Working Toward Decriminalization: Why Having HIV is Not a Crime

On Sunday, Vox put out a report titled “What It’s Like to Have HIV in 2014.” The aim of the report was to highlight some of the pervasive myths about people living with HIV. Here are some highlights:

  • An alarmingly high rate of people believe that HIV can be transmitted through saliva, touching a toilet seat, or swimming in a pool
  • In some cases, physicians are not providing their patients with information about HIV support resources after they have had a positive diagnosis
  • Many stigmas about people with HIV still exist, including that those who have contracted it did something to deserve it

Part of the reason that the misinformation surrounding HIV remains in 2014 after decades of outreach and education efforts by health organizations is that legislative efforts to criminalize HIV remain in full effect. Louisiana is no exception. Last month, a man arrested for DUI was charged with “intentionally exposing” an East Baton Rouge Parish Sheriff’s Deputy to AIDS after spitting in the officer’s face. He is being held without bond. Last year, a Lake Charles man was brought up on the same charges after spitting at an officer while being arrested.

But, how can this be? The HIV virus and the AIDS virus cannot be transmitted through saliva. Kissing people with HIV or AIDS is perfectly safe, as is sharing drinks with them. The Louisiana law, and those in numerous other states, is based on outdated and dangerously misinformed notions about HIV that come from a time before it was widely understood that saliva could not transmit the disease. The Louisiana law hinges on “exposure” to the virus, rather than successful transmission, but no officer is exposed to the HIV virus by being spat on anymore than they are exposed by touching the hand of the person during arrest. And yet, here we have two instances of men being charged with a felony due to their positive status.

These laws are part of a broad effort to criminalize those who have contracted HIV and AIDS. The removal of these laws is a critical step in the process of dismantling harmful and disparaging assumptions about people living with HIV and AIDS. The President’s Advisory Council on HIV/AIDS has called for a widespread end to these criminalization efforts. In addition to the call for federal intervention into state laws that utilize inaccurate medical information to prosecute those with HIV and AIDS, the Advisory Council has also called for an end to the targeting of condoms or other protective devices against HIV and AIDS as evidence of prostitution. People searched by law enforcement and found to have condoms in their possession may be arrested for sex work. So, while health organizations have promoted easy and cheap access to condoms to reduce the rate of HIV and AIDS infection, law enforcement are taking them away and using them as evidence against those who possess them.

The President’s Advisory Council has voted on a resolution with the following provisions aimed at reducing the criminalization of HIV:

1. The Department of Justice (DOJ) and the Department of Health and Human Services (HHS)/CDC complete a written review regarding opportunities for the creation of specific guidance and incentives to state attorneys general and state departments of health for the elimination of HIV-specific criminal laws;

2. Current criminal laws require modernization to eliminate HIV-specific statutes or application of general criminal law that treats HIV status, or the use of condoms or other measure to prevent HIV transmission, as the basis for criminal prosecution or sentence enhancement;

3. Federal and state officials should review the HIV-specific convictions and related penalties, sentence enhancements, and other restrictions imposed on people living with HIV, such as mandated sex-offender registration and civil commitment;

4. U.S. law should be consistent with current medical and scientific knowledge and accepted human rights-based approaches to disease control and prevention and avoid imposition of unwarranted punishment based on health and disability status;

5. The CDC should issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.

These are exactly the steps needed to address the widespread mistreatment of those living with HIV and AIDS. Our laws in Louisiana must reflect sound and medically accurate information, rather than outdated, archaic, and discriminatory attitudes. We have to use our laws to be part of the solution, rather than just creating more problems.

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