Criminalization laws fuel stigma against PLWHA
By Rod McCullom
With 32 states and two territories criminalizing exposure to and/or transmission of HIV, the United States leads the world with “thousands of prosecutions,” according to the United Nations-backed Global Commission on HIV and the Law. Some states penalize people for having sex without revealing their serostatus—regardless of whether a condom was used, the person’s viral load was undetectable or the virus was transmitted. About 25 percent of exposure prosecutions involve spitting or biting, each of which poses little threat of HIV transmission.
“There is already a huge stigma associated with being HIV positive—and these laws do not encourage people to get tested and seek treatment,” says Robert Suttle, assistant director of the Sero Project, the Washngton, D.C.-based advocacy organization fighting HIV criminalization laws nationwide.
Suttle discovered that he was HIV positive while trying to enlist in the Air Force. Later, following the end of a contentious relation-ship, a former partner filed charges that Suttle never revealed his serostatus—which Suttle says is not true. He was sentenced to six months in prison under the Louisiana law that criminalizes HIV exposure and subsequently was required to register as a sex offender.
“One of my concerns around the many HIV-criminalization laws is around interpretation,” says Kimberly A. Parker, Ph.D., assistant professor of health studies at Texas Woman’s University. “Were they on treatment? Did they use condoms? Did they actually disclose? The implication is that whatever you do, you will be criminalized.”
“Criminalization also has a significant impact on a person’s ability to seek treatment,” says Suttle. “Many people are not aware that they are HIV positive—and that is especially true among Black people and Black gay men.”
Notably, African Americans make up some 56 percent of “late testers” diagnosed with AIDS within one year of learning they have HIV. “Sometimes we could be prosecuted for something that we didn’t know we had,” Suttle adds.
From Nushawn Williams to Nikko Briteramos to the name-less Black, HIV-positive man whom Georgia Southern University warned its students a-bout but whom no one could confirm ever existed, the media commonly depict Black men as HIV predators. Recently, pastors-gone-wild cases have created a huge virtual foot-print across Black gossip web-sites.
Michigan has emerged as one of the nation’s harshest landscapes for HIV criminalization. In March 2010 the ACLU of Michigan filed an amicus brief when a Black, HIV-positive gay man faced bioterrorism charges after he allegedly bit another man during a fight. That case was eventually dismissed.
New research presented at AIDS 2012 Washington, D.C., demonstrated “an overre-presentation” of Black men with female partners “and an under-representation of White men with male partners among those convicted” under Michigan’s HIV-criminalization laws.
“We did not see one case from 1992 to 2010 that involved a Black female defendant,” says Trevor Hoppe, a University of Michigan doctoral candidate who conducted the study. “That’s probably because Black women’s sexual partners are more likely to be Black men. Many Black men are unlikely to call the police, given their historic mistreatment in the criminal-justice system.”
“These laws exacerbate stigma against HIV-positive people nationwide,” says Hoppe. “They are not decreasing new infections, they are not incentivizing disclosure. It could be just the opposite—many people fear that it encourages not disclosing . . . The defendants repeatedly argue, ‘I was undetectable’ or ‘I used a condom,’ and they are still prosecuted or convicted. This isn’t about risk—it’s about stigma.”
Despite the harsh national climate, there has been some progress. After an almost 20-year battle, Illinois, the only state that required health departments to notify school principals when a student tested HIV positive, finally repealed its Principal Notification of Student HIV Status law in May 2013. Previously, principals had “the right to share a student’s HIV status with teachers and staff. The new law would remove that information from permanent school records,” re-ported the Windy City Times.
For the second consecutive year, Rep. Barbara Lee (D-Calif.) has introduced the landmark REPEAL HIV Discrimination Act, which calls for the review of all federal and state laws and regulations regarding “the criminal prosecution of individuals for HIV-related offenses.” The newest version was introduced in May 2013 with Rep. Ileana Ros-Lehtinen (R-Fla.) as a co-sponsor.
Lee introduced a similar bill in September 2011 with 41 co-sponsors—all Democrats—that died without a single hearing or vote. She hopes that having Ros-Lehtinen as a co-author will help attract more Republican support this year, according to the San Jose Mercury News. Unfortunately, however, the new bill is not expected to move forward in the Republican-controlled House of Representatives.
“We will hopefully see some light at the end of the tunnel once we address the stigma associated with HIV/AIDS,” says Dr. Parker. “Our society tends to discuss HIV/AIDS as a disease—but not the factors that influence and increase transmission and stigma.”
Rod McCullom has written and produced for ABC News and NBC, The Atlantic, Ebony, the Los Angeles Times and others. He writes on politics, pop culture and sexuality at Rod 2.0.