HIV Criminalization: The Intent to Infect, According to the Law

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Sean Strub

This February, the Presidential Advisory Council on HIV/AIDS called on the U.S. government to set guidelines to eliminate HIV -specific laws and to develop legal approaches for HIV, consistent with other health risks.

HIV -specific laws, called “HIV criminalization,” focus on perceived exposure without considering intent.  Kerry Thomas is doing a 30-year sentence, despite consistent condom use and undetectable viral load.  While condoms can defend against HIV, they are no defense against these laws.

Sean Strub, founder of POZ and current executive director of The Sero Project, puts the argument quite succinctly, “We can't prevent HIV and prosecute it at the same time.”

He feels that “Intent to Infect” is criminal.  Strub uses four criteria to distinguish HIV criminalization from “intent to infect”:

1. Intent

2. Actual risk of harm

3. Actual harm inflicted

4. Similar treatment for similar harms

HIV criminalization laws do not target people infected with HIV; they target people responsible enough to test for HIV, but who tested positive.  These laws require disclosure, which can discourage testing, as disclosure requires prior testing (“take the test and risk arrest”).   Some of these laws require disclosure even in minimally risky situations such as mutual JO.

Strub criticized the emphasis on disclosure.

“Disclosure or non-disclosure doesn't transmit HIV. Sexual behaviors transmit HIV; that's where the focus should be,” he said. “But now disclosure is being promoted as a desired social norm, with little consideration given to the risk of disclosure to the person with HIV.”

For example, last fall in Texas, her boyfriend murdered Cicely Bolden after she disclosed her status.

Most people would agree to an ethic of shared responsibility.  These laws place the entire burden of HIV prevention on the HIV-positive partner.  The HIV-negative partner, however, has the most to lose if transmission occurs.  It’s in their interest to be super-vigilant about remaining uninfected.  Absolving HIV negatives of all responsibility makes absolutely no sense as a prevention strategy.

People justified HIV criminalization as a way to protect women from men.

“These statutes have a disproportionate impact on women,” Strub stressed, “who are more likely to know their HIV status (mainly routine testing in pregnancy) are more likely to be vulnerable to violence when they disclose, and vastly less likely to transmit the virus to men.”

In a same-sex relationship, these laws place the HIV negative partner in the traditional “femme” role of “needing protection” rather than the more “butch” role of someone making adult choices and taking responsibility for those choices.

While treatments have changed greatly, HIV stigma stubbornly remains. Strub explained it this way:

“The public has a blood thirst for punishment against those they see as ‘the other’. … It also is easier to make it the problem for people with HIV, which allows others to not worry about HIV, to look elsewhere, to be irresponsible in their own behaviors.  It's a way of disclaiming responsibility and indulging an arrogance of the well that is fundamentally unjust.”

Joey Wynn, Co-Chair of the Florida HIV Advocacy Network, agrees that these laws reinforce stigma and discourage testing. “They do contribute to stigma and need to be at least updated with the basic science.”

Strub continued to discuss stigma as a “prejudgment, marginalization, and ‘othering.’”

“HIV criminalization is the most severe manifestation of stigma because it enshrines it in the law, making different laws for different parts of the population based on the viruses they carry,” he said.

Law deals in absolutes.  Health deals in subtlety.  We have another example of using the law to promote health in the drug laws, and we can see how that has “worked”.

Criminalization and “Here comes honey boo-boo”

HIV criminalization issues have even entered the excremental swamp (apologies to guys into scat) of “reality” TV in the person of “Uncle Poodle” on the show “Here Comes Honey Boo-Boo”. This show features a rural white Southern family with a terminally “cute” rug rat (Honey Boo-Boo) and an out gay HIV-positive uncle (“Poodle”).  This out gay man bragged about turning in his ex-boyfriend who allegedly infected him with HIV. The ex is now serving five years.  The timeline, however, was off, causing some people to investigate, none of whom have been able to find a case which fits Uncle Poodle’s story.  People are beginning to doubt his story.  For more information, go to Mark King’s blog, “My Fabulous Disease” (http://bit.ly/d4MLLd) or for a more serious take go to Todd Heywood’s blog (http://bit.ly/XL6zmx).


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