There is lots of talk about HIV criminalization these days but if you don’t work in HIV or the law, you may not be familiar with the term. In fact, the average gay guy might think it has nothing to do with him but that would be a mistake. HIV criminalization impacts all of us regardless of our HIV status or which state we live in. It’s an issue of public health, social justice and human rights. If those things are important to you then HIV criminalization should be too.
Before I get into the specifics of HIV criminalization I think it’s important that we ask ourselves some fundamental questions. What is the purpose of these laws and prosecutions? Is it about preventing the spread of HIV? Do we hope to use the law to encourage disclosure? Who is responsible for disclosure when two consenting adults have sex? Is this a about punishment and revenge? What does it accomplish when we put people in jail because of HIV?
This is a very emotional topic. To get a glimpse of that all you have to do is check out the comments section of a story about HIV criminalization. It seems people’s nastiness knows no depths when it comes to this issue. But that is understandable. People are scared. Scared of getting HIV and scared of that mythical creature the “HIV pariah,” whose singular purpose is to spread the “deadly disease.” The media has done a great job of hyping up those fears and subtly, and not so subtly, playing up the racial aspects of these cases. The best tool we have against fear is information and fortunately there is plenty of information about this issue from organizations like the Positive Justice Project and the Sero Project.
When it comes to HIV criminalization there are two types of situations where the law is applied. One is non-disclosure during sex and the other involves bodily fluids – spitting, biting, sneezing, etc. Bodily fluid cases exemplify just how archaic these laws are. Biting, spitting, sneezing, etc, cannot transmit HIV. The CDC has made that very clear in its newly released chart on risk of HIV transmission. Unfortunately, recent research in Michigan demonstrates that in many HIV criminalization cases prosecutors and judges have very little use for scientific facts.
A discussion about HIV disclosure is messy and complicated. It reveals just how complex sex between gay men can be. Sometimes people have a thoughtful conversation about risk and precautions before engaging in sexual activity and other times a word isn’t spoken before sex. People view situations differently based on their experience. An HIV-negative top might see a bottom as HIV-positive if that bottom doesn’t want to use a condom. That same bottom might see the top as HIV-positive because he’s ok with not using a condom. It’s complicated but we have to have these uncomfortable conversations if this matter to us.
In many of these cases it comes down to a “he said/he said” scenario. Some people have used these laws as a way to get back at an HIV-positive partner after a relationship has turned sour. Others may fear leaving a bad relationship because of how their HIV-negative partner might retaliate. In court it could end up being the HIV-negative person’s word against the HIV-positive person’s word and we all know that a “diseased spreading HIV-positive person” doesn’t make the most sympathetic witness.
These laws may sound like abstract, theoretical discussions but it’s important to remember that they impact the lives of real HIV-positive people. Some are currently serving time in prison, while others have been fortunate enough to get out only to end up living in a different kind of prison on the outside.
Nick Rhoades’ story illustrates the travesty of HIV criminalization. He took the precaution of using a condom, had a suppressed viral load and no transmission occurred. Because he didn’t disclose his HIV status, he was charged and sentenced to 25 years in prison. After Rhoades had spent over a year in jail, the judge, whom social justice activists pressured, reviewed the sentencing and released him with time served. Rhoades was released on probation with the condition that he register as a sex offender for the rest of his life.
There was no transmission. There was no malicious intent. There simply was no conversation. Neither consenting adult initiated a conversation about HIV and as a result, the HIV-positive person was jailed and is now registered as a life long sex offender.
Nick Rhoades is but one of many cases all around the globe. While some might react with intense emotion over non-disclosure, we must be willing to look at this situation with logic and reason. There is no evidence to indicate that prosecuting people for non-disclosure encourages people to disclose. However, there is recent evidence from the Sero Project that indicates HIV criminalization discourages people from getting tested. On top of that, we know that these laws fuel HIV-related stigma and stigma is one of the driving forces behind this epidemic.