How the criminalization of HIV is more dangerous than the virus itself

Despite all the progress being made when it comes to HIV/AIDS prevention and treatment, way too many people still think of the virus as a death sentence, a health concern exclusive to the LGBTQ community, or something that only plagues poor people in Africa. Because of these assumptions, far too many people still have no idea what it actually means to live with HIV in 2016. These days, ignorance about HIV is more dangerous than the virus itself, and that inevitably affects research and progress. To understand how backwards common knowledge about the virus is, you only have to look at HIV criminalization laws in the United States.

According to the Centers for Disease Control, there are around 33 states and over 60 laws in America that criminalize HIV, but the exact tally varies depending on what kind of laws you are talking about state by state. But all of the states that have criminal laws aim them directly at HIV-positive people, usually requiring them to disclose their status to sexual partners or people they may share needles with…and they’re all ass-backwards. Most of these laws were put in place when little was known about the virus or how it was spread. They were also enacted at a time when anti-retroviral treatments weren’t able to suppress the virus and make it impossible to pass it to others.

Yes, you read that right. You can have HIV and not transmit it to others.

Undetectable = Untransmittable

These laws are backwards partly because of the amazing work done by activists and medical researchers when it comes to HIV treatment. People living with HIV, who are on durable treatment, can expect to live a normal life expectancy. HIV is now a chronic manageable disease; it is not the death sentence  people once thought it was. Many patients who are on anti-retroviral treatment (ART) are undetectable, which means they’re positive for HIV, but their viral load (the amount of the HIV virus in their blood sample) is so low that it cannot be detected in a lab test. The viral load is really just a count of how many particles, or “copies,” of the HIV virus can be found in a millimeter of blood. When copies of the virus cannot be found, they’re undetectable.

Being undetectable means that a person can not only lead a long, healthy life, but they also cannot give the virus to other people. HIV is transmitted through semen, vaginal fluid, and blood — not saliva, not sneezing, not touching. Also, by the way, HIV can’t be found in semen, blood, or vaginal fluid found outside the body. A person with an undetectable viral load on medication can’t give the virus to a partner. Even if they have sex without a condom. A person with an undetectable viral load taking their meds cannot pass the virus to another person sexually. I’m going to let that sink in for a minute, because it might not be something you’ve heard before if you’re not up on your HIV/AIDS news. Obviously, no one is suggesting that everyone go around having unprotected sex. With or without HIV, everyone should disclose their STIs and practice safe sex. But if you do engage in condomless sex with someone who has HIV and is undetectable, you will NOT contract HIV.

This is good news for serodiscordant couples (where one partner is positive and the other is not) and HIV criminalization reform advocates, since most criminal laws that are HIV specific are still based on the idea that a person can transmit the virus, regardless of their viral load. Such laws are also based on the notion that HIV is a an immediate death sentence.

With the introduction of PrEP, a pill that non-positive people can take to protect themselves from the virus, the risk of getting HIV is even lower. Many in the LGBTQ community are taking advantage of PrEP, and in South Africa, where the risk of getting HIV/AIDS is high, researchers and advocates have been prescribing PrEP to young women to curb new infections in trial programs. Science was enough to convince South Africa to approve the rollout of PrEP programs, and advocates in other countries, like Malawi, think they can reduce new infections with its use.

It’s all mind-blowing if you think about it. There’s no cure or vaccine yet, but with access to preventative meds like PrEP and ART, mere mortals (and superhuman activists) found a way to tame HIV/AIDS and are basically handing governments the key to preventing HIV transmission while they work on a cure. This is when we all raise our glasses and cheer science and policy hounds.

Unfortunately though, HIV criminalization laws reflect none of these advances.

Why the U.S. criminalizes HIV

Back in 1990, the federal Ryan White Comprehensive AIDS Resources Emergency (CARE) Act was passed to disperse funds to states for research and treatment for HIV-positive people. But to get the funds, states had to have criminal laws on the books “adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.” It’s sadly ironic that an act passed in the name of a man who was discriminated against because of the virus was the same one perpetuating stereotypes and fear of HIV. Luckily, that provision was removed in 2000, but as a result, 33 states continue to have criminal laws on the books, and people are charged for breaking them all the time.

What HIV criminalization laws do

HIV crim law map
CREDIT: LGBTQmap.org

Criminal laws were originally intended to prevent people with HIV from “engaging in risky behavior,” but all they really do is keep HIV-positive people in the same hamster wheel of stigma and shame. The laws vary state by state, but most require anyone who is knowingly HIV positive to disclose their status, regardless of whether there is even a risk of HIV exposure, and the sentences vary from misdemeanors to felonies. Most HIV criminal laws haven’t evolved since the early ’90s, when fear of the virus and homophobia, along with discrimination against people of color, people who use drugs, and sex workers, was rampant. (And we all know these are still rampant, which is why the HIV advocacy community is worried about the incoming administration.)

Some states, like Colorado, have effectively overhauled their HIV legislation. Colorado didn’t have a disclosure law, but activists were able to get rid of a sentencing enhancement that allowed courts to triple someone’s sentence just because they had HIV, even if there was no transmission involved.

But other states are stuck in the past.

Here are some examples of what HIV criminalization laws look like in real life, according to the Center for HIV Law and Policy:

  • A man with HIV in Texas was sentenced to 35 years for spitting at a police officer.
  • A man in Iowa with an undetectable viral load got a 25-year sentence after a one-night stand, during which he used a condom. His sentence was commuted, but he had to register as a sex offender and can’t have unsupervised contact with children, even his own family members.
  • A woman with HIV in Georgia received eight years for failing to disclose her HIV status, even though there was testimony at her trial from two people who said her partner was aware of her status.
  • A guy in Michigan was charged under an anti-terrorism law for having a “biological weapon” after he bit his neighbor.

