CHLP's Jada Hicks, Supervising Attorney for Criminal Justice Initiatives, spoke with Insider.com about the R. Kelly case and laws that criminalize sexual behavior among STI-positive individuals. Laws criminalizing STIs increase stigma and discrimination against people with communicable diseases, and this causes decreased willingness to cooperate with testing and treatment efforts. Education about these laws and how STI transmission occurs is essential.
R. Kelly wants herpes-related charges dropped from his case. Many HIV/AIDS advocates say laws criminalizing STIs do more harm than good.
by Haven Orecchio-Egresitz
August 13, 2021
Disgraced R&B artist R. Kelly is on trial for a long list of federal sex crimes, and among them is the allegation that he didn't inform his sexual partners of his positive herpes diagnosis — a violation of a New York public health law.
Some HIV/AIDS advocates have long opposed laws that criminalize having sex while diagnosed with a sexually transmitted infection on the grounds that, in some cases, the laws could penalize adults for having otherwise legal, consensual relationships.
"People are shocked, actually, to learn that STIs in general are criminalized," Jada Hicks, a supervising attorney at the The Center for HIV Law and Policy, an organization that works to fight systemic stigma against those living with HIV, told Insider. "They're even more shocked when they find out that transmission is not required or that the intent to harm is not required."
In New York, someone who knows they are infected with a venereal disease and has sexual intercourse with another person can be charged with a misdemeanor. People who know they have an STI diagnosis that can cause death and then commit sex crimes, or have unprotected sex with people who do not know of the infection, may also be guilty of reckless endangerment.
In the R. Kelly case, prosecutors made the herpes-related allegations in 10 of the counts that he faces in federal court in Brooklyn, including racketeering and Mann Act violations. The Mann Act criminalizes the transportation of women or girls for sex.
The government alleges that Kelly engaged in unprotected sex with two partners without first informing them that he had contracted herpes, and obtaining their consent under those circumstances.
His defense team filed a motion to dismiss the herpes-related charges. The attorneys argued that herpes is a viral disease, "not an acute, bacterial venereal disease such as Syphilis or Gonorrhea," and so it is not covered under the New York public health code that the singer is accused of violating.
Lawyers also note in the motion that New York public health officials have expressed concerns that laws like these criminalize sexual behavior among STI-positive individuals.
Education vs. prosecution
Those who oppose laws criminalizing STIs feel they contribute to increased stigma and discrimination against people with communicable diseases, and that fear of that stigma could lead to decreased willingness to cooperate with testing and treatment efforts.
The Centers for Disease Control and Prevention has noted that many of the STI-related laws in place in 37 states as of 2020 were based on outdated science, and "have been shown to discourage HIV testing, increase stigma, and exacerbate disparities."
Hicks told Insider that there is a dire lack of education in the US when it comes to STIs, and she often speaks to individuals who live with STIs and are unaware that they can be prosecuted for not disclosing their status.
There is also general confusion about when it's possible to transmit herpes, she said.
"There are people that sometimes think they're not in an infectious state because they haven't been symptomatic for a year and they thought they were asymptomatic, and most people with herpes actually don't know that they have herpes," Hicks said. "That kind of ties into the education piece, that people aren't really educated about STIs and how transmission occurs."
Tracing an STI to its source is fraught
Some states, particularly Missouri and Florida, are more heavy-handed than others when it comes to enforcing STI-related criminal codes, Hicks said.
Hicks said she isn't aware of the New York public health law being invoked often in federal court. But she believes that because the R. Kelly case is so high-profile, prosecutors are pursuing any angle they can to secure a conviction.
The US Attorney's Office for the Eastern District of New York didn't immediately return Insider's request for comment.
Transmission isn't required under the New York code, but convincing a jury to convict without showing them evidence of the source can be difficult, she said. One of the biggest problems with these laws, according to Hicks, is that it's impossible to trace the source of an infection because there is a large population of people who live with or were exposed to an STI at some point.
More than one out of every six people aged 14 to 49 years old in the US have genital herpes, according to the CDC.
"The scientific community cannot trace the source of the STI, and they can't do that with HIV either," Hicks said. "I think that is going to be something that's going to be difficult for the prosecution, because how do you know that a certain individual transmitted to the other individual? There's no way to prove who transmitted to whom."
The Center for HIV Law and Policy has opposed laws related to STI exposure for years, and frequently receives calls from individuals who are concerned about whether or not they might have unknowingly broken a law, Hicks said.
Hicks said that she doesn't know whether these concerns have ramped up in light of the R. Kelly case, "but I do know that there is a rise in concern among the New York state advocates, because before we weren't seeing a lot of prosecutions under this law."