[EXCLUSIVE] The Criminalization of HIV (and Why You Should Be Concerned)

Published: October 11, 2012

Pop quiz: Which nation leads the world in the prosecutions of HIV exposure and/or transmission? Perennial human rights violators such as Russia, China, or dictatorships in the Middle East or Africa? Not even close.

The surprising answer: The United States.

In more than 60 nations it is a crime to expose another person to or transmit HIV. The United States has reportedly led the world with “thousands of prosecutions”, according to United Nations-backed Global Commission on HIV and the Law. Thirty-four states and two territories criminalize exposure and/or transmission of HIV.  Some laws penalize having sex without revealing serostatus to partner—regardless if a condom were used or the virus was transmitted. Other laws criminalize spitting or biting—which pose little threat of HIV transmission.

And new research shows that Black men have been disproportionately singled out for prosecution.

Rep. Barbara Lee (D-CA) has introduced the landmark "REPEAL HIV Discrimination Act" which calls for the review of all federal and state laws and regulations regarding "the criminal prosecution of individuals for HIV-related offenses."

“Many of these laws were enacted before people understood how HIV was transmitted,” Rep. Lee told EBONY in an exclusive interview. Lee is the co-chair of the newly formed Congressional HIV/AIDS Caucus. “They are archaic and they don’t reflect current scientific research.”

Some of the state laws on criminalization were passed in the 1980s or early 1990s, when there were few long-term treatments available and HIV/AIDS was considered a “death sentence.” But the introduction of life-saving, antiretroviral medications in the mid-1990s has meant that HIV is a chronic but manageable condition.

“My own state of California has an outdated law,” said Rep. Lee. “I’m trying to find a legislator to repeal that law.”

It is a felony under California law to be HIV positive, have unprotected sex and “willfully” expose another person to the virus—not transmit but “expose.” The law also provides a three-year prison enhancement to sentences if an HIV positive person commits rape, has sex with a minor or is engaged in prostitution.

The epicenter of the domestic HIV/AIDS epidemic is Black America.  Blacks represent only 12% of the nation’s population but account for about 44% of all new HIV infections, according to the Centers for Disease Control and Prevention.  Black men account for 70% of the estimated new HIV infections among all Blacks. Black gay and bisexual men are even more at risk: researchers believe they account for less than one percent of the nation’s population, but nearly one in four of all new HIV infections in the United States.

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