Tuesday, September 13, 2016

In The Face of Fear: the Criminalization of HIV Transmission

By HRC staff
May 15, 2015

Submitted by Marvell L. Terry II, HRC Foundation HIV/AIDS Fellow

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I am HIV positive. Every time I type or say those words, I reflect on my diagnosis and how hard it is to tell someone that I have HIV. Each time I say these words – whether to myself or to someone else – it’s like I am receiving the diagnosis all over again. Even as I work locally, regionally and nationally speaking openly about my status to remove stigma and advocate for persons living with HIV, it is still hard when I have to say, “I am HIV positive.”

Disclosing HIV-positive status is never easy, no matter how many times you do it. I know many others who share my fears about disclosure – Will I be rejected? Will I be judged? Will I be the target of anger or even violence?

With more and more stories about the criminalization of HIV transmission, most recently the case of Michael Johnson in Missouri, my fears are even more compounded.

Johnson, who is black and a former college wrestler, was found guilty yesterday of transmitting HIV to one person and attempting to expose for others to the virus without having told them that he was living with HIV before having sex with them. Five of Johnson’s six accusers appear to be white; one is black.

Even though I practice safer sex, even though my viral load is undetectable, even though I make it a habit to disclose my status to my partners early in a relationship, what if someone accuses me of giving them HIV and says I didn’t disclose? What recourse do I have?

Criminalizing HIV non-disclosure takes an overly simplified legal approach to an exceedingly complex public health and social justice issue – the prevention of HIV.

While Johnson was found guilty, his trial did nothing to stop HIV transmission, stigmatized people living with and at risk of HIV and undermined proven HIV prevention strategies and programs. It sent the message that “Hey, why should I get tested. Not knowing means I’m not at risk of a jail sentence if someone lies about me in the future.” It sent the dangerous message that ignorance is bliss -- when in reality, ignorance puts a person living with HIV at risk of AIDS and puts others at risk of acquiring HIV.

Recently, I have joined The Counter Narrative and 89 other Black gay and bisexual men in signing an open letter to Johnson.

Charles Stephens, founder of The Counter Narrative project, says “there has been a lot of conversation around the direction of the LGBT movement after marriage. What we see happening with Michael Johnson is a policy failure and more importantly a moral failure of our society. He is on trial for being Black and gay and HIV positive. It’s important that all LGBTQ advocates understand the vital nature of addressing the needs of this vulnerable population.”

The letter states, “There are less and less spaces dedicated to Black gay men. And our bodies are being beaten, policed, and pushed into prisons. Yet, we remain steadfast in the belief that our bodies, desires, intimate relationships and communities are not criminal. We are loving, living, and worthy Black people.”

After being in solitary confinement since October 2013, Johnson’s trial began Monday, May 11 with jury selection. Writer Steven Thrasher and AIDS activist Aaron Laxton provided updates on the trial via Twitter (@thrasherxy and @aaronlaxton). At the time of his arrest, Johnson was a student and star wrestler at Lindenwood University in St. Charles, a suburb of St. Louis, Missouri and his education and wrestling career may now be over for good.

This could have been me. This could have been anyone living with HIV.

Thirty-three states have “laws explicitly focused on persons living with HIV,” according to the federal Centers for Disease Control and Prevention. Many of these laws were passed when there was no effective treatment for HIV and are based on false information about HIV transmission. Some states criminalize spitting by an person living with HIV, for example, even though it has been known for decades that saliva cannot transmit HIV.

Today, taking antiretroviral drugs has been shown to reduce the risk of transmitting HIV by more than 90 percent. And people without HIV share responsibility in ensuring they are taking preventative measures -- for example, by practicing safer sex and by taking PrEP.

The facts are apparent -- HIV criminalization laws and their enforcement are informed by homophobia, racism and stigma, not science.

Read more from The HRC, here.

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HIV-Specific Criminal Laws

During the early years of the HIV epidemic, a number of states implemented HIV-specific criminal exposure laws. These laws impose criminal penalties on people living with HIV who know their HIV status and who potentially expose others to HIV. In 1990, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides states with funds for AIDS treatment and care, required every state to certify that its criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.¹

Criminalization of potential HIV exposure is largely a matter of state law, although some federal legislation addresses criminalization in discrete areas, such as blood donation. The National HIV/AIDS Strategy, released by the White House in July 2010, provides some guidance regarding the issue of criminalization, noting that in some instances, existing HIV exposure laws may need to be re-examined.²

An analysis by CDC and Department of Justice researchers found that, by 2011, a total of 67 laws explicitly focused on persons living with HIV had been enacted in 33 states.³ These laws vary as to what behaviors are criminalized or result in additional penalties. In 24 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 14 states require disclosure to needle-sharing partners. Twenty-five states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.

