As HIV landscape shifts, move to rethink laws on transmission

Thirty years ago, AIDS was a national nightmare — a plague killing thousands every year, sparking panic and paranoia.

It was in that climate that California enacted criminal laws to target people with HIV who were believed to be putting others at risk of infection. That those laws exist today is testament to how deeply embedded the public stigma of HIV and AIDS remains, even as the tide of the epidemic has shifted dramatically, say public health experts and patient advocates.

The laws, they say, are unnecessary as well as dehumanizing for the tens of thousands of people with HIV, many of whom are able to manage their disease now and pose virtually no risk to others.

“The world has changed for someone living with HIV since these laws were enacted,” said Dr. Edward Machtinger, director of the Women’s HIV Program at UCSF. “Now these laws just institutionalize misinformation and discrimination. It’s the very embodiment of stigma, codified into law.”

Last month, state Sen. Scott Wiener, D-San Francisco, and Assemblyman Todd Gloria, D-San Diego, introduced a bill that would revise or do away with laws that focus on people with HIV. The legislation has not yet drawn any formal opposition, Wiener said, and law enforcement agencies have not weighed in.

The bill takes aim at three California laws directed at people with HIV. The legislation would not change a fourth law that adds a three-year sentencing enhancement in cases of sexual assault where the perpetrator is HIV-positive.

The three are felonies punishable by imprisonment of 16 months to eight years: engaging in prostitution while HIV-positive, having consensual sex with the intent to transmit HIV, and donating blood, tissue, semen, breast milk or organs when knowingly HIV-positive.

Nationwide, similar laws exist in 33 states, though in some of those states they’re even tougher. In 11 states, biting, spitting or throwing bodily fluids when HIV-positive is a crime, even though it’s considered impossible to infect someone with those actions.

Over the past five years, advocates have intensified efforts to peel back these laws, and they’ve been successful so far in Colorado and Iowa. In 2014, the U.S. Department of Justice recommended that states eliminate HIV-specific criminal codes with two possible exceptions: in sexual assaults and in cases where the suspect is actively trying to infect others.

While the California laws were tailored to prevent harm, patient rights advocates say the landscape has changed. The rules were drawn up at a time when HIV was almost always deadly, so potentially putting someone else at risk was seen as akin to attempted murder.

But HIV isn’t a death sentence anymore, and researchers have learned it isn’t nearly as transmissible as once believed. For example, engaging in the riskiest behavior — receiving anal sex without using a condom or any prevention drugs — will lead to infection about 1 percent of the time.

Moreover, people who are on antiretroviral drugs, and for whom HIV is undetectable in their blood, have close to a zero chance of passing on the virus.

“These laws were passed at the height of the AIDS epidemic, when there was enormous fear and misinformation,” Wiener said. “But it’s time to take a science-based approach to HIV, not a fear-based approach. There’s no reason why HIV should be treated differently than other infectious diseases.”

HIV-specific laws took hold across the United States in the late 1980s and through the 1990s. In California, the first proposals — like Proposition 64 — were far more extreme than what ended up on the books.

Promoted by a group that called itself Panic, for Prevent AIDS Now Initiative Committee, Prop. 64 would have made people with HIV or AIDS ineligible for jobs in schools or kitchens. A prominent supporter, political extremist Lyndon LaRouche, compared anyone with AIDS to “a person with a machine gun running around.”

California voters soundly defeated the bill in 1986, but fear of AIDS remained widespread. Stories of men with HIV having sex in a bid to infect others were sensationalized in the media, despite being rare. One infamous example — that of the so-called Patient Zero , who was believed to have kicked off the American epidemic by purposely infecting others — was debunked just last year .

“These laws are based upon an incredibly inflated mythology: that there is a large number of people who are intentionally transmitting HIV to others. It’s just not true,” Machtinger said.

Machtinger, who has spoken out on radio shows against the laws, said he’s heard concerns that revising or revoking them will allow people who purposely infect others to go unpunished. Those people, he said, can be prosecuted for other crimes that punish people for purposely transmitting other infectious diseases such as syphilis.

Another driver of the movement against the laws is the assertion that they’ve consistently and unfairly targeted vulnerable and disenfranchised people, in particular sex workers. Data compiled by the Williams Institute at UCLA School of Law show that of roughly 1,200 HIV-related criminal cases recorded from 1988 to 2014 in California, more than 93 percent fell under the prostitution law.

Only 33 cases involved exposure with the intent to transmit HIV, while an additional 35 targeted people with HIV who commit sexual assault. Not a single person was arrested for donating blood or other human cell or tissue products.

That means, advocates say, that the laws are chiefly used to turn prostitution charges, which are misdemeanors, into felonies — leading to harsher sentences and potential long-term consequences like problems finding jobs and getting access to services.

In one 2012 California case, a man who was picked up for prostitution ended up facing deportation because he was HIV-positive and therefore charged with a felony, said Scott Schoettes, the HIV project director for Lambda Legal, a national LGBT organization.

What made the case striking, Schoettes said, was that the man never engaged in sex. He was arrested for soliciting an undercover police officer, and the only act they discussed was oral sex, which is extremely unlikely to result in HIV transmission.

“He spent 16 months in jail because of this felony conviction,” Schoettes said. Eventually, he said, the immigration court halted his deportation. “We made it clear to the court just how very low the risk was from oral sex. It didn’t make sense to classify this as a serious crime.”

The laws are especially insidious, opponents say, because they promote misinformation and reinforce stigma around HIV and AIDS. People who have the disease say the laws are degrading and stoke their own fears of disclosure — that if they tell someone they have HIV, that information can be used against them.

Naina Khanna, executive director of Oakland’s Positive Women’s Network, a national advocacy group for women with HIV, said she’s heard of women in abusive relationships whose partners threatened to go to police and claim that they’d lied about being HIV-positive. She’s talked to women who were afraid of losing their children, jobs, housing or other services if their status was revealed.

The threat alone, Khanna said, caused significant anxiety and prevented many women from seeking support.

According to some public health experts, this is a critical danger of the laws: They may keep people from seeking out treatment or from being tested for HIV at all. Treatment can not only save their lives but prevent them from passing the virus to others.

A San Francisco woman who worked as a prostitute in the Tenderloin in the 1980s said the laws had made her reluctant to disclose her HIV status, even to friends and family, and to seek health care.

The laws were demoralizing, making her feel isolated and unworthy of compassion, said Wanda, who asked that her last name not be used because some members of her family don’t know about her past.

“You felt like a leper, like you can’t be in society,” she said. “It was like you were no longer human.”