HIV & the Law

Another having-sex-with-HIV conviction shows how unreasonably, and probably unconstitutionally, HIV-specific criminal laws are being applied. A Minneapolis man was convicted October 7 of criminal assault for transmitting HIV to a sex partner, after he had told him he had HIV and the partner chose to proceed with unprotected anal intercourse anyway.

Later, the other man found he was positive and brought charges for criminal assault. The jury acquitted the defendant of one count of having sex without disclosing his status. It felt it could not acquit him, however, of having committed "transfer of blood, sperm, organs or tissue, except as deemed necessary for medical research, or if disclosed on donor screening forms."



We could criticize the verdict on the narrow legal grounds that the "transfer" referred to here appears to be limited to transfer of medical samples. We would rather criticize it on the grounds that the complaining partner knew his risk, consented to the sex, and should take responsibility for the consequences. If he had brought a civil suit for damages, it would have been thrown out because he had "assumed the risk." Assumption of risk is available as a defense in most civil damages cases where the injured plaintiff knew what the risk was and chose to proceed. If you go watch a Little League baseball game, you know one of the kids may pop a foul fly ball into the stands. If you get bonked on the head - no point suing, you knew where you were and what could happen.


It's not a good precedent for a criminal law to hold defendants to a higher standard than the corresponding civil tort. It's also not a good precedent to let a consenting partner avoid taking responsibility for what he consented to. If the state is going to prosecute the defendant for transmission, it should also prosecute the complaining witness for reckless self-endangerment at the public's expense. But then we have to ask whether the state should prosecute other kinds of self-endangerment on the same basis - and that would be so intrusive that it demonstrates why neither of the partners in this episode of foolish but informed and consensual sex should have had to face the law in the first.


CBS TV's Montgomery, Alabama affiliate reports the ACLU has brought suit against the state Department of Corrections for segregating prisoners with HIV. Only Alabama's and South Carolina's prisons still segregate prisoners with HIV from the general prison population. A Department spokesman said, "[HIV] can be transmitted through sexual contact and intravenous drug use and both of those, despite all our efforts are present in Alabama prisons." As we all learned to say in our first year of law school, True but irrelevant. However true the statement is, it is relevant only if the Department can show that ending the segregation will lead to more transmission of the virus. An ACLU spokesman said prison system after prison system has stopped segregating prisoners with HIV without seeing increased numbers of new infections.


Even in prisons, states may not create different classes of citizens, with different rights, obligations, and opportunities, without showing a compelling state interest to be served and a rational means by which creation of such separate classes may accomplish that purpose. Preventing increased transmission of HIV infection in prisons is a compelling state interest. What's missing here is a rational explanation of how continuing to segregate HIV-positive prisoners prevents increased transmission.


California Governor Jerry Brown has signed bills allowing pharmacies to sell syringes without prescriptions and providing for needle exchange programs in designated high-risk areas. These are steps in the right direction. Addiction should be treated as a public health issue. Criminalizing it makes things worse, not better. Ask most harm reduction workers whether they support the IAS 2010 Vienna Declaration calling for decriminalization of all drug use, and they will ask, How loud do you want us to say YES? It would make it possible to use supervised injection sites to reduce new HIV infections and link HIV-positive users to care, as Vancouver has done with success. It would also impoverish any number of Colombian drug barons and Mexican cartels (never a bad thing), reduce violence on our streets and in our prisons, and end the destabilization of small West African states being used as transfer points for trafficking cocaine to Europe. What's not to like?


Returning to Vancouver, an expert testifying at an enquiry into a particular gruesome series of prostitute murders explained how criminalizing prostitution and driving sex workers into the shadows makes them easy prey for serial killers. Criminalizing sex work also makes it harder for "working girls" at extraordinarily high risk of contracting HIV to access prevention, testing, and support services. It even coarsens the police force. In an interview for Positive Voice's 2010 World AIDS Day issue, Miss GiGi Thomas had a lot to say about how cops on the beat used to treat the girls. She never said this directly, but it sounded like there wasn't much to prevent a cop from smiling a mean smile and saying, OK, sweetheart, how'd you like to give me a reason not to take you in? Maybe IAS 2012 should open with a Washington, D.C. Declaration calling for decriminalization of sex work. It's not as if the girls get into the life because they want to.


Finally, we note two cases that aren't in court (yet) but ought to be.


BBC reports at least three people in London with HIV have died after they stopped taking life saving drugs on the advice of their Evangelical Christian pastors. "I know of a friend who had been to a pastor," one woman told BBC. "She told her to stop taking her medication - that God is a healer and has healed her." Now, we at NAPWA are very much in favor of faith; prayer plus antiretroviral drugs can work wonders, and it's part of the day's routine for several of us here. But prayer as a substitute for drugs strikes usas medically unsupportable, and we wouldn't be sorry to see the pastors involved prosecuted for practicing medicine without a license. "God will heal you" is a statement of faith and hope. "God has healed you" is a statement of medical fact, and people who make such statements without a medical basis should be held responsible for the consequences.


Criminal laws singling out HIV for special treatment should be repealed. Bad laws aren't the only drivers of prejudice, though. Click HERE to read the story of a young man tortured for religious reasons from the age of twelve to try to make him "straight." The often sensationalist Mail Online tells the story with (for them) unusual simplicity and neutrality and includes a grimly matter-of-fact video statement by the young man himself. We think the most shocking aspect of the case is that it has never resulted in multiple prosecutions for child abuse. The gay conversion "therapy" was child abuse by any standards, and the self-hatred that such "therapy" often produces promotes the spread of HIV.


From National Association of People with AIDS' Positive Voice Newsletter.