by Venita Ray
As an advocate and a person living with HIV, I am both frustrated and angry at all the social media and news reports that depict me—and the other 1.2 million people living with HIV in the U.S.—as potential criminals. I am angry that state legislators continue to enact laws targeting people with HIV. These laws perpetuate fear, stigma, discrimination, and ignorance about HIV.
Even though HIV itself is not a crime, people living with HIV continue to be singled out for prosecution. These prosecutions are typically used to sensationalize and vilify the person with HIV. Media coverage often fails to remind the public that everyone is responsible for protecting themselves from HIV by practicing safe sex. People are left with the impression that the person with HIV is solely responsible for everyone’s safety.
With all of this attention on criminalizing people like me, I don’t hear enough about how to reduce the nearly 50,000 new cases of HIV per year, reach our national goal of zero new transmissions, or encourage personal responsibility.
HIV Criminalization Laws
HIV criminalization refers to the use of criminal law to penalize alleged, perceived, or potential HIV exposure; alleged nondisclosure of a known HIV-positive status prior to sexual contact (including acts that do not risk HIV transmission); or unintentional HIV transmission. These laws criminalize HIV exposure or transmission not only through consensual sex and needle sharing, but also in cases that involve spitting and biting—despite the fact that spitting and biting have not been shown to pose a significant risk of transmitting HIV. Typically, there is no requirement to prove intent to transmit HIV, nor is there a requirement that HIV transmission must have actually occurred.
Currently, 32 states and two U.S. territories have HIV-specific criminal laws that punish people living with HIV for conduct that would be legal if they did not know their HIV status. These laws apply to persons who were born with HIV, acquired it from sexual contact or contaminated needles, or who received contaminated blood during a transfusion.
There are over 36 medicines for the treatment of HIV, and people are living longer and healthier lives. Scientific research shows that HIV-positive people with “undetectable” viral loads have almost no chance of transmitting HIV to another person. Nevertheless, most HIV laws do not take viral load into consideration, and convictions can still result in decades-long prison sentences and sometimes having to register as a sex offender. According to The Center for HIV Law and Policy, there were more than 200 known HIV-specific prosecutions between 2008 and 2014.
We have come a long way from the beginning of the AIDS epidemic in the 1980s. With all of the advances in HIV treatment, why do elected officials and criminal prosecutors continue to ignore the science and use our health status as evidence of criminal intent? It appears we would rather demonize people living with HIV than find creative new solutions to a public-health problem.
Texas HIV Transmission Prosecutions
Prior to 1994, Texas had an HIV transmission statute that made it a third-degree felony—punishable by up to 10 years in prison and a $10,000 fine—for an HIV-positive person to intentionally (and without consent) transfer bodily fluids to another person. Texas later repealed this statute. Despite the fact that Texas does not currently have an HIV-specific criminal statute, individuals with HIV continue to be prosecuted under general criminal laws for crimes such as aggravated assault, aggravated sexual assault, and attempted murder.
What I find even more disturbing is that Texas courts have consistently held that the bodily fluids of an HIV-positive person can be classified as a deadly weapon. This allows for more severe charges and longer sentences. Even though the Centers for Disease Control has concluded that HIV cannot be spread through saliva (and there is no documented case of transmission from an HIV- positive person spitting on another person), the Texas Court of Criminal Appeals upheld the attempted murder conviction and life sentence of Curtis Weeks, an HIV-positive man, for spitting on a prison guard in 1989. In 2006, Willie Campbell was convicted of harassing a public official with a deadly weapon when he spat in a police officer’s mouth and eyes during an arrest. Campbell was sentenced to 35 years in prison. The “deadly weapon” he used was his saliva. In 2009, Phillip Padieu was convicted of six counts of aggravated sexual assault with a deadly weapon and sentenced to 45 years in prison for “knowingly” transmitting HIV to his sexual partners.
Texas Senate Bill 779
One of the bills currently being debated in Austin is Committee Substitute Senate Bill 779. Introduced by state senator Joan Huffman (R-Houston), CSSB 779 would remove the confidential nature of HIV tests and allow for their use in criminal proceedings. It also proposes removing criminal or civil penalties for persons releasing HIV test results in response to a subpoena.
According to Senator Huffman, this law is meant to be used only when someone intentionally transmits HIV to another person. But since the intentional transmission of HIV to another person is extremely rare, I believe that this senate bill is harmful for a number of reasons:
- It is an invasion of the privacy rights of people living with HIV. People living with HIV have the same right to privacy as any one else.
- Criminalizing people because they are HIV-positive continues to perpetuate fear, stigma, and discrimination against people living with HIV.
- HIV is a public-health issue. We need public-health solutions and not more criminal prosecutions.
- Treating a medical condition as evidence of a crime is undermining public-health campaigns to get as many people as possible tested and, if HIV-positive, into treatment.
- There is no evidence that HIV-related prosecutions increase disclosure, reduce the spread of HIV, or deter the rare acts of intentional transmission.
- HIV is no longer an automatic death sentence, so it should no longer be considered a “deadly weapon.”
I am opposed to the systematic criminalization of people living with HIV. Living with HIV can be difficult, but it’s possible to live a long, healthy, and vibrant life. While we all come to terms with an HIV diagnosis in different ways, using the criminal justice system to assign blame is almost never appropriate. I have taken full responsibility for not protecting myself, and I am now working ‑to ensure that HIV-positive people have legal rights and protections under the law. HIV is not a crime, and I am not a deadly weapon.
For more information on HIV criminalization, please visit seroproject.com or hivlawandpolicy.org/issues/criminal-law.
Venita Ray is the project coordinator for the Positive Organizing Project at Legacy Community Health Services. She wrote about using yoga as a healing tool in her journey living with HIV in the January 2015 issue of OutSmart magazine.
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