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The Latest in Stupid Laws You Probably Didn’t Know About: HIV Criminalization

Ashley

Recently at The Center for HIV Law and Policy, we’ve been helping out with this case, in which a woman is facing jail time for exposing her husband to HIV.

The woman being charged faces up to 10 years in prison. Her husband has also gotten a restraining order against her, and she has been unable to see her four-year-old son, on the grounds that she will somehow transmit HIV to him. The criminal charges pending against her will make it harder for her to receive custody.

We don’t yet know all of the facts of the case. We know what her husband is alleging (but people say a lot of things when divorce proceedings get underway). We know that her version of events is different. Perhaps more importantly, we know that she is black and her husband is white. We also know that she doesn’t come from money, and he has more resources. I can’t help but think that the zealousness with which the District Attorney is pursuing this case might have something to do with those facts.

The criminalization of HIV has been an ongoing issue since the 80s. For as long as people have been talking about locking everyone with the disease up and suggesting that HIV+ people be branded with a tattoo, there have been efforts to punish punish punish anyone with HIV, particularly if they dare to have sex.

In a brilliant show of miseducation about transmission methods and the stigma our country still has regarding HIV+ people, a man in Texas recently received 35 years in prison for spitting at a police officer. The crime? Harassment of a public servant with a “deadly weapon”—the “deadly weapon” being his saliva.

According to some of the findings of a recent survey (available here) by the American Foundation For AIDS Research (AMFAR), one in five Americans would not be comfortable having an HIV+ friend. Most people said they would not want an HIV+ dentist, doctor, or childcare provider. Many said they would not even want to work closely with an HIV+ person. A third of people said that HIV+ women should not have children.

It just so happens that the vast majority of new HIV cases in America are found in black people, and that in the most recent CDC information available, HIV was the leading cause of death among African-American women ages 25-34. So the bit about HIV+ women not having kids fits in nicely with our dominant cultural narrative about who should be “allowed” to reproduce.

There is no one more perfectly suited to the role of “worthless nonwoman” than a poor, HIV-positive black woman who decided to have a kid. That means she’s exactly the type of person to find herself facing an unsympathetic jury and a judge just itching to take away her child. This is a perfect example of why the criminalization of HIV is a really dumb idea.

First of all, there are laws already on the books that address any crime a person could commit using HIV as a weapon. There are laws against murder, attempted murder, and reckless endangerment. There is no reason to create new laws, apart from extreme and irrational social stigma surrounding HIV. Second, most people who expose their partner to HIV are not doing so with an intent to harm them. For the most part, (largely because we have such crap sex ed in schools) they are simply uneducated about the virus and how it spreads. Some may fear violence from their partner for disclosing their status, while others have psychiatric issues. Reducing the spread of HIV by people who know they have the virus is best accomplished through education, a reduction in homophobia, and an effective social safety net, not prosecution. Finally, as in this case, the people most likely to find themselves prosecuted will inevitably be those most marginalized in our society. The criminalization of HIV, at its core, is one more way to persecute the “undesirables” of America—the poor, the black, the addicted, and the queer.

In this case, the DA refuses to aim for anything less than a felony conviction. That means that if convicted, this woman can expect difficulty obtaining housing, public assistance, education and employment. And of course, she won’t be able to vote. The deck is stacked against her and she’s probably facing a bad outcome. Unfortunately, there probably isn’t much you can do about this specific case, but what we can do is work to make sure that the HIV criminalization laws on the books get taken off, and that new laws don’t get passed.

36 thoughts on The Latest in Stupid Laws You Probably Didn’t Know About: HIV Criminalization

  1. That is so horrible that she can’t even see her child. What the fuck is wrong with her husband?

  2. That’s so sad and infuriating. I no idea that was even possible. I remember a case a couple years ago in Washington state where a man was on trial for felony assault charges because he was HIV+ and, I think, going around raping people to spread it around. I’m pretty sure he was convicted, but he did rape at least three women, iirc. Guess it goes to show, you have to be REALLY bad to be convicted of rape if you’re a man, but if you’re a woman having consensual sex can land you in prison. Granted one should always disclose their HIV status, but husbands on the “DL” who get HIV and give it to their wives don’t go to jail. And isn’t it WAY harder for a man to get HIV from a woman than it is for the woman to get HIV from the man?

