Laws that criminalize nondisclosure of HIV before sexual encounters aren’t actually improving anybody’s behavior, a new study finds.
There are 33 states that have such laws, but they may be doing more to perpetuate the epidemic than to resist it. Researchers at the University of Minnesota found that for men who have sex with men (MSM), the existence of a law did not change how much condomless anal sex they were having. In fact, the men who believed that their state actually had one of these laws were slightly more likely to engage in this risky behavior than others.
Keith Horvath, lead researcher on the study, told ThinkProgress that he was surprised by these results. “There’s a pretty long and growing literature that shows that these laws don’t have much effect on men’s risk behaviors,” he explained. “When I saw the results from his particular study showing that men who believe that their state had a law actually had a higher risk behavior than men who did not know what the law was in their states, it was a little bit surprising.” He said he would not have been surprised if there were no differences across the groups.
Horvath cautioned that this correlational data doesn’t paint a clear cause-and-effect relationship, but said that the study “certainly adds to the growing body of literature saying, ‘Look, these laws don’t actually seem to have a public health benefit.’”
He believes that more states should reexamine these laws, as Iowa did in 2014. “These laws were created back in a time where there was a lot of hysteria and there was a lot of misinformation about the ways that HIV is transmitted,” he noted. “What hasn’t happened is that people haven’t really taken the time to reconsider these laws in the context of newer information about transmission rates and newer biomedical prevention options like PrEP and ART. At the very least, legislatures should be taking a second look at these laws.”
Horvath is not optimistic that this will be high on many legislatures’ lists of priorities. Nevertheless, the research suggests that “these laws should be given a second look and they should align with current understanding and research around transmission and newer prevention methods.”
Unfortunately, the new study does not provide any insights as to why there might be this spike in riskier sexual behavior. One possibility is that the HIV-negative men and men who don’t know their status might assume that they are safer if they believe there is a law because they expect that an HIV-positive person is more likely to disclose, but further research would have to be done to find such answers.
Two previous studies found that these laws can actually discourage some individuals from getting tested for HIV or talking to their health care providers about their sexual practices, perhaps because they prefer not knowing their status over being liable under the law. Those same individuals similarly reported higher rates of condomless anal sex, as well as a higher number of partners.
They seem like commonsense kinds of laws, but people don’t really understand how they’ve been applied inappropriately.
If those same individuals were diagnosed, they could begin treatment, which would significantly lower their risk of transmitting HIV to others. In fact, research has found that for someone with an undetectable viral load, it’s virtually impossible for them to transmit the virus to others. Unfortunately, because of the antiquated fear that inspired these HIV criminalization laws, those individuals would still be just as liable if they did not disclose their status — even with there being near-zero risk of transmission, and even if they used a condom.
Horvath appreciates that these laws “seem like commonsense kinds of laws, but people don’t really understand how they’ve been applied inappropriately.” He personally believes that if the laws are ever going to align themselves with good public health practice, that “we do need to have greater support from the broader LGBT community and from our allies to see real support for at least a second look in changing these laws.”
“I think it’s human behavior to think that a lot of the laws out there won’t really apply to us or won’t affect us,” he added. “Given the rates of HIV in our community, we know from sound public health research that these laws not only affect a lot of people with HIV now but will affect a lot of people with HIV in the years to come.”