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

"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."