A New Strategy to End Civil and Criminal Punishment and Discrimination ont he Basis of HIV Infection:

Published: September 28, 2010

From the beginning of the HIV/AIDS epidemic, stigma and fear have fueled mistreatment of people living with HIV. One of the more troubling and persistent issues for people with HIV has been the prospect of criminal prosecution for acts of consensual sex and for conduct, such as spitting or biting, that poses no significant risk of HIV transmission. The Positive Justice Project is CHLP’s response to this issue: a truly community-driven, multidisciplinary collaboration to end government reliance on an individual’s positive HIV test result as proof of intent to harm, and the basis for irrationally severe treatment in the criminal justice system.

The use of criminal law as way to stop or slow HIV transmission invariably is ineffective. The reasons why individuals take risks with their health, and how they assess risk, are many and complex. Arresting and prosecuting people with HIV for consensual sexual relationships or no-risk conduct, such as spitting, does nothing to take these reasons into account, or to assess risks based on the specific circumstances of the case at hand, such as viral load or even basic issues of intent or mutual responsibility.

Since 1986, there have been roughly 400 HIV-specific prosecutions brought against people who have tested positive for HIV antibodies or the virus itself. Some defendants were charged under HIV-specific criminal statutes, while others were charged under general criminal laws. The number of cases in which there was any evidence of an actual intent to infect or otherwise harm a partner are negligible, and many people have served or are serving decades-long sentences, or are subject to extremely intrusive, expensive and indefinite monitoring and supervision as "sex offenders," in situations where there was no evidence that the defendant in fact transmitted the virus to anyone. In a study of HIV-related prosecutions between 1986 and 2001, 25% involved biting, spitting, or scratching – actions which typically would be treated as misdemeanors with nominal penalties, if prosecuted at all.

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