  3. This is so sad, and quite bizarre. I didn’t realize you could be criminally prosecuted — or even taken to civil court — for exposing someone to a disease. Is there any precident for that? What is the actual charge? I mean, if I get a cold from a co-worker, can I sue that co-worker for the cost of my Nyquil? If the woman got the virus from another sexual partner after they were married, sure, divorce her for adultery, but criminal prosecution? It just doesn’t make any sense…
    I totally agree with Rachel’s point that husbands/boyfriends who pass on HIV to their partners don’t get sent to jail for it, nor do those who had the disease before beginning a relationship, but don’t disclose until later.

  4. I remember when I was doing group supervision at my grad school and one of my fellow students was dealing with a touchy situation involving an HIV+ client. His client was a male with HIV+ who was basically living in denial about the seriousness of it. In a way, he would actually engage in unprotected sex as a way to try and make his positive status not that big a deal. Some people were immediately demanding that the student report this man on the basis that he was presenting a imminent risk to himself or others. However, the man never forced people to have sex without protection and I think it is a good example of why everyone should insist on protection and not let someone else take the lead.

    I have heard that certain states require a therapist to report if a client knowingly has HIV and is knowingly having unprotected sex with a person without informing them of their positive status.

  5. And how much of the horror people get from contemplating HIV comes from the stigma attached to it—the prospect of ostracism and condemnation from the rest of society? Aside from the contagion aspect of it, it doesn’t seem to be all that different, general effects-wise, from cancer—expensive treatments while it kills you slowly. Yet people are horrified by it, which makes it more horrifying, because once you get it, that horror gets directed at you. It becomes a self-fulfilling prophecy, a vicious cycle of fear and hatred.

    I have to say I’m curious as to the details of this case, although I doubt there’s really that much that she could legitimately be blamed for. I think there’s a legitimate expectation of disclosure to a potential sex partner before sex, because it is that person’s right to choose what risks to subject themselves to. That being said, if the risk of being exposed to HIV is worth filing criminal charges over, it’s worth requesting the person get an HIV test before consenting to sex with them. The attempt to hold her responsible after the fact for what he didn’t think was worth that much effort before the fact is nothing but selfishness.

    I would say it is acceptable to prosecute someone for passing a disease to someone else is in cases of rape, because that is putting someone at risk for disease against their wishes, and denying them their right to avoid that risk—it’s one person forcing another to take a risk, for the first person’s sole benefit.

    Lying about one’s HIV status . . . I’m torn. There’s obviously the matter of “why did you trust them?” as I mentioned above, but there’s also the fact that naivete should not constitute free license to abuse someone, and there’s tremendous social pressure, on women especially, to be “nice” and not do things like imply that a potential lover isn’t trustworthy by making him get an STI test.

    I’m tangenting here, perhaps; can’t remember who, but a case involving a high-profile man raping a woman and giving her herpes, and getting off because “she knew his reputation and was stupid to go off alone with him” is floating rather prominently in my mind just now.

    Regardless, there’s nothing here that has any business threatening her custody of her son.

  6. is protection absolutely 100% effective? If you know you have HIV and have sex with someone without telling them of your status what should happen? These two were married for several years, if the wife did indeed know of her HIV status why didnt she tell her husband? Should the husband have worn a confom for the entirety of their marriage? If we want to use the current laws and not make new ones, which would you suggest, attempted murder? attempted manslaughter?

    Im just amazed they actually took the kid from her, even if under their current law it is it “correct” move, pretty hard to lose custody of a kid to a male even if you have minority status, surprised the kid didnt go to the state first. I am aware of all the issues but what exactly does her having less resources or being black have to do with what she is accused of doing? Sure she might not have been treated as harshly if she was an upper class white woman but does that really matter as it relates to what she may have done?

  7. His client was a male with HIV+ who was basically living in denial about the seriousness of it. In a way, he would actually engage in unprotected sex as a way to try and make his positive status not that big a deal.

