This State Might Get Rid of Laws That Make Having Sex with HIV a Crime

February 6th 2017

California lawmakers are considering a new bill that would roll back state laws which criminalize the transmission of HIV, laws critics say are a relic from a time when fear outweighed knowledge of the virus.

The bill, SB 239, seeks to eliminate criminal statutes that, in certain cases, allow HIV-positive people to be prosecuted for having unprotected sex.

In California, HIV-positive people can be charged with attempting to transmit the virus — a crime punishable by up to eight years in prison — even if HIV isn't actually transmitted to a partner, as reporter Matthew S. Bajko explained for The Bay Area Reporter. HIV-positive sex workers in California face additional criminal penalties under these laws.

Critics argue this approach doesn't actually help prevent HIV transmission, but does discourage people from getting tested.

“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” Sen. Scott Wiener (D-San Francisco) announced in a statement published by the ACLU of California, which supports the bill alongside Lambda Legal, Equality California, and other advocacy groups.

However, law enforcement officials have argued HIV disclosure laws ensure public safety and hold criminals accountable. 

“Shifting the burden of HIV disclosure from the infected person, who is aware of a known danger, to one who is completely unaware of their partner’s condition smacks of a ‘blame the victim’ sort of mentality,” Iowa prosecutor Jerry Vander Sanden explained to ProPublica, which was investigating similar disclosure laws in that state. "It would be like telling a rape victim that they should have been more careful.”

But critics argue the current laws fail to recognize the efficacy of today's HIV treatments.  

"We know being undetectable reduces your chance of transmission to virtually nil," San Francisco Supervisor Jeff Sheehy said Monday. "And with people going on PrEP" — medication that helps stop HIV from becoming AIDS — "we have a lot of people having sex safely that is not protected. So this law is really an artifact of a different age. It is more about stigma and fear and has never been based on good public health practices or science.”

Researchers from the CDC and Department of Justice found that 33 states have passed a total of 67 laws dealing with HIV disclosure and transmission, according to a 2014 report published in the journal AIDS and Behavior.

“They need to be repealed," Wiener said of the California HIV laws on the books. "During the 1980s — the same period when some proposed quarantining people with HIV — California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”

Women and people of color are disproportionately impacted by the criminalization of HIV disclosure in California, according to a 2015 report from the UCLA Law's Williams Institute.

“California’s outdated, fear-based HIV criminalization laws are unfair, discriminatory, and do not actually protect public health,” ACLU of California Center for Advocacy and Policy legislative coordinator Becca Cramer said in a statement. “It’s time to modernize our HIV laws and bring them in line with 21st century scientific and public health knowledge.”

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