When Sex is a Crime and Spit is a Dangerous Weapon: The origins, impact and advocacy response to HIV criminal laws (2017)
CHLP Executive Director Catherine Hanssens and Staff Attorney Kate Boulton recently authored an article for the March edition of the Psychology and AIDS Exchange newsletter from the American Psychological Association. This issue is dedicated to exploring the issue of criminalization of HIV exposure and transmission, and highlights the APA’s commitment to decriminalizing HIV.
When Sex is a Crime and Spit is a Dangerous Weapon: The origins, impact and advocacy response to HIV criminal laws
Knowing the history of HIV-specific laws helps us develop effective advocacy efforts.
By Catherine Hanssens and Kate Boulton
The American Psychological Association joined nearly a dozen medical, public health, government and advocacy organizations in its release of a statement challenging HIV criminal laws (American Psychological Association [APA], 2016). The statement illustrates the recently expanded interest in state policies that criminalize the conduct of individuals living with HIV (Center for HIV Law and Policy [CHLP], 2014). Understanding these laws and what drives them requires a brief look at the history not just of HIV-specific criminal laws, but also of infectious disease control more broadly in the U.S.
Measures to control infectious diseases have never been confined to diagnosis and medical treatment. Long before the emergence of HIV, people known or just suspected of having a feared disease have been targeted for everything from quarantine and isolation to imprisonment (Gostin, 1999). Over the centuries and to present day there have been several reliable common denominators to the policies and laws adopted in response to diseases such as tuberculosis, syphilis and more recently, HIV: oversized fear, stereotyping of those affected by the disease and assignment of blame to already-marginalized members of society, such as the poor, sex workers and new immigrants (Stern, 2015; Tognotti, 2013 [PDF, 260KB]).
And so the proliferation of laws targeting HIV was not unusual; to the contrary, it is consistent with this history. However, some aspects of HIV criminal laws are unusual: the near-universal focus on proof of prior disclosure rather than exclusively on exposure; the treatment of HIV exposure/nondisclosure/transmission as a serious felony; and the explicit naming of a particular disease, HIV (Richardson, Golden & Hanssens, 2015). While there are laws addressing sexually transmitted infections and other communicable disease, these typically require actual exposure, are misdemeanor offenses and refer to general classes of diseases rather than a specific condition (Gostin, 1999).
The adoption of HIV criminal laws reflects both the history and language of earlier disease control laws, but was prompted or accelerated by political developments and highly sensationalized reporting of individual transmission cases. In the late 1980’s, there were a number of intersecting forces at play: The conservative think tank American Legislative Exchange Council’s creation of an AIDS policy working group that culminated in a publication, "The Politics of Health," containing a number of HIV-specific proposed model laws to criminalize the otherwise-legal conduct of people who were living with HIV (Heywood, 2013); and Congress’ conditioning of Ryan White Care Act Funding on a state’s certification that it had laws in place to prosecute people who transmit HIV (Heywood, 2011 [PDF, 84KB]).
Today, 32 states and two U.S. territories have HIV-specific criminal laws, covering behavior ranging from spitting to consensual sex without proof of prior HIV-status disclosure. While the laws vary considerably from state to state, they tend to share several bases for liability: (1) the individual was diagnosed with HIV; (2) the individual engaged in some form of prohibited conduct, such as spitting or physical contact of some kind; and (3) the individual either did not disclose, or is unable to prove disclosure of, one’s HIV status prior to contact (Richardson, Golden & Hanssens, 2015 [PDF, 3.6MB]). These laws fail to reflect current scientific knowledge about the routes and risks of HIV transmission, and often punish conduct that poses no or negligible risk of HIV transmission, whether it is spitting or sex when a person is on effective HIV treatment with a low or undetectable viral load (UNAIDS, 2013 [PDF, 3.55MB]). Widespread and persistent misconceptions among the general public about how HIV is and is not spread also, in turn, act as a barrier to reform of HIV criminal laws (Kaiser Family Foundation, 2012 [PDF, 883, KB]).
Perhaps the first major challenge to the use of the criminal law to prosecute alleged HIV exposure, and the case that first galvanized community opposition, is the New Jersey case of Greg Smith, a Camden County jail inmate who was charged with attempted murder on the basis of a scuffle with corrections officers during which he allegedly bit one of them. In 1990, Smith was convicted and sentenced to 25 years in state prison, with parole eligibility after serving half of that time. His appeal, supported by a number of organizations such as the American Civil Liberties Union, failed. The court concluded that there was insufficient evidence to establish that HIV was not transmitted by biting and that, regardless, in New Jersey, impossibility is not a defense to the charge of attempted murder (New Jersey v. Smith, 1993 [PDF, 271KB]). Local advocates, led by AIDS Coalition to Unleash Power Philadelphia, protested his conviction, but a state appeals court refused to reverse the decision. Organized opposition to his conviction declined and Smith died about 10 years later in New Jersey state prison at the age of 40 (Patton, 1998).
