A bill before the California Senate would change laws that make it a felony to expose someone to HIV, recognizing advances in the science of HIV treatment and prevention. The proposed legislation received strong support at a recent hearing at the state Capitol.
Proponents say Senate Bill 239 would modernize existing laws in accordance with the latest research, promote public health, and reduce discrimination and stigma against people living with HIV.
“These felony laws were passed during the dark days of the epidemic, when people were talking about quarantining those living with HIV,” bill co-author Senator Scott Wiener (D-San Francisco) told the Bay Area Reporter. “The laws single out people with HIV for uniquely harsh criminal treatment for the simple act of having sex – even if there’s no risk of transmission. HIV is a health issue, not a criminal issue, and it’s time to repeal these discriminatory laws.”
Existing laws make it a felony punishable by up to eight years in prison for a person with HIV to expose another person through unprotected sex if the HIV-positive person knows they are infected, does not disclose their status, and acts with the intent to infect the other person – regardless of whether infection actually occurred. It is also a felony under certain circumstances for an HIV-positive individual to donate blood, organs, or semen to an HIV-negative person. Current laws treat HIV transmission more harshly than other serious communicable diseases.
A study from the UCLA School of Law found that around 800 people in California came in contact with the criminal justice system due to their HIV status between 1988 and 2014, in most cases related to sex work. Black and Latino people and women were disproportionately affected.
“Since [these laws] were originally written the realities of what it means to have HIV, as well as the possibility of transmitting it, have changed completely, with new medications when taken regularly normalizing life expectancy and eliminating the possibility of transmission,” Dr. Edward Machtinger, director of the UCSF Women’s HIV Program, said at the March 8 hearing. “This new reality requires a reassessment of the public health implications of HIV-related legislation.”
Bill would amend state codes
As the B.A.R. previously reported, Wiener and Assemblyman Todd Gloria (D-San Diego), both gay men, introduced SB 239 at a February 6 news conference at Strut, the San Francisco AIDS Foundation’s health and wellness center for gay, bi, and trans men.
The March 8 briefing, hosted by the Legislative LGBT Caucus, featured testimony from people living with HIV as well as LGBT, public health, and civil rights advocates.
“It’s time to really change from a fear-based approach to a science-based approach,” Gloria said at the hearing. “A couple of states have beaten us to taking this action, but I think if California can do it, certainly the rest of the country can take this step as well.”
Assemblyman David Chiu (D-San Francisco) and lesbian Assemblywoman Susan Talamantes Eggman (D-Stockton) co-authored the legislation. Co-sponsors include the American Civil Liberties Union of California, Black AIDS Institute, Equality California, Lambda Legal Defense and Education Fund, and Positive Women’s Network-USA, all of which are part of the Californians for HIV Criminalization Reform Coalition.
SB 239 would amend sections of the state Health and Safety Code and Penal Code to make transmission of a communicable disease – not singling out HIV – a misdemeanor if a person knows they are infected, acts with the intent to transmit, engages in conduct that poses a substantial risk of transmission, and the other person does in fact become infected.
If passed, the proposal would overturn previous convictions under the old law, as well as expunge related criminal records and allow a person serving time to have their sentence dismissed. It would also repeal laws that require people convicted of prostitution to be tested for HIV and increase penalties if they test positive. A penalty enhancement for HIV-positive people convicted of sexual assault would not be changed.
Wiener’s communications director, Jeff Cretan, told the B.A.R. that the bill is scheduled for a hearing before the Public Safety Committee March 28, after which it would go before the Appropriations Committee and then to the full Senate for a vote.
Advocates support reform
Reform proponents say SB 239 would bring laws in line with current science, which shows that HIV-positive people who are on antiretroviral treatment with an undetectable viral load can live long and healthy lives and do not transmit the virus to others. In addition, the advent of PrEP, which reduces the risk of HIV infection by more than 90 percent if taken consistently, has changed the meaning of “unprotected” sex.
“We know that people with undetectable levels of virus are very, very unlikely to transmit [HIV],” San Francisco Supervisor Jeff Sheehy, a gay man and the first out HIV-positive person to sit on the board, told the B.A.R. “Many people at risk for contracting the virus are using PrEP to prevent getting infected. These laws, which should never have been passed in the first place, fail to acknowledge these new realities.”
Proponents contend that HIV criminalization laws do not promote public health, but rather discourage people from getting tested, seeking treatment, and disclosing their status to sex partners.
“HIV criminalization laws not only perpetuate discrimination against people living with HIV, they paradoxically discourage people from getting tested, since the laws create greater liability for those who know their status,” Eric Paul Leue, executive director of the Free Speech Coalition, a trade group for the adult entertainment industry that is a member of the CHCR coalition, told the B.A.R.
Existing laws can also discourage vulnerable people with HIV from reporting sexual abuse and violence, according to Naina Khanna, executive director of Positive Women’s Network-USA.
“A myth has been perpetuated that women are somehow protected by these laws, [but] they don’t protect us in any way,” Khanna said at the hearing. “These laws deter people from disclosing their status, they deter access to testing, they may deter people from seeking treatment, and consequently they actually increase risk for everybody. Policing and criminalization targets people of color, targets those who are unstably housed, folks who are homeless and on the streets, and people who are trans and gender non-conforming.”
SB 239 is part of a national and global movement to reform laws that target people living with HIV.
“SB 239 will go a long way toward eliminating a bias in the law and bringing California to the forefront in the effort to combat HIV-related stigma, discrimination, and criminalization,” Sero Project executive director Sean Strub told the B.A.R. “We can prosecute HIV or we can prevent it, but we can’t do both.”
Published in the Bay Area Reporter on March 23rd, 2017
