Reform of HIV Criminalization Laws Gaining Traction in Indiana but Not Yet There
By Rasha Aly
The latest attempt to modernize Indiana’s antiquated HIV criminalization law has failed. Though state House representatives passed Indiana House Bill 1198, it did not clear the state’s Senate.
However, this does not stop HIV Modernization Movement-Indiana (HMMI) and other advocates for people living with HIV (PLWH) from fighting for change. As Carrie Foote―who chairs HMMI―told TheBody, these laws “don’t reflect modern science.” Though that is undeniable, she and her colleagues will have to wait until next year’s legislative cycle to see if reform will pass.
Given bipartisan support for HIV criminalization reform―HB 1198’s co-authors are GOP state representatives Wendy McNamara (R-District 76), Edward Clere (R-District 73), Sharon Negele (R-District 13), and Ann Vermillion (R-District 31), with the sponsorship of Republican state Sen. Susan Glick (R-District 13)―their chances appear favorable.
Confronting Flawed HIV Criminalization Laws and Policies
As written, the bill would somewhat mitigate a law that Indiana officials passed in 1988. That law empowers police officers to upgrade the act of placing bodily fluids on another person to a more serious offense when HIV is involved. So, if a PLWH spits on another person, police officers automatically enhance the repercussions, elevating the minor charge to a felony charge. The repercussions become more severe if the person exposed to fluids is a law enforcement officer.
If HB 1198―which died in the state Senate on Thursday―had passed, officials would have done away with the heftier charge for PLWH who spit on other people or put any other bodily fluid on another person except for blood. The bill’s written text reads that it would remove “certain sentencing enhancements for battery and malicious mischief that relate to human immunodeficiency virus (HIV). Repeals certain offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”
In other words, PLWH would have faced the same charges as people who are seronegative if they spat on a police officer. Although HB 1198 would have eliminated felony enhancements for spit, Foote noted that officials retained the felony enhancements when the bodily fluid involved blood.
HB 1198 would also have changed the legal standard toward PLWH who donate blood. Under the current law, PLWH who donate blood can be charged with a felony offense, even if they have not yet been diagnosed and are, therefore, unaware of their serostatus. As McNamara has noted in her remarks on the matter, under the current law, over the past 20 years, police officers have charged 15 PLWH who donated blood―even though medical officials and blood-safety experts say current testing protocols screen blood and prevent any donations that contain the HIV virus from being used.
HIV Criminalization Laws Are Anti-Science and Likely Violate the ADA
As Memorial Sloan Kettering Cancer Center’s memo on blood draws notes, if blood samples test positive for illnesses such as syphilis, HIV, hepatitis, and the human T-lymphotropic virus, blood bank officials will not use the blood. Furthermore, someone from the organization will notify any donors whose blood tests positive to let them know about their STI status and also inform them that they can no longer donate blood.
Foote, who was diagnosed with HIV in 1988, notes that HIV criminalization laws benefit no one. Most of these laws were passed in the 1980s and 1990s when Americans, including the medical and scientific community until the mid-’80s, did not know much about how HIV was transmitted. “It was a totally different world in the 1980s,” she said. “There was a lot of fear, a lot of stigma.”
Since that time, the Office of Infectious Disease and HIV/AIDS Policy explains, it has become widely known that “people only transmit HIV if a person’s bloodstream comes in contact with certain fluids of a person living with HIV … through a mucous membrane (found in the rectum, vagina, mouth or tip of the penis), through open cuts or sores, or by direct injection (from a needle or syringe).”
So, “why are we stigmatizing these people with the virus?” Foote asked while pointing out that the state’s current law disregards scientific advancements and unfairly targets a historically marginalized population―PLWH.
Melissa Keyes, the executive director for In diana Disability Rights, agrees with this assessment. She wrote and submitted a letter to Indiana’s legislature explaining why the old-fashioned regulations are not needed. Keyes told TheBody that her organization is not a lobbying group and is neutral toward HB 1198, but she wrote its letter to educate lawmakers. She also noted that the state’s current HIV criminalization laws could violate the Americans with Disabilities Act.
As Indiana Disability Rights’ letter explained, “Laws criminalizing people living with HIV without basis in current objective scientific evidence risk violating the Americans with Disabilities Act (ADA). Title II of the ADA prohibits discrimination on the basis of disability by state and local governments. Indiana’s HIV criminalization laws based on this outdated science may constitute disability discrimination because the laws expressly treat people living with HIV differently from others engaging in the same behaviors.”
Attempts at HIV Decriminalization and Reform Are Not Over
Activists looking to improve the lives of PLWH have been trying since 2019 to revise Indiana’s outdated laws. They tried five times, including introducing two House bills in 2022. This year would be the sixth attempt.
Three of those five attempts failed outright, with the first endeavor at eliminating stigmatizing language (HB 1325 in 2019) not even making it out of a Senate committee. The second try―HB 1158, which would have repealed the notification requirement health officers must make if they believe someone has been exposed to HIV―also died, this time in 2022.
These notifications, Foote said, “create mistrust between doctors and patients.” Sharing one’s status is already difficult without facing the added stress that a doctor may be compelled to share that information with others―such as the police.
The third shot, HB 1032, wound its way through the state legislature in 2022 but did not make it to the Senate. If passed, it would have removed “sentencing enhancements for battery and malicious mischief … offenses concerning the donation, sale, or transfer of blood or semen that contains HIV.”
Foote says that when bills related to HIV have made progress, they have usually involved changing the bill’s language. For instance, in March 2020, the state General Assembly passed House Bill 1182, which focused on changing the text in Indiana’s public health code. The new law eliminated the word “carrier” when referring to PLWH and instructed lawmakers to use the phrase “individual with a communicable disease” instead. Additionally, state legislatures substituted the words “dangerous” with “risk” and “spread” with “transmission” and stopped referring to AIDS as HIV. This reference addressed the fact that AIDS is a condition that occurs when HIV is left untreated to the point that one’s immune system is entirely defenseless―and is not a communicable virus unto itself.
Additional progress occurred a year later when Gov. Eric Holcomb signed HB 1340 into law on April 29, 2021. This law concentrated on Indiana’s criminal code and replaced the phrase “dangerous communicable disease” with “serious communicable disease.”
Although HB 1198 did not pass, Foote said that she focuses on the fact that “We’re making progress along the way.”
“Changing laws takes a lot of time,” she continued. “We keep plugging away and coming back. That’s kind of the challenge of lawmaking.” And as time has passed, Foote says that the movement to reform HIV criminalization laws has garnered support from a growing list of organizations, including the Indiana Prosecuting Attorneys Council, Indiana Public Defender Council, Indiana State Medical Association, and the Indiana Minority Health Coalition. One reason why these groups have joined the cause is that Foote and likeminded allies constantly advocate for and educate others on the benefits of reform.
During the summer of 2022, HMMI conducted an interim study session focusing on educating lawmakers and various organizations about HIV transmission, including the fact that saliva does not transmit the virus. The Indiana Prosecuting Attorneys Council’s new support for HB 1198 signaled that the session was successful and that when the next HIV criminalization reform bill is introduced, it will have a greater chance of passing.
TheBody reached out to representatives McNamara, Clere, Negele, and Vermillion and Sen. Glick for comment on what inspired them to support HIV criminalization reform. None of the legislators responded to the request.