Everyday it seems the #uequalsu movement is getting bigger, stronger and changing the lives of people living with HIV and those around them. It is truly a new day in HIV awareness and education. For the millions living with this virus, the facts and science around this new information couldn’t come soon enough. After decades of fear and anxiety, they now know and can prove, that they are not a threat to their sexual partners (with or without condoms) or the general public. This is a heavy weight to finally have lifted off of their shoulders, but also the gay male community as a whole.
But, as usual, everything is not as rosy, or clear, as it may seem. Uequalsu is science, based on numerous studies and corroborated by leaders in the HIV field. This movement is not founded on feelings, rather on empirical evidence. On the other hand, we have so-called HIV criminalization laws, crafted in the late 1980’s and early 190’s when our collective knowledge about HIV transmission was very low, and our fears of gay males and gay male sex, was very high.
Let us begin by stating FIRMLY that we believe if someone purposefully infects another with HIV, they should be charged and prosecuted to the fullest extent of the law. With that being said, many guys are being prosecuted even when no one has been infected with HIV, and/or out of spite or a bad break-up mixed with lies and hurt feelings. These are not reasons to call the police and destroy someone’s life.
“HIV IS a crime in 32 US states and 72 countries with an additional 39 having applied other criminal law provisions to meet the same goals. New laws are being enacted every year. Since these laws began to appear at the beginning of the epidemic, over 600 prosecutions (and counting) of people with HIV have taken place, with more than half of those being inside of the United States. In fact, in October of 2018, the Utah House of Representatives passed HB 369, which, if enacted, will make sexual contact by an HIV+ person without disclosure of status a first-degree felony rape”.
HIV criminalization laws generally penalize HIV transmission through claims of fraud and nondisclosure, reckless exposure to HIV, and assault where HIV transmission occurred.
- Fraud claims are based on intentional dishonesty between the parties with regard to one’s HIV status and the subsequent deprivation or risk of deprivation for the other. Fraud can be mitigated through disclosure and fully informed consent, and some courts state further that there must be have been a “realistic possibility” of HIV transmission during the exchange.
- Exposure occurs by subjecting someone to HIV-infected fluids, though this definition is imprecise and permits inappropriate application of HIV criminalization laws to instances when actual HIV transmission was negligible or nonexistent.
- Assault where HIV transmission occurred is the narrowest grounds for HIV criminalization, particularly where the tortfeasor intends to transmit HIV or otherwise knew that HIV transmission was likely; however, assault is itself a crime, and doubly penalizing HIV status risks impugning non-criminals living with HIV.
HIV criminalization laws proliferated in the immediate wake of the HIV epidemic in the 1980s. In the United States, for example, a majority of states have criminal statutes pertaining to HIV exposure and transmission, and the federal government provides money to states for acquired immunodeficiency syndrome (AIDS) treatment contingent on the existence of adequate criminal statutes for HIV transmission. The goal of these criminal laws was, and remains, to deter (and so prevent) the spread of HIV by aggravating charges against HIV-positive tortfeasors. In effect, HIV criminalization laws are structured to coerce persons living with HIV.
For some, HIV criminalization laws not only make sense, but should be strengthened. Ironically, many of the greatest supporters and users (manipulators) of these laws are gay males. The fear that has and continues to ravage our community rears its ugly head by way of these laws.
Nick Rhoades, who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man comprising anal sex with a condom and oral sex without whilst his viral load was undetectable.
Ottawa gay activist Elliott Youden was charged with aggravated sexual assault after allegedly failing to declare his HIV-positive status to a sex partner he met online.
College student Michael L. Johnson, a black gay man in his early twenties, had consensual sexual intercourse with several similarly aged partners. He was charged with three counts of recklessly exposing another person to HIV without consent and three counts of attempting to recklessly expose another person to HIV without consent. The charges resulted from consensual sexual activity with six young men, several of them students at Lindenwood University. Johnson met four of the men on social “hook-up” apps, Grindr and Jack’d. At trial, the complainants testified that Johnson had not advised them he was HIV positive; Johnson testified that he had advised them. There was no evidence at trial that Johnson intended to transmit HIV to his sexual partners.
According to the U.S. Centers for Disease Control and Prevention (CDC), a total of 67 laws in 32 states were focused on people with HIV as of 2011. In 24 states, an HIV-infected person is required to disclose their status to their sexual partners. Fourteen states require disclosure of HIV status to needle-sharing partners, and 25 states still criminalize various behaviors that have little to no risk of transmitting HIV, like biting and spitting.
