Why HIV Is Not A Crime, And How Treating It Like One Is Killing People

It’s time to end the criminalization of HIV in America. That’s precisely what Democratic presidential frontrunner Hillary Clinton argued in a speech given at the “HIV Is Not a Crime” convention, held in Huntsville, Alabama earlier this month. In her address, she pledged to “enforce civil rights laws to fight HIV-related discrimination, stigma, and injustice,” while fighting outdated laws that have remained on the books since the widespread AIDS panic of the 1980s.

Currently, 33 states have laws on the books that criminalize the transmission HIV, including the 24 states with non-disclosure statutes. That means that in nearly half of states, you can be prosecuted for not informing your partner of your positive status. These laws seemingly have good intentions; They’re seemingly designed to ensure that both parties make informed, transparent decisions when engaging in mutually consenting sexual acts. In practice, however, HIV laws have proven to be dangerous and counterproductive: They regularly target men of color for unreasonable sentences, while doing little to halt the spread of HIV. In many ways, criminalizing HIV only encourages the very thing it’s trying to fight.

Iowa, like many states, considers transmitting HIV to a partner to be a felony offense. In the Hawkeye State, that’s considered a class B felony, punishable to up to 25 years in prison. Other offenses that fall under this designation include terrorism, drug possession, first-degree burglary, second-degree sexual abuse, and second-degree kidnapping. Tennessee classifies HIV transmission a class C felony, which stipulates no less than three years in prison but no more than 15. If convicted of such a crime in the Volunteer State, you can also face a fine of up to $10,000.

Nick Rhoades found out how harshly Iowa treats HIV-positive men the hard way. In 2008, CNN reported that the then-34-year-old hotel administrator was arrested and sentenced to the maximum penalty after having protected sex with a partner. Because he was undetectable at the time — meaning that his viral load was so low that his HIV was non-transmittable — Rhoades didn’t inform Adam Plendl, with whom he had a “one-time encounter,” of his status. After pleading guilty, Rhoades would appeal the ruling and get his sentence reduced to time served plus probation, but not before spending weeks in solitary confinement. Since his release, he now has to register as a sex offender everywhere any time he moves.

This case is but one example of the absurd, draconian policies to which the HIV-positive are subjected in the United States. In 2008, prosecutors in Dallas, Texas threw the book at 42-year-old Willie Campbell, a homeless man who spat at an on-duty police officer. Campbell, who has HIV, was charged with “harassing a public servant with a deadly weapon,” as the New York Times reported. Because the officer could have contracted the virus from Campbell’s saliva, the courts ruled that the act was no different than pulling out a gun. Campbell would receive 35 years for the act, a sentence he is still serving. This is despite the fact that there’s never been a single reported case of HIV being contracted through spit.

ProPublica reports that Campbell and Plendl are not alone: Between the years of 2003 and 2013, the respected journalism website found a record of 1,352 criminal cases related to HIV exposure. In that decade-long span, 541 of those cases ended in a conviction. The rate has somewhat decreased in the two years following their report. The Center for HIV Law and Policy reported that from 2013 to 2015, at least 80 people were prosecuted for “consensual sex, biting, and spitting” (which, to be clear, does not necessarily mean that they were convicted for doing so). These cases are not, however, restricted to the states that formally criminalize HIV. Charges regarding HIV transmission have been brought in 36 states.

HIV laws, like so many laws, do not punish everyone equally. A 2013 study from AIDS and Behavior showed that if people of color make up a majority (up to two-thirds) of those prosecuted for transmitting the virus, non-white defendants also tend to be handed tougher penalties for doing so. “Analyses did reveal a significant difference in sentencing by race,” the researchers stated. “The sentences of black individuals arrested for HIV exposure were significantly more severe than the sentences of their white counterparts. Black defendants were significantly more likely than white defendants to be prosecuted for sexual (as opposed to nonsexual) exposure, and sexual exposure cases received more severe sentences.”

The criminalization of HIV is not only cruel, discriminatory, and racist, it also doesn’t work. These laws are a holdover when a time when Americans had very little knowledge about HIV, how it was spread, or how to stop it. The silence of former President Ronald Reagan — who wouldn’t publicly address the AIDS crisis or even say the word “AIDS” until 1987 — was a symbol of the culture of fear and misinformation that surrounded the disease. By that time, 20,849 people had died of HIV, and states had already begun outlawing HIV transmission. By the mid-90s, two-thirds of the states that criminalize HIV exposure had already passed their legislation.

If an HIV diagnosis is no longer a death sentence in the U.S., that has nothing to do with harsh enforcement and everything to do with the advent of PrEP and preventative treatments that block the spread of the virus. The two things that stop HIV are information and accessible medication. What does not stop HIV are laws that actively encourage people not to get tested. As David Martin, the Senior Director of the Office on AIDS at the American Psychological Association, told Pacific Standard, ignorance can be the best defense: “If you don’t know whether you have [the virus], you can’t be prosecuted for having sex with someone and not telling them you have HIV,” he said.

A key example of this is college wrestler Michael Johnson, who was put on trial in 2015 for transmitting HIV to sexual partners — or as the prosecution claimed, “recklessly infecting” them. The attorneys on the opposite end of the bench further argued that the 23-year-old Johnson had nefarious intent in doing so. “What we have here is a perfect storm of malice,” attorney Phil Groenweghe said in his closing statement. Johnson maintained, however, that he simply wasn’t all aware of the dangers of HIV or the penalty he might face. “I didn’t have any knowledge of HIV,” he said. “I knew it was an STD, that’s all.” He received 30 years, and the saddest thing is that if he weren’t aware of his status at all, it could have been avoided.

Continuing to encourage more men afraid of ending up like Michael Johnson to avoid finding out about their status will only contribute to what’s already becoming an epidemic among queer men of color. Despite the fact that men who have sex with men have more resources than ever to prevent HIV, Drew-Shane Daniels of Take Part reports that “black people account for nearly half of all new HIV infections, even though we make up roughly 12 percent of the population.”  He continues, “Sadly, it’s estimated that by the end of this decade, more than half of black gay men will be HIV-positive, mainly because stigma tied to homosexuality, race, and gender causes people not to talk openly about our sexual experiences.”

The only way to combat that shame and culture of silence is to encourage people to get informed and get active. Hillary Clinton has had a rough year when it comes to her HIV activism, after embarrassing, painful gaffe where she credited Nancy Reagan for her “low-key advocacy” in helping to raise awareness about AIDS. But in voicing her support for an America where HIV criminalization is a thing of the past, it appears that the former Secretary of State is finally on the right side of history.