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The problem with repealing HIV criminalization laws #HIV #AIDS

The problem with repealing HIV criminalization laws #HIV #AIDS

I wasn’t expecting to weigh back in on this issue again so quickly, but as it’s making it’s way through the news cycle again I’m going to do what I gotta do.

Mark King, a very visible HIV/AIDS advocate is weighing back in on the HIV criminalization issue in an article that’s soon to make the rounds.  While I’m generally not a fan of his work, I have no beef with him.  He’s visible and making a difference so that’s what counts.

Many of us know someone who was infected by a partner who didn’t disclose their status, or even lied about it. I have friends who dated someone claiming to be negative, until they found a telltale prescription drug bottle and then discovered they had been infected. Worse yet are the news reports showing some big, scary black man who has been raping white women and infecting them with HIV. How could anyone argue against bringing these liars and malicious infectors to justice?

But the sad fact is, most prosecutions under these laws are not being imposed against those who are deliberately malicious or even criminally negligent. They are being imposed using not science, but the same ignorance, stigma, homophobia and racism that has plagued HIV/AIDS throughout the years. And well intentioned people like you and me are buying into it.

In Texas, a man is serving more than twenty years for spitting on a cop, despite the impossibility of transmitting HIV. And in the vast majority of cases against people having sex without disclosing, no transmission even occurred. In fact, whether or not there was any real risk of transmission is of little concern to prosecutors. People on medication with no viral load, for whom transmission is a remote possibility if at all, are being sentenced to jail time for not disclosing… even if they used a condom and did not transmit a thing. And the sentences are outrageous: decades of jail time in many cases.

Consider the black woman for whom disclosing her HIV status is more than a mere embarrassment; it could mean the collapse of her support network, the loss of a job or even physical danger. She is a compliant patient with no viral load, and insists her sex partner uses a condom. He somehow learns of her HIV status, calls the cops, and she is prosecuted and imprisoned. These are not fantasy scenarios, they are happening with increasing speed around the country.

The effect of these laws on public health is sobering. If those who know their status risk prosecution for not disclosing, and those who don’t get tested at all can have sex without legal consequences, how does that draw people into HIV testing? As activist Sean Strub says, “Take the test and risk arrest.”

The laws in some states are written so strictly that it is a legal risk for any HIV positive person to have sex at all. All the prosecutors need is to know you are HIV positive and you had sex with your accuser. If the accuser claims you didn’t disclose, you’re in for an uphill battle convincing a judge otherwise. You’re saddled with the distasteful nature of any positive person actually having sex, and if it was gay sex, well, God help you.

In total, this is a very well written piece, and King goes further to cite two particularly egregious examples of HIV criminalization where the accused really, really did not need to be in court.  While he doesn’t exactly say as much, the general inference from his piece is that the laws have to go, period.  That’s just somewhere I can’t go

HIV Law and Policy cites 128 cases of HIV exposure prosecution from 2008-2011, (see attachment here) so King’s assertion that those who maliciously exposure others to HIV aren’t being prosecuted doesn’t hold water.  His article goes further to cite two specific cases of people who really got the fuzzy end of the lollipop when it came to their specifics.

To be clear, there isn’t any reason in the world why someone who’s HIV positive that’s informed their partner, used a condom and did not create an exposure should ever be prosecuted.  That’s just common sense, right?  A “victim” wagging the finger of “He/She exposed me to HIV” when nothing happened is a waste of time and puts everyone thru an emotional ringer for no reason at all.

But what of those who intentionally expose others?  Those who will lie about their status, not use a condom, and seroconvert their partner?  Should they get a pass because the laws were repealed?  What of David Dean Smith, who intentionally exposed hundreds (and by his claim, thousands) to HIV?

The man, identified as David Dean Smith, 51, of Comstock Park, north of Grand Rapids, was arraigned Wednesday on a second count of “AIDS-sexual penetration with an uninformed partner” after police said they had identified a second possible victim.