The majority of laws identified for the analysis were passed before studies showed that antiretroviral therapy (ART) reduces HIV transmission risk and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP). The analysis encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws' alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.

It should be noted that all states have general criminal laws—such as assault and battery, reckless endangerment, and attempted murder—that can and have been used to prosecute individuals for any of the above-mentioned behaviors.
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¹ Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 104 Stat. 576).
² National HIV/AIDS Strategy See recommended action 3.3 - Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.
³ Lehman, JS, Carr, MH., Nichol, AJ, et al. Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS Behav 2014.

See a map of states with HIV-related laws below.

Alabama

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	ALA. CODE § 22-11A-51 ALA. CODE § 22-11A-52
Counseling	ALA. CODE § 22-11A-53
LABORATORY HIV REPORTING LAWS
Ala. Admin. Code r. 420-4-1, App. 1

Alaska

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	ALASKA STAT. § 18.15.375
Counseling	ALASKA STAT. § 18.15.380
LABORATORY HIV REPORTING LAWS
Alaska Admin. Code tit. 7, § 27.007

Arizona

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	ARIZ. REV. STAT. ANN. § 36-663
Counseling	ARIZ. REV. STAT. ANN. § 36-663
LABORATORY HIV REPORTING LAWS
Ariz. Admin. Code R9-6-204, Table 3 - being revised

Arkansas

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	ARK. CODE ANN. § 20-15-905
Counseling	ARK. CODE ANN. § 20-15-905
LABORATORY HIV REPORTING LAWS
007-15-2 Ark. Code R. § 5

California

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	CAL. HEALTH & SAFETY CODE § 120990
Counseling	CAL. HEALTH & SAFETY CODE § 120990
LABORATORY HIV REPORTING LAWS
Cal. Health & Safety Code § 121023 Cal. Code Regs. tit. 17 § 2505

Colorado

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	COLO. REV. STAT. § 25-4-1405
Counseling	COLO. REV. STAT. § 25-4-1405
LABORATORY HIV REPORTING LAWS
6 Colo. Code Regs. § 1009-9:2

Connecticut

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	CONN. GEN. STAT. ANN. § 19a-582
Counseling	CONN. GEN. STAT. ANN. § 19a-582
LABORATORY HIV REPORTING LAWS
Conn. Agencies Regs. § 19a-36-A4

Delaware

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	DEL. CODE ANN. TIT. 16, § 715
Counseling	DEL. CODE ANN. TIT. 16, § 715
LABORATORY HIV REPORTING LAWS
16-4000-4202 Del. Code Regs. § 7.4

District of Columbia

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
D.C. Mun. Regs. tit. 22-B, § 211

Florida

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	FLA. STAT. ANN. § 381.004 FLA. ADMIN. CODE ANN. R. 64D-2.004
Counseling	FLA. STAT. ANN. § 381.004
LABORATORY HIV REPORTING LAWS
Fla. Admin. Code Ann. r. 64D-3.02

Georgia

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	GA. CODE ANN. § 31-17A-2
Counseling	GA. CODE ANN. § 31-22-9.2
LABORATORY HIV REPORTING LAWS
Ga. Code Ann. § 31-22-7

Hawaii

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	HAW. REV. STAT. ANN. § 325-16
Counseling	HAW. REV. STAT. ANN. § 325-16
LABORATORY HIV REPORTING LAWS
Haw. Code R. § 11-156-Exhibit B

Idaho

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
Idaho Admin. Code r. 16.02.10.050 Idaho Admin. Code r. 16.02.10.100 Idaho Admin. Code r. 16.02.10.360

Illinois

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	410 ILL. COMP. STAT. § 305/2 410 ILL. COMP. STAT. § 305/3 410 ILL. COMP. STAT. § 305/4 ILL. ADMIN. CODE TIT. 697, PT. 120
Counseling	410 ILL. COMP. STAT. § 305/3 410 ILL. COMP. STAT. § 305/5 410 ILL. COMP. STAT. § 305/9.5 ILL. ADMIN. CODE TIT. 697, PT. 110
LABORATORY HIV REPORTING LAWS
410 Ill. Comp. Stat. § 310/4

Indiana

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	IND. CODE ANN. § 16-41-6-1
Counseling	IND. CODE ANN. § 16-41-6-1
LABORATORY HIV REPORTING LAWS
410 Ind. Admin. Code 1-2.3-47

