US: The criminal law is falling behind, ignoring advances in HIV science

Fighting for HIV justice

Writer and advocate Olivia Ford argues that the modern realities of living with HIV are being overlooked by the criminal justice system.

Advances in global HIV prevention, care, science, and treatment in recent years — and the potential benefits to the lives of people living with, at risk of acquiring and affected by HIV— are astounding. Effective HIV treatment has made healthy and normal lifespans a reality for millions of people living with HIV across the globe, and treatment and human rights advocates continue to work to secure access to these lifesaving treatments for everyone living with HIV.

The science is clear: When taking effective anti-HIV medication, a person living with HIV cannot transmit the virus to a sexual partner. If they are pregnant, the chance that their baby will acquire HIV during birth can drop to less than one percent.

Even without being on treatment or using a condom or other barrier, HIV is difficult to transmit. And if HIV transmission occurs, the person acquiring HIV has a serious but manageable disease and can expect to live a normal lifespan with adequate treatment. Yet these soaring advances — which have saved and extended countless lives — have all-too-often been misunderstood, misrepresented, or ignored within criminal justice systems the world over.

So what is HIV criminalisation?

HIV criminalisation is a term that describes the unjust use of the criminal law (or similar laws, such as public health, civil and/or administrative law) to punish and control the behaviour of people living with HIV based on their HIV status. Behaviour in these cases is most often consensual in nature.

This can happen through HIV-specific criminal statutes, or by applying general criminal laws governing offences such as assault (including sexual assault), reckless endangerment, or even attempted murder, to instances of potential or perceived exposure to HIV. Use of the law in this way ignores robust and widely available scientific and medical evidence related to HIV and its transmission, and to the realities of living with HIV in the modern era of the epidemic.

HIV criminalisation is a growing, global phenomenon. However, it seldom receives the attention it ought to, considering not only that it undermines the HIV response by compromising public health and the human rights of people living with and affected by HIV, but also that there is no evidence of any benefit from these laws.

In many instances, laws that criminalise HIV are exceedingly vague or broad — either in their wording, or in the way they have been interpreted and applied. This opens the door to a host of potential human rights violations against people living with HIV.

Usually these laws are used to prosecute individuals who are aware they are living with HIV and allegedly did not disclose their HIV status prior to sexual relations (HIV non-disclosure); are perceived to have potentially exposed others to HIV (HIV exposure); or are thought to have transmitted HIV (HIV transmission). The laws are often enacted, and applied, based on myths and misconceptions about HIV transmission — as well as stigma against communities living with or affected by HIV.

Some of these laws allow prosecution for acts that constitute no, or a vanishingly low, risk of HIV transmission: spitting, biting, scratching, oral sex, sex with condoms or a low viral load. In many countries a person living with HIV who is found guilty of other “crimes” — notably, but not exclusively, sex work, or someone who spits at or bites law enforcement personnel during their arrest or incarceration — often faces enhanced sentencing even when HIV exposure or transmission was impossible, or virtually impossible.

Two significant problems with most HIV criminal laws and prosecutions are that they typically focus on proof of HIV disclosure, rather than on whether a person had any intent to do harm or whether a perceived harm (i.e., transmission) actually occurred; and felony punishments and severe sentences sometimes treat any level of HIV exposure risk as the equivalent of murder, manslaughter, or rape with a weapon — a patently false and dangerous equivalency. One key aim in reforming HIV criminal laws can be to challenge these two problems by advocating for the corresponding core legal principles that convictions must require proof that the person intended to do harm; and the degree of punishment must be closely related to the level of harm.

As of February 2018, HIV Justice Worldwide estimates that 68 countries currently have laws that specifically allow for HIV criminalisation; including the 29 individual states in the United States with such laws raises the total to 97 jurisdictions. Other jurisdictions have non-specific laws that are still used to criminalise people living with HIV. Prosecutions for HIV non-disclosure, exposure, and transmission have been reported in 69 countries — 116 jurisdictions, including 38 US states and the US military. HIV-related cases can be challenging to track — even more so in countries where such information is not freely available. Therefore, it is impossible to determine an exact number of HIV-related criminal cases for every country in the world.

