HIV Criminalization

Say you have HIV and pick a guy up online. You get together and use a condom during consensual sex. No virus is transmitted during the one-night stand. No harm, no foul?

What if you're an HIV-positive woman who was in a relationship with a man who never became infected? Are you in the clear?

Not in Iowa. You can be sentenced to 25 years in prison and lifetime inclusion in the sex offender registry simply because you did not first tell your partner you had HIV.

Two people have been punished for non-disclosure in recent years. Nick Rhoades is among at least 15 people prosecuted under an Iowa law that essentially classifies people with HIV as carrying a deadly weapon. The other case pertains to Leslie Flaggs.

Flaggs and Rhoades both pleaded guilty, despite the fact that neither of their partners contracted HIV.

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Three dozen U.S. states and territories have laws criminalizing HIV in one form or another, according to the SERO Project. The Center for HIV Law & Policy offers an online tool explaining the laws in all 50 states.

The Path to Criminalization

Not only did Rhoades use a condom, but he had an undetectable viral load. Modern antiretroviral therapy (ART) prevents the HIV virus from replicating. It often suppresses the virus to levels deemed undetectable.

Iowa's law, like many others around the U.S., is based on what the scientific community knew about HIV in the 1990s. At the time, the disease was still thought to be a death sentence and there was little research into its long-term effects. 

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That was when, as a stipulation for receiving Ryan White funding to provide medical care to people with HIV, the federal government required states to show that they had a way to prosecute people who intentionally transmit the virus.

Sean Strub, director of the SERO Project and founder of POZ Magazine, told Healthline that the requirement has since been repealed.

“At the time, some states noted their assault statutes, which enable them to prosecute anyone with intent to harm,” he said. “Others passed a patchwork of ill-advised and sometimes irrational statutes.”

HIV No Longer a Death Sentence

Modern science has demonstrated that HIV is not a death sentence. Recent research shows that people taking ART do not easily transmit the virus, even under the most risky sexual conditions. 

A widely cited 2011 study know as HPTN 052 showed that ART reduced the risk of HIV transmission by 96 percent. The study involved HIV mixed-status couples, mostly heterosexual, from 13 cites in nine countries.

And a U.K.-based study known as Partner released similarly hopeful findings earlier this month. That study included gay as well as heterosexual couples. Out of more than 30,000 unprotected sex acts, zero HIV transmissions occurred.

Just how deadly is HIV? A 20-year-old man with HIV who begins taking ART can now expect to live to the age of 77, which is roughly equal to the average life expectancy for American men in general.

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Advocates Cheer Progress in Iowa

Advocates for people with HIV in Iowa cheered Feb. 27 when the state senate unanimously approved a bill to drastically lessen the penalties under Iowa's HIV transmission law. The measure also removed a previous requirement that those convicted under the law register as sex offenders.

The new law created a tiered sentencing structure. Only someone acting to intentionally infect another, and successfully doing so, would face a 25-year prison term (the maximum for a class B felony).

An unsuccessful attempt to infect, or acting with “reckless disregard,” would be a class D felony. That is punishable by a maximum of five years in prison. A person who simply failed to disclose their HIV status could be charged with a misdemeanor.

But a state house committee led by Chip Baltimore, a Republican from Boone, inserted an amendment into the bill that also makes the failure to disclose a class D felony. Regardless of infection, his amendment hands out a class B felony punishment for those with intent to transmit, and a class C for acting with "reckless disregard."

It also reinstates the sex offender registration mandate for anyone found guilty, no matter the felony class.

A split screen of the two versions of the bill can be seen here.

A Heated Public Health Debate 

Both sides of the debate say they are acting to protect public health.

“While I appreciate the effort to make the existing statute less draconian, the bigger point is that criminalizing non-disclosure, especially in the absence of significant risk of transmission, is horrific public health policy,” Strub said. “It drives further transmission of HIV.”

Strub and others who advocate for changing the law argue that the threat of going to jail for having HIV will discourage people from getting tested and treated out of fear of conviction. 

But Baltimore told Healthline that this makes no sense. “If I don't think I've got it then there's no reason to get tested," he said. "But suspecting I have a disease, I'm going to sit there and not get tested for my own health purposes? And suspecting I have the disease, I'm still going to go out and infect other people? This is the kind of logic I'm supposed to accept?” 

Serosorting and Pillow Talk

HIV criminalization laws that require disclosure are complicated by a practice called serosorting. Serosorting, widely reported by gay men, is making decisions about a sex partner based on what you think you know about his or her status. 

For example, a gay man may never have heard that a potential partner is HIV-positive, so he assumes that he is not. And he doesn't ask. 

Serosorting: Is It Safe? »

Baltimore's amendment offers a defense against a class C or D felony if a person has a doctor's note showing that they are not at risk of spreading the virus. But viral loads indicating transmission risk can fluctuate daily. They only are read about once every 90 days, putting any doctor who writes that kind of note in a precarious position.

People with HIV could also protect themselves by having a potential partner sign a contract before sex confirming that they have been informed of their status. “We joke around in the HIV community that you need to take your notary with you,” said Tami Haught, a woman with HIV fighting to change Iowa's law, in an interview with Healthline. “This is not realistic, and goes back to what we have now with the he said/she said cases that people are being convicted of right now.”

The Stigma Factor

In the end, activists like Haught and Strub believe that these laws drive stigma against people with HIV, keeping others from getting tested and treated.

But headline-grabbing stories about HIV transmission still appear from time to time, and there still are real victims of HIV-positive sexual predators.

What's My HIV Transmission Risk? FAQs For Mixed-Status Couples »

Two weeks ago, a man in Waco, Texas pleaded guilty to infecting two teenagers, a girl and a boy, with the virus. He was sentenced to 40 years in prison, according to the Waco Tribune.

“I believe it should be the infected person's obligation and legal duty to inform, not the victim's legal duty to ask,” Baltimore said. “Criminal liability should lie with the culpable party, not a victim who somehow fails to protect themselves or who acts irresponsibly.”

Flaggs' sentence recently became the first of its kind in Iowa to be suspended, Haught said. Rhoades' case is currently being heard by the Iowa Supreme Court. Rhoades' attorney has argued that his client pleaded guilty because his previous lawyer “had a lack of understanding of basic HIV 101,” according to the Quad-City Times in Davenport.

Donna Red Wing, executive director of the gay advocacy group One Iowa, told Healthline that the state has a chance to help stop the transmission of HIV in Iowa with the senate's version of the amended HIV transmission law. “We have a great opportunity to do something pretty nifty, something that can have bipartisan support," she said. "And it doesn't have to be about anything but science.”

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