The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution earlier this month calling for an end to any and all state and federal laws that criminalize or prosecute individuals based on their HIV status. The resolution points out that the laws undermine testing and prevention priorities, further stigmatize HIV-positive individuals, and ignore modern scientific understandings of the virus:
Despite the relatively low risk of transmission and significantly lowered level of harm, thirty-four U.S. states and territories have adopted criminal statutes based on perceived exposure to HIV. Most of these laws were adopted before the availability of effective antiretroviral therapy for HIV, which substantially reduces already low transmission risks and provides a pathway to highly successful HIV treatment.
Clearly the use of HIV-specific criminal laws, of felony laws such as attempted murder and aggravated assault, and of sentence enhancements to prosecute HIV-positive individuals are based on outdated and erroneous beliefs about the routes, risks, and consequences of HIV transmission. Legal standards applied in HIV criminalization cases regarding intent, harm, and proportionality deviate from generally accepted criminal law principles and reflect stigma toward HIV and HIV-positive individuals.
People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as “deadly weapons.” Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.
Multiple studies have shown that laws criminalizing HIV are not effective at minimizing transmission rates. In fact, such laws discourage many individuals from getting tested for HIV or discussing the virus with medical professionals. When they do get tested, they prefer to do so anonymously, which prevents public health officials from tracking transmission or helping them contact past sexual partners.
A member of President Reagan’s original commission to investigate AIDS has similarly called for the end to such laws because they “were not evidence-based.” Unfortunately, such laws are not merely an artifact of the past; a new law punishing people for exposing others to any sexually-transmitted infection has been proposed in Arizona.