When Being HIV-Positive Becomes a Prison Sentence

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Commentary Human Rights

When Being HIV-Positive Becomes a Prison Sentence

Kenyon Farrow

People discovering they are HIV-positive may find themselves facing prison time. And that has got to stop.

There are plenty of reasons to celebrate the start of the health insurance exchange application period, on October 1, as part of the Affordable Care Act (ACA). This is especially true for people working to end the HIV epidemic in the United States. For starters, enrolling in health-care plans should help more people with HIV access treatment. According to the Centers for Disease Control and Prevention (CDC), an estimated 1.2 million people are HIV-positive in the United States, but only 940,000 know their status. Of those who know they have HIV, only half are receiving care for the virus.

There is also hope that the ACA will help more people who don’t know their HIV status to find out what it is and, if necessary, get linked to care. But what if finding out you have HIV opens you up to criminal prosecution? Even though the health-care reform law has made it illegal for insurance companies to discriminate against such enrollees, people newly discovering their HIV status may find themselves facing prison time.

And that has got to stop.

There are 34 states and two U.S. territories that explicitly criminalize HIV exposure through sex, shared needles, or, in some states, exposure to “bodily fluids,” which can include saliva. “Exposure” does not mean transmission, so a person with HIV in those areas can be imprisoned for unknowingly exposing another person to HIV, even when that other person did not contract the virus.

Roe is gone. The chaos is just beginning.

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Furthermore, a person can be prosecuted based on the testimony of just one individual. How do you prove you told someone your HIV status when disclosure happens in the most private of settings? The truth is, half of the people who contract HIV each year got it from someone who did not know they were HIV-positive.

But you wouldn’t know that fact from watching the news. In recent weeks, there have been several sensationalized reports of people with HIV “on the loose.” In late August, Georgia Southern University issued a “health alert” to its students saying a “dominant” Black man was “knowingly and willingly” spreading HIV.

“The Department of Public Safety has been informed of a potential danger in the form of an HIV-positive individual who may be knowingly and intentionally infecting his sexual partners,” said Patrice Buckner-Jackson, GSU Dean of Students in a press release that accompanied the alert, now removed from the school’s website. “The subject is reportedly an attractive, well-kempt, well-dressed African-American male who is in his mid-thirties, but could appear to be in his mid-twenties.”

Lots of local print and television news ran stories based on this alert. Once the reliability and ethics of such an alert came under fire, the Georgia Health Department denied that the alert was based on any information it gave to the university. But the damage was already done.

“This kind of ‘health alert’ reinforces the idea that the risk of transmission comes from having sex with ‘the wrong person’ rather than having unprotected sex,” Sean Strub, director of the Sero Project, told the American Independent. “It assigns the responsibility, blame and risk entirely to this accused person, rather than those who choose to have unprotected sex.”

Days after that incident, another news story surfaced about a Missouri man, David Lee Magnum, who was arrested and faces a prison sentence for giving his boyfriend HIV. Many news outlets ran with sensationalistic headlines. For instance, USA Today‘s headline read “Police: HIV-positive man may have exposed 300 partners“—a reference to the 300 partners Magnum told police he had over a ten-year period. But Magnum was not actually charged with spreading HIV to 300 people; he was charged with infecting his boyfriend and not telling him he had the virus.

The story, which was picked up by the CNN show OutFront, created another AIDS boogeyman story. The show’s host, Erin Burnett, suggested in the segment that she thought his potential 15-year sentence was too light, and that Magnum deserved the death penalty. “I’m shocked by the sentence. It would seem to me if you knowingly exposed someone to HIV, you are knowingly willing then to die,” she said.

In addition to Burnett’s irresponsible statement, the story was framed in a way to create a buzz rather than to educate viewers about HIV transmission.

No one should be prosecuted for a having an illness, whether they disclose it or not. And many of these convictions happen regardless of whether it was a low-risk encounter, or whether HIV was transmitted, or even if there’s evidence to suggest the other party knew the person was HIV-positive. So despite scientific evidence that exposure to saliva carries no risk of transmission, and oral sex with a person who is HIV-positive carries fairly low risk, these laws persist because of how highly stigmatized HIV is, totally overlooking basic science.

There are other infectious diseases that are sexually transmitted and have the potential to cause illness and even death. Yet we don’t prosecute people for exposing someone else to the human papillomavirus (HPV), even though some strains can cause cervical, rectal, or throat cancer. There’s currently no cure for hepatitis C—and though it carries some stigma, we don’t encounter criminal cases for it.

Nor should we. There are several studies that have found criminal prosecutions of HIV-positive people actually create barriers to people with HIV, or who are at risk for it, from seeking a test or being involved in treatment. A recent survey of people with HIV from the Sero Project found that half of all respondents felt it could be reasonable for someone to avoid testing for HIV, and 40 percent felt it could be reasonable for someone to avoid accessing care, because of fear of prosecution.

And there’s reason to be afraid. Just last week, two New Jersey legislators introduced a bill that would allow prosecutors to obtain a court order for the medical records of anyone accused of exposing another person to HIV. At the federal level, Rep. Barbara Lee (D-CA) has been the most outspoken advocate against these laws, and has introduced the REPEAL Act, a bill that would create a process for the Justice Department to review federal, state, and local laws and policies that facilitate the criminalization of people with HIV.

While we need this kind of federal intervention, we also need a broader group of stakeholders to shift the national discussion on HIV criminalization. Because of racism, homophobia, and hostility toward the poor—combined with outdated information about HIV transmission—we have an environment prime for sensationalizing these cases. There is not even consensus in communities hardest hit by the epidemic that these laws are a bad idea. While we are in the throes of a national discussion about the utility of massive imprisonment, most of the criminal justice advocates are dead quiet when it comes to criminalizing people with HIV.

But there is work being done. Among other groups, the Center for HIV Law and Policy monitors many of these criminal cases and policies in order to provide legal advocacy. The Sero Project has been organizing many people affected by these laws, providing venues for them to share their stories. The World Health Organization, the Centers for Disease Control and Prevention, and the White House Office of National AIDS Policy have all at least noted that these laws create barriers to effective prevention, treatment, and care for people with HIV. And yet they still persist.

So here we are, asking people to enroll in insurance exchanges or sign up for Medicaid, and people are living in fear of what having HIV will mean, not just for their physical health, but in terms of legal ramifications. Though there are several components necessary to ending the epidemic, one thing is clear: Public health departments cannot be synonymous with the police.