Nick Rhoades, a gay man convicted of "criminal transmission of HIV' in Iowa and sentenced to 25 years in prison, despite the virus not being transmitted; talks to activists at the national HIV is not a crime conference held in Grinnell Iowa in June. BTL photo: Todd A. Heywood

Feds Call On States To Revamp HIV Criminal Laws

By Todd A. Heywood

The U.S. Department of Justice issued new guidance July 16, calling on states to consider modernizing their HIV-specific criminal laws.

"The guide will assist states to ensure that their policies reflect contemporary understanding of HIV transmission routes and associated benefits of treatment and do not place unnecessary burdens on individuals living with HIV/AIDS," a press release from the DOJ says.

Currently 33 U.S. states and territories criminalize certain behavior for those living with HIV. Most of the laws were adopted in the late '80s and early '90s at the height of the HIV epidemic. Michigan's law was adopted by the state legislature in 1988, and went into effect in 1989.

"While initially well intentioned, these laws often run counter to current scientific evidence about routes of HIV transmission, and may run counter to our best public health practices for prevention and treatment of HIV," said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. "The department is committed to using all of the tools available to address the stigma that acts as a barrier to effectively addressing this epidemic."

The laws have come under increasing criticism over the years as evidence has emerged showing the prosecution of people living with HIV may be causing a minority of people at high risk of infection to avoid being tested or discuss their risk behavior with medical professionals. The laws have also been criticized for criminalizing behavior that does not transmit HIV - such as spitting or biting - or prosecutions wherein the behavior did not pose a significant risk of transmission. In very few cases prosecuted in the U.S., has intent to transmit the virus been a factor in the prosecution.

That, the new DOJ guide says, should change.

"The majority of these laws were enacted at a time when far less was known about risk, likelihood, and mode of transmission of the virus and at a time when the quality of life and lifespan of an individual with the virus was vastly different than it is currently," the guide says. "As a result, certain of these laws do not accurately reflect the current science of transmission, do not account for risk reduction behaviors and medical protocols that greatly reduce transmission risk, and do not reflect that, with testing and treatment, HIV may be a manageable medical condition."


The guide goes on to provide recommendations.

"First, states may wish to retain criminal liability when a person who knows he/she is HIV positive commits a (non-HIV specific) sex crime where there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is where the individual knows he/she is HIV positive and the evidence clearly demonstrates that individual's intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.

"For states that choose to retain HIV-specific criminal laws or penalty enhancements beyond these two limited circumstances, the best practice would be to reform and modernize them so that they accurately reflect the current science of risk and modes of transmission, the quality of life and life span of individuals who are living with HIV, account for circumstances where the failure to disclose is directly related to intimate partner violence, and ensure they are the desired vehicle to achieve the states' intended purpose in enacting them initially or retaining them in modernized form."

Michigan Reacts

Michigan advocates hailed the guidance.

"The DOJ's recommendations are an important step towards reforming these outdated and problematic laws. As I found in Michigan, many of the criminal cases brought under such laws involve sexual behavior that is not actually blameworthy," says Trevor Hoppe, who graduated this spring with a PhD in sociology from the University of Michigan. His dissertation evaluated criminal prosecutions under Michigan's law in the past two decades. " In Michigan, I could not find a case in which it was clear that the defendant maliciously intended to infect their partners. While defenders of HIV-specific criminal statutes often invoke stories of malicious offenders who wreak havoc by attempting to infect as many innocent, unwitting partners as possible, this narrative does not accurately reflect the cases brought under these laws. The HIV-positive monster in many people's minds is a product of stigma and has no basis in reality."

Hoppe was not alone.

""The U.S. Department of Justice issuing these guidelines makes clear that modernization of criminal HIV laws to reflect the most up to date science and best practices on HIV prevention and treatment is both common sense and mainstream," says Bryan Victor, victim advocate at Equality Michigan.

"Equality Michigan applauds the Justice Department for bringing to light the urgency to update these laws given that the HIV epidemic remains as real a crisis as ever. The verdict is in, and not only are these existing criminal HIV laws an undue burden on people living with HIV, they are counterproductive to the important goal of ending the HIV epidemic."

Michigan Department of Community Health began evaluating Michigan's law in 2012. The process was suspended at the end of November, despite internal drafts of a report showing the state was prepared to advise lawmakers on removing the current law.

Angela Minicuci, spokesperson for MDCH says the state is evaluating the new DOJ guide. "We are exploring the issue to see if it will be picked back up."

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