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.

The case of HIV-positive Nushawn Williams, convicted for havingunprotected sex, helped fuel HIV-criminalization laws.
The case of HIV-positive Nushawn Williams, convicted for havingunprotected sex, helped fuel HIV-criminalization laws.

In Texas, a man is serving 35 years in prison for spitting at a police officer. In the state of Washington, a 19-year-old college student sits behind bars on first-degree assault charges for having unprotected sex with his girlfriend. A Georgia woman was sentenced to eight years in prison after consensual sex without a condom, while a Michigan man faced 10 years in prison on a felony charge for allegedly biting his neighbor during a scuffle. The penalties are steep because, according to the laws in these states, the defendants all brandished a deadly weapon: their HIV-positive status.

Such prosecutions are frequent. Thirty-four states have some type of HIV-criminalization law. Depending on the state, it may be illegal to expose someone else to HIV, transmit the virus or conceal your own HIV-positive status from potential sexual partners. This criminalization extends even to cases in which condoms were used or when the virus was not transmitted, as well as to acts, such as spitting or biting, that pose minuscule to no risk.  

More than 80 HIV-specific prosecutions have occurred in the past two years alone, and HIV-positive people are increasingly required to register as sex offenders after conviction. With African Americans accounting for more than half of new HIV infections in the country, and Latinos representing 22 percent, it’s no surprise that the issue hits communities of color hardest.

Pushing back against what they see as a cycle of stigma, shame and incarceration, a growing coalition of organizations, including the Congressional Black Caucus Foundation and the Center for HIV Law and Policy, are framing the criminalization of HIV as a civil rights struggle. “This is a targeting of people, based on a stigma against groups that are associated with HIV,” Catherine Hanssens, director of the Center for HIV Law and Policy, told The Root. “And that’s gay people and people of color.”

Quieting the “Monster”

At first glance, the concept of railing against HIV-related laws may not get much popular support. Potentially exposing people to such a devastating virus should be a crime, many would argue. Lisa Fager Bediako, a consultant for the CBCF and an advocate against HIV criminalization, confirms that it’s a common response.

“When I talk to people, their awareness on the issue is usually based on the sensationalized stories we get through the media,” she says. “I find that, with a little more information, people begin to see it differently. People always say that they weren’t really aware of what’s going on around the country.”

Rather than a malicious intent to spread disease, activists say that there are many reasons some people keep quiet about their HIV status. The misinformed belief that HIV-positive people are highly toxic, for example, fuels not only social exclusion and familial rejection but has also led to discrimination in employment, housing and child-custody battles. In the military, where it’s illegal for HIV-positive people to have sex, dismissal can mean the loss of benefits.

Lurid media reports on HIV-criminalization cases, describing men as “monsters” and “public health threats,” only add to public fears. The story of 19-year-old Nushawn Williams, who in 1997 stood accused of infecting more than a dozen women and girls with HIV in New York state, is perhaps the best-known example. Amid frenzy over the case, Williams emerged as the poster child for the passage of HIV-transmission laws.