Earlier this month California Gov. Jerry Brown signed into law a bill that lowers the penalty for intentionally exposing others to HIV without their knowledge from a felony to a misdemeanor.
This puts the penalty for HIV in line with that for other infectious diseases, such as SARS, hepatitis, and tuberculosis.
Knowingly donating HIV-infected blood, which was a felony, was also decriminalized.
Supporters of the reform, which included public health, civil liberties, and LGBT and HIV groups in the state, say this is an important step away from treating people living with HIV as criminals.
“These types of laws are typically overly broad, and enforced in ways that reinforce stigma and inequality against the most marginalized people in our country,” said Trevor Hoppe, a professor of sociology at the University at Albany, SUNY, and author of “Punishing Disease: HIV and the Criminalization of Sickness.”
The bill, though, was not without its opponents.
“If you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony,” state Sen. Joel Anderson (R-El Cajon) said during debate over the bill, according to the Los Angeles Times.
Critics of the bill also point to cases like one in Scotland, where a man was accused of trying to intentionally infect 10 sexual partners with HIV by sabotaging condoms.
Unintended effects of HIV laws
These kinds of criminal incidents are rare.
“Looking at the cases that are brought under these laws, they really do not resemble — in almost every case — the kind of scary bogeyman that people have in their minds,” Hoppe told Healthline.
He and his colleagues report in the journal Medicine that less than 5 percent of convictions under Michigan’s felony HIV disclosure law involved someone exposing a partner to HIV.
Most of the cases in the state involved sexual exposure without transmission of HIV.
The vast majority of people arrested or convicted — 95 percent — under the HIV criminalization laws in California between 1988 and 2014 were sex workers, according to research by the University of California Los Angeles (UCLA) School of Law’s Williams Institute.
More than two-thirds of those were African American or Latino, although they account for only 51 percent of people living with HIV in the state.
Women made up 43 percent of people who came into contact with the criminal justice system due to their HIV status, although they represent only 13 percent of the HIV-positive population in the state.
The new California law also abolishes the requirement that sex workers get tested for HIV after convictions for prostitution.
The law follows on the heels of a 2015 report by the Obama White House on the country’s HIV/AIDS strategy.
The report said the language and enforcement of HIV laws often “run counter” to science about how HIV is transmitted.
“Often judges and prosecutors [in these cases] will talk about HIV like it’s 1988,” said Hoppe. “Like it’s a death sentence. They’ll describe defendants as murderers.”
The White House report also cites research showing that “HIV-specific laws do not influence the behavior of people living with HIV in those States where these laws exist.”
HIV no longer a death sentence
Much has changed since the early days of HIV, when there were no effective treatments available.
Newer antiretroviral therapy (ART) is now able to reduce the virus in a person’s body to low levels.
Last month, the Centers for Disease Control and Prevention (CDC) announced that it agreed with scientific evidence showing that “people who take ART daily as prescribed, and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”
Basically, undetectable equals untransmittable.
This raises ethical questions about current HIV disclosure laws.
If a person’s HIV level is so low that it isn’t possible to transmit the disease to a partner, are they obligated to disclose that information?
“The technologies that we have today to stop HIV transmission in its track really undermine any argument that disclosure is always justifiable from a public health perspective,” said Hoppe.
Many of the HIV laws date back to the late 1980s, when AIDS arose as a public health crisis around the country, often in already stigmatized populations.
“The people who contracted HIV in the early years of the epidemic were people that most Americans thought of as criminals — injection drug users, sex workers, and homosexuals,” said Hoppe.
This was also a time when the war on drugs was in full force, with the country ramping up its criminal justice system.
Given those conditions, said Hoppe, “it wasn’t a stretch for lawmakers to call for punishing people that they already viewed as deserving of punishment.”
Signs of a shift in HIV attitudes
The legislative overhaul of HIV laws in California and Colorado may be a sign that the country is moving away from criminalizing HIV and instead toward dealing with it as a public health problem.
But then again, maybe not.
In 2014, Iowa modified its HIV-specific law to focus on people who intend to transmit the disease without a person’s knowledge, rather than including all potential cases of transmission.
These changes pleased advocacy groups, with The Center for HIV Law & Policy calling them “significant improvements.”
But the law kept the felony penalty for intentional transmission of up to 25 years imprisonment.
It also added hepatitis, meningococcal disease, and tuberculosis to the list of diseases.
The center called this “grossly out of proportion to current understanding of what it means to live with any of these diseases today.”
Under California’s revised law, intentional transmission of HIV or other infectious diseases is “punishable by imprisonment in a county jail for not more than 6 months.”
Hoppe argues that laws that single out HIV may not even be needed.
“If there is someone out there maliciously trying to infect someone else, I think it’s unquestionable that that’s wrong,” said Hoppe. “There may be an appropriate criminal justice response to it, but you don’t need HIV-specific criminal laws to accomplish that.”
Jailing a person who intentionally infects someone else also won’t cover medical costs. In the case of HIV, this could be about $400,000 over a person’s lifetime.
But there are civil lawsuits for that.
An Oregon woman was awarded $900,000 after a man gave her herpes.
And an Iowa woman won $1.5 million in a lawsuit against a man who infected her with HPV.
Criminalizing other infectious diseases
While Iowa specifically lists the infectious diseases covered by its intentional infection law, California leaves it open-ended.
So it’s possible that someone in California could be charged with transmission of less severe infectious diseases — including the common cold and measles.
This is where things get murky.
“If we know we have a virulent strain of influenza and still go to visit our frail Aunt Doris, then embrace her, and thus fatally infect her, is our gross negligence any less culpable than if we had shoved past her on the stairs and knocked her down, as a result of which she died of her injuries?” write Catherine Stanton and Hannah Quirk in their book “Criminalising Contagion.”
They add that the “relationship between criminal law and contagion is much more complex” than this example suggests.
This public health struggle stretches as far back as the case of Typhoid Mary, the Irish immigrant and asymptomatic typhoid fever carrier who was quarantined in 1907 by New York authorities. She infected 51 people, three of whom died.
The question remains whether infectious diseases are best handled as a public health problem or a legal one.
“The criminal justice system is the wrong tool for controlling infectious disease,” said Hoppe. “So I hope that in states like California, that public health becomes the institution in charge of this issue.”
However, when the government’s response to an infectious disease veers too far toward criminalizing it, this may inadvertently cut off people with the disease from the help they need.
In the case of HIV, people who live in states with harsh HIV laws may avoid getting tested because they think that if they don’t know their HIV status, they won’t be convicted.
There are also other unintended consequences of these laws.
“From talking to advocates and people living with HIV,” said Hoppe, “many people describe living in fear that a partner will turn on them at some point and decide to file charges, even in cases where they did tell them about their HIV status.”