Do you think people living with HIV should have to register as sex offenders? Do you believe people living with HIV should be sentenced to 25 years in prison for a sexual act that did not result in transmission of the HIV virus?
Would the fact that an individual did not disclose his or her HIV-positive status change your answer? Do you think someone living with HIV should be virally defined as a second-class citizen with fewer rights and more legal liabilities than someone who is either uninfected or is unaware of his or her status HIV status?
HIV is not a crime. Or is it?
Thirty-four states and two U.S. territories have laws on their books that state that if a person living with HIV has sexual relations without prior disclosure of his or her HIV-positive status, then that person is committing a crime. Some laws permit sentencing a person living with HIV to jail (for up to 25 years) for having consensual sex with someone who is HIV-negative (or does not know his or her HIV status) without prior HIV disclosure — often even if a condom is used and no HIV is transmitted.
Prosecutions against HIV-positive individuals have occurred in at least 39 states (some states have used non-HIV-specific laws for sexual assault), invoking a spectrum of charges including attempted murder, sexual assault, and assault with a deadly weapon. Yes, ignorance has led to defining blood, semen, vaginal fluid, vomit, and saliva of people living with HIV as "deadly weapons" by the courts — and has even led to claims of "bio-terrorism" — even though HIV is now considered a chronic manageable disease. In five states alone more than 500 people have been charged under these laws.
These laws are problematic for several reasons. First, they violate the human rights of people living with HIV by creating a viral sub-class of people (based upon testing positive for the HIV virus) who are singled out for unjust prosecution and excessive punishment in the absence of actual wrongdoing for behaviors that otherwise would be legal for anyone who has not tested HIV-positive. This violates our nation’s values of fair and equal treatment under the law.
HIV criminalization laws were supposedly drafted to prevent the transmission of the virus, yet they actually do the opposite: they drive people away from HIV testing, since knowing your status can subject you to criminal prosecution.
In fact, these laws are at odds with evidence-based prevention strategies. They place the burden of responsibility for disclosure of HIV status and the negotiation of condom use solely on the HIV-positive individuals. They absolve the HIV-negative or untested of responsibility for their own health or the health of others. They also absolve the untested of prosecution under HIV transmission laws. Incidentally, the CDC estimates that 20 percent of HIV-positive Americans do not know they are living with HIV.
These punitive laws drive people at risk of HIV infection underground and away from HIV testing, counseling, referral to treatment, care, and support. Evidence-based prevention strategies call for encouraging at-risk individuals to seek out testing, information, treatment, care, and support.
The great majority of HIV-related prosecutions have taken place in North America, Western Europe, and Australia. But in recent years, many poorer countries have also adopted such laws. In sub-Saharan Africa, 20 countries have passed HIV-specific criminal statutes in the last five years.
So what is being done to combat these counterproductive, unjust laws? At the United Nations, the "Global Commission on HIV and the Law" was launched in June 2010 by UNDP and UNAIDS. It has investigated the relationship between legal environments, human rights, and HIV and aims to develop actionable, evidence-informed and human-rights-based recommendations for effective legal responses that promote and protect the human rights of people living with, and those most vulnerable to, HIV. The Commission has reported its finding in Geneva this month to the Programme Coordinating Board of UNAIDS and will issue a final report in early 2012.
Congresswoman Barbara Lee, a California Democrat and member of the Global Commission on HIV and the Law, has also introduced H.R. 3053 — the "Repeal HIV Discrimination Act" — in the U.S. Congress. This bill creates incentives and support for states to reform existing policies that use the criminal law to target people living with HIV for felony charges and excessive punishment for behavior that is otherwise legal (consensual sex between adults) and that poses no measurable risk of HIV transmission.
What can you do to address this social injustice? First, you should contact your member of Congress and ask that he or she co-sponsor H.R.3053. Next, you can pass around this link — and post it to Facebook, Twitter, and other social networks — for HIV Is Not a Crime, a compelling, powerful, and tragic film about the criminalization of HIV in America, created by POZ Magazine founder Sean Strub.
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