POZitive Attitudes

This page has been difficult to write. Should I write just the facts or add my commentary? What are the facts? I assume we all want to stop the spread of HIV. I even want to assume that stopping the spread of HIV is the number one reason these HIV Criminalization laws were written. Therefore, the question is whether HIV Criminalization Laws and specifically these HIV Criminalization Laws help or hinder that. Laws should be written from logic, not emotion. Laws written from emotion usually lack logic and often fail to accomplish their own goals and sometimes even make the situation worse.

Here’s a link to a website devoted to HIV Law and and Policy.

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-May 2008: An HIV positive man in Texas is charged with using his “infection as a weapon” after biting a security guard during a scuffle.
-May 2008: Another HIV positive man in Texas is charged with assault with a “deadly weapon” after spitting at a police officer and receives a 35-year sentence.
-July 2008: An HIV positive woman in Georgia is sentenced for 3 years in prison for spitting in another woman’s face.
-August 2008: A New Hampshire man of unknown HIV status is forced to pay a fee for an HIV test of a police officer he is accused of spitting on.
-August 14, 2009: In Ocala, Florida, a 39 year-old woman was arrested for not disclosing her HIV status. The complainant was a 58 year-old man who had sex with her once, according to Ocala.com.
-August 21, 2009: In Palm Beach, Florida a 32 year-old woman was arrested for “committing prostitution while HIV-positive, a third-degree felony which can result in up to five years in prison”, according to The Palm Beach Post.
-August 27, 2009: In Oklahoma City, a 40 year-old man was arrested following a complaint from another man for not disclosing his HIV status before oral sex. He was charged with “knowingly engaging in conduct reasonably likely to transfer HIV”, according to newsOK.com.
-September 3, 2009: In Memphis, Tennessee, a burglary suspect was charged with criminal HIV exposure after he “he spit blood in the officer’s face and said that he was HIV-positive” during his arrest, according to myeyewitnessnews.com.
-September 11, 2009: In Florence, South Carolina, a 35 year-old was arrested for HIV exposure after a complainant went to police (sex of both individuals unknown). “A person who violates this law is guilty of a felony, and upon conviction, can be fined up to $5,000 or serve up to 10 years in jail,” according to WMBFnews.com.
-September 11, 2009: In Dayton, Ohio a 25 year-old “male prostitute is facing felony soliciting and prostitution charges after he was picked up by an undercover cop working as part of a prostitution sting,” reports the Dayton Daily News. His name, face and HIV status was also published.
-September 17, 2009: In Fort Smith, Arkansas, a 33 year-old man “charged with knowingly exposing a person to HIV is also the lone suspect in a 2002 homicide in North Carolina”, reports the Times Record. The 2002 murder allegedly took place after the female victim discovered the man’s HIV status and threatened charges.
-September 21, 2009: In Mattoon, Illinois a 42 year-old man faces HIV exposure charges after a 19 year-old woman complained to police that “he engaged in sex with her, knowing he was HIV positive”, reports the Journal-Gazette Times-Courier.
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Florida Statute 384.24

It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

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According to the Florida Department of Health: “It is a third degree felony. for an HIV-infected person to have sex without first informing the potential partner(s) of his/her HIV status and getting permission for sexual contact. This penalty is increased to a first degree felony for multiple offenses. (Simply wearing a condom during sexual contact does not exempt an HIV-infected person from informing their partner of their status or from any provision of this law.)”

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Note the difference between the Florida Statute and what the Florida Department of Health is telling people. The Health Department is telling everyone that an HIV infected person must disclose their status, but the Florida statute states that only when such person knows he or she is infected with this disease do they have to disclose.

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Mark S. King discussed this it at the Gay Men’s Health Summit here in Ft Lauderdale in August, 2010; “Many of us have a friend who was infected by someone who lied about their status or didn’t disclose, and these infuriating instances make me want to see those people “pay” for what they did. But the more I have learned about the criminalization of HIV non-disclosure, the more I am convinced these laws are applied badly and actually do more harm than good. If I don’t get tested, I can’t be prosecuted for not disclosing my status, right?”

Did the friend really get infected from someone “who lied about their status or didn’t disclose” or did he get infected from someone who just didn’t know his status? The CDC reported that almost half the Gay men infected with HIV don’t know it. 44% of HIV Positive Gay men don’t know their status.

