“I, like most people in the U.S., thought that criminal charges were only being brought against people with HIV who were maliciously and intentionally transmitting HIV,” says Laurel. “I discovered that wasn’t the case. HIV charges were being brought against people generally when there wasn’t transmission, and were being brought for behaviors that actually don’t transmit HIV—like spitting and biting.” Laurel added that only 10% of cases allege there was transmission of HIV.
According to Laurel, what’s happening in courtrooms is a mindset that was used in the 1980s—cases are based on the thought that if a person was exposed to HIV in any way, that he or she is of course going to become infected, and that HIV is definitely a death sentence. “So it’s really treated as an attempted murder situation,” Laurel says. “I started to meet people who had been convicted and sentenced to decades in prison for not disclosing their HIV status, even when safe sex practices were used, and the other person didn’t become positive. They would be imprisoned longer than if they would have driven drunk and actually murdered someone.”
According to the Office on Women’s Health (OWH), many criminalization laws are based on old, false ideas of what might spread HIV. Through advances in medicine and science we currently know much more about HIV transmission and how best to prevent it than we did when the laws were enacted. For example, we now know that using safe-sex methods greatly reduces the likelihood of HIV transmission, and that it is not spread through saliva[2].
Furthermore, in states with HIV criminalization laws, an HIV-positive person convicted of failure to disclose his or her HIV status could face felony charges, and may have to register as a sex-offender for the rest of his or her life.
How HIV Criminalization Affects Women
Men and women alike can be prosecuted under HIV criminalization laws, but women are particularly vulnerable in these situations for a number of reasons, according to Laurel. “In my work I’ve seen that women are often blamed for bringing HIV into the family. We’re [generally] the first person in a family to know that we are HIV positive because we’re more likely to interact with reproductive health services like gynecologists and obstetricians, so we’re more likely to be tested for HIV,” she said.
It’s that blame that could lead to criminal charges that snowball into other negative effects. “If a woman is prosecuted and convicted, she may very well be labeled a sex offender for the rest of her life and that may make it very difficult to maintain custody of her children, or to find a job, or to find a place to live,” says Laurel. “So women become especially vulnerable to getting kicked out of their homes, losing custody of their children, losing inheritances, and really inhumane instances.”
In addition, HIV criminalization laws may make it very difficult for women living with HIV to leave a relationship, particularly an abusive relationship, for fear of prosecution. “If a woman is positive and tries to leave an abusive relationship, her partner can go to the authorities as a means of retribution for the breakup and say that she didn’t disclose her HIV status,” explains Laurel.
As a woman living with HIV for the past 20 years, Laurel voiced similar concerns that she’s had in the back of her mind since her diagnosis. “For the entire time [I’ve been HIV positive] I’ve known that any person that wanted to could go to the police and say that I had sex with him and [that I] did not disclose that I was HIV positive—even though I’ve been openly positive. And if someone wanted to hurt me in some way, even if we hadn’t been sexual, they could still go to the police and I would have no way to prove that we hadn’t [been sexual].”
So how can an HIV-positive woman protect herself from prosecution? There is no clear answer since, as Laurel explains, “These laws are often very broadly constructed and arbitrarily enforced, so it’s very difficult for people with HIV to even be able to anticipate what behaviors are prohibited.” Laurel mentioned that SERO is trying to help change this through its Protection Center website, which features a printable disclosure acknowledgement form that an HIV-positive person can have their sexual partners sign.
Laurel explained that in some states this may not be enough to avoid prosecution, “There are cases in MN and TN that are fairly recent in which the prosecutor said that having disclosed your status and having the consent of your partner was no protection from being prosecuted,” but what she’s hoping is that having a signed disclosure form will make it harder for prosecutors and juries to make a conviction in HIV criminalization cases.
The effects of HIV criminalization laws on women don’t stop at prosecution; they have also deterred women from getting tested for HIV and seeking the life-saving treatment needed to stay healthy. The OWH notes that women may not want to know or to reveal their status because they fear bias or punishment.
Laurel believes that failure to access prevention services like testing and treatment also stems from the fact that women don’t know what could happen if they receive an HIV-positive diagnosis. “No matter how much they try to be responsible for themselves and take care of their partners, they could still end up in prison,” says Laurel, “There is sort of a perverse incentive not to know your status, particularly if you’re in a vulnerable situation, like a domestically violent relationship.”
Laurel describes the HIV criminalization issue as placing women in a “Catch-22, where we are supposed to be responsible for our sexual health, yet we are also socialized to be obliging and kind and supportive and to not necessarily speak up in terms of our own self-care.”
The future of HIV criminalization
Looking forward, government officials have taken notice. As stated in the July 2010 National HIV/AIDS Strategy for the United States (NHAS), “People at high risk for HIV cannot be expected to, nor will they seek testing or treatment services if they fear that it would result in adverse consequences of discrimination. HIV stigma has been shown to be a barrier to HIV testing and people living with HIV who experience more stigma, have poorer physical and mental health, and are more likely to miss doses of their medication.”[3]
The strategy goes on to address many other concerns with HIV criminalization laws, such as the gap in knowledge about HIV transmission when the laws were enacted versus current scientific facts, evidence that HIV-specific laws don’t influence the behavior of people living with HIV in states where these laws exist, and signs that criminalization laws may hinder people from disclosing their status due to an increased risk of discrimination, thereby hindering current public health prevention strategies.
The NHAS suggests that it may be time for legislators to reexamine if these laws effectively advance public health, which is just what is happening. An amendment was passed this July by the House Appropriations Committee that requires the Attorney General to begin a review of HIV-specific laws.
“What women with HIV really need in terms of being protected is the support of the legal system,” said Laurel. “In particular, support against HIV discrimination so that women don’t have to worry about losing their job, they don’t have to worry about losing their house, [and] they don’t have to worry about losing their children because of their HIV status.”
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