The Government in Our Bedrooms

It is the year 2054 and you are about to have an intimate encounter with someone you love dearly. No cure has been discovered for HIV. The government has determined from the lists it keeps of HIV positive people, that your partner is HIV positive, and consequently they are under surveillance. In fact, all HIV positive people are under surveillance because they may display, “behaviors presenting imminent danger”. In the midst of enjoining in intimacy together, the “sex police” enter your house and find you entwined and immediately take away your partner, not even allowing them to dress, covering them with a sterile black plastic tarp. It did not matter that the sex was consensual, that you already knew your partner’s HIV status, and that you were practicing safer sex. Sound strange? In reality, we are not to far off from such a scenario. The government is in our bedrooms now, more that ever before in our history.

Many people, who fear the possibility of contracting HIV, have encouraged legislators to criminalize the transmission of HIV. As of June 2000, 34 states have laws that make an HIV positive person who engages in acts such as unprotected sex, spitting, biting, or sharing needles liable for criminal prosecution. There is a widespread concern among people living with HIV about such laws that impose criminal sanctions to prosecute persons who engage in activities that risk transmitting HIV.

The laws that criminalize HIV transmission severely undercut public health efforts and do little to alleviate the problem of HIV transmission. Conscious attempts to spread HIV are exceedingly rare and existing criminal laws, such as assault or attempted manslaughter are sufficient for prosecuting the rare case infected persons deliberately infects another person.

Assault laws already make criminal the intentional transmission of HIV. The HIV transmission laws that do away with the “intent” pretty much criminalizes any sexual activity by an HIV positive individual. What about consensual sexual activity? In reality, criminal convictions for exposing another person to HIV through sex are rare. The majority of people with HIV would never intentionally infect another person.

Ever since the emergence of HIV, in the early 1980s, the United States has struggled to cope with this terrible disease. However, the widespread fears incited by HIV have made the careful development of rational public policy very difficult. Politicians under pressure, “to do something” to protect the public, have promoted laws making it a crime for people with HIV to expose or infect others with the virus.

In fact, As of August 2008, 32 states, including Washington State, have enacted legislation that criminalizes the transmission of HIV, whether or not infection occurs. The majority of these states classify HIV transmission as a violent felony crime. This trend alarms citizens who see the steady erosion of democracy in American life. Outside the United States, this trend has the United Nations and Amnesty International deeply worried. At risk are over 1,000,000,000 Americans who are HIV-positive.

This misguided movement is spreading. Driven by a few high-profile cases of reckless behavior, bills aimed at criminalizing HIV transmission are popping up in state legislatures around the country. While it is clear that someone, who knowingly infects another with HIV is guilty of unconscionable behavior that should be punished. The laws that criminalize HIV transmission severely undercut public health efforts and do little to alleviate the problem of HIV transmission. According to the Centers for Disease Control, every year, nearly forty thousand (40,000) new HIV infections happen in the United States.

Many people can come up with an example of an HIV positive person exposing another to the virus with “reckless disregard” for the lives of others. The media is really good at latching on to these stories and sensationalizing them, rightfully promoting national, moral outrage. Many people remember the case of the St. Louis male who, in 1992, injected his son with HIV tainted blood, so that the boy would not live long enough to require child-support payments. Then there was the case of the upstate New York male who allegedly had unsafe sex with at least forty eight (48) women after testing positive and receiving counseling. While these cases and others are profound human tragedies, most perpetrators of these crimes were convicted under existing criminal laws, such as attempted murder, aggravated assault, assault with a deadly weapon, attempted manslaughter, and/or manslaughter. Cases like these described above are uniquely isolated incidents.

Response to the HIV epidemic must based not on the fears and misperceptions that frequently surround the disease, but rather on sound policy judgments that take into account the realities of the epidemic and that will most effectively reduce the rate of HIV transmission while protecting individual rights.

Most literature and professional HIV workers acknowledge that additional factors beyond the traditional functions of criminal law must be taken into account in determining whether (and if so, to what extent) criminalization is an appropriate response in relation to HIV transmission.

Further complicating the matter, most sexual acts are often driven by emotion, passion, and impulse rather than rational contemplation, and the law has proven remarkably ineffective at regulating uncalculated emotional acts. For those at risk for HIV, particularly for those who do not have access to adequate counseling and support the emotions resulting from a potential HIV diagnosis, often include fear, anguish, anger, isolation, hopelessness, and desperation, can become overwhelming and may prompt impulsive behaviors that are not based upon rational consideration of future consequences. In the context of these powerful, immediate fears of illness, death, and social isolation, any fear of a future criminal conviction is likely to seem abstract, remote, and irrelevant, and thus is unlikely to alter behaviors.