    I think you have hit on exactly why it is a bad idea to prosecute these cases. First, they are quite rare, and prosecuting them would have little impact on the spread of the virus. Second, many people who do this sort of thing have mental health issues, a lack of information about the virus, or some other issue going on. It isn’t appropriate to prosecute them, because they don’t have the intent to harm anyone.

    jamespi, I am not a lawyer or a DA, but assuming no mental health issues or lack of information about the virus, this type of issue usually would call for some sort of charge of endangerment or negligence. If someone tried to spread the virus with the intent to kill the other person, they could be charged with attempted murder. If an HIV positive person who knew their status raped another person, they might be charged with attempted manslaughter or an aggravating factor.

    Your questions about privilege, racism and classism have already been answered elsewhere. I would suggest reading up on white privilege and class privilege. Try google.

  8. Just this morning, NBC News ran a story about NYC making a big push to get every adult in the Bronx tested because AIDS is killing lots of people there. I was running past the television before work, but at no point did I hear anything rational as a next sentence like – say – “…and the City has plans to treat those who turn up positive.” So, that was unnerving.

  9. The case law in Canada says that having unprotected sex without disclosing HIV+ status is obtaining consent by fraud, and therefore sexual assault. Exposing someone to HIV exposes them to a risk of death or serious bodily harm and is therefore an aggravating factor.

    I think this is different from the kinds of stigma that come from ignorance about how HIV is transmitted (spitting as aggravated assault, not wanting HIV+ friends, etc.) The law here says there is an onus to obtain consent before sexual activity, and that consent is invalid if obtained by duress, fraud, and so on.

    I’ve worked in HIV services and oppose all forms of stigma and discrimination. But I also believe that the discrimination against HIV+ people does not relieve them of the responsibility to disclose this status to partners and to refrain from unprotected sex unless the other person has KNOWINGLY consented to unprotected sex that risks transmitting HIV. If the law is being selectively applied, that is a serious problem, but separate from the question of whether knowingly exposing another person to an infectious, fatal condition without their consent constitutes assault.

  10. I don’t understand why the laws that are already in place aren’t good enough. Also, why only HIV? Technically someone could die from the flu. If you give someone the flu and they die, should you be convicted of a crime? I think not. What’s this country coming to?

    /end rant (exaggerated for effect)

    b

    Smartfathers.com

  11. I guess nobody has any more details, and it’s been conceded that they’re not all out there. Don’t know the custody details, though someone facing felony charges probably shouldn’t have custody until at least that issue is resolved, plus the fact of a restraining order.

    But on general principle, I can’t see why charging someone with a felony and prosecuting them for knowingly spreading HIV, or refusing to tell an intimate partner about it before unprotected sex (let alone marriage!) is a bad idea. I know that someone can be prosecuted for exactly this in California. HIV can kill and debilitate, spread in uninformed victims, and at the very least requires expensive and arduous treatment just to stay alive. People who are HIV+ have a responsibility that they have to live up to, the flip side of the compassion that they deserve from us. And I don’t put any stock in that argument about lack of education, fear of violence, or psychiatric issues arguing against having the laws in the first place. If those are the case, then they should be treated as mitigating factors or as an affirmative defense either in decisions to file charges or in a verdict. We don’t give people a blanket free pass to commit felonies because they may or may not have psychiatric issues, fears of violence, or lack of education.

    Nothing about the preceding argues in favor of any particular situation with regards as to who gets charged or how prosecutors ought to exercise their discretion. I’m sure that inequities on both of those counts can and do occur, and those ought to be handled as a separate issue. The fact that, for example, poor blacks may face serious murder charges and convictions at a rate far above that of affluent whites who commit homicides does not argue against the validity and value of laws against murder.

  12. I also wonder how a case might be different if a person didn’t ask and contracted the virus vs. a case where a person asked her partner to get tested and he or she lied and said they had and were clean or lied about being tested in the first place. In that case, would it be a delibrate act in that you took advantage of someone. How many people would demand to see the results? When I was in college a fraternity that I had a lot of guy friends in had a brotherhood event where they all went and were tested for STDs and HIV. I remember being really proud of them for doing it but I never heard the results and I know many of them continued to engage in high risk activity. I always found it hard to believe that not one of them had something..

