UNJUST, UNJUSTIFIED AND JUST UNACCEPTABLE:

HIV CRIMINALIZATIONS IMPACT ON HUMAN RIGHTS AND PUBLIC HEALTH

KEY
HIV-SPECIFIC STATUTE, AT LEAST ONE PROSECUTION IN PAST TWO YEARS

HIV-SPECIFIC STATUTE, NO RECENT REPORTED PROSECUTIONS
HIV-RELATED PROSECUTIONS, THOUGH NO HIV-SPECIFIC STATUTE
FIVE OR MORE PROSECUTIONS IN THE LAST TWO YEARS
!
*e total number of arrests and prosecutions from 2008 - 2010 reported here are illustrative, not a precise
count. It is impossible to track all such arrests and prosecutions as there is no uniform system of monitoring
and reporting them. e numbers represent those cases that are searchable in news and legal databases or that
otherwise have come to the attention of the authors.
THE NATIONAL HIV/AIDS STRATEGY ON HIV CRIMINALIZATION (JULY 2010)
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1
OVER


80
*
HIV-Related Criminal
Prosecutions in the
Past Two Years Alone
A MAN WITH HIV IN
TEXAS IS SERVING 35
YEARS FOR SPITTING
AT A POLICE OFFICER
A 23-YEAR-OLD OREGON
MAN WAS SENTENCED
TO 87 MONTHS IN PRISON
AFTER PLEADING GUILTY
TO UNPROTECTED SEX
WITHOUT DISCLOSURE OF
HIS HIV-POSITIVE STATUS
TO A MAN HE MET ON
MANHUNT.COM A MAN WITH HIV IN
IOWA, WHO HAD AN
UNDETECTABLE VIRAL
LOAD, WAS SENTENCED
TO 25 YEARS AFTER
A ONE-TIME SEXUAL
ENCOUNTER DURING
WHICH HE USED
A CONDOM
A WOMAN IN GEORGIA WAS
SENTENCED TO EIGHT YEARS
IMPRISONMENT FOR FAILING
TO DISCLOSE HER HIV STATUS,
DESPITE PUBLICATION OF HER
STATUS ON THE FRONT PAGE
OF THE LOCAL NEWSPAPER
AND TESTIMONY FROM TWO
WITNESSES THAT HER SEXUAL
PARTNER WAS AWARE OF HER
HIV-POSITIVE STATUS
A MAN WITH HIV IN MICHIGAN
WAS CHARGED UNDER THE
STATES ANTI-TERRORISM
STATUTE WITH POSSESSION
OF A BIOLOGICAL WEAPON,
AFTER AN ALTERCATION WITH
A NEIGHBOR. PROSECUTORS
EQUATED HIS HIV INFECTION
WITH POSSESSION OR USE OF
A HARMFUL DEVICE
A MAN IN OHIO IS SERVING
40 YEARS FOR FAILING TO
DISCLOSE TO A GIRLFRIEND
THAT HE WAS POSITIVE.
HE CLAIMS SHE KNEW HE
WAS POSITIVE AND ONLY
WENT TO A PROSECUTOR
AFTER HE STOPPED DATING
HER AND MOVED IN WITH
ANOTHER WOMAN
!
!
!
!
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UNJUST, UNJUSTIFIED AND JUST UNACCEPTABLE:
HIV CRIMINALIZATIONS IMPACT ON HUMAN RIGHTS AND PUBLIC HEALTH
DISCUSSION
Since the earliest days o the lIV,AIDS epidemic, stigma has been a major obstacle to accessing care and implementing eectie lIV preention policies.
1
People with lIV ace pre-judgment, marginalization, discrimination and seere misunderstanding about the means and
actual risks o transmission.
2 3
Many people with lIV internalize and accept this judgment and the perception o those with lIV as toxic, highly inectious, or dangerous to be around. 1his has serious aderse ramiFcations or those indiiduals, as well as on the broader eort to combat lIV. \idespread ignorance
about the actual routes and risks o transmission-and, in particular, the mistaken belie that transmission is likely to occur as the result o a single sexual exposure-is driing the arrest and seere sentencing o people with lIV in this country. In short, lIV-related stigma is both
a serious public health problem and a pressing ciil liberties issue.
Stigma discourages people at risk rom accessing care
4
-including testing or lIV-and it discourages people who know they hae lIV rom disclosing that act to potential sexual partners and others.
5
Nothing more powerully dries stigma than when goernment sanctions it
through discriminatory practices in the law or its application. 1his is renected perhaps most dramatically in the criminal prosecutions o people with lIV who are unable to proe they disclosed their lIV-positie status to partners prior to sexual contact.
6

1he ostensible purpose o these statutes is to deter lIV-positie people rom putting others at risk, but all aailable eidence shows that lIV criminalization does not sere its intended purpose. 1he inherent problem with these laws is that they ocus primarily on the existence or
lack o proo o disclosure ,and on the health status o the person who has been tested or lIV,, not on the nature o the exposure, the actual leel o risk present, the intent o the person with the positie lIV test or een whether lIV was transmitted. Consequently, and as
studies o the impact o these laws hae demonstrated, they do nothing to adance their supposed goals.

