By Christina Rodriguez, SMART Youth
Before I get started, I would like to provide you all with some key facts that you should keep in mind for the duration of this speech. HIV transmission can occur through breast milk (which has decreased due to anti-retroviral treatment for the mother), blood (highest risk), semen (high risk but does decrease with anti-retroviral treatment), and vaginal discharge (lowest risk, less than 1% transmission rate, even lower with anti-retroviral treatment.) (AIDS.org, 2012) (UNC, 2012) Since these bodily fluids are the only known modes of transmission for HIV, we can rule out saliva, tears, urine, feces, and sweat as risk factors, correct?
Now YOU know the facts about HIV transmission and the basics about high risk and low risk. So, why aren't these facts prevalent in our laws? Why are senators and legislators and law enforcement still enforcing old science around HIV and AIDS? It is 2013, not 1981 anymore. In dozens of states and territories there are HIV-specific statutes. In the cases that have been recorded, two types of behavior have been criminalized: sexual contact and spitting and/or biting. For the sexual contact cases, "exposure" without disclosure (which is hard to prove) is reason enough to prosecute. Also, proof of intent to harm, condom usage, and other risk reduction measures (adherence to medications/ undetectable viral load) has no bearing on guilt. (The Center for HIV Law and Policy, 2012) What this tells me is that stigma is still alive and discrimination against people living with HIV and AIDS has only intensified. What these laws show me is that as a society we can take ten steps forward, but the law can take us five steps back.
"Exposure" without disclosure is one of the vaguest legal terms used in HIV-specific prosecution cases. Not only is exposure defined as spitting and the saliva being deemed as a "weapon", but also disclosure is hard to determine. Disclosure becomes a gray area of assumptions, "he said"/"she said", and rarely any written documentation. It seems as though we've come to find ourselves in a generation of "speed dating" and "fast movers"; we don't want paper work in our relationships! Just imagine this scenario: "Hey, before we continue this relationship, would you mind signing this paper for me that states I disclosed my HIV status to you? Thanks!" Why can't we actually visualize this happening? There are many reasons. For one, let us be realistic, that is incredibly awkward. Secondly, there is so much pressure to disclose because of these archaic HIV-specific laws, people living with the virus have a decreased control over whom they want to disclose to and when they want to do it. Thirdly, we as a society have not created a safe enough space for people to freely disclose in general. You may be fearful of revealing to your partner that you have eleven toes for fear that would freak them out. While a person living with HIV may be fearful to disclose to their partner about their status for fear of being sent to jail.
This fear has created a regressive trend of "Get Tested, Get Arrested" (Positively Aware, 2012). Where people are not getting tested to learn of their status because if they don't know/ didn't know their status, they have/had no obligation to disclose to a partner or any other figure. Again, this is an unexpected and harmful consequence of HIV-specific laws. Knowing your status should be a sign of responsibility for your health and your partner's health. It should not be a jail sentence.
Someone could say these laws are in place to protect the public and uphold justice for "victims of HIV exposure". Let me give you some examples of what this "justice" actually looks like: In California, vehicular manslaughter while intoxicated (unintentionally killing someone while driving intoxicated) is up to a one-year imprisonment. For an HIV-specific statute (ex. vaginal or anal sex with or without disclosure) there is a three-eight year imprisonment. In actual prosecutions three years imprisonment was the penalty. In Georgia, homicide by vehicle in the 2nd degree (killing someone with your car by not obeying traffic laws) is up to one-year imprisonment and/or a fine of up to $1000 dollars. Georgia's HIV-specific statute (ex. person living with HIV spitting or biting an officer.) is five to twenty years of imprisonment. In actual prosecutions it was eight years of imprisonment with two years of probation. In Ohio, vehicular manslaughter is fifteen to ninety days of imprisonment. While Ohio's HIV-statute (ex. Person not disclosing status to a partner) is two to eight years of imprisonment with a possible fine up to $15,000 dollars. In actual prosecutions, sixteen years of imprisonment with a mandatory sex offender registration. (The Center for HIV Law and Policy, 2012) Once registered as a sex offender, that can never change. Looking at these comparisons, this does not look like justice to me. This does not even look like equal punishment in general.
