By Layla Pena
Over the past two decades, hundreds of Americans have faced criminal charges under state laws that many advocates and public health officials believe should be off the books.
At least 125 individuals were prosecuted across the country under these laws during 2008-11 alone. They included men and women, gay and straight, members of the armed services, people with prior criminal records and without, people from many walks of life. What did they have in common? All were HIV-positive.
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As if dealing with the immune-deficiency virus and its medical, psychological, social and financial ramifications were not difficult enough, 34 states and two territories of the U.S. have passed criminal laws explicitly aimed at people who are HIV-positive and fail to disclose their status to sexual partners or others with whom they have intimate contact.
Some of these laws, contradicting established science, regard spitting, scratching or biting as potential modes of HIV transmission. Many of the laws criminalize non-disclosure even if the virus was not transmitted, and even if protection was used. All the laws hinge on “he said/she said” claims about whether HIV status was or wasn’t disclosed.
And Iowa has emerged as an unlikely leader in pursuing such cases, according to data from the Positive Justice Project, a campaign launched by the New York-based Center for HIV Law and Policy to roll back HIV-related criminal laws.
The best available count of criminal prosecutions for HIV exposure puts Tennessee at the head of the pack, with 50 cases – most also involving prostitution. Iowa comes second; prosecutors in this state have filed 37 charges of criminal transmission of HIV under an Iowa law that took effect in 1998. The cases resulted in 25 convictions involving 22 individuals, and nine of the defendants are still in prison.
This means the likelihood of facing charges under the state’s HIV criminal transmission law in the past dozen years approaches two percent of the people diagnosed with HIV/AIDS in Iowa, estimates PJP activist Sean Strub — and it’s a distinction that makes him profoundly sad.
A businessman and fourth-generation Iowan who calls himself “native as dirt,” Strub now lives in Pennsylvania but keeps close tabs on his home state, which he says is failing to live up to its traditions of social justice. Speaking at a recent medical conference in Iowa City, he likened the laws pertaining to HIV exposure to a “patchwork of craziness” resulting in disproportionately harsh penalties.
Only one Iowa case has involved actual transmission of the virus, Strub noted, adding, “Iowa’s HIV criminal transmission statute is actually not about transmission; it’s about whether you can prove disclosure.”
Strub and other activists view criminal laws singling out HIV – and not other contagious pathogens such as, for instance, the human papillomavirus, which is transmitted more easily than HIV and associated with cervical cancer – as blatantly discriminatory. “We are creating a viral underclass in the law,” Strub said.
In Iowa, an HIV-positive person who has intimate contact with someone, transfers or donates bodily fluids, or shares needles with another person without disclosing his or her HIV status may face conviction for a class B felony, punishable by up to 25 years in prison. Whether or not transmission of the virus occurs is irrelevant. Anyone found guilty under Iowa’s criminal transmission law also must register as a sex offender for life.
The U.S. Dept. of Health and Human Services categorizes Iowa as a “low-prevalence” state for HIV/AIDS; according to state figures, 1,828 Iowa residents were known to be living with HIV or AIDS as of Dec. 31, 2010 – although health officials believe under-reporting and lack of diagnosis put the number closer to 2,400. Nearly 200 deaths in the state of Iowa since 1998 are attributed to AIDS.
The earliest HIV criminalization laws came about in the late 1980s, several years into the HIV/AIDS epidemic, in response to Reagan administration policies that tied federal funding to such measures. The Ryan White Care Act of 1990 required states seeking AIDS relief grants to have a means to prosecute HIV-positive individuals who expose others to the virus.
Despite the funding pressure, Iowa remained hesitant to incorporate HIV into the criminal code until 1997, when a furor erupted around the case of Nushawn Williams, a New York man prosecuted for having unprotected sex with more than 75 women despite knowing that he was HIV-positive. Prompted by media portrayals of HIV/AIDS as a deadly weapon, Iowa lawmakers approved a criminal transmission law the following year with little objection.
By 2000, two thirds of the states had passed specific laws criminalizing HIV transmission or added HIV-related provisions and penalties to existing laws, or both, while the rest of the states say that prior laws—for instance, those related to assault and battery or even attempted homicide—adequately covered any potential concerns about deliberate attempts to transmit HIV.
