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."