Our analysis is not able to capture ully whether deendants with lIV are gien air trials. In most cases, inormation about the baseline lIV status o the deendant`s sexual partner or contacts is not aailable and proo o transmission to a sexual partner is generally not an element.
In the reported cases inoling situations in which a sexual partner actually tests positie or lIV, little i any inormation is proided about how the deendant, as opposed to another sexual partner, has been established as the source o inection.
News and case reports also do not typically reeal whether the truthul testimony o deendants is gien less weight because o the social stigma that attaches to the deendant`s lIV status and the emotionally-charged allegations o betrayal within deeply intimate relationships.
Neertheless, gien many o the acts` as ound by judges or juries in these cases, there is certainly support or the iew that the testimony o deendants with lIV is oten discounted. 1his is particularly true in cases where connicting testimony is rom law enorcement personnel,
8
such as those testiying that they were spit upon or bitten by an lIV-positie deendant in their custody, or rom the morally innocent` sexual partners whose trust has allegedly been betrayed by the nondisclosure o lIV status by a sexual partner.
9

Deendants also may not hae adequate access to expert scientiFc witnesses and deense counsel may be less than well-inormed about the underlying medical and scientiFc issues.
10
Indeed, some conictions o persons with lIV appear to be the result o so-called expert testimony that is nothing
more than junk science.` Len in cases where the deendant has well-inormed and zealous counsel that seeks to challenge and discredit these so-called experts, judges and juries are oten swayed by such inaccurate testimony because it comports with their own preconceied misconceptions
about lIV transmission.
linally, under many lIV-speciFc statutes, particularly those imposing enhanced penalties or prostitution oenses, cases can be prosecuted under attempt or solicitation theories, and no eidence o a completed oense is necessary or coniction. Under these oten oerly broad
statutes, no sexual contact or other actiity posing a risk o lIV transmission is necessary, and oten court opinions oer scant inormation about the actual risk o lIV transmission that would hae resulted rom the oense, had it been completed.
REFERENCES
1
Brimlow DL, Cook JS, Seaton R, eds. Stigma and lIV,AIDS: A reiew o the
literature. US Department o lealth and luman Serices, lealth Resources and
Serices Administration, lIV,AIDS Bureau. 2003.
2
lerek GM. AIDS and stigma. .vericav ebariorat cievti.t. 1999, 42,,: 1102-1112.
3
lerek GM, Mitnick L, Burris S, Chesney M, Deine P, lulliloe M1 et al. AIDS and
stigma: A conceptual ramework and research agenda. .D ava Pvbtic Potic, ]ovrvat.
1998, 13,1,: 36-4.
4
Sayles JN, \ong MD, Kinsler JJ, Martins D, Cunningham\L. 1he association o
stigma with sel-reported access to medical care and antiretroiral therapy adherence
in persons liing with lIV,AIDS. ]ovrvat of Ceverat vtervat Meaicive. 2003, 24,10,:
1101-1108.
5
Bharat S. Racism, racial discrimination and lIV,AIDS. Paper prepared or
UNLSCO,OlClR \orkshop to Deelop Lducational Material to loster 1olerance
and to Lliminate Prejudice. Paris, lrance. lebruary 2002.
6
\orld lealth Organization ,\lO,. \lOtechnical consultation in collaboration
with the Luropean AIDS 1reatment Group and AIDS Action Lurope on the
criminalization o lIV and other sexually transmitted inections. Copenhagen,
Denmark. October 2006.
7
Policek N, Doupe A. Criminalization o lIV transmission. International Conerence
on AIDS. 2000, 13: abstract no. MoPeL2865.
8
ee, e.g., People . lall, 124 Cal. Rptr. 2d 806 ,Cal. Ct. App. 2002, ,aFrming lIV
testing order on theory that sweat on deendant`s hands might pose a risk o lIV
transmission to prosecutor who deendant assaulted during his criminal trial,.
9
ee, e.g., Ginn . State, 66 S.L.2d 12 ,Ga. Ct. App. 2008, ,aFrming coniction
in case that resulted rom the deendant`s ormer sexual partner applying or an
arrest warrant with magistrate court and giing a statement to sheri `s department
against the deendant or ailing to inorm him o her lIV status, although her
lIV status was published on the ront page o a local newspaper beore she
commenced the sexual relationship,.
10
ee, e.g., State . Bird, 692 N.L.2d 1013 ,Ohio 1998, ,aFrming coniction based on
deendant`s no contest plea which was deemed an admission o actual issue as to
whether salia can be a deadly weapon because o risk o lIV transmission,.
11
lorath KJ, \einmayer R, Rosser S. Should it be illegal or lIV-positie persons to
hae unprotected sex without disclosure An examination o attitudes among US men
who hae sex with men and the impact o state law. .D Care. 2010, 22,10,: 1221-
1228, Burris S, Beletsky L, Burleson JA, Case P, Lazzarini Z. Do criminal laws innuence
lIV risk behaior An empirical trial. .riova tate ar ]ovrvat. 200, 39: 46.
12
Galletly CL, Dilranceisco \, Pinkerton SD. lIV-positie persons` awareness and
understanding o their state`s criminal lIV disclosure law. .D ava ebarior. 2009,
13,6,: 1262-1269., Dodds C, Bourne A, \eait M. Responses to criminal prosecutions
or lIV transmission among gay men with lIV in Lngland and \ales. Reroavctire
eattb Matter. 2009, 1,34,: 135-145.
13
Dodds C, Keogh P. Criminal prosecutions or lIV transmission: People liing with
lIV respond. vtervatiovat ]ovrvat of 1D c.D. 2006, 1: 315-318.
14
lorath, .vra note 14, Dodds C. lomosexually actie men`s iews on criminal
prosecutions or lIV transmission are related to lIV preention need. .D Care.
2008, 20,5,: 509-514.
15
lorath, .vra note 14.
16
Galletly CL, Dickson-Gomez J. lIV seropositie status disclosure to prospectie
sex partners and criminal laws that require it: perspecties o persons liing with lIV.
vtervatiovat ]ovrvat of 1D ava .D. 2009, 20: 613-618.
17
Dodds, .vra note 15.
18
White House. National HIV/AIDS Strategy for the United States. 2010; 36-37.
MAP SOURCES
CHLP, Prosecutions for HIV Exposure in the United States: Fifty States, U.S.
Territories, and Military Courts
CHLP, Prosecutions for HIV Exposure in the United States, 2008-2010
No evidence that criminalization laws deter risky behavior.

