In an unequivocal message to state lawmakers, the U.S. Department of Justice Civil Rights Division recommended that dozens of states eliminate their archaic laws which criminalize HIV-positive people who engage in “certain behaviors before disclosing known HIV-positive status.” The laws, most of which were enacted before medical advances made it possible to vastly reduce the risk of transmission, not only do little to reduce risky behavior but may actually discourage people from getting tested and learning their HIV status.
According to “Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States,” a March 2014 joint publication by the division and the Centers for Disease Control and Prevention, 27 states specifically criminalizes knowingly-HIV-positive individuals who engage in certain “behaviors that pose a high risk of HIV transmission, including anal and vaginal sex; prostitution; and donation of blood, tissues, and other bodily fluids,” without first disclosing HIV status. Moreover, 25 states also criminalize “behaviors that pose a low risk for HIV transmission, including oral sex” without disclosing known HIV status. These statutes do not account for HIV transmission prevention measures, including as condom use, antiretroviral therapy (ART), or pre-exposure prophylaxis (PrEP), that reduce the likelihood of transmission, in some cases up to 96 percent.
CREDIT: Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States
It also noted that there is a serious concern that these laws may do more harm than good. “Concerns have been raised in the literature that HIV-specific criminal laws may also increase stigma towards persons living with HIV, reduce the likelihood of disclosure to sexual or needle-sharing partners, reduce frequency of HIV testing since knowledge of status is required for culpability, or lead to inflammatory or ill-informed media coverage that may perpetuate misinformation regarding modes of HIV transmission.” Further, it suggests, they could lead to “intimate partner violence (domestic violence), following disclosure of HIV status.” That report urged states to “re-examine” those laws and “consider whether the laws are the best vehicle to achieve their intended purposes.”
On Tuesday, in its “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors,” the Civil Rights Division explicitly recommended that states eliminate these laws entirely, with two exceptions:
Generally the best practice would be for states to reform these laws to eliminate HIV-specific criminal penalties except in two distinct circumstances. First, states may wish to retain criminal liability when a person who knows he/she is HIV positive commits a (non-HIV specific) sex crime where there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is where the individual knows he/she is HIV positive and the evidence clearly demonstrates the individual’s intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.
Even for those states who opt not to do this, the recommendation adds, they should at least “reform and modernize” their laws to reflect current science and account for circumstances of intimate partner violence.
The Presidential Advisory Council on HIV/AIDS (PACHA) passed a resolution last year calling for an end to any and all state and federal laws that criminalize or prosecute individuals based on their HIV status. The Iowa Supreme Court overturned a conviction last month of an man who had sex with another man without disclosing that he was HIV-positive, even though they used a condom in their encounter.