(If you would like to see a complete list of the laws, by state, as well as the penalties, click HERE)
NOTE: All states have general criminal laws—such as assault, battery, reckless endangerment, and attempted murder—that can and have been used to prosecute PLWH for any of the above-mentioned behaviors. For example, Texas does not have laws that specifically criminalize HIV exposure but has used general criminal statutes, like aggravated assault with a deadly weapon, to criminalize defendants with HIV. See, Mathonican v. State, 194 S.W.3d 59, 67 (Tex. App. Texarkana 2006) finding that the seminal fluid of the HIV-positive defendant was a deadly weapon.
The criminal punishments for non-disclosure are just as varied as the states and laws themselves. They could be as low as a fine and a maximum of 30 days in jail, or up to life in prison. Many states have also included a sex-offender registry mandate for those convicted.
Simply put, to every charge there is some form of a defense. In criminal cases, the most common are:
• Mistake of Fact
• Officially induced error
• Double Jeopardy
Built within each criminal offense statute, is usually a defense, but sometimes it may arrive from case law or even from a Higher Court Ruling. But, for some reason, this was not done with most HIV criminalization laws, expect for one. The defendant did not know he was HIV positive. If he knew that he was infected with the virus, basically, he is screwed. This is based off of the presumptions that:
- Anyone who knows that they are infected with HIV should never even conceive of having sex with another person
- Anyone who has sex with another person, while infected with HIV, intends to infect that other person
- Exposure alone to someone living with HIV is enough to constitute a crime
- Having sex with someone who is HIV positive is an automatic death sentence
The major concern with not being able to have an affirmative defense to a charge relating to HIV criminalization is that there are important pieces of information and evidence which are not admissible for the court to hear, that could exonerate the defendant of the charges. Depending on the state in questions, this could include:
- If the defendant and the alleged victim, used condoms (allowed only in 3 U.S. states)
- If the defendant was the active or receptive partner
- If the defendant informed the alleged victim of his HIV status (allowed only in 9 U.S. states)
- If the defendant has an undetectable viral load (allowed only in 1 U.S. state)
- If the alleged victim sero-converted to HIV positive
Outside of criminalizing acts between consenting adults, these laws are out of date and out of touch with our current state of science and understanding of how HIV is transmitted and treated.
“HIV criminalization laws fail to account for the benefits bestowed by modern HIV treatment. These laws prosecute HIV-positive individuals for acts of consensual protected or unprotected sex, spitting, or biting—with the underlying notion that blood saliva or semen are “biological weapons,” as dangerous as a firearms. Between, 2008 and 2015, there have been at least 226 reported prosecution cases based on state laws that either directly or indirectly deem the potential and the unlikely transmission of HIV a crime, rising to at least 279 by the end of 2016“.
“Many of these laws do not take into account measures that reduce HIV transmissibility, including condom use, and were enacted well before the preventive benefit of antiretroviral therapy or pre-exposure prophylaxis was fully characterized,” said José M. Zuniga, IAPAC President and Chief Executive Officer. “Most people living with HIV who know their status take steps to prevent transmitting HIV to others. Laws that specifically criminalize HIV non-disclosure, exposure, or transmission thus primarily exacerbate HIV-related stigma and decrease HIV service uptake.”
Because the main and constant defense to a charge under HIV criminalization statutes is not knowing ones status, these laws keep people from getting regular tests for HIV infection, if ever. Not knowing if you have HIV is the best and only way to be sure never to be convicted of infecting someone with HIV.
“Fear of being “outed,” injured, or penalized by authorities and other individuals keeps our community underground and further removed from the health services we are owed and require. HIV criminalization laws can impede the achievement of public health objectives while providing others with hostile views toward LGBT people another means to exploit LGBT vulnerability”.
Finally, one of the worst outgrowths of these laws is the continued level of HIV stigma that rises inside and out of the gay male community. For far too many gay men, these laws are another weapon to use against those living with HIV. Fear and shame keep those with this virus from disclosing because we have yet to create an environment that makes such a decision easy. Coupled with this is the negation of personal responsibility. If we all believe it is the total and sole responsibility of the person with HIV to disclose, bring up the topic of HIV, condoms, PrEP and other protective measures, it means that we don’t have to do the heavy lifting and he will be at fault if things don’t go our way later.
Around the world:
2005: Supreme Court of The Netherlands first to limit law based on
actual HIV risk.
