Sex and HIV Transmission: Is Jail a Solution?

by Regan Hofmann
Editor-in-Chief, POZ and poz.com

The Daily Beast
www.thedailybeast.com
(c) 2009 RTST, Inc.

A Canadian court has handed down the world’s first murder conviction for knowingly exposing and infecting someone with the AIDS virus. But as an HIV-positive woman, I know that the man who infected me only deserves half the blame.

As a woman who contracted HIV from a man who claimed to have been unaware he was HIV positive, I have never entirely blamed him. Prior to being with him, I asked him questions aimed at identifying his risk factors for having HIV. Based on my trust of him, and his answers, I took a calculated risk and had unprotected sex with him. I rolled the dice—and lost.

Should he go to jail? Some courts around the world, and some U.S. states, think so. HIV transmission is increasingly being criminalized. And a court in Canada has taken the criminalization of people with HIV to a new level of severity: Last month in Toronto, Johnson Aziga, who was diagnosed with HIV in 1996, was convicted on two counts of first-degree murder and 10 counts of aggravated assault for transmitting HIV to two female partners, both of whom eventually died from AIDS-related illness.

Aziga’s case sets a precedent: he’s the first person in the world who was aware of his HIV status to be convicted of first-degree murder for exposing a sexual partner to HIV. But his conviction is part of an upward trend. While this may be the first time the word “murder” has been used in such a conviction, an increasing number of charges and prosecutions for HIV transmission—and even potential HIV exposure—are popping up around the planet. In some cases, HIV-positive people are being imprisoned even if HIV transmission couldn’t have possibly occurred. In Texas last year, an HIV-positive man was sentenced to 35 years for harassing a public servant with a “deadly weapon” when he spat on a police officer. This, despite the fact that there has never, in 28 years of the epidemic and more than 58 million documented cases of HIV to date, been a recorded case of HIV transmission via saliva.

When I made the decision to be with the man who gave me HIV, I knew that even if he was telling the truth about not having engaged in risky behaviors, he might still have the virus. I understood that there is risk involved for anyone, anytime they have intercourse without a condom. And so, while I was certainly upset at the man who gave me HIV, I am equally upset with myself for choosing to risk my own life when, arguably, I knew better.

Which is part of the reason I have a problem with the fact that, in most U.S. states, there is some sort of law making it a crime to either knowingly transmit, or expose someone to, the virus. The finger of justice seems to inevitably wag at the person living with HIV, but given that these cases in question involved consensual sex, it makes me wonder why we are not discussing the culpability of both parties. Why are we not asking the person who was exposed, and who perhaps contracted HIV, whether they felt any responsibility for the risk they took when having unprotected sex?

Criminalizing people with HIV isn’t just unfair to the HIV-positive person. It also helps deepen the stigma around the disease, which in turn, undermines prevention, testing and treatment efforts. When HIV-positive people are criminalized, people in general become less likely to educate themselves about the disease, to discuss HIV with their partners, and to get tested for the virus. According to U.S. law, if you don’t know you have HIV, you are less culpable should you pass it along to a partner. This provides a disincentive for people to know their HIV status. And, if people are unaware of their HIV status, they are not seeking care for the disease. When people are aware that they have HIV and seek treatment, their viral load can be reduced, rendering them less infectious. Therefore, criminalization of HIV actually leads to the spread of HIV.

If it were not possible to be criminally indicted for HIV, more people might be willing to talk about it—and more lives could be saved. Abolishing the criminalization of people who are positive would lead to more people knowing their status, seeking life-sustaining care that would reduce the chance that they could transmit the virus, regardless of their behavior, and it would encourage disclosure, which in turn is a form of prevention.

Many of the laws that criminalize HIV transmission were created during the darkest days of the AIDS epidemic, when little was known about the virus, fear was rampant, and the myth of the “AIDS predator” flourished. The fact is, very few people living with HIV would wish the disease on their worst enemy. In truth, many people who are newly diagnosed either refrain from sexual activity, especially initially, or take the necessary precautions to protect others from getting the disease. I frequently hear from people about their deep concern for not wanting to pass the virus along. Many HIV-positive people are themselves concerned about not contracting other strains of the virus or additional STDs. HIV-positive people typically become “safer-sex experts.” One thing we must protect ourselves against is human papilloma virus; ironically, another sexually transmitted virus that has several strains that can lead to deadly cancers. And yet, people who don’t know, or don’t disclose their HPV status, are never criminalized for transmitting that disease.

The former federal administration refused for eight years to teach comprehensive sex education; as a result, nearly half of all new HIV infections in the U.S. are among people under the age of 30. This is not due to a herd of AIDS predators wilding the American countryside, but rather, to widespread ignorance on the part of both people who do not believe that they have ever been at risk for contracting HIV, and those that erroneously think that HIV can’t happen to them, even if they have unprotected sex.

People should fear the HIV virus rather than those whose bodies harbor it. The barrier of stigma wedged between a person and others they deem “dirty” or “derelict” will not keep AIDS at bay. Only latex locks out HIV. And, if you ask me, the virus is the only thing that deserves to be barred in criminalization cases surrounding HIV.

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