Iowa

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	IOWA CODE ANN. § 141A.6
Counseling	IOWA CODE ANN. § 141A.7
LABORATORY HIV REPORTING LAWS
Iowa Admin. Code r. 641-1.3 Iowa Admin. Code r. 641-1.4 Iowa Admin. Code r. 641, IAC Agency 641,. Ch. 1, Appendix A

Kansas

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
Kan. Admin. Regs. § 28-1-18

Kentucky

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	KY. REV. STAT. ANN. § 214.181
Counseling	KY. REV. STAT. ANN. § 214.181
LABORATORY HIV REPORTING LAWS
902 Ky. Admin. Regs. 2:020 Ky. Rev. Stat. Ann. § 214.645

Louisiana

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	LA. REV. STAT. ANN. § 40:1300.13
Counseling	LA. REV. STAT. ANN. § 40:1300.13
LABORATORY HIV REPORTING LAWS
La. Admin. Code tit. 51, pt. II, § 113

Maine

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	ME. REV. STAT. ANN. TIT. 5 § 19203-A
Counseling	ME. REV. STAT. ANN. TIT. 5 § 19203-A ME. REV. STAT. ANN. TIT. 5 § 19204-A
LABORATORY HIV REPORTING LAWS
10-144-258 Me. Code R. § 2

Maryland

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MD. CODE ANN., HEALTH-GEN. § 18-336 MD. CODE REGS. 10.18.08.07
Counseling	MD. CODE ANN., HEALTH-GEN. § 18-336 MD. CODE REGS. 10.18.08.06 MD. CODE REGS. 10.18.08.09
LABORATORY HIV REPORTING LAWS
Md. Code Regs. 10.18.02.06

Massachusetts

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MASS. GEN. LAWS ANN. CH. 111 § 70F
Counseling	105 MASS. CODE REGS. § 300.200
LABORATORY HIV REPORTING LAWS
105 Mass. Code Regs. § 300.180

Michigan

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MICH. COMP. LAWS ANN. § 333.5133
Counseling	MICH. COMP. LAWS ANN. § 333.5133
LABORATORY HIV REPORTING LAWS
Mich. Comp. Laws Ann. § 333.511

Minnesota

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MINN. STAT. ANN. § 144.7407
Counseling	MINN. R. 4605.7800
LABORATORY HIV REPORTING LAWS
Minn. R. 4605.7030

Mississippi

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MISS. CODE ANN. § 41-41-16
Counseling	15-2-11 MISS. CODE R. 1.14.1
LABORATORY HIV REPORTING LAWS
15-2-11 Miss. Code R. 1.3.1

Missouri

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	MO. CODE REGS. ANN. TIT. 19, § 20-26.040
LABORATORY HIV REPORTING LAWS
Mo. Code Regs. Ann. tit. 19, § 20-20.020

Montana

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	MONT. CODE ANN. § 50-16-1014
Counseling	MONT. ADMIN. R. 37.114.503
LABORATORY HIV REPORTING LAWS
Mont. Admin. R. 37.114.204

Nebraska

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	NEB. REV. STAT. § 71-531
Counseling	NEB. REV. STAT. § 71-531
LABORATORY HIV REPORTING LAWS
173 Neb. Admin. Code § 1-005

Nevada

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	NEV. REV. STAT. § 441A.336
LABORATORY HIV REPORTING LAWS
Nev. Admin. Code § 441A.235

New Hampshire

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	N.H. REV. STAT. ANN. § 141-F:5
Counseling	N.H. REV. STAT. ANN. § 141-F:7
LABORATORY HIV REPORTING LAWS
N.H. Code Admin. R. Ann. He-P 301.02

New Jersey

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
N.J. Admin. Code § 8:57-2.5 N.J. Admin. Code § 8:57-2.8

New Mexico

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	N.M. STAT. ANN. § 24-2B-2
Counseling	N.M. STAT. ANN. § 24-2B-4
LABORATORY HIV REPORTING LAWS
N.M. Code R. § 7.4.3.13

New York

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	N.Y. PUBLIC HEALTH LAW § 2781 N.Y. PUBLIC HEALTH LAW § 2781-a N.Y. COMP. CODES R. & REGS. tit. 10, § 63.3
Counseling	N.Y. PUBLIC HEALTH LAW § 2781 N.Y. COMP. CODES R. & REGS. tit. 10, § 63.3
LABORATORY HIV REPORTING LAWS
N.Y. Comp. Codes R. & Regs. tit. 10, § 63.4