• 2009: Geneva Court of Justice quashed an HIV ‘exposure’ conviction
following ‘Swiss statement’ on HIV risk.
• 2011: Denmark suspended HIV-specific law, due to reduced harm via
changes in life expectancy.
• 2008-12: Limitations of phylogenetics for proof of timing/direction of
transmission, and impact of ART on transmission risk incorporated into
English & Scottish prosecutorial guidelines.
• 2013: ‘Swedish statement’ on sexual HIV risk positively impacted
clinician practice and resulted in 2018 Supreme Court ruling that UVL
means no legal liability.
• 2015: ‘Canadian statement’ on sexual HIV risk impacting lower court
rulings; 2017 WAD announcement – Ontario will no longer prosecute
people with UVL.
• 2017-18: General laws in Norway and North Carolina (US) now also
exclude prosecutions for those with UVL.
The highest numbers of prosecutions between April 2013 to October 2015 were reported in:
Russia (at least 115)
United States (at least 104)
Belarus (at least 20)
Canada (at least 17)
France (at least 7)
United Kingdom (at least 6)
Italy (at least 6)
Australia (at least 5)
Germany (at least 5).
Why you should care:
If you are a sexually active gay male, you should automatically care because this issue effects our community. If you are living with HIV, you should care because you either live in a state, or country, with some sort of penalty for non-disclosure that may effect you or someone you love one day, or you will travel to a state, or country, with a law that could effect you. Finally, we should all care about unjust laws that penalize the poor, people of colour, and/or sexual minorities more based on outdated science and fear.
How should these laws be used?
In our research for this article, we read a lot of different ideas about how to transform and even eliminate HIV criminalization laws. But we decided to go with a more practical approach, understanding that the possibility of having these laws totally rescinded and/or repealed is rare but also there will still be a need for laws to prosecute those who purposely infect others with HIV.
- The Health and Human Rights Journal published a substantive article by Neiloy Sircar who provided his view on how these laws should be used most effectively, among other issues. We have republished his thoughts below. (Mr. Sircar was the winner of Harvard FXB Health and Human Rights Consortium 2017 Student Essay Competition. He is an LLM student at the O’Neill Institute, Georgetown University Law Center, Washington, DC.)
“HIV criminalization laws are often poorly designed and discriminatorily implemented. The proper space for laws criminalizing HIV should be narrowed to when an HIV-positive person uses their HIV-positive status as a means to coerce, injure, or recklessly endanger another party. Laws that work to stigmatize or marginalize HIV-positive persons, or render it difficult for HIV-positive or at-risk persons to avail and access health services, are unjust and represent bad policy”.
“The criminalization of HIV transmission should require proving that an individual, acting autonomously, either evinced malicious intent to transmit HIV or acted with intentional disregard for the well-being of others and recklessly exposed others to HIV. Reforming HIV criminal statutes to achieve increased clarity in design and implementation is necessary to achieve the just legal ends of punishing malicious acts while respecting the human dignity and rights of people living with HIV. UNAIDS’s guidelines, paraphrased below, for HIV criminalization statutes adequately incorporate the right to health framework and particularly the right to health’s deference to individual autonomy and respect while emphasizing the need for suitable health and legal systems. HIV criminalization laws should not apply under any of the following circumstances:”
- when the risk or “realistic possibility” of transmission can be mitigated by, for example, using clean needles or practicing safe sex, including the use of pre- and post-prophylaxis, and such measures are taken
- when the HIV-positive person did not know they were HIV positive
- when the HIV-positive person did not know how HIV was transmitted
- when the HIV-positive person fully disclosed their status to their partner and knew that their partner was fully informed as to how HIV spreads
- when the HIV-positive person was inhibited by a social or cultural condition, such as if the HIV-positive person had reasonable fear of persecution or prosecution that may have impeded their autonomy and self-care prior to transmitting HIV
- when the HIV-positive person could not have taken reasonable measures to reduce the risk of transmission or did not willfully disregarded such measures
- when the HIV-positive person and the HIV-negative person (or people) agreed on an acceptable level of risk in light of full disclosure.
The law has always been slow to change, especially when it involves sex, science and fear. HIV fits into all of these categories and more. Yes, there is a need for some sort of laws to penalize those who purposefully infect others with HIV, just like we have for other STDs, but these laws must change and progress with the science or an untold number of people will suffer under laws meant to protect us all. That is not justice.