Much of what is known about individual cases comes from media reports. Mainstream media plays a significant role in reinforcing a society’s prejudices, and HIV criminalisation is just one lens for witnessing that insidious process. Because HIV criminalisation stories may involve salacious details of “sex, drugs, and crime,” media outlets may use dramatic headlines highlighting those details to grab attention in busy media markets. The images and language used in these stories increase the notoriety of specific defendants, and can serve to further marginalise and target individuals who are already members of vulnerable groups.

Where do the criminalisation laws come from?

The world’s first HIV-related prosecutions, and eventually HIV-specific laws, occurred in the mid-late 1980s, when HIV was truly a death sentence for millions of people who acquired the virus. These legal actions grew out of lack of control of the epidemic and widespread ignorance about the nature of HIV transmission. Their enactment was also driven by stigmatising myths of “intentional HIV transmitters” fed by mainstream media reports that often exploited other forms of bias, such as anti-black racism and homophobia.

The number of countries enacting such laws has increased in the decades since, even as powerful HIV drugs became available which dramatically lengthened lifespans for those with access to them, and reduced to zero the risk of HIV transmission from those taking them. Sub-Saharan Africa had no HIV-specific laws when the 21st century began; now nearly half the countries on the continent have a mechanism for prosecuting people living with HIV. This trend has also been presenting in high-income countries in recent years.

Who do these laws target?

Under these overly broad statutes, virtually anyone who is living with HIV could be prosecuted. Laws that criminalise people living with HIV disproportionately affect communities that already face undue levels of policing, incarceration, and human rights abuses — including people of colour; sex workers; women, inclusive of transgender women; and people living at the intersections of these identities.

These laws are often framed as protecting women “victims” from dishonest partners. But laws that criminalise HIV exposure do not protect women. Women living with HIV may face violence if they disclose their HIV status, but risk arrest and prosecution if they do not disclose — or they do disclose, but their partner claims they did not. Many women have been arrested or sent to prison based on accusations by former partners who used HIV criminal laws as a tool of harassment or control, often after the woman attempted to end the relationship.

Because women may be more likely than men to engage with sexual and reproductive healthcare due to pregnancy, women are often the first person in a relationship to be tested for HIV and to know their HIV-positive status. Even just an allegation of being the one to “[bring] HIV into the home” or simply an accusation of non-disclosure that leads to an encounter with the criminal system, can result in a woman losing her housing, property, child custody, and more, creating negative repercussions for her entire family.

Most laws require only that a person knew their HIV status for a successful prosecution. This effectively punishes a person living with HIV for the health-seeking action of knowing their HIV status, and can result in a “he said/she said/they said” battle in court, in which the person who knows their HIV-positive status usually loses.

HIV criminalisation is at odds with public health objectives, such as UNAIDS’ 90-90-90 goals for ending epidemic HIV. Anecdotal evidence as well as several analyses have suggested that fear of prosecution may deter people — especially those from communities highly vulnerable to acquiring HIV — from getting tested and knowing their status, because laws apply mainly to those who are aware they are living with HIV. HIV criminalisation can also block access to HIV care and treatment, undermining counselling and the relationship between people living with HIV and healthcare professionals, because medical records can be made publicly available and used as evidence in court.

There is no evidence that HIV criminalisation laws deter behaviour that can transmit HIV, or reduce the number of new HIV cases. Further, by making it illegal for a person with HIV to have sex without disclosing their status, HIV criminalisation delivers the inaccurate message that all people with HIV are inherently dangerous, and that an adequate prevention strategy is to rely on partners to disclose and avoid those who share the information that they are living with HIV.

In reality, a large proportion of new HIV cases result from unprotected sex with a person who is living with HIV, but has not become aware of their HIV status through testing — or has had barriers to staying connected to HIV care. In a true public health approach, all consenting partners must take responsibility to engage in safer sex.

The above is an extract from Making Media Work for HIV Justice. Read in full here

Published in NAPWHA on June 13, 2018