Study committee to review Indiana’s HIV laws
Indiana legislators will meet this fall to study for the first time the state’s laws concerning HIV.
Current scientific knowledge has resulted in existing laws being outdated, critics say.
Human immunodeficiency virus, or HIV, was first officially reported in the United States in the early 1980s. The virus attacks the body’s immune system. If left untreated, HIV can lead to acquired immunodeficiency syndrome, or AIDS.
During the early years of the epidemic, information was scarce and often incomplete, particularly among the general public. And back then, there were no effective treatments for the virus.
In a letter earlier this year to House Speaker Todd Huston, a group of lawmakers wrote that states – including Indiana – “enacted HIV-specific criminal laws based on the perception of HIV at the time.”
The legislators characterized it as “a time of fear and stigma,” and many commonly held beliefs in the latter decades of the 20th century are now known to be inaccurate.
State Rep. Ed Clere, one of 16 legislators who signed the letter, said a group of lawmakers wrote a similar letter last summer, but that effort went nowhere.
That could all change as early as next year after Huston assigned the Interim Study Committee on Corrections and Criminal Code to review the laws governing HIV. The review will include “provisions related to biting, spitting, donating organs and donating blood.”
Existing HIV laws
Dr. Carrie Foote, chairwoman of the state’s HIV Modernization Movement, has long advocated for changes to Indiana’s criminal and public health codes.
The professor of sociology at Indiana University–Purdue University Indianapolis has been living with HIV since 1988 – the same year Indiana first enacted one of the statutes she hopes to see changed.
That 1988 law makes it a felony for a person living with HIV to donate bodily fluids, including blood, semen and plasma.
The Indiana Region of the American Red Cross said the organization carefully follows FDA guidelines for blood collection and testing.
“There is a patchwork of laws in the U.S. concerning disclosure of HIV status when presenting to donate blood. A small number of states criminalize such behavior, but most do not,” the nonprofit said in a statement. “Furthermore, criminalization is not an FDA-required measure. Therefore, the Red Cross does not rely on HIV criminalization statutes to protect the blood supply due to inconsistent laws.”
Some other laws enacted later are similarly outdated, Foote said. Those include HIV-related enhancements in the state’s malicious mischief statute determining punishments for exposing people to bodily fluids.
Another criminal law adds enhancements to previously existing state statute on battery, which makes it a misdemeanor when a person “in a rude, insolent, or angry manner places any bodily fluid or waste on another person” – basically, for spitting on someone.
However, that charge is enhanced to a felony if the perpetrator is living with HIV, hepatitis or tuberculosis. It’s further enhanced if a person living with HIV spits on a public safety official.
In effect, those enhancements can add years to the sentencing range for a person who is living with HIV – even though scientists now know HIV cannot be transmitted through saliva.
Foote believes people living with HIV are punished too harshly solely based on those laws.
Michael Moore, assistant executive director of the Indiana Public Defenders Council, said those sentencing enhancements apply if a person “knew or should have known” their HIV status.
Foote thinks some people living with HIV believe they can avoid such enhancements by remaining unaware of their HIV status. As a result, she said, “take the test and risk arrest” is a common mindset as a lack of knowledge can serve as a defense against Indiana’s HIV laws.
“Stigma keeps people from getting tested, keeps people from getting into care,” Foote said. “These laws that remain on the books from the ’80s and the ’90s in the early years, not one study has shown that they have any kind of prevention benefit.”
Foote also criticized the state’s laws requiring people living with HIV to disclose their status before engaging in sexual activity or sharing needles. The existing statute results in the criminal justice system viewing people as “guilty until proven innocent” when charged under those disclosure laws, she said.
Foote believes the burden is on the defense to prove innocence in HIV disclosure cases.
“Whereas, normally in criminal law,” she said, “you’re innocent until proven guilty.”
Fighting the stigma
Jeff Markley serves as executive director of the Positive Resource Connection, a local service organization which provides case management, prevention and education services for HIV, AIDS, hepatitis and other diseases in northeast Indiana.
