Survey suggests HIV laws intimidating, counterproductive

WASHINGTON, DC — Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.

The findings come from the preliminary results of a study released at the International AIDS Conference in Washington DC in late July. Researchers say the results demonstrate that HIV criminal laws have created a hostile legal environment for those living with HIV.

Those preliminary results included the responses of 2,076 people living with HIV in the United States. The responses were collected online during June and July.

The study found that 49 percent said they didn’t “trust” they would get a fair hearing if they were charged in criminal court for failing to disclose their HIV-positive status to sex partners, while 30 percent said they were unsure if they would receive a fair hearing. Twenty-one percent of respondents said they trusted the system would provide a fair hearing.

“To me, that’s shocking,” says Laurel Sprague, lead researcher for the Sero Project, which sponsored the survey. The organization advocates against HIV criminal laws.

“People felt that because stigma against people with HIV is so great, that the minute they walk into a courtroom as a positive person that there is already a bias against them as not reliable or not trustworthy,” added Sprague. “And so, even if they are falsely accused, they fear they can still end up in prison.”

In addition, the survey found that 29 percent of respondents living with HIV had worried “a few times” about being falsely accused under their state’s HIV disclosure laws. Another 9 percent said they worried “frequently” about false accusations.

Likely adding to that worry, 48 percent of respondents said it was “not clear” to them what the law prohibited, and 30 percent said it was only “somewhat clear.” Sixty-three percent reported they were unsure whether there was a law in their state requiring that they disclose their HIV status to sex partners.

Seventy-three percent of the respondents reported that they were not informed about the existence of criminal laws when they tested positive.

Sprague says the survey shows “tremendous alienation and vulnerability” of people with HIV in relation to the criminal justice system in the U.S.

In 1990, Congress passed the Ryan White CARE Act, which provided needed cash to help pay for care and treatment of people with HIV. The law included a provision requiring states to certify that they had a way to prosecute intentional transmission of HIV in order to be eligible for the funds.

The CDC reports that Colorado is among 32 states that have passed HIV-specific criminal statutes.

The laws are meant to force people to disclose their status as a way to prevent new infections. But Sprague says the Sero Project survey didn’t find the criminal laws were a major factor in disclosure. In an analysis of nearly 200 open-ended responses as to why people with HIV disclosed or did not disclose their status, criminal laws were cited as a reason by only five people, and only one of those people cited the laws as the only reason.

The Sero Project study also indicated that just under half of respondents said it was either “very” or “somewhat” reasonable for people to avoid testing for the virus in order to avoid prosecution. A slightly lower number (about 42 percent) of respondents felt it was reasonable to avoid treatment in order to avoid prosecution.

Adding more evidence to advocates’ claims that HIV prosecutions may inhibit testing, the study also found that 25 percent of respondents said at least one person had told them that they did not want to get tested because of a fear of prosecution.

These findings echo the results of a recent Canadian study.

In the wake of a series of high-profile HIV nondisclosure prosecutions, researchers surveyed men who have sex with men in Ottawa, Canada. They found that a significant minority of participants — 17 percent — said the prosecutions had “affected their willingness to get tested for HIV,” and nearly 14 percent said the prosecutions “made them afraid to speak with nurses and physicians about their sexual practices.”

The researchers found that this same group reported receiving less testing for HIV and other sexually transmitted infections, was more likely to engage in higher-risk sexual activities, and had a higher number of recent sexual partners.

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Todd A. Heywood

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