Justice Dept. Pushing States to Reform Outdated HIV Disclosure Laws

An Iowa man in 2008 was convicted and
sentenced to 25 years in prison for having sex with a partner
without revealing his HIV-positive status. That HIV treatment had
left him with an undetectable viral load and that he was wearing a
condom (meaning, the chance of him transmitting HIV was negligible)
was not considered relevant under the law.

But in June, Iowa’s Supreme Court tossed
out the sentence, because the law required evidence of an
exchange as bodily fluids and because there was no evidence that
HIV transmission was actually possible in the case. Iowa
reformed their disclosure laws (first passed in 1998) this year
to account for changes in our understanding of transmission and to
require that the defendant actually intended to spread HIV and for
HIV transmission to actually happen. They also criminalized
deliberate efforts to spread viruses like hepatitis and
meningitis.

Now the Department of Justice is pushing other states to take a
look at their HIV notification and transmission laws and update
them to reflect what we know now. Thirty-three states now have HIV
notification or transmission laws on the books, some of them dating
all the way back to 1986, a time when people still worried you
could get HIV from pools or sweat and when the disease was still a
painful death sentence.

The Centers for Disease Control examined
the nature of these laws and put out a report in March, arguing
that the laws were not effective in actually meeting the public
health goal of reducing HIV transmission and that many were not
even aware of the nature of his or her state’s disclosure or
transmission laws.

Now on the heels of that study, the Civil Rights Division of the
Department of Justice has released a “best practices” guide for
states, suggesting they take a route similar to Iowa’s.
From the DOJ report:

Generally, the best practice would be for states to reform these
laws to eliminate HIV-specific criminal penalties except in two
distinct circumstances. First, states may wish to retain criminal
liability when a person who knows he/she is HIV positive commits a
(non-HIV specific) sex crime where there is a risk of transmission
(e.g., rape or other sexual assault). The second circumstance is
where the individual knows he/she is HIV positive and the evidence
clearly demonstrates that individual’s intent was to transmit the
virus and that the behavior engaged in had a significant risk of
transmission, whether or not transmission actually occurred.

For states that choose to retain HIV-specific criminal laws or
penalty enhancements beyond these two limited circumstances, the
best practice would be to reform and modernize them so that they
accurately reflect the current science of risk and modes of
transmission, the quality of life and life span of individuals who
are living with HIV, account for circumstances where the failure to
disclose is directly related to intimate partner violence, and
ensure they are the desired vehicle to achieve the states’ intended
purpose in enacting them initially or retaining them in modernized
form.

To summarize: The DOJ is recommending state HIV notification and
transmission laws take into account intent to spread and actual
modern risk factors.