by Oscar Mairena, Manager, Policy and Legislative Affairs and Viral Hepatitis
On December 4, NASTAD joined the United Nations Development Programme (UNDP) and the Center for HIV Law and Policy (CHLP), in collaboration with Congresswoman Barbara Lee, for the United States National Dialogue on the Criminalization of HIV Transmission, Exposure & Non-disclosure: The Role of States & the Federal Government. NASTAD presented on the public health approach to ending HIV criminalization and NASTAD Chair Randy Mayer, Chief of the Iowa Bureau of HIV, STD and Hepatitis joined Iowa State Senator Matt McCoy in discussing the importance of the partnership between the state legislature and public health to modernize HIV criminal policies in Iowa.
As it stands, 32 states and two U.S. territories have criminal laws based on the exposure, transmission or non-disclosure of HIV. These laws have resulted in many egregious human rights violations, including harsh sentencing of people living with HIV for engaging in behavior otherwise legal for people who are not HIV positive or who do not know their status. There is a clear need to modernize these laws and many organizations and coalitions have taken on this charge like CHLP, the Positive Justice Project and the SERO Project. However, there is more than one pathway to address the injustice caused by HIV criminalization. Public health offers one critical avenue to modernize these policies and end the stigma and discrimination caused by these laws.
The National HIV/AIDS Strategy states that “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 screening for, preventing and treating HIV.” Unfortunately, these laws are not based on public health, research or science, which tell us, for example, that effective ART has made HIV a chronic and manageable disease with near zero risks of transmission, and are instead based on stigma and miseducation.
The Effects of Criminalization on Public Health Practice
In fact, these laws are in direct discordance with current public health approaches like HIV testing, promotion of condom use, voluntary and safe disclosure practices, and others. For example:
- Being unaware of one’s HIV status is the primary defense to prosecution under state criminal laws.
- In most states, any sexual exposure – regardless of whether protection is used and without assessment of risk or intent – is subject to the same punishment as actual transmission.
- More than half of cases involve consensual adult sex and about a quarter involve spitting and biting.
- Cases have produced severe sentences despite the absence of HIV transmission in most cases.
- These laws weaken the message that sexual health is the responsibility of all partners involved.
- Most laws and prosecutions do not treat condom use as evidence of a reduced risk of harm or of the defendant’s lack of intent to transmit HIV.
The rhetoric used to justify these laws is based on the assumption that criminal laws promote disclosure, but studies show that using the criminal law to deter or alter sexual behaviors of people living with HIV is ineffective and does not influence the behavior of people living with HIV or most at risk for infection in the states where laws exist.
Ending HIV Criminalization: The Role of Public Health
Given the role state HIV/AIDS programs play in implementing HIV related policies, laws and procedures, HIV criminal laws pose a professional and ethical conflict for health providers, public health officials and health departments who may be put in the position of having to choose between enforcing the law and protecting their patients—a conflict that can be detrimental to patient-provider relationships, linkage and retention to care, and treatment adherence.
NASTAD is currently working with state HIV/AIDS programs to ensure that policies, procedures and forms are in line with current scientific and public health knowledge of the risks, routes, and transmission of HIV. As part of NASTAD’s Policy Statement on HIV Criminalization, we issued five basic guidelines that identify current practices and procedures and provide a framework for evaluation, remedial measures and follow-up monitoring. The guidelines focus on policies and procedures which can be reviewed and modified by the health department.
In addition to health departments, many other public health players have a key role in ending HIV criminalization. The Positive Justice Project has many member organizations and signatories of the national consensus statement that represent these public health and community stakeholders. As efforts continue to repeal or reform state laws, we must continue to work with and through public health to educate the public about the detrimental effects of HIV criminalization and the risks and routes of HIV exposure and transmission in order to truly modernize our prevention and care strategies and ensure the rights of people living with HIV or at risk for infection.
To learn more about NASTAD’s HIV Decriminalization efforts, visit our website.