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.