Most HIV advocacy and service organizations were slow to oppose both this type of prosecution and the HIV-specific laws that the majority of states eventually adopted. The media explosion surrounding the case of Nushawn Williams, a black teenager accused of having sex with multiple female partners after his HIV diagnosis, and characterizations of him as an “AIDS Monster,” met little opposition from any quarter. Days before he was to have served his 12-year sentence, the state began the process of having him civilly committed as a dangerous sex offender. Williams currently is appealing his indefinite civil commitment. He now has been confined for nearly 20 years; in November 2016 he will turn 40. If his appeal is not successful he easily could spend the rest of his life in a maximum security facility for dangerous sex offenders because as a teenager he was sexually active while HIV positive, and because one of his partners was underage.
Even if the appalling injustice of these laws were less apparent, the insult added to the injury of people such as Greg Smith and Nushawn Williams is that the evidence to date fails to demonstrate benefits for others: No change in risk behavior, nor reduction in transmissions, and no increased tendency to disclose one’s HIV status (Harsono, Galletly, O’Keefe & Lazzarini, 2016; Lazzarini et al., 2013; Heywood, 2011 [PDF, 84KB]). Over-criminalization already is a uniquely American problem, where we incarcerate people at a greater rate than the rest of the world, including China (Sentencing Project, 2014 [PDF, 3.1MB]). HIV criminalization does not come cheap — the costs of prosecuting, defending and incarcerating people, and the collateral costs to their future employability, to family members and loved ones, and to the broader communities from which they come and to which they return, are considerable. We have been paying dearly, in many respects, for our failure to address and reduce, rather than accommodate, the still-widespread fear and ignorance about HIV and those who disproportionately bear its burden.
The first organized opposition to HIV criminalization occurred in 2010 with the launch of the Positive Justice Project (PJP), a national coalition of organizations and individuals working to modernize HIV criminal laws in the U.S. (Roose-Snyder, Lee & Hanssens, 2010). PJP engages in federal and state policy advocacy, resource creation, support of local advocates and attorneys working on HIV criminal cases, and educating, organizing and mobilizing communities and policymakers in the U.S. PJP has produced a set of guiding principles to reform state HIV laws (PJP, 2015), and is providing resources and support to local advocates organizing in more than a dozen states, including Ohio, Missouri, Minnesota, Tennessee, California, Texas, Georgia, Colorado, Louisiana, Indiana, Illinois, Florida and Idaho.
The Center for HIV Law and Policy (CHLP), which coordinates the Positive Justice Project, also works directly with defense attorneys representing people charged with HIV-related offenses and, through this work, has helped keep several young people out of court or out of prison. CHLP’s federal work has ranged from helping to draft the original REPEAL HIV Act and the President’s Advisory Council on HIV/AIDS 2013 Resolution Opposing HIV Criminalization (PACHA, 2013 [PDF, 42KB]), to successfully pushing for and shaping the Department of Justice (DOJ) and Centers for Disease Control joint publication on HIV and the criminal law, and the DOJ’s later guidance on best practices to reform state HIV criminal laws (DOJ, 2014 [PDF, 117KB]). There is much more to do, and some of our most effective allies in the effort to reach and influence policy makers are medical and mental health professionals.
For more information, including how to get more involved, contact The Center for HIV Law and Policy.
Catherine Hanssens is the executive director/founder of the Center for HIV Law and Policy, which launched and coordinates the Positive Justice Project, the first national coalition working to end HIV criminalization in the United States. Her recent publications include A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living With HIV (co-author), recommending federal action to address pervasive profiling, punishment and imprisonment of LGBT people and people living with HIV. Hanssens has litigated and briefed cases on the mistreatment and segregation of prisoners with HIV and the American With Disabilities Act’s application to civil commitment and HIV criminal laws and prosecutions.
Kate Boulton is a staff attorney at the Center for HIV Law and Policy, where she focuses on HIV criminalization. Prior to joining CHLP, she was a legal fellow at the Center for Health and Gender Equity. While there, she researched the sexual and reproductive health needs of sex workers and ways in which U.S. foreign assistance can more meaningfully promote their health and rights. As a law student, she focused on international human rights, especially as related to abortion and the right to safe pregnancy. Kate obtained an MPH in 2010 from the University of Michigan, and served for several years with the Centers for Disease Control and Prevention. Her work there centered on migrant health and infectious disease.