When having HIV is a crime

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While HIV rates have decreased significantly in both the community and in prisons in recent years, incarcerated people still account for a disproportionate rate of HIV infections. This disparity is especially pronounced for incarcerated women, whose HIV infection rate is 80 times higher than non-incarcerated women.

New York’s prisons are considered the epicenter of HIV infections within the US penal system, housing nearly one in every five HIV-positive incarcerated patients in the United States.

But what about the laws that land people with HIV in prison in the first place?

Incarceration is all too often used as the first response to complex social and public health challenges, including the AIDS epidemic.  In states across the country people with HIV may be prosecuted for not disclosing their HIV statuses to their sexual partners — even if transmission risk was minimal or nonexistent.  They often face more severe charges and sentencing for just because they have HIV.

Much like the war on drugs, these stigma-driven policies have not advanced public health or public safety and have served only to devastate families and ruin people’s lives.

 The Correctional Association spoke with allies Sean Strub, the executive director of the SERO Project, and Brook Kelly, Human Rights Attorney at the U.S. Positive Women’s Network, about this issue.

CANY: Sean, what is HIV criminalization?

Sean Strub: HIV criminalization is the use of criminal law to prosecute and incarcerate people with HIV for not disclosing their HIV status prior to having sex, or for behaviors–like scratching, biting or spitting–that do not transmit HIV.

Who is most affected?

Sean Strub: Initially, it was African American heterosexual men who were at greatest risk of prosecution. But today virtually every person with HIV is one disgruntled ex-partner away from finding themselves in a courtroom.

The HIV infection rate for incarcerated women is twice that of incarcerated men. What are some of the unique challenges facing women prosecuted under HIV criminalization statutes?

Brook Kelly

Brook Kelly, Human Rights Attorney at the U.S. Positive Women’s Network.

Brook Kelly: Within the HIV community a large proportion of women are the primary caregiver for children under the age of 18. Incarceration strains the relationship between mothers and children, and can place mothers at risk of losing their parental rights. Women with HIV also have a much higher history of interpersonal violence in their lives, and it is not uncommon for an abusive partner to use these laws as a threat to keep a woman in a relationship. For example, a woman who wants to leave her abusive partner who knows her status, may be told “you know if you ever try leave me, or if you don’t do what I say, I’m going to bring charges against you under this criminal law,” and so that leads to women continuing to be in coercive and dangerous relationships.


Why should the general public be concerned ?

Sean Strub: It is a gross violation of human rights and terrible public health policy.  You can’t be prosecuted if you don’t know you have HIV, so it has become “take the test and risk arrest.” HIV criminalization discourages people from finding out their HIV status.  We know that most new HIV infections come from people who don’t know they have HIV; people who have tested positive are more responsible in their sexual behaviors than those who are positive but don’t know it. We don’t create disease-specific laws for hepatitis or human papilloma virus (which killed about 40,000 women in the U.S. last year). Creating a viral underclass in the law for people with HIV is inherently discriminatory, just like creating different laws for different segments of the population based on any immutable characteristic. There’s a lot of evidence that these laws do not slow HIV transmission and a growing body of evidence demonstrating that they do the reverse: make the epidemic worse.

Brook Kelly: This is a women’s rights issue and a human rights issue. The population of women who are most likely to be incarcerated are poor women of color, within reproductive age.  That’s really the same population among which HIV rates are growing in the US. There is a connection here with the way in which our legal system takes away women’s autonomy and decision making. It  something that we see commonly with the “war on women,” whether it’s taking away right to family planning services or limiting poor women’s access to early childhood development programs for their kids.  The very things that can help a woman move out of poverty and make her a more autonomous being in our society and less vulnerable to contracting HIV—food stamps, housing, federal education grants— are taken away from a woman who has been involved with the criminal justice system.

If HIV criminalization laws don’t make sense from a public health standpoint, why are they allowed to exist?

Sean Strub: They were passed at a time when we knew a lot less about the real routes, risks and consequences of HIV transmission, before treatment that can render one’s viral load undetectable was available.  Once laws are passed, they are sometimes tough to get removed.  Racism and homophobia are at play as well.

 What are some major consequences faced by individuals prosecuted under HIV criminalization laws?

Sean Strub: Long prison sentences, humiliation in the media, outing of one’s most private medical and sexual history.  Willy Campbell is serving 35 years in Texas for spitting at a cop.  Kerry Thomas is serving 30 years in Idaho for not being able to prove he disclosed to his female partner, even though he used a condom and had an undetectable viral load.  Many people convicted for HIV crimes must register as sex offenders.

What’s a better way to address individuals’ failure to disclose HIV status to partners? For the (albeit very rare) cases where an individual’s motivations are malevolent, what should be the response?

Sean Strub

Sean Strub, Executive Director of the SERO Project.

Sean Strub: People who have a malicious intent—a true desire to harm someone else by giving them the virus—surely exist, but they are exceptionally rare, and should be subject to criminal prosecution just as someone intending to harm someone using any other means. But to improve the public health and facilitate disclosure, we need to remove the barriers to disclosing, and make it safe for people to disclose.  Treat disclosure of HIV in the same way we treat disclosure of other serious sexually-transmitted infections.  Trying to coerce or shame or threaten people into disclosure isn’t effective at reducing HIV transmission.

To learn more or to get involved with advocacy on this issue, visit the SERO Project and the Positive Women’s Network online at www.seroproject.com and www.pwn-usa.org.

The Correctional Association has been investigating HIV care and advocating on behalf of incarcerated people with HIV since the emergence of the virus in the 1980s.

Alongside our partners in the advocacy community and the New York State Legislature, we have helped bring about significant advances in policy and practice, most recently the enactment of a law that requires the New York State Department of Health to oversee HIV and Hepatitis C care inside state prisons and local jails.