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Effort Underway to Override State Laws Penalizing Those Who Expose Others to HIV

WASHINGTON — As the U.S. marked World AIDS Day with a population of more than 1.1 million infected with HIV, a bicameral movement is underway in Congress to get the federal government to override state laws criminalizing exposure to the virus.

Proponents argue that even though there is still no cure for AIDS, advancements in drug therapies mean HIV isn’t as deadly as it once was. They also contend that laws against potential transmission of the virus — centering around full disclosure of one’s illness to a sexual partner — just stigmatize and oppress those infected with HIV.

Sen. Chris Coons (D-Del.), a member of the Senate Judiciary Committee, said he’ll introduce the Repeal Existing Policies that Encourage and Allow Legal (“REPEAL”) HIV Discrimination Act after the Senate returns next week.

“It’s simply not fair that someone having been diagnosed with a chronic, treatable medical condition should automatically be subjected to a different set of criminal laws,” Coons said. “A disturbing number of state and local criminal laws pertaining to individuals with HIV/AIDS are rooted not in science, but in outdated fear. They run counter to effective public health strategies, discourage HIV testing, and perpetuate unfair stigma and discrimination against people living with HIV/AIDS – people who are our friends, family, and neighbors.”

“Rather than recognizing that HIV/AIDS is a treatable medical condition, these laws perpetuate the idea that HIV is a deadly weapon and people with HIV/AIDS are dangerous criminals,” he continued. “Our laws need to catch up to our science, and this bill would take an important step in that direction.”

Coons said his bill, which would require an interagency review of federal and state laws that criminalize certain actions by people living with HIV, came about because of charges levied against HIV-positive defendants including aggravated assault, attempted murder, and bioterrorism.

His bill complements a House effort introduced in May by Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.), which expresses the sense of Congress that federal and state laws “not place unique or additional burdens on such individuals solely as a result of their HIV status.”

These mandated reviews would happen at the Department of Justice, the Department of Health and Human Services and the Pentagon.

“These laws are based on bias, not science. We need to make sure that our federal and state laws don’t discriminate against people who are living with HIV,” Lee said. “These laws breed fear, discrimination, distrust, and hatred, and we’ve got to modernize them. That’s exactly what this legislation would do.”

Ros-Lehtinen, the only Republican among 35 co-sponsors, said in May that the bill “will help end the serious problem of discrimination in criminal and civil cases against those who are HIV positive.”

“Singling out and discriminating against those living with HIV is not in line with our American values and we must do better,” she said. “The legislation seeks to modernize our current outdated laws and bring them into the 21st century. I urge my Republican and Democrat colleagues to join Barbara and me in helping those persons living with HIV live as healthy and normal a life as possible.”

In a fact sheet released today, the White House outlined multiple steps for a “shared responsibility” to work toward an AIDS-free generation, including targeting intervention efforts “to the right populations in the right geographic areas” and linking the infected to healthcare, employment and housing.

There was one hint in there that Eric Holder’s department is working toward overriding state laws on infecting someone with HIV.

“Stigma and discrimination keep people from getting tested, care and treatment,” the fact sheet said. “The Department of Justice (DOJ) will continue its aggressive HIV non-discrimination enforcement efforts, specifically targeting enforcement and outreach to the geographic areas with the highest prevalence of HIV, and continue its efforts to address HIV criminalization laws.”

In July 2012, 36 House Democrats wrote the attorney general to express “concern that current state and federal laws lag far behind scientific discoveries in the fight against HIV/AIDS” and to urge Holder to “expedite” his department’s review of federal and state laws concerning those living with HIV.

“Despite the remarkable advances in understanding and in treatment of HIV/AIDS, criminal laws and prosecution policies continue to treat HIV as both highly infectious and invariably fatal, and in the process perpetuate the stigma and disparities this Administration has pledged to end,” the letter stated, arguing that new treatments available since many laws were enacted make them “plainly obsolete.”

