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New Legislation Shines Light on the Criminalization of HIV

Ian S. Thompson,
Senior Legislative Advocate,
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September 23, 2011

Spit as a deadly weapon? As crazy as it sounds, in some states that is the reality that people living with HIV face.

On Friday afternoon, Rep. Barbara Lee (D-Calif.) introduced legislation in Congress that will bring some much needed attention to the issue of criminalization of HIV. Rep. Lee’s legislation — the REPEAL HIV Discrimination Act — would provide states with incentives and support to reform outdated criminal laws that target people living with HIV.

There are presently 34 states that have criminal laws that punish people for exposing another person to HIV, even in the absence of actual HIV transmission or a meaningful risk that transmission could occur. Many of these laws were enacted early in the epidemic, before people understood how HIV was and was not transmitted, but the laws have not been changed. And many people are serving long sentences for conduct that poses no meaningful risk of transmission of HIV, such as spitting or biting.

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.

Additional cases include that of a Texas man living with HIV who received a 35-year sentence for spitting at a police officer because under Texas law his saliva was considered a “deadly weapon.”

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.

I could go on.

The damage these laws do is all too real. These laws undermine public health approaches to fighting the disease and limiting its spread in a number of ways. 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 HIV transmission was not intended. More fundamentally, these laws wrongly stigmatize and marginalize those who are living with HIV/AIDS.

In the Obama administration’s first-of-its-kind national AIDS strategy, which was released in July 2010, the administration discussed the fact that the stigma associated with HIV “remains extremely high.” The ACLU certainly agrees with this finding, and firmly believes that one of the most productive steps states could take to breakdown this stigma and fear of those living with HIV/AIDS is by removing outdated HIV criminalization laws from their books.

The REPEAL HIV Discrimination Act includes the following finding:

Over the past 3 decades, scientists have learned much about HIV, its transmission, and the treatment of those who become infected with it. State and federal law does not currently reflect the medical advances and discoveries made with regards to HIV/AIDS.

Our criminal laws must be rooted in facts, not outdated myths used to target those who live with a chronic disease. Rep. Lee deserves credit for bringing much-needed attention to this issue.

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