People Are Going To Jail For Having HIV

Between 2008 and 2013, there were 180 prosecutions of people accused of spreading HIV under antiquated laws passed long before we understood the disease, according to the Center for HIV Law and Policy. These laws can put an HIV-positive person in jail for biting someone, spitting at someone, or even just having consensual sex (regardless of whether protection is used). We know now that you can't get HIV from biting or spit, of course, but 32 states still have those laws on the books, and people are still being sent to prison for violating them.

Enacted in the late 1970s and early 80s, these laws reflect an era when people were afraid of the growing prevalence of HIV or "gay cancer" and thought you could get contract the disease simply by being around someone who had it.

"While framed as public health measures intended to prevent the spread of HIV, in reality these laws stigmatize people with HIV and misrepresent the causes of HIV transmission, the treatment options, and outcomes for people living with HIV and disproportionately impact people of color," Chase Strangio of the ACLU wrote this month.

The Center for HIV Law and Policy released a report that highlights some of the more extreme cases of people being imprisoned for having HIV. In May of 2008, a 42-year-old homeless man in Texas spit on a police officer while being arrested for public intoxication. He was HIV-positive, and he was sentenced to 35 years in prison for assaulting the officer with a "deadly weapon." In 2009, another man was sentenced to 25 years for having sex with someone he met online, even though he wore a condom. The person he had sex with did not contract HIV. In 2010, a man got into a fight with his neighbor in Michigan and bit him. He was charged under the state's bio-terrorism laws for having a "harmful biological substance."

ProPublica told the story of Nick Rhoades in 2013. He was sentenced to 25 years in prison for engaging in a "criminal transmission of HIV." He had consensual sex with someone without telling them he had HIV, but he wore a condom, and HIV was not transferred. He was also taking antiviral drugs, which significantly decrease the likelihood that the disease will be transmitted. Luckily, he was able to appeal the decision and get it reduced to five years in prison, but he is now a registered sex offender for the rest of his life. He is never again allowed to be alone with anyone under 14, including his nieces and nephews. ProPublica claims there have been 541 cases very similar to Rhoades' that involve someone simply not informing someone of their illness, even if transmission can be highly unlikely when proper medication and protection are used.

The Justice Department points out that these types of cases involve prosecuting people for behavior that "the [Center for Disease Control] regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

Gay and bisexual men account for the majority of HIV/AIDS cases, and stigmas created by laws like these can be extremely damaging to their culture, according to the HIV/AIDS community. The black population accounts for almost half of HIV/AIDS cases in the United States, likely because of limited access to quality healthcare and sex education in many minority communities. These groups account for most of the arrests made under HIV transmission laws.

If someone intentionally infected someone with HIV, it would make sense to charge them with a crime, but it's often difficult to distinguish what is intentional from what is negligence. Someone not informing their partner of their HIV status doesn't necessarily prove there was intent to infect their partner. A major problem in the HIV-positive community is what the HIV/AIDS organization Avert calls "assumed status." Before sex, many don't want to ask the person they're with if they have any STDs. "Assumed status" is when someone assumes the lack of protection being used means the person obviously doesn't have an STD, but it can also mean that the person assumes the lack of protection means their partner also has HIV and doesn't feel a need to use it. That doesn't mean the person with HIV is intentionally infecting someone else; it's simply a communication mistake.