Comments and Recommendations for Reform of HIV Policies in the Military, CHLP (2014)

The Center for HIV Law and Policy issued comments and recommendations on the Department of Defense’s (DOD) comprehensive review of the military justice system, including the structure and operation of the Uniform Code of Military Justice (UCMJ).

Under the National Defense Authorization Act of 2014 (NDAA), signed into law by President Barrack Obama last year, the Secretary of Defense is required to submit a report to the House and Senate Armed Services Committees examining and justifying DOD personnel policies regarding servicemembers living with HIV or Hepatitis B. This report was due in June 2014, but has not been submitted.

Major organizations including the Presidential Advisory Council on HIV/AIDS(PACHA) and the American Medical Association (AMA) have issued statements opposing HIV criminalization – the use of criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status.  Even the U.S. Court of Appeals for the Armed Forces has questioned the application of harsh criminal laws to servicemembers living with HIV when the likelihood of HIV transmission is extremely remote.

However, current DOD policies exclude servicemembers living with HIV from enlistment or deployment, and threaten those who engage in consensual sexual relations with discharge and criminal prosecution. Under the UCMJ, servicemembers who know they are HIV positive can face criminal prosecution for major felonies such as aggravated assault or attempted murder for engaging in acts that would be perfectly legal for anyone else.

Servicemembers living with HIV are issued “safe sex orders” limiting their allowable sexual activities, often prohibiting activities that pose virtually no risk of transmitting HIV. These policies are far out of line with current knowledge of the routes, risks, and consequences of HIV transmission.

As part of its comments to DOD, CHLP noted that a revised version of Army Regulation 600-110: Identification, Surveillance, and Administration of Personnel Infected with HIV, published in April 2014, included only minimal policy changes, all of which affect only reserve personnel.  The regulation continues to present serious instances of unwarranted discrimination against servicemembers living with HIV and outright rejection of people living with HIV seeking to serve their country.

In its recommendations, CHLP urged DOD to include a clear and firm statement in the UCMJ that HIV cannot be used to trigger or support a charge for assault or aggravated assault; to rescind all “safe sex” orders limiting sexual activity for servicemembers living with HIV; and to issue universal sexual health guidance to all servicemembers regardless of HIV status.

CHLP will continue to monitor the Secretary of Defense’s report in response to the NDAA to ensure DOD takes concrete steps to modernize the military’s HIV-related policies and bring an end to the unnecessary and costly criminal prosecutions of servicemembers living with HIV.