Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, J. Stan Lehman et al., AIDS and Behavior (2014)

The Department of Justice (DOJ)'s and Center for Disease Control and Prevention (CDC)'s long-awaited joint article on HIV criminalization has been published, and it should prove to be a useful tool in legal and policy advocacy to end HIV-specific criminal laws. There are points and analysis likely to draw both cheers and jeers from advocates, but it remains unprecedented: the first joint DOJ-CDC publication, and on an intensely controversial issue at that.

There have been multiple publications and charts on HIV criminal laws, beginning with The Center for HIV Law and Policy's detailed state by state/US territory/federal agency manual, Ending and Defending Against HIV Criminalization: A Manual for Advocates, Vol. 1 (2010, updated through 12/2013), the first publication to examine every state's criminal law treatment of HIV. However, the DOJ's analysis included in the article provides useful additional summaries, e.g., how many states make failure to disclose an element of the crime and therefore put the burden of proof on the prosecutor; how many allow disclosure as an affirmative defense, with the burden of proving disclosure on the defendant; how many state laws allow sentences of more than 10 or 20 years imprisonment.

As the authors point out, "Laws can be effective policy intervention if persons are aware of the laws, expect some level of enforcement, and if awareness influences their behaviors, in this case by reducing certain behavior and/or increasing disclosure." The available data, the authors maintain, suggest "that public health practice considerations focus on the known public health implications of these laws." The available evidence indicates that few people know of the existence, requirements, or likelihood of prosecution, of their own state's HIV criminal laws. At the same time, the article catalogues current evidence, and expert opinion, that HIV criminalization does nothing to reduce HIV incidence or risk-taking behaviors while opening the door for possible negative impacts and unintended consequences (e.g., intimate partner violence).

The article can be cited as sober support for advocates' arguments that HIV criminal laws lack evidence of positive impact, threaten serious unintended consequences, and overwhelmingly fail to distinguish in terms of criminal liability or punishment between no-risk, some-risk, and higher risk activities, including the factor of current-day HIV treatment and prevention measures. The undramatic conclusion: "Given that HIV-specific criminal laws may have wide-ranging social implications—including (but not limited to) the perpetuation of misinformation regarding modes of HIV transmission—states are encouraged to utilize the finding of this paper as a basis to re-examine those laws, assess the laws' alignment with current evidence regarding HIV transmission risk, and consider whether current laws are the best vehicle to achieve their intended purposes." This may seem anticlimactic to advocates who have been anticipating this article for nearly two years. On the other hand, nestled in the conservative prose is a clear vote, from the two most important federal agencies to weigh in on the topic, that when it comes to HIV criminalization, it's time for a change.

The most serious problems with the article are those related to HIV transmission risks and research on partner notification practices. The DOJ has no control over how CDC characterizes risk. For better or worse, the CDC gets all the credit here.

And the problems are significant. Beyond the CDC's insistence on descriptions of certain conduct as "high risk" – a term that likely has fueled the persistent ignorance about actual statistical risks of transmission reflected in HIV criminalization laws and other forms of discrimination – the "behaviors" included in that category are shockingly inaccurate. According to the article, 27 states criminalize "one or more behaviors that pose a high risk of transmission, including anal and vaginal sex; prostitution; and donation of blood, tissues, and other bodily fluids." The last two of these three are neither behaviors nor "high risk" by any reasonable use of the term. Prostitution is not by itself "high risk," but those arrested for sex work while HIV positive certainly are at high risk of felony prosecutions and incarceration and, based on several recent cases CHLP has handled, threatened deportation. Screening procedures used for donated blood and tissue donations also have nearly eliminated any risk of infection to those who receive these products.

Finally, the article glosses over the significant confusion, inconsistencies, conflicts of interest, ethical issues, and patient-provider betrayals created by 2008 recommendations that "advised program managers to coordinate with legal authorities in specific cases of potential HIV exposure or transmission." The authors note that "[t]he degree to which HIV-specific criminal laws affect disclosure rates is unknown." They don't consider the extent to which HIV disclosures have affected the initiation of criminal prosecutions under these laws.

It is hard to decide whether, after the CDC's two years of foot-dragging over release of this joint article, we should have expected more and better from the CDC on risk and related analysis, or whether we should be grateful it isn't worse. It is, at the very least, puzzling that the nation's public health authority, which pushed so aggressively for the elimination of state laws protecting individuals' right to informed consent in HIV testing, has been singularly timid in advocating for the elimination of laws that make criminals of people living with HIV. And the reinforcement for criminalization of HIV positive sex workers in particular is infuriating. Nonetheless, the article should prove useful to community and legal advocates who focus on the article's essential bottom line: states need to revisit and probably reform their out-of-date HIV criminal laws.