  13. A third of people said that HIV+ women should not have children.

    So…. HIV + men can impregnate a women and give the women an STD at the same time and it’s somehow her fault?

  14. It just so happens that the vast majority of new HIV cases in America are found in black people, and that in the most recent CDC information available, HIV was the leading cause of death among African-American women ages 25-34. So the bit about HIV+ women not having kids fits in nicely with our dominant cultural narrative about who should be “allowed” to reproduce.”

    …So it’s neutral for women who can transmit the disease to their children to knowingly do so (at least if they breast feed)? Who exactly will be paying for the treatment for an impoverished HIV+ women….and the child she “decided to have” and infected?

    Of course there’s nothing objectively or legitimately troubling with that…simply irrational racial prejudice if you think otherwise.

    Note–I am talking about knowingly giving birth to a child…in the case of this woman, if she presents no threat to her child, the court should do whatever is in the best interest of the son and that very well may be giving her access to her son.

    I have nothing to add about this case since all you have is the racial difference between partners to editorialize on, and other posters have brought up the line where people are liable for giving their partners HIV if they lie about their status, despite the sympathy for the stigma of being HIV+.

  15. Just this morning, NBC News ran a story about NYC making a big push to get every adult in the Bronx tested because AIDS is killing lots of people there. I was running past the television before work, but at no point did I hear anything rational as a next sentence like – say – “…and the City has plans to treat those who turn up positive.” So, that was unnerving.

    Good catch, tata. It’s true that the Bronx has the highest death rate for HIV+ people in NYC, but that’s not because the Bronx has the highest HIV rate, compared to other boroughs, or because people don’t know they’re positive. It’s because more people there can’t afford medical care and antiretroviral drugs. The testing they’re doing is problematic for a number of reasons, not least of which is the fact that they’re not getting affirmative consent from people before testing.

    But on general principle, I can’t see why charging someone with a felony and prosecuting them for knowingly spreading HIV, or refusing to tell an intimate partner about it before unprotected sex (let alone marriage!) is a bad idea.

    Tom, the problem is having specific statutes making sex while positive a felony. There are already existing laws that can be used to prosecute someone who is knowingly endangering others. For the same reason that we don’t need a specific law making assault with a soda can illegal, we don’t need a special law to make endangerment through HIV illegal. And my point about mitigating factors such as violence was that these cases generally shouldn’t be prosecuted, but often are because of the stigma and fear surrounding HIV.

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  18. we don’t need a special law to make endangerment through HIV illegal.

    Some of the comments on this thread suggest otherwise. A ‘special law’ here does have the virtue of removing the ambiguity of whether or not exposing someone to this disease is a crime.

    That said, I don’t know whether such a law is on net balance a good idea. I’ve often thought that many of the arguments against some of the heavy handed and punitive responses to AIDs were persuasive (i.e. that they would do more harm than good by driving it underground and discouraging people from getting tested, etc.). The Canadian approach that woland cites (if accurate) seems reasonable, though one has to wonder how useful it actually is given the inevitable ‘he said/she said’ situations that no doubt arise.

  19. …So it’s neutral for women who can transmit the disease to their children to knowingly do so (at least if they breast feed)? Who exactly will be paying for the treatment for an impoverished HIV+ women….and the child she “decided to have” and infected?

    An HIV+ woman can significantly reduce the risk of passing on the virus to her child if she is given nevirapine during pregnancy and labour and doesn’t breastfeed. There’s no call for demonising HIV+ women who have children.

  20. …So it’s neutral for women who can transmit the disease to their children to knowingly do so (at least if they breast feed)? Who exactly will be paying for the treatment for an impoverished HIV+ women….and the child she “decided to have” and infected?

    Of course there’s nothing objectively or legitimately troubling with that…simply irrational racial prejudice if you think otherwise.

    Helena, as woland points out, the risk of transmitting to your infant if you take precautions is actually quite low. Beyond that, people don’t have their pitchforks out over women giving birth to kids with a high risk of developing cancer or any other serious disease. And yes, that has a lot to do with irrational prejudice.