Responding to risky conduct with criminal sanctions may not only fail to have any significant impact on the spread of HIV, but is in fact likely to be counterproductive to sound public health policy. The criminal justice system is ill suited for these purposes. In the rare instances where criminal prosecutions are warranted, existing laws are available to further the interests of deterrence, retribution, and punishment that are the central objectives of the criminal law. Although criminal prosecutions pose many challenges in the context of HIV, these challenges are inherent in the nature of the disease and the behaviors by which it is transmitted, and thus cannot be surmounted by adoption of an HIV-specific violation. Provisions specifically aimed at HIV exposure and transmission therefore offer few, if any, practical advantages over existing laws in furthering the deterrent and retributive objectives of the criminal law.

Criminalization impedes the public health initiatives that have proven most effective in containing the spread of HIV because they discourage people at risk from testing for the virus. In addition, the climate of prejudice and stigmatization, which surrounds HIV, prompts many people to conceal their HIV status out of fear.

Public health campaigns warn people of the risks inherent in unprotected sex, emphasizing the importance of consistently taking precautions. Providing access to condoms to allow people to take such precautions has proven to be one of the most effective means of reducing rates of HIV transmission. Central to these public health campaigns is the message that each person must take precautions against the risks of unprotected sex because it is impossible to know with assurance, who is infected with HIV, and there are many who do not know their HIV status.

One of the greatest challenges in presenting the “protect yourself” message to the public is teaching people to abandon their misplaced reliance on attempts to distinguish between “safe” and “unsafe” sexual partners and to recognize that the risk of contracting HIV is inherent in certain behaviors such as unprotected sex. Statutes criminalizing HIV transmission contradict this critically important focus on viewing HIV as a risk associated with certain behaviors rather than with certain people. By attempting to place responsibility and blame on persons who transmit HIV, such statutes raise false expectations that infected persons can and will assume responsibility for protecting others, thus detracting from the crucial message that each person must assume responsibility for consistently taking precautions against high-risk activities like unprotected sex, as it is unsafe to assume that potential sexual partners are uninfected.

Proponents of criminalization argue that it is only appropriate to place the primary responsibility for preventing HIV transmission on people who are infected with HIV. However, while people living with HIV undeniably have a responsibility and moral duty to protect others, criminal laws have proven incapable of effectively coercing people to assume this responsibility, and voluntary programs which offer people the information, resources and support to manage the pressures of living with HIV rationally and responsibly have proven far more effective at promoting behaviors that minimize risks to others. Thus, the criminalization approach will only foster false expectations that persons living with HIV can and will prevent infections, contrary to the reality that the only safe practice is for all persons to take responsibility for avoiding behaviors that carry a risk of exposure to HIV.

Laws criminalizing HIV transmission have additional implications beyond adverse public health consequences. They also have profound effects on the rights of individuals and the relationships between individuals in our society. The enforcement of these laws is likely to result in significant invasions of fundamental rights to privacy, to perpetuate the prejudice and discrimination against marginalized communities which has surrounded the HIV/AIDS epidemic, and to reinforce rather than redress the deeply rooted patterns of gender inequality which render women particularly vulnerable to HIV infection.

HIV is often transmitted through sexual behaviors, which implicate some of the most intimate aspects of human interaction. The enforcement of laws which seek to criminalize sexual transmission of HIV will, therefore, necessarily require extensive scrutiny of these intimate interactions, resulting in intrusions into some of the most personal and private aspects of people’s lives. Moreover, while any law aimed at HIV transmission will at a minimum require evidence of the accused’s HIV status at the time of the acts in question, many such laws will also require proof of the accused’s awareness of that status, the accused’s disclosures to sexual partners, the nature of the sexual acts, the sexual partners’ HIV status before and after contact with the accused, and the partners’ possible exposure to HIV from sources other than the accused. Thus, the enforcement of HIV-specific criminal laws is likely to call for exhaustive inquiry into the medical histories as well as the sexual affairs of both the accused and the sexual partners of the accused.

These extensive inquiries into private sexual relationships and medical histories infringe on the realm of privacy in our personal affairs, which is valued in our society and protected under our Constitution. And as with any criminal law, there is no way to ensure that invasions of privacy will be limited to the guilty, as these invasions of privacy will occur at the investigation and trial stage, before the credibility of the evidence against the accused has been tested.

While some supporters of criminalization have argued that the public interest in preventing the spread of HIV justifies invasions of individual rights, this argument holds true only if the invasions actually further a public purpose. However, HIV-specific criminal laws do not; further the asserted public purposes of deterrence, retribution, or protection of public health. Because these laws fail to achieve any beneficial social purposes, the violations of rights that will result from their enforcement cannot be justified under the Constitution, which forbids violations that are not strictly necessary to achieve an important purpose.

In the context of the HIV epidemic, these invasions of individual rights of privacy not only fail to further any beneficial purpose, but in fact impede efforts to combat the spread of HIV, because official scrutiny into otherwise confidential medical records will discourage people from consulting candidly with health professionals about their health and their involvement in high-risk activities, thus impeding the types of constructive interventions which can help prevent the transmission of HIV.

Criminalization runs the danger of further stigmatizing all people with HIV/AIDS, and those associated in the public mind with the disease, as potential criminals. This would be even more likely if an HIV-specific criminal law were created. In addition, the criminal law may be used to selectively prosecute those already associated with HIV/AIDS, such as sex workers, people of color, injection drug users, and gay men.

