Federal Government Expresses Concern for Necessary Change in HIV Criminalization Laws

By Stephan Cotner, SIECUS Intern

On July 15, 2014 the U.S. Department of Justice (DOJ) released a document titled, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors, urging states to reform current legislation around HIV criminalization. This initiative builds upon the Obama administration’s ongoing efforts to address the domestic HIV pandemic.

HIV criminalization laws began to emerge in the 1980s as an attempt to curtail the spread of the virus, while also adding to the fear and stigma around HIV/AIDS. In 1990, the federal government went so far as to grant increased public health funding to states criminalizing the transmission of HIV.[1] There are currently 33 states with HIV-specific criminal laws, 24 of which require those who are HIV-positive to reveal their status to their sexual partners and 14 of which require disclosure of HIV status to any needle-sharing partners. Eleven states criminalize low-transmission risk behaviors, such as oral sex, or negligible risk behaviors such as spitting, biting, or mutual masturbation.[2] HIV criminalization laws have failed to reflect the current scientific knowledge about the disease, such as advances that make it possible to vastly reduce the risk of transmission. These laws, created by state policymakers blind to the flaws in current legislation, have done nothing to combat the epidemic, and in fact, likely discourage HIV testing due to fear and shame. [3]

The Civil Rights Division of the DOJ release of the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors, was a follow-up to their jointly released document with the Centers for Disease Control and Prevention titled, Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States. The document states the position that  laws that criminalize behaviors before an individual even knows their HIV status should be eliminated. Other than two distinct circumstances in which DOJ supports HIV-specific criminal penalties, they urge the eradication of all other HIV criminalization laws. The two exemptions include retaining, “criminal liability when a person who knows he/she is HIV positive commits a (non-HIV specific) sex crime where there is a risk of transmission (e.g., rape or other sexual assault),” or where an individual is aware of his or her positive HIV status and “the evidence clearly demonstrates the individual’s intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.” [4]

The federal government is hoping that more states will take actions similar to those taken in Iowa, the first and only state to have repealed and replaced its HIV-specific criminal statute so far. In late May of 2014, Governor Terry Branstad signed a law that enacted a “tiered sentencing system that considers whether the individual in question intentionally transmitted the virus, whether there was a significant risk of transmission, and whether transmission occurred at all.”[5] The new law also ensures that people with HIV who are prosecuted no longer need to register as sex offenders and that those previously forced to register as sex offenders retroactively lose the sex offender registration.

The federal government has made it clear that current laws undermine public health and can be a barrier to prevention efforts. Moreover, the criminalization of HIV promotes unhealthy standards for sexual relationships by victim blaming those with HIV, instead of teaching people to have sex with both their partners’ and their own safety in mind.

[1] CDC, HIV-Specific Criminal Laws. June 30, 2014, accessed July 24, 2014, http://www.cdc.gov/hiv/policies/law/states/exposure.html.

[2]McDonald, Helen, Five Things You Should Know about the U.S.’s Criminalization of HIV. Autostraddle, July 21, 2014, accessed July 24, 2014. http://www.autostraddle.com/five-things-you-should-know-about-the-u-s-s-criminalization-of-hiv-246462/.

[3] Heywood, Todd, HIV criminalization may discourage testing, study shows. The American Independent Program, July 18, 2014, accessed July 24, 2014, http://americanindependent.com/217077/hiv-criminalization-may-discourage-testing-study-shows.

[4] US Department of Justice, Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors. Aids.gov, March 15, 2014, accessed July 24, 2014, http://aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf.

[5] Ibid., McDonald, Helen.

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