The Positive Justice Project: A New National Campaign to End Exceptionalist Criminal Law Treatment of People with HIV

By Beirne Roose-Snyder, Staff Attorney; Peggy Lee, Program Associate; and Catherine Hanssens, Executive Director 

Last week, CHLP launched the Positive Justice Project (PJP) to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. More than 40 individuals from legal, government, grant-making and community service and media organizations enlisted in this first coordinated national campaign to end a particularly vicious form of government-sponsored discrimination against people with HIV.

Last week, CHLP launched the Positive Justice Project (PJP), a national campaign to combat HIV-related stigma and discrimination against people with HIV in the criminal justice system. The campaign was launched Tuesday, September 21st, with a full day of discussion and planning. More than 40 individuals from legal, government, grant-making and, community service and media organizations participated.

The meeting wrapped up with the creation of six multidisciplinary working groups that will develop further strategies to take on HIV discrimination and stigma: State Srategies, Public Health, Legal, Constituency Outreach, Federal/NHAS and Communications/Research.

The unifying goal of the new Positive Justice Project is the repeal of "HIV criminalization" statutes — laws that create HIV-specific crimes or which enhance penalties for persons who are HIV positive and convicted of criminal offenses -- and the end of arrests and prosecutions based on the fact of a positive HIV test. The Positive Justice Project is the first national effort in the United States to address these laws and prosecutions. Although U.S. advocates have been working in their own states on this issue for years, we now have, for the first time, the beginning of national coordination of these efforts. We also have, for the first time, a federal government that is sensitive to the civil and human rights of people with HIV, and that has prominently identified a need to address HIV criminalization in the nation's first National HIV/AIDS Strategy.

The explosion of new prosecutions in the last two or three years, together with state and national campaings to get virtually everyone tested for HIV, puts into sharp relief the irony that those who respond to this call to test face a very real and increasing risk of arrest and imprisonment. These overlapping circumstances provide the right moment for a national collaborative campaign against HIV criinalization.

HIV criminalization produces gross human rights violations, including harsh sentencing for behaviors that pose little or no risk of HIV transmission. Some of the more egregious, and public, examples include:
• A man in Texas now serving 35 years for spitting at a police officer;
• A man in Iowa, with an undetectable viral load, who was sentenced to 25 years in prison after a one-time sexual encounter where a condom was used;
• A man in Michigan who was charged under the state's anti-terrorism statute with possession of a "biological weapon," after an altercation with a neighbor who had been harassing him for being gay;
• A woman with HIV in Georgia, who was sentenced to eight years imprisonment for failing to disclose her viral status, despite it having been published on the front page of the local newspaper and two witnesses who testified her sexual partner was aware of her HIV positive status.

In none of these cases was HIV transmitted. Yet in the media, prosecutors pursuing such cases assert outlandish analogies -- that living with HIV is akin to the "possession of a lethal weapon" or that being sexually active while HIV positive is like "pointing a loaded gun" at a partner. This type of hyperbolic sentiment certainly deserves, even if they haven't received, the unconditional condemnation of public health officials, HIV medical associations, and AIDS service organizations everywhere.

Most criminalization prosecutions are not for HIV transmission, but for the inability to prove disclosure of one's HIV status prior to sex.. HIV transmission, or even the intent to infect, is rarely a factor in HIV-related criminalization prosecutions. The defendant's viral load, the use of condoms, the type of sex -- these are rarely a factor in convictions or sentencing either. Those rare cases where someone actually sets out with the goal of infecting and hurting someone through HIV transmission can be prosecuted with other intent-to-harm conduct under existing criminal laws if need be.

What the HIV-specific criminal laws allow, however, is the imprisonment of individuals with HIV based solely on the fact of a positive HIV test and the insistence of a partner that HIV was never disclosed -- in short, the combination of HIV and a sex life alone can put someone behind bars for decades.

HIV criminalization undercuts the most basic message of HIV prevention and sexual health, which is that each person must be knowledgeable about and responsible for his or her own choices. Criminalization imposed a skewed level responsibility on the person who bothers to get an HIV test, while encouraging reliance on an illusion of safety to the person who is HIV negative or who does not know his or her status. Criminalization also ignores the fact that unprotected sex puts both partners at risk -- of STI's, HPV and other diseases that are dangerous to the health of persons with HIV.

So ignorance of one's HIV status is the best defense against prosecution in these cases, putting these statutes at direct odds with official federal and state public health policy because they discourage HIV testing and disclosure. Only by getting an HIV test and knowing your status are you subject to arrest and prosecution, despite established evidence that it is those who are untested – i.e., those who are safe from prosecution -- who are responsible for most of the new HIV infections.

At this launch meeting, CHLP also released a draft of the first detailed state-by-state analysis of HIV-specific laws and prosecutions in all 50 states, U.S. territories and the military. Research has demonstrated that HIV criminalization statutes do nothing to reduce HIV transmission and, in fact, may contribute to transmission of the virus by further stigmatizing already-marginalized populations.

The organizers of the Positive Justice Project have identified several important steps toward the eventual goal of repeal:
• Broader public understanding of the stigmatizing impact, and negative public health consequences, of criminalization statutes.
• Community consensus on the appropriate use of criminal and civil law in the context of the HIV epidemic.
• Clear, unequivocal leadership and statements from federal, state and local public health officials leadership and elicit clear statements from public health and policy leaders on the causes and relative risks of HIV transmission and the dangers of a punitive response to HIV exposure and the epidemic;
• A broader and more effective community-level response to the ongoing problem of HIV-related arrests and prosecutions.

Misperceptions about the routes and risks of HIV transmission continue to fuel the fear and myths about people with HIV that leads to stigmatization and discrimination. Nearly 30 years into the epidemic, people fear being around with people with HIV, working with them or allowing them near their children. At the very least, people with HIV should know that the government is on their side and will support a sane, consistent response to the public health issue of HIV.

We need to address our own "friendly fire" -- the way that even we in the "AIDS community" speak about HIV and transmission risks in a way that is hyperbolic or vague and that in fact encourages misunderstanding about the infectiousness of HIV and the seriousness of an HIV diagnosis. Yes, HIV is serious and yes, it's transmitted by sex and dirty syringes and perinatally. But HIV is not in fact easily transmitted -- the riskiest activities pose a transmission risk of less than 1 in 100 -- and most people can live a relatively long and normal life with HIV if diagnosed and treated.

The PJP's goals are important for those affected and marginalized by HIV, or by other "isms" and prejudices that pre-date AIDS, because it is those very people who are most likely to be arrested and prosecuted, most likely to rely on substandard legal representation and to experience an inability to rally advocates. And even without prosecution, they are the ones most likely to suffer from the government-sponsored message that these laws provide that people affected by HIV are toxic and dangerous. Because stigma and discrimination is directly connected to epidemics and poor health outcomes.

So the time to do something about HIV criminalization really has come. If we can engage those who've invested so much time and money into overturning informed consent laws to put even half this effort and funding into the repeal of HIV criminalization laws and policies that truly punish testing, there is no question that we will succeed.

For more information on the The Center for HIV Law and Policy's POSITIVE JUSTICE PROJECT, go here.

To see the Center for HIV Law and Policy's collection of resources on HIV criminalization, go here.