Time for HIV criminal statutes to face scientific scrutiny, says former presidential panelist

A member of the first federal commission to look at the HIV epidemic says it is “probably past time” for states to revisit their HIV-specific criminal laws.

“I think it would be time to go back,” said Dr. Colleen Conway-Welch, a member of the commission created by President Reagan to investigate the disease. “In fact, it’s probably past time to go back and subject those laws to scientific scrutiny.”

In its 1988 report, the Presidential Commission on the Human Immunodeficiency Virus Epidemic made five recommendations related to “criminalization of HIV transmission.” The first recommendation was that states should adopt criminal laws creating “affirmative duties” for those who know they are infected with HIV to disclose that status to sexual partners, to obtain the “knowing consent” of their sexual partners, and to use “precautions” to prevent transmission.

The second recommendation said that such laws should include strong confidentiality provisions. The third recommendation was that prosecutors should consult with public health officials in order to decide whether criminal charges or a public health intervention would be more appropriate for a given case, and that such public health activity be included in any prosecution presentation. The fourth urged states to make sure that those prosecuted under HIV laws are interviewed by public health authorities before they are released from prison to determine whether further action by public health officials is necessary to prevent the person from posing a threat.

The final recommendation said that states should not prosecute people living with HIV for conduct that “did not involve a scientifically established mode of transmission.”

In 1990, Congress mandated that states certify to the Department of Health and Human Services that they had ways to prosecute persons for “intentional” exposure to HIV. That mandate was part of the landmark Ryan White CARE Act, which provided the first comprehensive funding mechanism related to HIV and its care in the United States.

By 2000, all 50 states had certified that they could prosecute a person for intentional transmission of HIV. Some states chose to adopt specific HIV-related laws, while others relied on the traditional criminal laws, such as felonious assault or attempted murder.

According to Lambda Legal, “Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the United States” since 2010.

The laws are controversial. There is little evidence that they deter behavior that is likely to spread HIV, and at least one study has found evidence that HIV prosecutions in Canada may discourage people from being tested for the disease. Many of the U.S. laws do not require proof of actual transmission. In fact, some laws specifically state that the use of a condom is not a defense against prosecution. And some of the laws criminalize behavior that poses a negligible risk of HIV transmission, such as spitting or biting.

Conway-Welch, who currently serves as dean of the School of Nursing at Vanderbilt University in Tennessee, adds her name to a growing list of organizations and individuals calling for officials to revisit HIV-specific criminal laws in the United States.

In October, the HIV Medicine Association released a statement, reading in part:

“Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world. In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission. Thirty-two states and two U.S. territories have HIV-specific criminal statutes. Thirty-two states have arrested or prosecuted individuals with HIV infection for consensual sex, biting and spitting. These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.”

The statement goes on to call for an end to HIV-specific criminal laws, requirements that all policies and laws related to HIV be “based on scientifically accurate information regarding HIV transmission routes and risk,” a federal review to “identify harmful policies,” and public education on the impact of stigma and criminalization.

Conway-Welch agrees that focusing on the science is key to addressing the issue.

“Most of the criminal laws were put into place in the early 90s because people were scared, and it would make sense to recommend that they go back,” she said in a phone interview with The American Independent. “In medicine now, there is a real push for evidence-based interventions, and I think that for those laws that were not evidence-based, I think it would be time to go back.”

Some of the laws, such as Missouri’s, specifically make it a crime to bite another person while HIV-positive, even though the chances of transmitting the virus this way are negligible, according to the Centers for Disease Control and Prevention. Nebraska passed a law last year that makes it a felony for an HIV-positive individual to assault a law enforcement agent with body fluids — including fluids that do not transmit HIV, like saliva and urine.

Conway-Welch’s statements are being received with praise by anti-criminalization advocates.

Rep. Barbara Lee (D-Calif.) — who has sponsored legislation that would encourage reform of state and federal HIV policies — said: “I’m very please she has taken this bold step to join us. It is a very important step. I look forward to working with her.”

“I think it is noteworthy, especially if it helps prevent the issue from being positioned in a partisan manner in state legislatures,” added Sean Strub, executive director of the Sero Project, a nonprofit group working to repeal HIV criminal laws. “This isn’t a Democrat/Republican, Liberal/Conservative issue, but those coming at it from our political perspective sometimes can’t help but view it within the incredibly polarized political environment. It is a public health issue and Dr. Welch is a respected public health leader. Her willingness to reconsider the issue, in light of contemporary science, is a reflection of her professionalism.”

Gretchen Waddell Barrick, communications and advocacy associate at Doors Interfaith AIDS Housing Program in Missouri, concurred with Strub. She is working with advocates in Missouri to repeal that state’s HIV-specific criminal law. In an email to TAI, she said that Conway-Welch’s statements are “very important” and that such laws “cause only harm to our community.”

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Todd A. Heywood

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