No wonder Negative people are confused and angry. They think these laws actually protect them. The Department of Health is telling them that HIV-infected people have to disclose and yet the law exempts 44% of the infected people.

And this fear of prosecution and the associated stigma may actually discourage those people from getting tested.

POZ Magazine thinks so. In their October, 2009 issue, Ragan Hoffman writes: “Repeatedly sentencing HIV-positive people in ways that are dramatically disproportionate to the risk and outcome of their actions makes people afraid to get tested and treated for HIV“.

Sean Strub, one of the founders of Poz Magazine also believes that HIV Criminalization laws reinforce HIV stigma and stigma is an obstacle for getting tested. He also stated that these laws undermine the central message of HIV prevention, Each of us have to be responsible for our own health. We have to be responsible for the risks we choose to take. These HIV Criminalization laws are an allusion of safety to people who are negative or don’t know their status and should not override the privacy rights of people who are positive. He restates that these laws are NOT transmission laws but disclosure laws and states that he believes “intent to harm” should be prosecuted.

These are fine lines and tend to get confused by incoherent information. Majority of US gay men support HIV transmission laws was the headline in the October issue of AIDS Care. But again, the article was not even about transmission laws. It was about disclosure laws. The first sentence stated “Two-thirds of US gay men believe that it should be illegal for an HIV-positive man to have unprotected anal sex without disclosure“. Why confuse the issue between disclosure and transmission?

And why load the question adding “unprotected anal sex”? That’s not what the law states. The law just states sex. As the Florida Department of Health said “Simply wearing a condom during sexual contact does not exempt an HIV-infected person from informing their partner of their status or from any provision of this law” Specifying “unprotected anal sex” in the survey loads the question and produces biased answers.

According to this survey; “The overwhelming majority of untested men (69%) supported legal sanctions.” Now, can you logically please explain that to me? I want you to be legally obligated to disclose, but I don’t want to be legally obligated. Regardless of where you stand on these laws, this is a poorly done survey.

In response to a recent increase in HIV criminalization cases both in the United States and abroad, UNAIDS issued this policy brief to arm advocates with information and arguments against these discriminatory laws and practices. The policy brief discusses why HIV-specific criminalization laws do not achieve their intended goals, and how these laws actually cause more harm. A focus on the unique plight of women and girls living with HIV helps contextualize these criminalization laws in a way that makes their harmful effects more evident. The brief concludes with recommendations for governments and other advocates to develop more meaningful and effective responses to instances of HIV exposure.

Decriminalization works, Criminalization doesn’t.

In the nation’s first comprehensive National HIV-AIDS Strategy, the Obama administration is calling for an end to state HIV criminalization laws. The continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.

“CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”

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Florida HIV Statutes from Lambda Legal

-Fla. Stat. Ann. § 384.24(2)
Third Degree Felony (First Degree if multiple violations) (§ 384.34(5))
It is unlawful for any person who has HIV, with knowledge of such infection and having been informed that he or she may communicate it to others through sexual intercourse, to have sexual intercourse with any other person, unless the other person has been informed of the presence of HIV and has consented to the sexual intercourse.

-Fla. Stat. Ann. § 381.0041(11)(b)
Third Degree Felony
Any person who knows he or she has HIV and has been informed that by donating blood, organs or human tissues he or she may communicate HIV to another person and with this knowledge donates blood, organs, plasma, skin or human tissue is guilty of a felony of the third degree.

-Fla. Stat. Ann. § 796.08(5)
Third Degree Felony
A person who has tested positive for HIV and knew or had been informed that he or she tested positive and could transmit HIV through sexual activity commits the crime of criminal transmission of HIV if that person commits prostitution, offers to commit prostitution or (by engaging in sexual activity likely to transmit HIV) procures another for prostitution.

-Fla. Stat. Ann. § 775.0877
Third Degree Felony
A person who pleads guilty or nolo contendere to, or is convicted of, committing or attempting to commit one of the crimes that is listed in subsection (1) of this statute and involves the transmission of bodily fluids from one person to another, who subsequently tests positive for HIV and is informed of that test result, and who then again commits one of the crimes listed in subsection (1) is guilty of criminal transmission of HIV, a felony of the third degree. The offenses listed in subsection (1) include, among others, sexual assault, incest, child abuse, indecent assault upon a minor child, sexual performance by a minor, and donation of contaminated blood. It is an affirmative defense that the person exposed knew the infected person was infected with HIV, knew the action could result in infection, and consented with that knowledge.
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