Among the groups that are identified as having a higher rate of HIV infection, gay and bisexual men are the only groups where the rate of new infections is increasing. There are also very high rates of infection among transgender women. This group is almost 34 times more likely to contract HIV than other women.
Thirty-four states, two territories, and the federal government currently have laws that criminalize the behavior of people who live with HIV due to the laws’ failure to keep abreast of the science related to HIV medicine, treatment, and prevention. Like HIV itself, these laws disproportionately impact the LGBTQ community.
Many of these statutes criminalize actions that have a negligible risk of actually spreading the virus, such as spitting and biting. Some states require those who are aware of their HIV status to disclose to their current or future sexual partners, while others require individuals with HIV to disclose to needle-sharing partners.
A Short History of HIV Criminalization
The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, enacted in 1990, gave states funds for AIDS care. It required each state to certify that its criminal laws were sufficient to prosecute those with HIV who knowingly exposed someone else to HIV. Many states criminalized possible HIV exposure as a result, and these laws have stayed on the books even as our understanding of HIV has evolved. These outdated statutes have had the effect of discouraging testing, discouraging people to disclose to past partners, and increasing social stigma.
Most of the HIV criminalization laws were passed before the discovery that both antiretroviral therapy and the proper use of condoms reduce the risk of transmission. Most of these laws do not factor use of condoms or viral load into the severity of the punishment. However, in certain states, such as Iowa, the effort to reduce the likelihood of transmitting HIV to someone else may affect the chances of conviction. In Florida, certain defendants charged with one of the third degree felonies associated with HIV can raise the affirmative defense that the person who was exposed knew of his or her partner’s HIV status, knew that the criminalized action could result in transmission, and consented nonetheless.
In some states, HIV positive individuals are prosecuted under general criminal laws, even though there is no statute expressly prohibiting a particular behavior.
Often the individuals charged under specific or general statutes for their HIV status and conduct are imprisoned and have to register as sex offenders even though there is a minimal or remote chance of HIV exposure. Statutes related to assault and battery, attempted murder, and reckless endangerment can be used to prosecute HIV positive individuals. Sometimes even more outlandish methods are used for prosecution. For example, an HIV positive man in Michigan was charged under a state anti-terrorism statute with possession of a biological weapon after allegedly biting a neighbor.
Risks and Benefits of Disclosing Your HIV Status
If you are HIV positive, disclosing to prospective and past partners that you have HIV may reduce the chances of prosecution. However, since some workplaces are not covered by the ADA, it is important to be cautious when discussing your HIV status and consult an attorney in any cases where your employment, housing, or healthcare situation could be affected by a disclosure of your HIV status. For example, it is worth consulting an attorney if you test positive for HIV and your current sexual partner works with you.
You should ask to consult your attorney if the police try to speak with you about a criminal charge. Although your natural instinct may be to try to provide an explanation and clear up any misunderstandings, your statements may later be used against you to obtain a criminal conviction.