North Carolina

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	N.C. GEN. STAT. ANN. § 130A-148 10A N.C. ADMIN. CODE 41A.0202(16)
Counseling	N.C. GEN. STAT. ANN. § 130A-148 10A N.C. ADMIN. CODE 41A.0202(10)
LABORATORY HIV REPORTING LAWS
10A N.C. Admin. Code 41A.0101

North Dakota

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	N.D. CENT. CODE § 23-07.5-04
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
N.D. Admin. Code § 33-06-01-01

Ohio

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	OHIO REV. CODE ANN. § 3701.242
Counseling	OHIO ADMIN. CODE 3701-3-11
LABORATORY HIV REPORTING LAWS
Ohio admin. Code 3701-3-12 Ohio admin. Code 3701-3-12, Appendix B

Oklahoma

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	OKLA. STA. ANN. tit. 63, § 1-532.1
Counseling	OKLA. STA. ANN. tit. 63, § 1-528
LABORATORY HIV REPORTING LAWS
Okla. Admin. code § 310:515-1-4

Oregon

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	OR. REV. STAT. ANN. § 433.045 OR. REV. STAT. ANN. § 677.097
Counseling	OR. ADMIN. R. 410-143-0060
LABORATORY HIV REPORTING LAWS
Or. Admin. R. 333-018-0015

Pennsylvania

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	35 PA. CONS. STAT. ANN. § 7605
Counseling	35 PA. CONS. STAT. ANN. § 7605
LABORATORY HIV REPORTING LAWS
28 Pa. Code § 27.22 28 Pa. Code § 27.32a

Rhode Island

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	R.I. GEN. LAWS § 23-6.3-3 R.I. R.23-6-HIV 2.2
Counseling	R.I. GEN. LAWS § 23-6.3-3 R.I. R.23-6-HIV 2.3
LABORATORY HIV REPORTING LAWS
31-5-34 R.I. Code R. § 5.0

South Carolina

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
S.C. Code Ann. Regs. 61-21

South Dakota

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
S.D. Admin. R. 44:20:01:04 S.D. Admin. R. 44:20:02:05

Tennessee

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
Tenn. Comp. R. & Regs. 1200-14-01.02 Tenn. Comp. R. & Regs. 1200-14-01.15

Texas

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	TEX. HEALTH & SAFETY CODE ANN. § 81.105 TEX. HEALTH & SAFETY CODE ANN. § 81.106
Counseling	TEX. HEALTH & SAFETY CODE ANN. § 81.109
LABORATORY HIV REPORTING LAWS
25 Tex. Admin. Code § 97.133

Utah

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
Utah Admin. Code r. 388-803

Vermont

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	No specific laws currently codified
LABORATORY HIV REPORTING LAWS
12-5-12 Vt. Admin. Code § 2

Virginia

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	VA. CODE ANN. § 32.1-37.2
Counseling	VA. CODE ANN. § 32.1-37.2
LABORATORY HIV REPORTING LAWS
12 Va. Admin. Code 5-90-80

Washington

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	WASH. REV. CODE ANN. § 70.24.330 WASH. ADMIN. CODE 246-100-207
Counseling	WASH. ADMIN. CODE 246-100-208 WASH. ADMIN. CODE 246-100-209
LABORATORY HIV REPORTING LAWS
Wash. Admin. Code § 246-101-201

West Virginia

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	W. VA. CODE ANN. §16-3C-2
Counseling	W. VA. CODE ANN. §16-3C-2
LABORATORY HIV REPORTING LAWS
W. Va. Code R. § 64-7-3

Wisconsin

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	WIS. STAT. ANN. § 252.15
Counseling	WIS. STAT. ANN. § 252.15
LABORATORY HIV REPORTING LAWS
Wis. Admin. Code DHS § 145.3, Appendix A

Wyoming

HIV TESTING LAWS
Requirements	Statute Citation
Informed Consent	No specific laws currently codified
Counseling	WYO. STAT. ANN. § 35-4-133 WYO. R. & REGS. HEALTH STD CH. 3, § 1
LABORATORY HIV REPORTING LAWS
Wyo. R. & Regs. Health STD ch. 2, § 1 Wyo. R. & Regs. Health STD ch. 2, § 2

The information presented here does not constitute legal advice and does not represent the legal views of the Centers for Disease Control and Prevention or the Department of Health and Human Services, nor is it a comprehensive analysis of all legal provisions relevant to HIV. This information is subject to change and does not contain measures implemented by counties, cities, or other localities. Use of any provision herein should be contemplated only in conjunction with advice from legal counsel.

Find more information on HIV from the CDC, here.