HIV Criminalization: A Physician's Perspective

By Dr. Wendy Armstrong

This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV.

His name was Paul. I slid into the chair next to him in my examination room to console him as he cried. I had taken care of him for several years as he struggled to cope with his HIV infection.  Paul had been diagnosed a decade earlier when he first developed Pneumocystis pneumonia. He was a musician and had contracted HIV through unprotected sex. I learned early that Paul hated taking pills. The sight of them made him retch; and it would take him hours to get down the four pills that made up his HIV treatment regimen. He would take them for months at a time but then would come to tell me he needed a break. After a bit, he would restart medications, once he could manage to think about swallowing pills again.  And so it went.

And then, suddenly there he was, crying in my office. He had been indicted on charges brought by a partner of several months of having sex without disclosing his HIV status the night he was discharged sick and wasted from the hospital after a treatment interruption. Similar accusations, by the same partner brought in another county, had been dismissed. But that night they had stayed in a hotel in a different county and these charges stuck. Although Paul insisted he had disclosed and although the partner was tested for HIV and continued to test negative, the District Attorney in that county moved the case forward.

Shortly thereafter, while seeing patients in my office, I was interrupted with a subpoena requiring me to testify in criminal court regarding Paul’s HIV status and his care. Surely, I thought naively, our conversations were protected by patient-client privilege statutes. Wasn’t my office supposed to be the safe place where patients could talk frankly to me about their fears and joys, about their personal lives and sexual practices, their bodies and their symptoms? I called the attorneys at the health care system where I work only to be told that in cases involving HIV there were no protections. I would have to testify.

I have practiced HIV medicine for more than 15 years. I have learned much about caring for patients with a chronic stigmatizing and potentially fatal infectious disease–one that takes a lifetime commitment to medications in a world where the mention of the word HIV brings judgment and instantly changes interactions; one that conjures up images of victims and perpetrators.

In 15 years I have seen medical advances happen at an historic rate. Today, the life expectancy of a newly diagnosed patient with HIV is nearly indistinguishable from his uninfected neighbor. The risk of transmission of disease from a patient taking effective medical therapy is close to zero. Yet we continue to diagnose patients late, when disease is very advanced, after years of unrecognized and untreated infection.  Despite many scientific breakthroughs and now a long list of highly effective medications, HIV remains with us and will do so as long as those who are infected are not diagnosed and treated. And too often the discussion of preventing new infections is polarized, looking for blame and condemnation.

Within the walls of my office, I have watched the young and old, men and women struggle after their diagnosis. There are stages of denial, blame, shame and, for some, acceptance. We talk about living with disease, staying in care, disclosure to partners, friends, parents and children. I strive to make my office a safe place, filled with trust and honesty. I believe strongly that such an environment can encourage patients to remain in care, remain on medications, remain hopeful and know there is always a place where they will be treated with compassion.

But the safety of my office was shattered and physician-patient privilege was lost by the intrusion of these criminalization charges against Paul. His name was released to the media. Friends found out about his HIV status and the criminal charges, increasing his shame. He was depressed, withdrawn, and in disbelief but felt hopeful as there was nothing to support the claim against him and the case boiled down to his ex-partner’s word against his.

The trial date came. I arrived at the courthouse and after the requisite wait, was ushered into the courtroom. I testified about his HIV infection, risks of transmission, definition of AIDS, and details of our visits. Finally I was free to go. I drove the forty-five minutes back to the hospital feeling a sense of betrayal I haven’t felt in my professional life.

When I arrived in the hospital parking garage, the district attorney called me. Paul had been found guilty. The prosecutor congratulated me on my testimony and told me I should be proud that I had put a “scumbag” behind bars that day. I felt nauseated.

Although this was my first criminalization experience, it was not to be my last. Nearly thirty percent of my colleagues confirm that they too have had criminal prosecutions invade their patient relationships.

There are more effective means to combat this epidemic. Criminalization laws do nothing to advance individual or public health, but rather enhance stigma, embrace blame, discourage testing and have the potential to corrupt the physician-patient relationship which I believe can be a powerful tool in the armamentarium to address the epidemic.

Dr. Armstrong is a nationally recognized leader in HIV/AIDS clinical care and infectious diseases. Her career has been focused on the delivery of high quality clinical care in HIV patients. After a distinguished practice in the Cleveland Clinic, she joined Emory University. Currently, she is the Program Director for the Infectious Disease Fellowship Training Program at Emory University, and she serves as the Interim Medical Director of the Ponce de Leon Center (Infectious Disease Program (IDP) at Grady Health System). IDP serves more than 4000 patients with HIV and employs more than 150 individuals affiliated with Grady Health System and/or Emory University School of Medicine. Dr. Armstrong received her M.D. degree from Harvard Medical School in 1994.

This article was featured on The Body.