Notorious HIV: The Criminal Prosecution of a Virus

So far 34 states have passed stringent laws that target people who are HIV positive, but these laws don't help get the disease under control.

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Flawed Logic

High-profile incidents like the Williams panic have nonetheless stoked passage of HIV statutes that, well intentioned as they may be, critics say are terribly misguided. Putting aside ethical considerations, campaigns against HIV criminalization, such as the Center for HIV Law and Policy's Positive Justice Project, contend that such laws are illogical from both legal and public health perspectives.

"Compare this with the sentences that people get for vehicular manslaughter," says Hanssens, who studied huge disparities between the two crimes. "In Arkansas, for example, somebody with HIV could get 30 years for putting their finger in another person's vagina, but if they run you over and kill you with a car? A maximum sentence of five years.

"It's not just that people are getting arrested," she continued. "They're getting put behind bars for 10, 15 and 20 years, even in cases where there is no transmission."

Bediako argues that singling out HIV as the only disease with a criminal offense doesn't hold up. "HPV [human papillomavirus] is a sexually transmitted infection that can cause cervical cancer in women, and that carries a more severe likelihood of death than HIV," she says. "Yet we have no laws that require people to disclose that they have HPV before they have sex. When most new cases of HIV are among people of color, it raises questions about why we have laws for just this one disease."

Ostensibly, one goal of HIV criminalization is to prevent new infections, but opponents say that they have the opposite effect. For starters, since criminal liability applies only to people who know their HIV status, it discourages people from getting tested.

"In these situations, your only defense is that you've never been tested and didn't know your status," explains Bediako, who adds that most new HIV infections are caused by people who have not been tested. "Can we really afford for our communities to not know their HIV status?"

Studies show that criminalization of HIV exposure has no mitigating effect on risk behavior, and if anything, fear of prosecution can inhibit those who know their status from disclosing it to their sexual partners. Moreover, these laws undermine the most basic STD-prevention principle: Everyone must take responsibility for protecting his or her health. "Sex between consenting adults is a shared decision. It's not sensible to put all the responsibility for using a condom, or talking about sexual history, on one person," says Bediako. "We all have to be responsible for ourselves."

So far, efforts against HIV criminalization haven't made a dent as new legislation is rolled out across the country. A pending proposal in Nebraska would make striking a police officer with any bodily fluid a misdemeanor. The act would be upgraded to a felony, with a penalty of up to five years in jail, if carried out by someone infected with HIV/AIDS or hepatitis B or C. 

"If you know you're HIV positive and you're throwing your bodily fluids at someone, then you're committing assault," Jeff Franklin, the sheriff of Clay County, Neb., said to The Root. Franklin likens an HIV-positive person expelling bodily fluids to someone aggressively wielding a firearm. "This law specifically targets people who intend to intimidate or do harm, and makes sure that they are held responsible. I think there should be a criminal prosecution for that."