Smith was initially charged with one count after he went to Grand Rapids police last week and said he had intentionally had unprotected sex with as many people as he could over the last three years, according to police.

According to documents on file with Grand Rapids 61st District Court, Smith claimed to have had sex with “thousands” of partners, intending to kill them by infecting them with HIV. Some of those people are from outside the Grand Rapids area, including people Smith met over the Internet, he told police, according to documents.

Smith faces separate preliminary hearings on the two charges on Jan. 4 and Jan. 9. He remains in the Kent County Jail in lieu of $100,000 bond.

Obviously, Smith is an extreme example but let’s play this out:  HIV criminalization laws are erased from the books, Smith is apprehended, and what is he to be charged with?  Assault?  Attempted Murder?  At this stage he can’t be pinned to anything other than reckless endangerment and even then that’s a slippery slope that probably won’t hold.  Exposing someone to HIV is no longer a legal issue, so where’s the endangerment?  Smith, under this scenario, would get a walk on the whole Magilla.  There’s no potential way of knowing how many people he intentionally seroconverted.

The problem with HIV criminalization laws to me, is boiled down to one statement:  It’s not that the laws exist, it’s how they’re being applied. Prosecutors are not taking into account circumstances, details and they’re applying a cookie cutter approach to every accusation:  He’s got HIV?  Yep, broke the law – charge ’em.  That’s where I charge bullshit.  Law enforcement officials can’t responsibly take this tact and expect it to work.  To King’s argument, this creates a culture of people who are going to move heaven and earth to not disclose their status.  Repealing the laws isn’t the solution, education of those applying the laws is.

Where King’s argument ultimately goes under the bus for me is in his wrapup: (from the same piece)

Is your record of disclosing your status perfect? Mine isn’t. I have been a compliant patient for many years and have an undetectable viral load. There has been instances in which disclosure felt unsafe, or I was in environments such as public sex clubs in which no one is asking or telling.

I don’t believe I deserve to go to jail for those indiscretions. Do you?

Um, what?  So, if nobody asks, and you don’t tell that’s OK?  To answer his question, I don’t believe he should go to jail for that, but he sure needs to be handed a big heaping bowl of WTF were you thinking?  I think it’s the height of irresponsibility for a) a HIV person to not disclose, and b) the other partner to not bother asking.  It takes two to tango and if you’re avoiding the conversation in order to score a piece of tail then shame on you both for being that stupid.  If you’re rolling in the sex clubs and not playing with some sense of responsibility and safeguard for your own health and others, then to act surprised when you’re seroconverted is crying wolf.  There’s NOTHING wrong with playing at the clubs at all; if that’s how you get your groove on then fine by me.  If you’re not operating under the assumption that everybody you play with is HIV positive then you’re doing it wrong.

I admire those that do any kind of HIV advocacy, and those that are mounting the campaign to have laws repealed are pushing the stone uphill.  Until there’s a big change in their defense, particularly in realizing it’s not the law that’s the issue, I can’t see any of the statutes on the books going away for a very long time.

 

 

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  • Mark Hubbard

    Re:  “and what is he to be charged with?” there is a whole family of laws on the books that are not disease specific that can be applied in these cases.  The problem is NOT just in how the laws are applied.  They are superfluous for the aforementioned reasons, and U.S. HIV specific laws in particular are for th most part vaguely and poorly written, in many cases failing to be limited to actual risk. 
    Re:  The last paragraph,  kudos for recognizing the shared responsibility involved.  Still, as happens so often, the fact that the folks who are the most infectious are the least likely to be aware they are positive is ignored seems to be overlooked.  This succombing to the temptation to make disclosure paramount while equating it to reduction of risk, particularly in the specific context Mark describes is a fallacy.  The reduction of risk as the paramount behavioral goal makes sense; discussion of other reasons to disclose may also.
    I’d remind Mark (I think he knows) that it’s also a fallacy to assume that in a given environment that “no-one” is asking or telling or for that matter doing or being anything.  Likewise assuming that everyone in that environment realizes that it by definition carries increased risk is a fallacy (one I’ve succumbed to in weak moments).  Outliers wander in to what may appear to be or be assumed to be a closed culture, as Australian researcher Michael Hurley pointed out. 

