Thirty-two states currently have laws that criminalize the transmission of the human immunodeficiency virus (HIV). Those who support these laws, and prosecute people for violating them, generally cite public health concerns and a need to curb the transmission of a virus that has affected populations worldwide.
In this column, I will argue that laws criminalizing the transmission of HIV do not actually achieve any of their purported purposes, but instead serve only to perpetuate and condone stigma toward HIV-positive status and discrimination against persons with HIV.
In support of this position, I will describe a case involving a punishment that defies any theory of justice or fairness. In that case, an Iowa man received a shocking 25-year prison sentence after a one-time encounter involving protected sex.
As this and other cases illustrate, the criminalization of HIV succeeds only in marginalizing people with HIV; deterring sexually-active persons from acting responsibly and getting tested; and in some instances, violating constitutional due process protections.
A History of HIV Criminalization
In 1990, Congress passed the Ryan White CARE Act, which mandated that states must criminalize the intentional transmission of HIV in order to receive funding for HIV treatment and prevention programs. Many states passed such laws, and even expanded their scope to criminalize the failure to disclose HIV-positive status to a sexual partner.
In 2000, Congress reauthorized the Act, but removed the criminalization requirement. However, states kept the criminal laws on the books and even now, they still continue to enforce them.
Originally, the criminalization laws were intended to protect the public from a virus about which little was known other than, given the state of medical knowledge at the time, its usually lethal nature. They sought to prevent persons with HIV from knowingly exposing others to the virus.
However, as the following case shows, the laws have had much greater ramifications and currently do not even achieve their original public health purpose.
Rhoades v. Iowa
In June 2008, Nick Rhoades, an HIV-positive man in Iowa, met another man online and subsequently had a sexual encounter with him, during which they used a condom, although Rhoades did not disclose that he was HIV positive. (At the time, Rhoades’s viral load was undetectable, which, according to most studies, makes the risk of transmission nearly zero.) Several days later, the other man was informed that Rhoades might have HIV, at which point the other man contacted the police. The police arrested Rhoades in September 2008 and charged him with intentionally exposing the other man to HIV.
Despite the fact that a condom was used, and despite the fact that the other man did not actually contract HIV from the encounter, Rhoades’s attorney advised him to plead guilty to the charges, and Rhoades did so. He received the maximum sentence under Iowa law: 25 years in prison and lifetime registration as a sex offender. Several months later, however, the court suspended Rhoades’s prison sentence and replaced it with a sentence of supervised probation for five years.
In March 2010, Rhoades petitioned for post-conviction relief, alleging ineffective assistance of counsel. In December 2011, the court denied his petition, and Rhoades appealed the denial to the Iowa Supreme Court. The status of that appeal is pending.
The relevant Iowa law provides that a person commits criminal transmission of HIV if the person “engages in intimate contact with another person” while knowing that he or she is himself or herself HIV positive. “Intimate contact” is a legal term of art that is defined elsewhere in the statute, but Rhoades was not informed of the legal definition when he entered the guilty plea. This lack of knowledge is the basis of his appeal to the state supreme court. Violation of the HIV transmission law constitutes a Class B felony. Other Class B felonies in Iowa include manslaughter, kidnapping, and robbery.
HIV Criminalization Does Not Further Public Health Goals
Although one of the original purposes of criminalizing HIV was to promote public health, it has actually had the opposite effect. By criminalizing knowing one’s HIV status and failing to disclose it to a partner, the laws create a disincentive to ever learn one’s status in the first place. Under the HIV laws, if a person does not know his or her HIV status, then he or she cannot be criminally liable for transmitting the virus to another person. Thus, the laws actually reward ignorance.
Instead of using criminal laws to alienate people living with HIV, states should focus their efforts on (1) seeing that people know their HIV status by getting tested; (2) seeing that people disclose their HIV status to their sexual partners; and (3) urging people to engage in safer behavior via publicly funded campaigns, using billboards or the like, to get the word out.
Unlike these constructive and effective measures, the use of the criminal laws in an attempt to achieve these health goals creates an environment of fear and retribution around the transmission of HIV. It also places no self-responsibility for engaging in unsafe conduct on the HIV-negative partner, contrary to public health policies.
