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It Is Time to Modernize Discriminatory HIV/AIDS Laws

Ian S. Thompson,
Senior Legislative Advocate,
Steven Waddy,
Legislative Assistant,
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May 16, 2013

While science has vastly advanced since the early days of the HIV/AIDS epidemic more than 30 years ago, the ways in which many criminal laws treat people living with HIV look like throwbacks to the dark days of the past when fear and misinformation about HIV and how it is transmitted were rampant.

There are presently 32 states that have criminal laws that punish people for exposing another person to HIV, even in the absence of actual HIV transmission or even a meaningful risk that transmission could occur.

If you are assuming that these laws are merely paper relics from a bygone era that have no real effect on those who are living with HIV today, guess again. Here are three illustrative cases on their very modern misuse:

In March 2010, the ACLU of Michigan filed an amicus brief in the jaw-dropping case of a man living with HIV who faced bio-terrorism charges after he allegedly bit another man during an altercation (despite the fact that HIV is not spread through saliva). Fortunately, a judge eventually threw out the bio-terrorism charges against the man.

A man living with HIV in Iowa received a 25-year sentence after he engaged in a one-time sexual encounter during which he used a condom and HIV was not transmitted. The man was charged under Iowa's law on the criminal transmission of HIV — which, despite its name, doesn't actually require transmission of HIV to occur. The man's sentence was eventually suspended, but he was nonetheless required to register as a sex offender.

And earlier this year, the ACLU, Lambda Legal, and the Center for HIV Law and Policy filed an amicus brief with the Minnesota Supreme Court in a case where a jury found that the defendant disclosed his HIV status before engaging in consensual sex – but prosecutors continue to push for criminal penalties, which, if upheld, would infringe on a host of constitutionally protected freedoms.

To address the injustice of cases like these, Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) have reintroduced the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act. This legislation would help in modernizing current criminal law approaches that target people living with HIV for felony charges and severe punishments for behavior that is otherwise legal (such as consensual sex between adults) or that poses no measurable risk of HIV transmission, or that singles out people living with HIV for harsh criminal penalties.

The need to modernize discriminatory HIV criminal laws is clear and compelling. These laws undermine HIV prevention efforts. For example, criminalizing exposure does not encourage people to disclose their HIV status to sexual partners, and most of these states do not treat the use of a condom during sexual intercourse as evidence that the risk of HIV transmission was both mitigated and not intended. More fundamentally, these laws perpetuate stigmatization and marginalization of people living with HIV.

Our criminal laws must be rooted in facts, not outdated myths used to target people living with HIV. Reps. Lee and Ros-Lehtinen deserve credit for introducing legislation that addresses this important, often overlooked, issue.

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