted, laws prohibiting intentionally risky behavior might have helped prevent new infections. The refusal by public health officials to discuss viral transmission routes in specific terms—semen, for example, rather than the all-encompassing "bodily fluids"—led to well-documented panic, spurring state officials to legislative action.

There was also a financial incentive. Catherine Hanssens, executive director of the Center for HIV Law and Policy, explains that when Congress passed the Ryan White Care Act in the 1990s to help HIV/AIDS patients afford medication, states receiving this funding had to take action against intentional HIV transmission. "[States needed to] demonstrate that they were able to prosecute people who intentionally transmit HIV," she says.

The laws vary somewhat, but all revolve around exposure and nondisclosure. Some states have HIV-specific statutes that make it a crime to have sex with someone (including, sometimes, with protection) without disclosing one's HIV status. Approximately 20 states prosecute these cases under existing criminal laws, charging people with aggravated assault, reckless endangerment, homicide or attempted homicide, or terrorist threat. As the story of Willie Campbell shows, being HIV-positive is sometimes the equivalent of packing a weapon. In some states, the accused might plead guilty to a charge of sexual assault, not realizing that he or she will now be a registered sex offender, unable to be in the presence of children without adult supervision.

But laws requiring disclosure appear to have little bearing on reducing HIV transmission. "There is a loose fit between the laws and actual prevention," Hanssens says. "Informing somebody is not the equivalent of latex." Proving that someone didn't disclose their HIV status is not easy to do, nor is confirming the source of a new infection. Many states consider spitting and biting to be criminal acts when done by people who are HIV-positive even though these actions cannot transmit the virus.

The evidence supports these assertions that the laws don't work. "For 99 percent of prosecutions, there was no transmission that actually occurred," McLemore says. "So [the laws] are not accomplishing any public health purpose or criminal justice." A U.K. study found that the presence of similar laws in Britain led to the false assumption that a sexual partner would disclose HIV status because it's legally required. Other studies (PDF) have found that the laws either haven't altered people's behavior or have actually made disclosing HIV status less likely.

The laws create "an environment of assumptions," Kevin Fenton says, "rather than having an open and honest conversation about HIV status." Fenton, who heads the National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention at the Centers for Disease Control and Prevention, also notes that the laws further stigmatize HIV status, "which in turn prevents those who are HIV-infected from getting the support they need, being honest about HIV infection, or just having a conversation about HIV risk and preventing others from infection."

Considering the damage being done, with seemingly no impact on the stubbornly high numbers of annual new HIV infections that persist, eradicating or amending the laws would seem warranted. But as Hanssens explains, that kind of change is not going to come easily. "Without concerted advocacy, these laws will not only not go away, they will continue to be introduced," Hanssens says, who sees this as a civil rights issue. "Segregation didn't change because lawmakers finally [understood] that it was ... reprehensible; it changed because people took to the streets."

Yet she remains hopeful that change is on the horizon. Several national advocacy groups and large philanthropic foundations have joined the Center for HIV Law and Policy in its effort to convince state policymakers to change their tune. In addition, the National HIV/AIDS Strategy, issued in June 2010 by President Obama, includes a call to end HIV criminalization laws. "I'm really confident that we are going to make a lot of progress over the next year," Hanssens says.

But that progress is unlikely to happen without national clarity about the cause and risks associated with HIV. As Hanssens points out, the federal government website for AIDS research and treatment (www.aids.gov) "lumps anal sex with oral sex, as if they are equivalent." They aren't: anal sex with someone who is HIV-positive carries a 1 in 120 risk of transmission; the risk associated with oral sex is almost zero. In addition, several states stipulate that anyone who tests positive for HIV stop having sex. "By virtue of testing positive for HIV, they have forfeited reproductive rights," Hanssens says. "Can you imagine testing positive and then being told you can't have a child?"

In other words, changing the laws is going to depend on changing people's persistently incorrect beliefs about HIV. "I don't have any illusions this could be fast," Hanssens says. "It's going to be a long, hard slog."