“These laws run counter to public health knowledge and priorities, and in fact can actually deter individuals from learning their HIV status and entering care, as knowledge of one’s health status is a predicate to prosecution,” the lawmakers continued. “Consequently, criminalization of HIV status undermines significant taxpayer investment in public health initiatives aimed at promoting education and awareness, increasing testing and treatment, and ending the epidemic in this country.”

Furthermore, they argued, “intentional HIV transmission is rare” and the laws on the books “represent an unfairly placed burden on people living with HIV/AIDS to prevent transmission and undermine the public health message that all people should practice behaviors protecting themselves and their partners from HIV and other sexually transmitted diseases.”

ProPublica released a report yesterday summing up laws in 35 states that target HIV-positive people who expose others to the virus. For example, in California it’s a felony to intentionally infect someone with HIV through unprotected sex, a misdemeanor to “willfully expose” someone to any disease, a felony for an HIV-positive person to donate blood or semen, a three-year sentence enhancement for an HIV-positive person who commits sexual assault, and an upgrade to a felony if a person who knows he or she is HIV-positive solicits or engages in prostitution.

ProPublica highlighted the case of Nick Rhoades, an Iowa man who pleaded guilty in 2009 to criminal transmission of HIV. Rhoades’ lawyers argued that his partner didn’t contract HIV, that their client had suppressed his viral load to low levels with medication, and that he wore a condom for part of their encounter. But Rhoades admitted that he lied on his online dating profile and explicitly said he was HIV-negative in the forum where he met his one-night stand.

Lambda Legal, which has been working on Rhoades’ case, says the reasons to overturn laws regarding HIV transmission include the difficulty in proving disclosure and punishments that are “completely disproportionate to any purported harm.”

“Their existence can be used as a coercive tool by the HIV-negative partner, who may threaten a false accusation and/or arrest and imprisonment if the HIV-positive person doesn’t do as told,” Lambda Legal continued in a World AIDS Day statement Sunday. “They further oppress already marginalized populations: sex workers are made felons, and those whose immigration status is dependent on a clean criminal record are subject to deportation. Confidentiality may be compromised: nothing prevents a potential partner from telling whoever they want about the person’s HIV status, possibly leading to further stigma and illegal discrimination.”

However, two-thirds of gay men in a 2010 survey supported the laws against HIV transmission. In the Rhoades case, his partner found out through a third party that Rhoades was HIV-positive. The police were called after the man quickly went to a hospital for emergency post-exposure drug treatment and relayed his story to the healthcare workers.

When Tiffany Ann Moore of Knoxville, Tenn., was busted in 2009 for the third time of prostituting herself while knowing her HIV-positive status, her public defender argued “it’s inherently unfair to treat sick people, mentally ill people and drug addicts as criminals who are intent on endangering the public, because that’s not what they’re trying to do.”

Other HIV bills this Congress include an effort by Rep. Lois Capps (D-Calif.) to allow HIV-infected patients to receive organ transplants from HIV-infected donors, a bill from Rep. Maxine Waters (D-Calif.) to test inmates for HIV upon both intake and release, and a proposal from Rep. Charlie Rangel (D-N.Y.) to allow faith-based organizations to receive special Health and Human Services grants for AIDS prevention, outreach and testing.

One thing lawmakers do agree on is that despite advances in treatment to suppress the virus in infected patients, the infection rate is still unacceptably high.

“While the annual number of new HIV infections in the United States has remained relatively stable in recent years, the pace of new infections continues to be significantly high, particularly for certain groups,” said Rep. Alcee Hastings (D-Fla.), a consistent advocate for HIV/AIDS funding in Congress. “Men who have sex with men bear the greatest burden of HIV infection, while African Americans, Hispanics/Latinos, and young people are disproportionately impacted. Furthermore, only about one in three individuals living with HIV is receiving anti-retroviral treatment, and fewer still are able to adhere to their treatment and sustain undetectable viral loads.”