Viral Apartheid: Sexuality and Discrimination Involving HIV. Todd A. Heywood, Woodhull Sexual Freedom Alliance: State of Sexual Freedom in the United States 2011 Report (2011)

White Papers and Reports

This chapter, in a larger report on the State of Sexual Freedom in the United States, explores the current state of HIV criminalization in the United States, including four recent cases involving HIV disclosure laws, bodily fluid as a harmful biological device, and the release of names of persons charged with HIV-related crimes.

HIV criminalization may be divided into two categories: HIV-specific criminal laws (laws created around mandatory disclosure of HIV status before engaging in certain activity) and traditional criminal laws used to prosecute persons solely on the basis of their HIV-positive status. The author outlines the general state of the these prosecutions and the research and political movement against them, then presents four illustrative case studies:
• A 2001 Michigan case in which an HIV-positive African-American man was convicted by an all-white jury of violating the state's nondisclosure law and sentenced to 10 to 15 years in prison;
• A 2010 Michigan case in which an HIV-positive man was charged with assault and possession or use of a harmful biological device after he bit his neighbor;
• A 2009 Iowa case in which a man was convicted of violating the state's nondisclosure law and sentenced to 25 years in prison with lifetime probation; and
• A 2011 Florida case in which a man's name and HIV-positive status were released to the public after he allegedly told law enforcement officials during his arrest that he was HIV-positive; the man later tested negative.

The author sets forth a three-prong process to challenge the push for HIV criminalization: reevaluate the language public health advocates and the media use to discuss HIV; challenge HIV-related prosecutions in court; and reevaluate HIV prevention programs that focus exclusively on HIV-positive persons. He encourages the National Association of Colored People (NAACP), the Human Rights Campaign, the National Gay and Lesbian Task Force, and other organizations to join the anti-criminalization movement, given the overrepresentation of persons of color and MSM in HIV-related prosecutions. Without this type of organized, well-funded advocacy, proponents of HIV criminalization will continue to disregard scientific findings on HIV transmission and play on the American public's media-fueled fear of sexuality, drug use, and death.

More information about the national movement to end the abuse of the criminal law against HIV-positive people is available here.