Highly effective public health interventions cannot be administered to people who avoid contact with health professionals, out of fear of the consequences of an HIV diagnosis. Accordingly, criminalization, which only compounds fears of stigmatization and causes people to distance themselves from public health services, is severely detrimental to the successful implementation of these public health initiatives.

The issues raised by laws, criminalizing HIV transmission, are complex, and require much more thought than government and politicians have put into it. These laws constitute an end run around the entire conceptual scheme of the Bill of Rights. Whenever laws are enacted that potentially violates a defendant’s right to privacy, everyone should be concerned. Instead of disclosing personal medical information, like HIV test results, next time it could be a genetic coding that is require to be disclosed before a person has a child or gets a job. Moreover, if these tests do not meet standards, set forth by government authorities, people would not have the choice to do what their hearts desire. Think about it.

Prosecution under criminal law might be possible in certain cases, but the penalties generally available under the criminal code seem inappropriate. Penal institutions do not offer appropriate counseling and treatment for HIV-infected persons and may be a setting with unusual risks for infected persons and others. It would be more appropriate to deal with HIV-infected persons who willfully endanger others under public health legislation rather than under criminal law. However, even the use of such measures in rare individual cases should be done only under the full protection of due process, and if necessary, the law should be amended to that effect.

Part of the skepticism regarding public health provisions, and the consequent urge to criminalize, may be that, when effective, public health measures are not particularly visible. It is those cases in which public health measures fail, and criminal charges are brought, that receive the most media attention and public discussion. Ironically, the success of public health interventions may contribute to a general perception of their inefficacy. HIV/AIDS is then more easily characterized in public thinking as a problem of criminality and requisite punishment rather than as a public health issue.

Public health laws offer an alternative to criminal law in situations involving HIV transmission. Indeed, in the vast majority of cases, their use is preferable to the use of the criminal law. Interventions by public health officials to effect changes in risk behaviors are more flexible, protect confidentiality better, are more consistent with a health protection and promotion focus, and more easily recognize that behavior modification is a complex endeavor requiring a more flexible approach than that offered by the criminal law.

In addition, criminalization runs the danger of further stigmatizing all people with HIV/AIDS, and those associated in the public mind with the disease, as potential criminals. This would be even more likely if an HIV-specific criminal offence were created.

In reality, criminal convictions for exposing another person to HIV through sex are rare. According to an article written for the AIDS Project Los Angels by Brad Spears, since the beginning of the AIDS epidemic only three hundred (300) people in the entire United States have been criminally prosecuted for exposing another to HIV. Only a small fraction of these cases involved exposure through consensual sexual contact. Of the cases involving sexual contact, the majority has been brought against female prostitutes (not their male customers) or military prosecutors against military personnel.

The majority of people with HIV would never intentionally infect another person. Further, public education and information programs focused on how to prevent transmission, would do more to stop transmission, than automatic criminalization. However, we are faced with an increasingly punitive legal and political system, which has more disregard for civil and human rights, than would seem possible in modern times. Prosecutors and politicians seem no more ready to embrace rational policies in the war on HIV, than in the failed war on drugs. In addition, lawmakers continue to obstruct condom television advertising and distribution in schools. Sound public health policy should warrant that everyone get information about high-risk activities, safer sex techniques, and how to negotiate sexual activity. It also, should empower the public to make good choices about needle sharing and sexual activity.

Before invoking the rough instrument of the criminal law, we must be sure that it will have some impact on the problem at hand. We must also be satisfied that on balance the use of criminal law will not be counter-productive, that it will not "do more harm than good."

Absent evidence that personal control measures change behavior more effectively than voluntary education and counseling the government cannot justify their use. The behaviors sought to be controlled or punished are highly ingrained, intimate, and deeply human activities. Coercive state action is a particularly crude tool to compel change in these behaviors. The haste to criminalize the risk of HIV transmission ignores the failure of previous attempts to control venereal disease, as well as the considerable jurisprudential and public health problems that would arise.

In general, criminalization is not a desirable response to HIV transmission, for three reasons: arguments in favor of criminalization are limited; there are valid public policy arguments against criminalization; and public health measures offer a preferable alternative.

When weighed against the forceful, immediate passions and emotional needs impelling people to pursue sexual intimacy, the vague uncertainties as to whether one has been exposed to significant risk of infection in the past, whether the anticipated sexual contact poses a significant risk of infecting others, and whether the criminal justice system would have any way of proving facts that are not known even to the people most intimately involved, are not likely to seem sufficiently compelling to alter the sexual behaviors in question. Thus, in the context of unknowing or unintentional transmission of HIV, as in the context of knowing, intentional transmission, any deterrent potential of the criminal law is severely limited.

Legislators must consider the unintended consequences of criminalizing HIV transmission. It would undermine current initiatives to promote voluntary HIV testing, treatment, and partner notification.

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