Why Federal Legislation Matters: The REPEAL HIV Discrimination Act

by Beirne Roose-Snyder, CHLP Staff Attorney

Last Friday, Congresswoman Barbara Lee introduced H.R. 3053, the REPEAL HIV Discrimination Act, which calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. Why is federal legislation an important piece of the decriminalization puzzle when most criminal law is made at the state level?

Last Friday, Congresswoman Barbara Lee (D-CA) introduced H.R. 3053, the REPEAL HIV Discrimination Act, which calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first piece of federal legislation to take on the issue of HIV criminalization, and provides incentives for states to reconsider laws and practices that target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.

So Why Federal Legislation?
Why is federal legislation an important piece of the decriminalization puzzle when most criminal law is made at the state level? First, let's look at what state legislatures have given us. Thirty-four states and two U.S. territories have laws that make exposure or non-disclosure of HIV a crime. Even in the absence of any intent to transmit HIV, or actual transmission, sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years and may include sex offender registration. In a number of states, a person with HIV would serve less time for hitting and killing someone with a car than for spitting at or sleeping with someone, with or without HIV transmission.

Though condom use significantly reduces the already-low risk of HIV transmission, most HIV-specific laws don't treat condom use during sexual intercourse as a defense or as evidence that the person did not intend to transmit HIV. One example of how this plays out is an Iowa case in which a man with HIV but an undetectable viral load had sex and used a condom with someone in a single sexual encounter; HIV was not transmitted but he still received a 25-year sentence (which was eventually suspended but required him to register as a sex offender and barred him from unsupervised contact with his nieces, nephews, and other young children). There are even cases against sex workers in which possession of condoms (strongly encouraged by public health officials in interventions with sex workers and others) is actually treated as evidence of intent to commit a crime.

Many people also have been convicted for acts that cannot transmit HIV, such as spitting. A man with HIV in Texas is currently serving 35 years for spitting at a police officer. Another HIV-positive man in Maryland currently is serving 5 years for supposedly spitting on a police officer.

Despite the clear irrationality of these laws and outcomes, much of the uninformed public supports them – in other words, law reform will not be an easy lift, and consequently directives (for the feds) and incentives (for the states) are essential. Representative Lee's bill requires the Department of Justice and HHS/CDC to collaborate on development of a set of best practices, and accompanying guidance, for states to address the treatment of HIV in criminal and civil commitment cases. The bill also provides financial support to states that undertake education, reform, and implementation efforts. A fact sheet created by The Center for HIV Law and Policy, AIDS United, Lambda Legal and the ACLU AIDS Project summarizes the problems with HIV criminalization and the impact the bill would have.

A Federal Problem
Though state laws and prosecutions get much of the attention, there are also federal prosecutions based on HIV status. Though state laws and prosecutions represent most of the abusive use of criminal law against people with HIV, there also are federal cases that have meted out wildly disproportionate punishments for defendants on the basis of HIV status. HIV positive individuals prosecuted in federal courts have received enhanced sentences based on their status. Federal judges often decide spitting and biting cases from federal prisons and correctional facilities, and military service members with HIV have been convicted of aggravated assault and discharged from service even in cases in which HIV status is disclosed to their partners, or condoms are used.

The Need and Precedent for Federal Leadership on State Policies
Singling out HIV for exceptional treatment in the criminal law has reinforced erroneous, outdated beliefs about the ease of transmission, the deadliness of HIV and the toxicity of HIV positive individuals. Even if federal cases alone didn't warrant the REPEAL Act, on matters of health and human rights we often look to congress and the federal government for leadership. The National HIV/AIDS Strategy and government leaders decry HIV related stigma again and again, but concrete action has been slow in coming. The REPEAL HIV Discrimination Act goes beyond platitudes about stigma, to a concrete proposal that should produce actual results.

Plus, despite protestations from some federal agencies that they do not get involved with state laws or legislative actions, previous HIV-related policies have been greatly influenced by federal carrots and sticks. State laws requiring names-based reporting for positive HIV tests and the elimination of documented informed consent in testing have been aggressively advanced by federal intervention in the form of CDC recommendations, national forums, innumerable presentations and a variety of related funding incentives. What's more, many of the state HIV criminalization laws currently in effect were adopted as a consequence of a provision in an earlier version of the Ryan White Care Act, hinging states' funding on their stated capacity to prosecute those who "intentionally transmit" the virus. Unfortunately, almost none of the state or federal laws and policies in effect limit liability to actual, intentional transmission – an exceedingly rare occurrence. It's time for the federal government to intervene in state policies again to end a particularly egregious form of government-sponsored stigma.

The REPEAL Act is a beginning, not an end. Much of the act sets out findings and the sense of Congress, followed by a call for the review of federal and state laws. Reviewing, reporting, and recommending best practices for states is the slow work of democracy, and it can't be the only assault on HIV specific criminal laws. But federal legislation can help to lead the way for state legislators, activists, and reformers. The REPEAL HIV Discrimination Act shows a keen understanding of the way stigma is created and reinforced, the current problems in how HIV is being treated in criminal law, and demonstrates the leadership needed in providing federal incentives to make the system more just. It is a tremendous step in the right direction, and we are grateful to Representative Lee for taking the bold first step of starting the federal government down the right path.