    Making pronouncements about who should and shouldn’t be able to reproduce is a dangerous practice.

  22. Although I agree that there should be no stigma attached to HIV + people, the laws against exposing someone to HIV are in place for a reason. Some people have spread HIV knowingly to hurt people. They should be prosecuted. The argument that it will not save lives if they are put in jail: it obviously will, if they are spreading HIV with the knowledge that they are infecting others. The saliva incident is obviously ridiculous, but I feel that there is not enough information regarding this case. If there is any truth behind the fact that the woman is trying to spread HIV, then she shouldn’t be allowed to see her child. The laws in place ONLY prosecute those who intentionally seek to infect another person. Although I can see the flaws in our justice system, there is no way to rationalize not punishing someone who knowingly spreads HIV. In no way do I think it should be a murder charge, but there should be some sort of law against it. Also, when we compare HIV to the flu, we are fooling ourselves. HIV causes AIDS, which ultimately results in death. There is no comparison.

  25. I thought condoms didn’t actually protect you from HIV. Atleast not 100%.

    They do (or at least, latex condoms do), provided they are used correctly and do not break: HIV can not penetrate latex. There is always a chance of breakage, etc, but that is almost always due to human screw-ups and not the condom itself. (And even if there is breakage, a) the chances of contracting the disease are actually that high; b) the chances can be lowered if the HIV+ partner is on medication and thus has a lowered level of disease in his or her body, and c) there’s also the back up of using PEP after a break, assuming circumstances allow.)

    I don’t have the numbers with me, but I believe the chances of a woman using HAART to control the virus passing it to her children is less than 1%. There are also methods like sperm washing that can allow an HIV+ male partner to impregnate a female partner without risk, though they’re expensive, so access is (as always) an issue.

    If it’s of interest, there’s some good info about the legalities of disclosure here.

    I have so much to say about this (can you tell I work in HIV ed? *g*) but have to actually go to work…

  27. There is also a dangerous precedent being set here, if her only crime is being HIV+. (It is possible that she *herself* didn’t know she was positive, as we do not know all the facts of the case.)

    Once you start criminalizing people for having a disease, you can start criminalizing other conditions such as obesity (“she’s trying to make me fat!”) or ADD (“He makes it impossible for me to focus!”)

    I know that sounds really Orwellian and, frankly, improbable, but if there’s one thing the last 7 1/2 years have taught me – it’s never underestimate the stupidity of people in large groups.

  28. Whatever happened to personal responsibility? She’s at least guilty of criminal negligence.

  29. Helena, as woland points out, the risk of transmitting to your infant if you take precautions is actually quite low. Beyond that, people don’t have their pitchforks out over women giving birth to kids with a high risk of developing cancer or any other serious disease. And yes, that has a lot to do with irrational prejudice.

    Making pronouncements about who should and shouldn’t be able to reproduce is a dangerous practice.”–Ashley

    And if the mother doesn’t seek or can’t afford treatment but still conceives when she knows she has HIV?

    No one is “making pronouncements,” not in law, anyway.

    I ask this honestly–is the risk for a mother to transfer cancer (that being the example you use) to her infant equal to the risk of passing HIV to an infant?

    Even if the risk of passing it to infants is REDUCED with treatment–how much is it reduced? Probably depending on the stage of treatment, yes?

    Is it neutral to conceive a child when you have a disease that puts them at risk of contracting it…..and THEIR well-being is conditional on the additional step of seeking treatment ASAP?

    How is it “irrational” to have reservations about women (and I say women, because unfortunately, they’re the only ones who bear its burdens…I don’t need to point that out) whose behavior endangers a fetus that will EVENTUALLY be a child apart from them (if they don’t terminate the pregnancy), especially if they can’t take the majority of the responsibility for the costs and negotiation of treatment/care?

    It’s “irrational” to expect people to plan beforehand on their capacity to care for their children, or anticipate extra risks the fetus may face in the womb that will affect them later (again…unless the pregnancy is terminated)?

    Note–I am specifically discussing parents who KNOW their status (considering the fact that larger and larger numbers of people are nonchalant out STI testing or condoms these days…that group may be relatively small).