“If you’re not … able to transmit the virus” through various outlawed acts, Markley said, “then the laws need to be changed to reflect that so that you’re not charged with something that is just not a real threat to anyone.”
Along with newer scientific knowledge about the virus, modern medical advances have significantly changed the outlook for people living with HIV.
“For someone who’s newly diagnosed today, with effective treatment they can live just as long as anybody without HIV. Life expectancy is the same, is normalized with treatment,” Foote said. “We also know that not only does treatment keep us alive and well, treatment is also prevention.”
Foote calls this U=U, or undetectable equals untransmittable. According to the National Institutes of Health, new research shows people with an undetectable viral load cannot sexually transmit HIV.
“Even things that might transmit HIV, like certain sexual behaviors and acts, when we’re treated, we essentially become unable to transmit the virus,” Foote said. “It’s almost like a functional cure in a way.”
Despite scientific advances, Foote said the stigma surrounding HIV still discourages people from getting tested.
“When you know your status, we can get into care, we can get on treatment,” Foote said. “We know that treatment is prevention. We need people to get tested if we want to end the epidemic.”
Markley said people still fear disclosure – even though there is less stigma around HIV than there was 30 years ago.
“People still have a fear about what might happen if they would disclose their status,” Markley said. “From an epidemiological standpoint, with very few (exceptions), there’s really not a need for anybody to disclose their status.”
He said people living with HIV haven’t forgotten the 1980s and 1990s: “the prejudice and the hate and the discrimination that occurred.”
“You’re always going to have some pockets of individuals who are not as informed or can’t quite wrap their head around all of the science and the information,” Markley said. “Sometimes they tend to be pretty loud and vocal and can make things difficult for other individuals.”
Since 2018, Rep. Clere has introduced multiple bills addressing HIV and the Indiana code. Some have passed, including House Bill 1340 in 2021.
That bill eliminated “stigmatizing language” from the code, Foote said. The new version uses “people first language” – for example, changing the wording from “carriers” to “people living with” HIV or other communicable diseases.
This year, though, a bill to remove HIV-related sentencing enhancements and repeal laws prohibiting people living with HIV from donating bodily fluids died in the House after making it out of committee.
This year’s study committee could be a turning point, Foote said. The fast-paced and brief regular session at the statehouse often leaves little time for in-depth discussion – particularly about HIV, a topic many legislators don’t have extensive knowledge about.
“There’s very little time to talk to the legislators,” Foote said, “to explain to them, ‘Here’s what we’re doing … Things have changed around HIV; we’re not in the 80s anymore.’ ”
The study committee will provide more of an opportunity to bring in experts and educate lawmakers, she said. Clere said the committee will allow for more extensive testimony on HIV.
“It’s exactly the sort of thing that we should be studying in the interim study process,” he said. “(It) offers an opportunity to take a more measured and thoughtful look at issues.”
Clere hopes the committee will help dispel outdated ideas about HIV.
“I’m optimistic that the study process will help address the fear and stigma, the stereotypes and the misinformation … and really get everyone up to speed on the science,” he said.
The Modernization Movement’s ultimate goal is to repeal and replace the state’s old HIV laws. Foote said any new statutes should not be based on HIV status. Instead, she said, they should incorporate the idea of intent and the possibility of harm.
“We’re not saying anyone that goes out and intentionally tries to harm another person – yeah, they should be tried just like anyone else who attempted to harm somebody in any other way,” Foote said. “But right now, the way these laws are written in Indiana, they don’t take that into account.”
She’s “extremely optimistic” about the possibility of a modernization bill passing during next year’s legislative session. Foote views it as a bipartisan issue. Although some lawmakers might be initially hesitant, she hasn’t seen strong opposition to the changes.
“Going into the next session, particularly because we have this study session, we’re going to make a lot of headway there,” Foote said. “So when we do go in, folks will understand a little bit better, and we’ll have more people (saying), ‘Yeah, we fully support that. Let’s move these forward.’ ”