Notorious HIV: The Criminal Prosecution of a Virus

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.

"Of course, if people commit crimes, they should do time," Bediako says of Williams, who was also convicted on statutory rape charges. "But there are some problems with that case, from distortions about who he actually infected to 'he said, she said' claims." Above all, Bediako takes issue with the fact that Williams finished serving his full 12-year sentence in 2010, yet remains imprisoned indefinitely. Authorities insist that he's a threat to society.


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."


The Law of the Land?

With 34 state laws on the books, the challenge for advocates is daunting. Hanssens maintains that much of the social change required lies at the feet of public health officials, whom she holds accountable for widespread ignorance about the actual routes and risks of HIV transmission.


"I think that public health officials at the state and federal levels have done a huge disservice to everyone by being coy about how HIV is transmitted and by not giving the facts," she says. The Centers for Disease Control and Prevention, for example, does not quantify the risk level of oral sex, while Hanssens' and many other HIV-prevention groups contend that it is an extremely low-risk activity.

"When public health officials talk about 'bodily fluids,' that's how we start to see laws where spitting on a police officer can get you 30 years," she says. "But has spitting ever transmitted HIV? No. Can it transmit HIV? No."


Although Bediako participated in a congressional hearing on HIV criminalization last year with the CBCF, federal policymakers are largely blocked by the hurdle of state laws. Rep. Barbara Lee (D-Calif.), who is also a member of the United Nations Global Commission on HIV and the Law, is therefore taking an educational approach.

Lee is currently drafting legislation that will provide state attorneys general and public health departments with resources to help them understand how HIV is transmitted. The goal for the bill, which her office expects to introduce within the next two months, is to make states more informed about handling HIV-related cases.


Additionally, as part of the National HIV/AIDS Strategy released last summer, the Obama administration underscored its support for an end to HIV-specific criminal laws. "State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV," the report recommends.

Still, advocates know that rallying the public will be a long process. "We're dealing with years of unaddressed ignorance and stigma," says Hanssens. Even after crossing the bridge into the 21st century, she points out, a significant number of Americans don't want to work with, ride in cars with or be served food by people who are HIV positive. "This is not going to be corrected overnight, and we have a lot of work to do. But something needs to be done about it."


Cynthia Gordy is The Root's Washington reporter.

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