Advocates of decriminalization point out that HIV-specific laws and add-ons grew out of panic over extreme cases of intentional transmission that are exceedingly rare, and say pre-existing criminal law is well equipped to handle egregious cases. The U.S. Centers for Disease Control has said that intentional HIV transmission is “atypical and uncommon.”
Experts and critics agree that elements of many HIV-related laws are medically unsound and that the legal system has failed to keep pace with progress in research and treatment since the first AIDS reports surfaced 30 years ago. It is now known, for instance, that HIV does not travel through spitting or biting; yet state courts have convicted people precisely on this enduring mythology. It is nearly impossible to contract the virus through oral, anal or vaginal intercourse with a person who is HIV-positive but has a low or undetectable viral count, but laws do not take that into consideration. Nor do the laws account for advances in medication that further reduce the prospect of transmission.
“The nature of exposure, the level of risk, and whether the virus is transmitted are not considered,” Strub told the Iowa City meeting. He added that he personally knows eight people in various states who have faced criminal prosecution related to their HIV positive status, and the virus was not transmitted in any of these cases.
Writing in the Journal of the American Medical Association, a U.S. public health law expert, Scott Burris, and a South African jurist, Edwin Cameron, express the growing view that better HIV education and promotion of sexual responsibility are far more effective than trying to regulate morality through criminal law. They note that the majority of people who transmit HIV to others do so not deliberately, but as consensual partners who are unaware one of them has the virus. They find no evidence that HIV criminalization deters risky behaviors or stems transmission; to the contrary, they say, “blunt use of HIV-specific criminal statutes and prosecutions” undermines progress against HIV/AIDS.
Many advocacy groups and public health officials believe the laws not only fail to counter the virus, but in fact may contribute to its spread by deterring people from being tested. This is because a person who unknowingly exposes others to the virus can escape blame by claiming ignorance of his or her HIV status, which constitutes an absolute defense against charges of criminal transmission. “Take the test and risk arrest is the word on the street,” according to Strub.
The movement to eliminate state laws that create special categories for HIV-positive offenders parallels new attitudes emerging on the national level as well as in global forums. An Obama administration policy paper issued in July 2010 calls on legislators to “reconsider” HIV-transmission laws, saying that, “In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”
A 2008 report from the Joint United Nations Commission on HIV/AIDS finds “no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission,” and recommends use of “general criminal law” rather than HIV-specific laws in cases of intentional transmission.
Among the groups pushing for change in Iowa’s legal landscape is Community Hepatitis & HIV Advocates of Iowa Network, which claims about 150 members statewide, including people living with HIV/AIDS and health care professionals. This organization has resumed a push for revision of Iowa’s HIV criminal transmission law after a similar effort died in legislative subcommittee last spring.
As Iowa’s HIV decriminalization movement gathers momentum, activists hope that state legislators will introduce a bill during the 2012 session that would mitigate the harshness of the Iowa law. Their objective is not to eliminate avenues for criminal prosecution in truly heinous cases of malicious transmission, but rather to narrow the language of the statute, although some would like to eliminate the HIV-specific law entirely.
At the federal level, meanwhile, U.S. Rep. Barbara Lee, D-Cal., has introduced a bill calling for a national review of HIV-related criminal laws and urging repeal of all state laws that contradict medical science and place undue burdens on people who are HIV positive.
Along with medical, legal and pragmatic objections to the criminalization of HIV are concerns that these laws exacerbate the stigma surrounding the virus, creating additional barriers to effective treatment and care. Stigma is of particular concern in areas such as Iowa that are not at the “epicenter” of infection, according to Dr. Ronald Valdiserri, who as a deputy assistant secretary of Health and Human Services oversees the federal government’s HIV/AIDS policy. “There is stigma everywhere,” he told the Iowa City conference, “but there may be a different spin on it in low-prevalence areas” that impedes remedies.
“Stigma discourages people from seeking care, and also from disclosing,” said Strub. “Nothing sanctions stigma more than when the government builds it into law.”
(Iowa Public Radio Research Assistant Lindsey Moon, a senior at the University of Iowa, contributed to this story. Layla Pena is a junior at the University of Iowa majoring in journalism and international studies.)
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