Making Sure HIV Isn’t Treated Like a Crime

by Suzy Subways

From PHN Issue 29, Summer 2016

Did you know some laws make punishments much harsher if you are living with HIV? In Pennsylvania, if someone in prison is convicted of spitting on a guard, 10 years can be added to their sentence if they have HIV. Many states have similar laws. Do you think that’s fair?

What if I told you the Centers for Disease Control has found there is negligible risk of HIV transmission through biting, spitting, or throwing body fluids? The Oxford dictionary defines “negligible” as “So small or unimportant as to be not worth considering; insignificant.” Which means you can’t get HIV that way.

HIV can only be transmitted when blood, semen, vaginal fluid or breast milk with a high concentration of HIV gets into the bloodstream of another person. This can only happen through sex without a barrier such as a condom, childbirth or breastfeeding, or shared drug use equipment. But if you’re in prison and charged with a crime related to HIV, these facts usually don’t matter to the court.

Ronda Goldfein of the AIDS Law Project is building a network of lawyers in Pennsylvania to defend people in prison in these cases, and to push for better conditions. “People who are incarcerated are not just randomly throwing bodily fluids,” she says. “There’s got to be something really wrong with how that person is confined that that’s the best thing they can do to get some attention.”

Teresa Sullivan, an educator at Philadelphia FIGHT and board member of the Positive Women’s Network, suggests education for guards. “All the people who work in the prison system come from where? Our communities,” she says. “They come in with stigma, fear and misinformation. We need to get in there and do education for people who work behind the walls.”

Changing State Laws

People living with HIV around the country are trying to get rid of state laws that make having HIV a crime, both for people in prison and people on the outside. Most of these laws don’t see a difference between using a condom or not, or having a very low level of HIV in your blood or not.

“Prosecuting people with HIV for conduct that would not be criminal if done by an HIV-negative person…discourages people from HIV testing, counseling and treatment,” says Ronda Goldfein. She adds that because of racism in the criminal justice system, sentences are typically more severe for Black defendants.

“Where states have specific laws that criminalize people who are HIV positive having sex, those laws should be repealed,” says Kenyon Farrow of the Treatment Action Group. “There should be laws placed on the books that prevent HIV or other disease statuses from being used in criminal cases.” He mentions a law in Iowa that reduced sentences but added hepatitis, tuberculosis and meningitis to its list of crimes. Because hepatitis and tuberculosis are more often found in prison, this can make things even worse for people who are locked up. Farrow says other states may copy this law.

The Impact on Women

Laws that make HIV a crime punish people for not telling a sex partner their HIV status. But it’s not always safe to tell someone you’re living with HIV. Waheedah Shabazz-El, regional organizing director for the Positive Women’s Network, cites a case in which a woman was murdered by a lover because she was HIV positive. Women usually find out their HIV status first, and they’re often blamed for it, even if their husband or boyfriend became HIV positive first.

And women often don’t have enough power in their relationship to insist that their partners use a condom. “Women have a hard time negotiating safe sex, whether you’re HIV positive or negative,” she explains. And violence against women is still terrifyingly common. “It’s really hard to get a guy to put a condom on when he has both his hands around your throat.”

How to Make Change

California Representative Barbara Lee has introduced a federal bill to reform HIV criminalization. Hillary Clinton has also spoken out against HIV criminalization laws. But most criminal laws are written at the state level, so changes have to be made in each state.

Teresa Sullivan and other activists in Pennsylvania are working on a campaign, educating people living with HIV about the laws, so they can work for change. They are meeting with city and state officials to reform laws in Pennsylvania that prosecute sex workers and change the laws that affect people in prison.

“We have to eradicate HIV criminalization laws altogether,” she says. “They need to go away completely.”

If you’re facing charges related to HIV, write to the Sero Project to ask if there are lawyers in your area who could help you.

The Sero Project
P.O. Box 1233
Milford, PA  18337

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