There are real people greatly affected by HIV-specific laws on both spectrums of the sexual contact prosecution, and spitting/biting prosecution. Gregory Smith was sentenced to prison in New Jersey. Within a year of his release an additional 25 years were added to his sentence based on an incident where he allegedly bit and spat on a guard. He was charged with attempted murder, assault, and terrorist threats. He died in jail. Saliva does not have a recognizable risk of transmission, but Gregory Smith died in jail because of his spit. (Positively Aware, 2012)
A man in Ohio claims he disclosed to his former girlfriend about his status. His girlfriend claims he did not. The man believes his former girlfriend is prosecuting him for moving in with another woman. The man is sentenced to forty years in jail. Not only do these laws take "bad break-ups" off the table for people living with HIV, if they are sentenced to jail, there is no way of even finding another partner that they can actually trust. This HIV-specific law put full control of a man's life in the hands of his former girlfriend. The law was on her side of revenge against her former boyfriend. (Positively Aware, 2012)
For someone to live in fear of pursuing a relationship because of his or her HIV status is a decrease in quality of life. Just because someone is HIV positive does not mean they can suddenly no longer love, or live a long life, or keep a negative partner safe from transmission. Herpes and HPV are also life-long sexually transmitted infections but I have yet to see laws specifically against people living with either. HIV-specific laws do more harm than good. If a law is no longer based on recent science, that law should no longer be in existence. If a law singles out a certain group of people and forces them to live in fear instead of enjoying their life, that law should no longer be in existence. If a law is further progressing discrimination by inhibiting certain people's right to "life, liberty, and the pursuit of happiness", and taking our society backward, that law should definitely no longer be in existence. If people still do not know the modes of transmission for HIV after thirty plus years, the solution is not to criminalize people living with the virus, but to further educate everyone in general. Education and reformation will promote better change for the masses than fear and criminalization.
http://www.hivlawandpolicy.org/ (2012) The Center for HIV & Law Policy.
http://www.aids.org/ (2013) AIDS.org: Information, Education, Action.
http://globalhealth.unc.edu/ (2012) UNC Institute for Global Health & Infectious Diseases.
http://positivelyaware.com/ (2012) Positively Aware: The HIV Treatment Journal of Test Positive Aware Network.
http://definitions.uslegal.com/ (2013) US Legal.
Chensvold, L. (2012) Breast Milk Kills HIV and Blocks Oral Transmission.
UNC: Institute for Global Health & Infectious Diseases, Retrieved from: http://globalhealth.unc.edu/2012/06/breast-milk-kills-hiv-and-blocks-oral-transmission/
Ending and Defending Against HIV Criminalization: State and Federal Laws
and Prosecutions. (2013)
Center for HIV Law & Policy, Retrieved from: http://www.hivlawandpolicy.org/resources/ending-and-defending-against-hiv-criminalization-state-and-federal-laws-and-prosecutions
How is HIV Transmitted?
AIDS.org, Retrieved from: http://www.aids.org/topics/aids-faqs/how-is-hiv-transmitted/
Positive Justice Project. (2012)
Center for HIV Law & Policy, Retrieved from: http://www.hivlawandpolicy.org/initiatives/positive-justice-project
Strub, S. (2012) Prosecuting HIV: Take the Test- and Risk Arrest?.
Positively Aware, Retrieved from: http://positivelyaware.com/2012/12_03/prosecutingHIV.shtml
Transmission Routes, Viral Loads, and Relative Risks: The Science of HIV for Lawyers and Advocates. (2011)
The Center for HIV Law & Policy, Retrieved from: http://www.hivlawandpolicy.org/resources/transmission-routes-viral-loads-and-relative-risks-science-hiv-lawyers-and-advocates
Vehicular Homicide Law and Legal Definition.
US Legal, Retrieved from: http://definitions.uslegal.com/v/vehicular-homicide