The Criminal Punishment Meted Out Under the HIV Laws Is Disproportionate to the Misconduct Committed
One of the essential principles of criminal law is that the punishment should be proportionate to the crime committed. As Rhoades’s case illustrates, the criminalization of HIV results in highly disproportionate punishments. In that case, Rhoades’s failure to disclose his HIV-positive status led to a 25-year prison sentence and lifetime registration as a sex offender. His punishment was indisputably disproportionate to any misconduct he might have engaged in.
The criminalization of HIV was intended to deter individuals from willfully exposing others to the virus, which is of course a worthy goal. But that goal that can be achieved without laws that specifically target HIV-positive individuals. Existing non-HIV-specific criminal laws are sufficient to deter such types of behavior and to prosecute individuals who violate them.
General battery statutes are more than sufficient to prosecute someone for transmission of a dangerous disease. HIV is relatively difficult to transmit—especially compared to tuberculosis or other highly contagious communicable diseases. Singling out HIV as a special category only contributes to ignorance, which promotes stigma and, ultimately, leads to discrimination in a wide variety of settings, including employment, public accommodations, parenting law, etc. Additionally, civil tort law is generally more appropriate for wronged persons to seek recourse from those who allegedly injured them.
The law should encourage all people (not simply those who are HIV positive) to practice safer sex, as well as encouraging each person to know his or her HIV status and seek appropriate treatment. Unless and until we see the repeal of laws criminalizing HIV transmission, we will continue to see grave injustices such as the 25-year sentence given to Nick Rhoades.
Thoughtful and well-reasoned.
When Colombia, SC Police arrested Terry Lee Phillips in 1987, he became one of America’s first criminal HIV defendants.
During the next 25 years, 400+ Americans have been arrested, convicted and incarcerated for allegedly committing HIV-related criminal offenses. Many will remain in prison for life.
Gay activists expressed little concern about HIV laws until the Office of Medical & Scientific Justice (http://www.OMSJ.org) began to question the expertise, motives, credibility and competence of “HIV experts” in 2009.
Since 2009, the pharmaceutical industry has paid $10 BILLION to settle thousands of criminal and civil complaints related to the illegal marketing of drugs that kill or injure 2-4 million Americans, ANNUALLY – paying millions of dollars in kickbacks and bribes to clinicians that unnecessarily prescribe deadly drugs to healthy patients. The leading US HIV testing laboratories – Quest Diagnostics and LabCorp – have paid millions of dollars in fines for fraud and using testing devices that the FDA has never approved to diagnose HIV.
By any measure, industries and clinicians that kill, injure and defraud for profit can be characterized as “criminal enterprises.” Nevertheless, clinicians use these tests and labs to target blacks and homosexuals to justify the unnecessary and often fatal prescription of multi-billion dollar “blockbuster” drugs like Sustiva, which is often smoked like crack cocaine and methamphetamines.
Gay activists play along because, like those corrupt clinicians and clinics, they accept (under the pretext of human rights and philanthropy) millions of dollars in pharmaceutical kickbacks as well.
Mr. Kemp’s focus on the Nick Rhoades case contrasts with the case of Tom Call, which was settled last January in Davenport. Prosecutors dismissed all HIV-related charges just hours before OMSJ’s team was scheduled to arrive for trial. Despite more than 16 months of preparation, prosecutors couldn’t find an expert who was willing to testify under oath and under penalty of perjury that the defendant was infected with HIV. Call’s doctor – a leading infectious disease expert – later admitted in writing that he never actually diagnosed his patient with HIV – despite offering drugs and treatment for a disease that he was never actually infected with. The case became OMSJ’s 38th victory in less than three years. OMSJ secured three more victories last August alone.
Nick Rhoades was convicted not because he is infected with HIV, but because his attorneys failed to effectively cross-examine the experts called to testify. So instead of implicating Rhoades’ trial attorney as “ineffective,” Kemp laments the “inhumanity” of incarcerating sick gay men to avoid the incompetence and corruption that permeates the industry that funds gay activism.
And if Rhoades’ attorneys are funded by LAMBDA, their conflict of interest probably prevents them from effectively representing Rhoades as well.