If you’re HIV-positive and don’t tell your sexual partners, is that a problem? Probably. But is it worse than rape or murder? Of course not, especially since condoms and antiretroviral drugs can prevent the spread of HIV. Yet some people have been incarcerated for allegedly transmitting HIV, and for longer than many murderers and rapists.
In 2008 an HIV-positive man was sentenced to 35 years in prison for spitting on a police officer, even though HIV cannot be contracted from spit. Contrast this to the case of police officer Johannes Mehserle, who pinned down an unarmed man named Oscar Grant and shot him in the back, killing him. Mehserle received a paltry two-year sentence.
This clearly isn’t fair. Unfortunately, according to the Sero Project, about two-thirds of states in the U.S. have policies that criminalize nondisclosure of HIV status. Despite seeming well-intended, these laws endanger public health and rely on outdated science to promote unequal treatment of those with HIV.
According to a recent study in Ontario, Canada, as well as anecdotal data from activists, HIV criminalization laws discourage people from getting tested for sexually transmitted diseases. Because the laws punish people who are aware of their status, people prefer to remain ignorant of whether or not they have HIV and other diseases. As a result, they are unaware of what they need to do to keep themselves and their partners safe.
Also, HIV criminalization laws are not evidence-based. According to a resolution by the American Psychological Association, many of these laws do not take into account the fact that there are numerous ways to decrease the spread of HIV. Antiretroviral therapy, for example, can decrease how much of the HIV virus someone is carrying. In addition, medicines known as pre and post-exposure prophylaxis can protect people who have sex with HIV-positive individuals. If people practice safe sex and use medical treatment, they can prevent the spread of HIV. The American Psychological Association notes that the laws also punish the HIV-positive population for actions such as spitting and biting, which do not spread HIV. The association also claims that it is often impossible to prove whether or not someone disclosed their status prior to sexual contact.
Finally, criminalizing HIV is discrimination against people with HIV, otherwise known as serophobia. Some laws require people to register as sex offenders, which means they will be publicly placed in the same category as rapists and pedophiles. Also, there are a variety of sexually transmitted diseases and communicable diseases that can be equally or more devastating than HIV, but they are not included in HIV-specific laws. These laws perpetuate serophobia by singling out HIV from other diseases.
Having a disease shouldn’t be a crime, but under HIV disclosure laws, it is. Changing this would keep everyone safe and reduce the stigma against HIV.