Studies have found no differences in risky sexual behavior between residents living in a state with a specic disclosure
law compared to residents living in a state without such a law.
11

Even when people are aware that an HIV-specic law exists in a particular state, they usually do not understand how the
law functions (e.g., types of sexual behavior/activity requiring disclosure, penalty for non-disclosure, etc.).
12
Criminalization sends the inaccurate message that attempting to avoid sexual partners with HIV is an adequate
prevention strategy.
HIV criminalization laws weaken the message that sexual health is the responsibility of both partners during sex and
increase stigma by strengthening the culture of blame surrounding infection.
13
For instance, a majority of sexually active gay men believe it should be illegal for PLWH to have unprotected sex
without disclosure because PLWH should have the primary and exclusive responsibility to protect their sexual partners.
Men who have never been tested for HIV are more likely to expect disclosure from HIV-positive partners and more
likely to support criminal prosecutions.
14
Predictors for support of HIV criminalization laws include: HIV-negative or unknown status, less education, a non-gay
sexual orientation and residing in a state perceived to be hostile to LGBT persons.
15

HIV criminalization laws may actually reduce instances of disclosure.
People living with HIV express concerns with the negative impact of required disclosure (e.g., possibility of secondary
disclosure by prospective partner; perceived legal vulnerability based on HIV-positive status) and a belief that such laws
create an inequitable distribution of the burden, because the law holds HIV-positive persons entirely responsible for
protecting the health of an at-risk partner.
16

In a study involving in-depth interviews with 42 gay men asking about awareness and personal impact of criminal
prosecutions for reckless transmission of HIV in the UK, some of the respondents who planned to behave and
communicate differently with sexual partners in the future actually planned to maximize their anonymity and be less
open about their HIV status.
17

The actual impact of HIV criminalization on the inclination and decision to get an HIV test has not been studied,
although anecdotal evidence suggests that it is having a negative impact, particularly in communities of color.
EMPIRICAL STUDIES DEMONSTRATE THE NEGATIVE IMPACT OF HIV CRIMINALIZATION LAWSMORE RESEARCH IS NEEDED
AUTHORS:
Scott Schoettes, HIV Project Director, Lambda Legal
Catherine Hanssens, Executive Director, The Center for HIV Law & Policy
Lisa Judy Chin, Post-Doctoral Research Fellow, HIV Center for Clinical &
Behavioral Studies at New York State Psychiatric Institute and Columbia University