Stigma & HIV Criminalization

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by Lector Morales

Thirty-two states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least 180 such prosecutions occurred from 2008 to 2013 alone.”

This is a continuing situation. The application of these laws vary from state-to-state; so do the severity of them. Human beings operate on emotion and those emotion can get the better of us. We tend to read the headlines that target emotion instead of looking at the content behind those head-turning headlines. Some of us don’t want to grapple with the more complex issues surrounding this topic. One of the chief culprits around criminalizing HIV is stigma.

Shaming and stigma around HIV/AIDS is still a big problem. Local campaigns targeting this are slowly taking root in the community but it will take time for us as HIV educators and providers to see those results. It is that stigma and shaming that has been the catalyst for a lot of erroneous personal judgements and political fodder. It is in this context that I must also remove my personal judgements as well. In my past, it would have been difficult to separate those judgements considering where I lived and the communities I had been apart of. Time and education have changed that. It is part of my job to be constantly informed of the latest trends in HIV treatment and prevention. Plus, it also helps to have a team of informed colleagues who are just as passionate about their roles in our community. Education seems to be the key towards increased understanding of many complex issues that are not always black and white. Today’s cascade of knowledge and resources around HIV and AIDS can further spotlight the inadequacies those laws. To point out this flaw in how HIV is criminalized lets look at the widespread infection of another viral infection.

Roughly 79 million Americans are currently infected with HPV(Human Papilloma Virus) and that 14 million are newly diagnosed each year. HPV is so common that most sexually-active men and women will get at least one type of HPV at some point in their lives.

This is from the CDC’s website regarding HPV diagnosis and treatment. There has been little action on criminalizing it and yet we know that a small number of people can acquire cancer related health issues from it. Yet the criminalizing of HPV is no where near the level of paranoia that HIV garners. The underlying factor for criminalizing HIV is fear and ignorance.

Criminalizing HIV

To understand the laws behind criminalizing HIV, you need to go to the heart of the issues surrounding it. Let me be be frank: that “heart” is the moral clause that are embedded in the various laws surrounding it. Paranoia and the fear of what HIV was once known for, has continued to be a problem in regions where lack of education and resources exacerbate the problem. When many of the laws were enacted, little was understood about HIV and AIDS let alone the latest in treatments, and prevention that are common among the major metropolitan cities around the country. All you have to do is Google regions around the country to see where HIV infections are still a problem. So many of these laws were passed with strong discord toward those who either were HIV-positive or those who were at high risk for it. There was a definite sense of homophobia, judgements, and fears toward our community. In regions where HIV transmissions were down, education and community involvement helped put the spotlight with what could be done about stigma and paranoia. With the advent of PrEP (Pre-Exposure Prophylaxis) and PEP (Post-Exposure Prophylaxis) for HIV prevention, and TASP (Treatment As Prevention) which, with today’s advances in HIV medication, can suppress the viral load to the point of “undetectable,” the question for law enforcement and legislators across the country is simple: will these institutions seek a redress of those stoic laws or will they continue pushing forward a misguided belief that HIV needs to be contained and controlled? For those of you who are not familiar with the of criminalizing HIV, here are some noted cases regarding the inadequacies of how these laws were applied in awkward and overzealous actions:

» A man with HIV in Texas is serving thirty-five years for spitting at a police officer

» A man with HIV in Iowa, who had an undetectable viral load, received a twenty-five year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex-offender and is not allowed unsupervised contact with his nieces, nephews and other young children

» A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status

» A man with HIV in Michigan was charged under the state's anti-terrorism statute with possession of a "biological weapon" after he allegedly bit his neighbor

I cannot be certain about the far reaching consequences of the absurd prosecutions, but it is almost a certainty that the prosecutors were overzealous in pursuit of justice. The thought process behind why they chose to pursue that course of action is complex in itself. For me, the idea of someone serving 35 years for spitting on a police officer is absurd. The fact that the defendant was HIV-positive does not change a thing. Where was the prosecution’s investigative instinct in reaching to HIV knowledgable doctors, providers, and educators? I wonder about what knowledge police officers, the prosecutors, the jury, and the judges have around it. Were they comfortable with their knowledge of it and why did it not translate well for the defendant? I am under the belief that their level of knowledge around HIV education is, at best, rudimentary.

Or what about the woman from Georgia who received an eight-year sentence for failing to disclose to her status to her partners even though they knew her status. Some would argue the issue of intent; was it really their? The stigma associated with this case and the prior case is glaring and problematic. I can only speculate that the cohort of individuals responsible for the prosecution chose not to dig further and instead chose to proceed with their course of action under a “vigilante” mentality.