  32. I ask this honestly–is the risk for a mother to transfer cancer (that being the example you use) to her infant equal to the risk of passing HIV to an infant?

    Helena, unfortunately I have to run and don’t have a lot of time to go into an answer, but stats on the likelihood of transmitting HIV to an infant if you are on antiretroviral medication are probably easily available through pubmed/cochrane review, or even just google.

    Cancer is only one of many genetic predispositions a child may have. Autism, deafness, heart disease, dementia… Where does one draw the line? And what is the proposed solution? Forced abortion? Forced sterilization?

    I should note that there are not laws against exposing someone to other sexually transmitted diseases, although several are incurable and potentially deadly. Anything specifically designed to punish people with HIV has to do with the continuing stigma of what used to be considered a “gay disease,” and was therefore vilified by many right-wing leaders, not with the actual physical effects of HIV compared to other illnesses.

  33. I should note that there are not laws against exposing someone to other sexually transmitted diseases, although several are incurable and potentially deadly. Anything specifically designed to punish people with HIV has to do with the continuing stigma of what used to be considered a “gay disease,” and was therefore vilified by many right-wing leaders, not with the actual physical effects of HIV compared to other illnesses.

    I’d argue that it has more to do with the fact that HIV, unlike other sexually transmitted diseases, is incurable, lacks a vaccine, and is much more likely to be fatal if untreated than any other STD (and that treatment is arduous and expensive), and can be debilitating and fatal even with treatment. Apples and oranges.

    Look, I’m not blind to the historically-demonstrated risk of stigmatization that HIV patients face. But their potential partners have rights as well, at the very least to be able to exercise informed consent. The bioethics of infectious disease have always presented challenges to personal autonomy and liberty, purely due to the equally historically-valid butcher’s bill that infection has wrought against the human race (and that AIDS is continuing to wreak against millions across the world). That’s why we compulsorily immunize children, despite the fact that some percentage of them invariably will suffer potentially debilitating adverse reactions. That’s why we still enforce quarantines when necessary.

    I’d add that it’s premature to treat HIV as just another disease. The bug is still evolving, and with its potentially decade-long incubation period, it lacks the evolutionary selective pressure that would eventually make it less dangerous to us to this point. HAART doesn’t work for everybody, and drug-resistant strains could be becoming more common, as have antibiotic-resistant strains of bacteria. Treating HIV as just another STD is denialism.

  34. Tom, do some research into hepatitis C. HPV can also cause fatal cancer. Untreated syphilis causes insanity and death. Herpes can cause blindness in infants. Chlamydia can cause infertility. But (as is appropriate) we respond to these diseases as a public health problem, not a criminal problem.

    FYI, in the HIV field, “denialism” refers to people who deny that HIV exists, or that it causes AIDS. I am for sure not in agreement with that group.

  35. Ashley: Hep C: very low risk of sexual transmission, almost nil in monogamous heterosexual relationships, such that the CDC does not recommend condoms for discordant partners in such cases. HPV: vaccine exists. Syphilis: curable. Neonatal herpes: rare (between 1 in 3000 and 1 in 20,000 live births in the US, versus roughly 25% lifetime exposure rate among delivering mothers), overwhelming caused by exposure in third trimester and thus highly preventable, very effectively controllable through prenatally administered antivirals. Chlamydia: curable, not lethal.

    I’m not suggesting that HIV shouldn’t be treated primarily as a public-health problem. But public health can involve the criminal justice system in extreme cases if a patient cannot or will not accept the responsibilities that come with their status, and engage in behavior that demonstrates a depraved indifference or reckless disregard for others. I’m hardly saying that major felony charges ought to be brought against any but the most egregious cases. I am saying, particularly as treatment options improve and more people can face living HIV+ as a serious but manageable and livable condition, that some public education along the lines of communicating the social responsibilities that come with living with HIV can go some ways towards reducing the number of cases in which sanctions, including criminal ones, could become an issue.

    I am aware of what denialism is. I was suggesting that minimizing HIV and treating it as of a piece with other STDs abuts dangerously close to a type of denialism in and of itself. Tens of millions of people are not dying today from any other STD that I am aware of.

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