A Look at HIV Criminalization

By Julie Lee, BLC Intern

After attending a webinar on the sentencing of Michael Johnson to 30 years in prison, who was convicted on five felony counts – one count of recklessly infecting a partner with HIV and four counts of recklessly exposing partners to the virus[1] – I decided to do some research on HIV criminalization.

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It turns out that when the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act was implemented in 1990, it included a requirement that states, in order to receive funding for AIDS treatment and care, had to have laws that could prosecute any HIV-positive individual who knowingly exposed another person to HIV[2]. Although this requirement was removed in 2000, some states still have HIV criminalization laws[3]. Massachusetts, in particular, doesn’t have an explicit HIV-specific criminal statute – but it does have a broad STI sentence enhancement law that has been applied to HIV[4].

Of recent HIV criminalization cases, about 25% of them were for biting, spitting, or scratching, which are actions that do not transmit HIV[5]. Considering that the intent of HIV criminalization laws would be to protect people, it seems like a misuse of resources to prosecute people based on an action that would not and could not harm anyone by transmitting HIV. Keeping these laws indirectly encourages misperceptions about HIV risk and transmission and increases stigma against people living with HIV. This runs counter to all of the progress that’s being made by agencies like the BLC to decrease stigma, promote HIV testing, and engagement and retention in care – to decrease the number of new HIV infections – and really isn’t a constructive way to promote public health.

I want to offer a quote from the National HIV/AIDS Strategy for the United States, an HIV/AIDS policy document published by the White House – which I actually read through on my very first day as an intern for the BLC. It states that “the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”[6] The new HIV/AIDS Strategy for the United States will be released this month, on June 30th, following its last publication in 2010. I hope that it will place greater importance on updating HIV criminalization laws around the country in order to achieve the three goals outlined in the National HIV/AIDS Strategy for the United States: reduce new HIV infections, increase access to care and improve health outcomes for people living with HIV, and reduce HIV-related health disparities. Updating these laws to reflect the truth could reduce misinformation and decrease stigma – which could make people more willing to be tested, leading to fewer new HIV infections.

[1] http://www.hivplusmag.com/opinion/guest-voices/2015/07/20/op-ed-justice-system-failed-michael-johnson

[2] http://www.cdc.gov/hiv/policies/law/states/exposure.html

[3] http://caps.ucsf.edu/archives/factsheets/criminalization

[4] http://www.hivlawandpolicy.org/states/massachusetts

[5] https://www.aidsunited.org/data/files/Site_18/2014AidsUnited-FactSheet-HIVCriminalization.pdf

[6] https://www.whitehouse.gov/sites/default/files/uploads/NHAS.pdf

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