In Indiana, home to our vice-president elect, advocates are fighting to reform laws that force HIV-positive patients to sign forms promising to disclose to all future and current partners, possible syringe users, and to not donate blood or plasma or sperm. These forms are useless and only further stigmatize HIV.

John W. Coberg II, co-chair of the HIV Modernization Movement in Indiana, told The Frisky his organization is just trying to get the laws to match the reality of the situation. Along with the other forms patients have to sign like they’re zoo animals, there’s also one banning organ donation. “But through our research, [we’ve] found no state law stating it is a crime for a HIV-positive person to sign an organ donor form, and with the research from John’s Hopkins doing HIV positive-to-HIV positive organ transplants, we feel this needs to be removed from the forms since it is not an accurate reflection of theIndiana law or federal law.”

Why shouldn’t allowing HIV-positive people to donate their organs to other HIV-positive people be legal if it’s medically safe? Where are the forms for everyone who’s NEVER had an STI or HIV test promising that they won’t donate blood? These are the questions criminal reform advocates want answered.

“We also have several additional laws we will modernize that have sentence enhancement charges while knowing you are HIV positive in situations where there is no possibility of exposure or risk of HIV transmission,” Coberg II added.

Having a virus is not criminal

These stories scare the hell out of me, if only because after I was diagnosed with HIV about five years ago, I had sex with men and didn’t disclose my HIV status. Sometimes I used condoms and thought that since it was a one-night stand, I was undetectable, and I took my medication every day, there was no risk. I had unprotected sex with one man, who ended up being my boyfriend eventually, for two whole months and lied about having any STIs when he asked me on two occasions before I disclosed to him, finally realizing how messed up and hurtful my actions were.

Was that ethical or honest? Definitely not. I profoundly screwed up a pretty great romantic relationship by lying to him, took away another human being’s agency, and at the very least scared the living daylights out of him. But was it criminal? No, and the fact that he’s still my BFF and biggest advocate is a testament to what a little education and empathy can do.

Technically though, that was a misdemeanor in my state. If I had been in a different state, it could be worse, even though there was no actual medical risk posed to any partner in those encounters given my undetectable viral load, ART regimen, and (sometimes) condom use. If I wasn’t a heterosexual white woman living in a progressive state sleeping with educated, compassionate human beings, I wouldn’t be lucky enough to write this article. (I’ve since disclosed to those guys, and they’re all negative and doing just fine, in case you were worried.)

Even when people disclose their status, they’re still at risk of legal action and violence. One man I slept with knew all about my status, and we had sex a few times before I told him I didn’t want a serious relationship with him. He then emotionally abused and harassed me online, using my HIV status to scare and manipulate me. Technically, the law would be on his side if he had a fancy lawyer, even though what I needed (like many HIV-positive people) was some therapy and support.

I don’t tell you this because I don’t think what I did was wrong. It was really messed up. I have PTSD nightmares about it and a great therapist who has talked me off the proverbial ledge more times than I would like to admit (not like I’m the only victim here obviously). I believe people should disclose because I know how terrible it feels not to. My ex learned how important it is to insist on using a condom. It goes both ways. We should all be disclosing all of our STIs, all the time. But the punishment should fit the crime, and policy makers and the public need to know that HIV-positive people are more than their viral load.

Why single out HIV? 

The shame of having a virus that many people know nothing about and fear of violence or legal action kept a healthy person like me from disclosing my status to partners. Ignorance about transmission keeps a person who spits on a police officer in jail in some states (you shouldn’t spit on people, but it’s not deadly force). States’ criminal laws target HIV specifically, but someone with herpes or a genital wart outbreak is free to not disclose and pass their STI along without a legal worry. More women die of HPV associated cervical cancer each year than AIDS related illness yet not one law exist to compel HPV disclosure. To be honest, I’d much rather have my undetectable HIV than herpes — herpes is easier to transmit and much harder to deal with than remembering to take one pill every day to keep my viral load in check. Yet HIV is treated like the worst possible virus a person can contract, even though a person who contracts HIV and successfully goes on treatment, can live a normal life span, have children, not pass on HIV, and live a full life.

There’s no reason HIV should be treated any differently than any other STI. It really does all come down to lawmakers and the public not thinking the people the virus disproportionally affects — LGBTQ people, people of color, people who struggle with drug addictions and mental health issues, sex workers, and even a sexually active woman like myself — don’t matter.

But we do. Advocates for HIV criminalization law reform don’t want to spread HIV anymore than you want it. They just want the laws to be fair.

What advocates want

Advocates for HIV criminalization reform, like the HIV Modernization Movement and the SERO Project, want some pretty simple things:

  • A criminal law must be based on criminal intent to transmit and conduct likely to transmit.
  • A criminal law must not be specific to HIV and must exclude diseases that are airborne/casually transmitted.
  • A criminal law must only include punitive measures that are proportionate to the harm.

That’s pretty reasonable. HIV/AIDS is still a major public health issue — but it’s a manageable one. We can test for it, treat it, and prevent it with ART and PrEP. That’s AMAZING, especially if you think that just two decades ago, it was killing people every day. Our own prejudices — even my own, which kept me from getting tested for so long — get in the way of progress. HIV/AIDS affects everyone. It’s the guy behind the counter at Starbucks, the girl reading a book on the train, the old man in front of you at the supermarket.

HIV is not a weapon. It’s not a crime.

Criminal HIV laws are counterintuitive. I can only speak from personal experience, but I felt so illegal and dirty and ashamed that I didn’t speak up at first, thereby breaking a law. That’s not good logic. Criminal laws perpetuate not just myths about HIV but fear of people living with the virus. We’re people. We’re people who should be able to disclose our HIV positive status without fear or shame.