The other consideration involves advocacy. With different law enforcement institutions, the ernest action of seeking out advice and guidance on how to approach a sensitive subject is extremely important. Yet law enforcement seems to only approach criminalizing HIV in a narrow scope. Utilizing an advocacy group that speaks to challenges of HIV stigma in the communities they serve has the potential of widening the lens of that scope. Education around HIV is a powerful tool that when used wisely, can generate positive feedback and knowledge for law enforcement.

The last part is more tricky to explain because it’s about public perception and opinion. It involves intent and disclosure. When we think of criminal intent, we associate it with someone who has a flagrant disregard for the life of another. We see criminal intent as those who commit atrocious acts of violence or thievery. Often times the courts and law enforcement defer to evidence against the accused. When evidence is lacking or not strong enough, the case can sometimes hang on circumstantial evidence. Most prosecutors frown on circumstantial evidence because it doesn’t guarantee them a secured victory. However, in cases that did involve criminalizing of HIV, it seemed that circumstantial evidence was routinely utilized. Overzealous prosecutor? A biased judge? Were these government employees “settled” in how they perceived knowledge of HIV? It's hard for most of us to construe the actual series of events that lead up to the encounter. Was there a discussion about each other status? What decisions were made by which safe sex measures were not utilized? Were there barriers in language and culture? Did socio-economics also have a role in determining the sexual connection between the parties? We know that stigma plays a part in the daily lives of those who are affected by HIV. Telling a potential partner your status allows for both parties to make an informed choice about the path of their sexual intimacy, but the fear and shame associated with being HIV-positive can be overwhelming for some.

Disclosure is in itself a tricky subject. It involves delineating arguments between the two parties. It alleges that one party deliberately withheld information from the other about their status. Here’s an example of something of that complexity. I have heard of persons using the term “clean” to describe themselves to their partner(s). Using this word is in itself a shaming mechanism. It demonstrates how the person(s) hasn’t fully analyzed what negativity that word evokes. I tend to gently nudge clients towards clarifying their status by repeating their statements back to them with the terminology of negative. Language matters. When I look at how disclosure is utilized by the governmental agencies mentioned, I am concerned about the lack of foresight and investigative intuition. By far not all governmental institutions act in this manner, some are progressive in their approach. Some will seek advocacy advice from local agencies and will focus staying connected with community-based organizations that have knowledge around this subject. Staying informed about your status as well as that of your partner(s) is important because it allows you to make an informed decision about your sexual connections with them.

I can sympathize with the victims in many ways. I was put in that predicament myself several years. I had been “out of the closet” for two years, but was not fully informed about HIV and stigma. Dating life for me was not great and finding someone was a bigger challenge for me on several fronts. I was a young person-of-color who was not exactly informed about gay culture and the stereotypes associated with it. When you are a person-of-color, gay men can inadvertently place flawed stereotypes about you based on your cultural Identification. Those stereotypes can hurt as they did for me. Most of my young adult life centered around living in conservative-minded states like Kansas and Texas.

I met a guy who was sexy and funny. We dated for about three or four weeks. We messed around a lot and to be honest, it was fun. One night he wanted to take things to the next level. When I said no, he became agitated. I told him we had only started dating and that we should have more time to figure things out. Unfortunately, after that night he began distancing himself from me. When I tried to reach out to him to find out why he was doing that, he just got downright cold and refused to speak to me anymore. I chalked this up to a bad experience in the dating scene and moved on. Later on I found out that a second ex I had once dated, contracted HIV. I was devastated. He meant a lot to me. When he told me who he may have contracted it from, a dread came over me. In all the interactions I had with this first ex I never once asked his status. I immediately went to a local clinic and got a rapid test. When the results came back negative I was relieve to say the least. However, I got a scolding from the clinician, even though I never engaged in the high risk activity associated with the infection. I never told the clinician who the partner was or why I was in, she just assumed I was acting irresponsibly.

Did I confront that first ex? Yes. He vehemently denied that he had HIV. I realized then that it was irrational for me to demand something of someone who either did not know their status or had larger issues to deal than HIV. I realized that for him having to acknowledge HIV in his life would have huge consequences in his personal life. Plus the clinician, though scolding me, did inform me that my risk for contracting HIV were probably low. I left him alone and tried my best to see the good in both exes: one having to deal with the initial exposure and the other having to admit to that he needed to focus on the value of his life and the value of coming to terms with the things that were holding him back.

I think it's important to educate yourself on the nuisances of HIV and AIDS. I think it is also Important to reach out and be an “educator” in your community in what ever capacity you can. Pay it forward. An informed community is one that can stand against an ignorant mob. Please be informed.

Additional Resources:

Lector Morales is an HIV Prevention Counselor with Gay City Health Project in Seattle and has been with the organization for over three years. He is an active artist who works with different media as well as an aspiring writer hoping to write his first sci-fi/fantasy novel.