Metro Weekly

California Assembly votes to repeal HIV criminalization laws

Failing to disclose one's HIV status to a sexual partner is a felony in many states, even if protection is used

Photo: Gam1983, via Shutterstock.

The California Assembly has approved a bill to reduce the penalty for knowingly exposing a person to HIV from a felony to a misdemeanor, The Associated Press reports.

If approved by the Senate and signed into law by Gov. Jerry Brown (D-Calif.), the bill would bring penalties for exposure to HIV in line with penalties for exposing someone to hepatitis or other communicable diseases. 

Current California law imposes much harsher penalties on those who expose others to HIV through unprotected sex, even if the person with HIV is on medication and has an undetectable viral load.  A recent study has found that having undetectable viral levels makes it difficult to spread the virus.

The bill also repeals laws mandating harsher penalties for prostitution by sex workers who have HIV.

Assemblyman Todd Gloria (D-San Diego), the bill’s sponsor, notes that laws were passed throughout the country in the 1980s and 1990s, when medical specialists knew much less about HIV transmission and the virus was much more deadly. He has argued that the state’s current law discriminates against people living with HIV and deters some people from getting tested and knowing their status, which can actually increase the risk of transmission.

Currently, 38 states, including California, have some sort of statute on the books that makes knowingly exposing someone to HIV a crime, with some making it only a misdemeanor and some making it a felony. Under those laws, people with HIV have been prosecuted, in some cases even if they use a condom during sex and are on antiretrovirals to suppress their viral load.

Six other states, including Texas, Oregon, and Massachusetts have no HIV-specific statute, but, in practice, dole out the same punishment, choosing instead to prosecute HIV-positive people by charging them with aggravated assault, for example.

Proponents of HIV criminalization laws say they are necessary to protect the public from a deadly disease, and that all people with HIV should disclose their status prior to having sex with an HIV-negative person. However, HIV advocates point out that criminalization laws place the burden of proof — and the personal responsibility — on the HIV-positive individual, absolving the HIV-negative person of any blame, even if they know that engaging in unprotected sex potentially puts them at risk for a multitude of sexually-transmitted diseases or infections.

“There are some pretty big problems, across the board, with HIV criminalization laws. Most any advocate you talk to would probably say that the biggest thing is these laws don’t account for modern medical science,” says Pepis Rodriguez, project coordinator at the Center for HIV Law & Policy. “One, they don’t account for the actual routes and risks of transmission, which are generally overblown by overzealous prosecutors.

“Transmission rates are actually quite low for most sexual activity, and there are a number of things that are criminalized that don’t post any risk — we’re talking things like oral sex, spitting or biting. Even in the case of vaginal or anal sex, you’re talking about a transmission risk of under 2 percent per act. And that’s without bringing in something like condom usage or antiretroviral therapy.”

Additionally, such laws require people with HIV to essentially provide proof that their sexual partners knew of their status prior to having sex. Logistically, it’s cumbersome to adhere to the law, and requires people to obtain affidavits or video recordings of partners attesting that they are aware of the person’s HIV status. Lastly, even those protections may not be enough if the HIV-negative person is vindictive and lies under oath about their knowledge, as a form of retribution against the HIV-positive partner.

“From a legal standpoint, there are also very serious issues with these laws, and that is: they criminalize people and conduct without paying attention to or without having any intent to do harm, which is really unusual, adds Rodriguez.

“When you look at criminal codes, they require that the person have a particular mental state when they commit some act, an intent to do harm. That is not required with these laws. So whether or not you meant to harm, you can be penalized….And the punishment involved in a lot of these offenses is grossly disproportionate to any actual risk or any actual harm caused.”

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