    One shouldn’t assume, however that Mark or the folks he’s addressing aren’t actively taking other measures which effectively reduce the risk of transmission, sometimes to negligible if not nil.

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  • http://www.facebook.com/profile.php?id=1290278788 Mark S. King

    I would also agree with Mark, below, that the laws are precisely the problem here. They make weapons of our bodies, they place a danger upon HIV that is not applied to any other viral condition — HPV, Hep, etc. — regardless of the relative health risks.  They apply the “gay ick factor” to the issue in an unwarranted way.

    They also conflict with the very important public health agenda of getting people tested, because the laws ignore those who haven’t tested (and, if positive, are likely to be far more contagious) and punish those who do know their status, are on treatment, and pose an insignificant risk to others.

    Thanks for continuing this discussion.  My Mom wishes you were more of a fan of my work.

    Mark S. King

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    • Anonymous

      Mark:

      My continued respect to both yours and Mark’s opinions, but I still have to disagree.  The laws are not the issue.  I still believe that the problem lies with sloppy prosecutorial conduct.  Make no mistake:  I don’t believe for a moment that some innocent, positive Joe should be subjected to prosecution because a sexual partner waves an accusatory finger.  Cases like those are completely ridiculous and have no cause to come in front of a judge.  Ever.

      Cases like David Dean Smith, on the other hand, as well as others I’ve cited throughout my site – to me, they are exactly who the law is designed for.  Those who recklessly expose others to seroconversion to either purposely convert them or who will adamantly lie about their status for a piece of ass.  That is the height of irresponsibility, seconded only by those who will take someone at their word when they lustily reply, “yeah, baby I’m negative”.  As Mark said, two to tango.

      I actually took this a bit further after Mark’s comment and when I had lunch with two friends – a federal judge and prosecutor – I asked them (off the record) what would happen to those like Smith if the HIV criminalization laws were off the books.  Their reply?  Next to nothing.  He might catch a collar for reckless endangerment because assault in any degree would no longer apply, and depraved indifference wouldn’t stick very well either.  HIV criminalization laws would no longer exist, and his sexual partners were consensual, so his lying about his status, exposing and converting others could hardly be depraved at this stage.  HIV laws were considered overly punitive and struck down.  Any first year law student could get that one thrown out.  There was also no assault, he simply lied about his status.  Even an RE conviction would be hard pressed to stick, and it would probably fall flat on appeal if he were found guilty.  He’d pretty much get a walk on the whole thing.

      To me, if I were king of the kingdom, I’d have mandated criteria in place to judge instances versus intent before charges were even leveled.  If you can’t prove malice of intent, then have a nice day.  Charges dismissed.  Overly simplified explanation but I’m tired.  It’s been a long day.

      So, I respect your argument, but I disagree with it.  And I say that as someone who was part of a serodiscordant couple for 12 beautiful years.  Richard taught me everything I know about HIV and advocacy, and I was there throughout all his trials and tribulations of his status.  I know he’d agree with me as we’d had the discussion before he died.

      With regard to your mother’s disappointment of my views, my apologies.  I respect your work, and I applaud every single person who’s out there advocating – even when I disagree with them.  It’s just not my cup of tea, however.  There’s nothing wrong with your work, and I’d never be so vain as to offer “pointers” on how to improve it.  You know what you’re doing.  It’s just not my cup of tea, and you don’t speak to me quite like some other advocates do.

      That just says your message and work is intended for others in the audience.  Your work and words are meant for them, and no different than going to an AA meeting where the lead doesn’t grab you. Just means they’re there to grab someone else 😉

      ..daniel

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