Criminalizing HIV Non-Disclosure, Exposure, and Transmission

Published 20, Dec, 2017
Author // Isaac D. Joseph

Isaac D. Joseph gives his assessment of the current state of HIV criminalization in the United States.

Criminalizing HIV Non-Disclosure, Exposure, and Transmission

Imagine going on an interview, a date, or just meeting someone for the first time and you introduce yourself as such, “Hello, my name is Isaac Joseph and I am HIV positive.” That would be a pretty awkward way to start off a conversation, wouldn’t you think?

Today in the world of HIV, disclosure is a topic that has been on the lips of many people living with and without HIV, especially with the heightened celebrity scandals involving HIV disclosure in recent years. Some people believe that when it comes to HIV disclosure it is their right to know when they are in contact or possibly exposed to HIV or person with HIV, while others feel that HIV disclosure is a choice and the criminalization of non-disclosure of HIV status should cease to exist.

During the early years of the HIV epidemic, many states implemented HIV criminal exposure laws. These laws impose criminal penalties on people living with HIV who know their HIV status and potentially expose others to HIV, emphasis on the word “potentially.” With many of these laws being vague, using the term "potentially" holds great importance and power. For example, according to the HIV laws in Texas, I can be criminally charged if I am in a room full of people that I do not know and if I do not inform them that I am HIV positive, even though we have not had sexual contact. I must still inform each person that they are “potentially” being exposed to HIV just by being in contact with me.

Now, we all should know by now that HIV cannot be transmitted through casual contact, but in some states and many countries around the world this is still believed to be true even though on September 9, 1983, the CDC identified that HIV cannot be transmitted through casual contact, food, air, or environmental surfaces, furthermore HIV cannot be transmitted through saliva, sweat, tears, urine, or feces. Still, the criminalization of “potential” HIV exposure is a large matter of state law in many states in the U.S. and in several countries around the world.

An analysis done by CDC and Department of Justice found that, by 2011, a total of 67 laws explicitly focused on persons living with HIV had been enacted in 33 states. These laws vary as to what behaviors are criminalized or result in additional penalties. (These are the vague laws that I speak of). In 24 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 14 states require disclosure to needle-sharing partners. Additionally, in 25 states they criminalize one or more behaviors that pose a low or negligible risk for HIV transmission. (These are more of the vague laws that I speak of).

"Why should people living with HIV still be punished for people who are not willing to educate themselves about HIV or the prevention methods?"

The majority of these laws were passed before studies showed that successful antiretroviral therapy eliminates sexual HIV transmission and most do not account for HIV prevention measures that reduce transmission, such as condom use or pre-exposure prophylaxis (PrEP).  States with HIV-specific criminal laws have been encouraged to use these findings to re-examine state laws and assess them in alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes. However, most states have yet to do this, which has caused leaders in the HIV community to call for a reform of the HIV criminalization laws or to just get rid of them completely.

Personally, I believe that HIV disclosure is a choice. We should be able to disclose our status to those that we feel comfortable and to those whom we trust. I also believe that when engaging in sexual activities we should properly inform our sexual partners of our HIV status but we should not be criminalized for not informing our sexual partner if the sex is consensual. As adults, it is up to both consenting parties to ask questions about each other’s sexual proclivities and to be aware of any possible exposure to any STD’s or STI’s. We all know the saying that one bad apple will spoil the whole bunch, but the criminalization of people living with HIV should not apply to all people living with HIV but only to those who intend to bring harm and danger to others by spreading the virus knowingly.

Picture this, you have HIV and you are about to have sex with someone who doesn’t know your HIV status. You have no intention of informing them that you are infected, but you can choose to use a condom to protect them from the transmission of HIV. If the penalty for transmission is the same as exposure then what is the incentive for making the choice to reduce the partner’s risk by using a condom? In the current set of laws, there are no incentives. The law treats exposure the same way as transmission.

That leads us to a series of questions:

  1. Should people who unknowingly transmit the virus be penalized along with everyone else?
  2. Should there be some type of incentive for trying to protect sexual partners from virus even if you knowingly have the virus?
  3. Should HIV or communicable disease criminalization laws even exist?

When these laws were created, it was out of fear and a lack of education on HIV and its transmission. Thirty-six years later, we know what HIV is, how it's transmitted, and how it can be prevented. So why should people living with HIV still be punished for people who are not willing to educate themselves about HIV or the prevention methods?

It's no one’s fault when two consenting adults decide to have unprotected sex and even though I believe that honesty is the best policy, I also believe the ignorance has consequences. And whether you are HIV-positive or HIV-negative and you agree to have unprotected sex, you open yourself to a plethora of communicable diseases so but there are only a few STD’s/STI’S that are criminalized when the real criminal act was ignorance.

We live in the 21st century, information is at our fingertips, and yet we still walk around blind. In criminal justice, they say that there is no ignorance towards the law, in my eyes, it is the same when it comes down to communicable diseases. 

About the Author

Isaac D. Joseph

Isaac D. Joseph

Isaac D. Joseph is an HIV/AIDS activist, advocate, and author. He is also a person living with HIV/AIDS. In 2014 he was diagnosed with AIDS after finding that his CD4 had dropped down to 94. For three long months, he fought against the virus and is happy to say that he not only achieved an HIV diagnosis but he is also undetectable as of 2015.

He is the owner/operator of the organization ProjectRED in which he empowers people living with HIV/AIDS to speak their truth and be proud of who they are by coming out the HIV closet and being more transparent about their lives and living with HIV/AIDS. Through ProjectRED he also hopes to dismantle the stigma and discrimination that surrounds HIV/AIDS and people living with HIV/AIDS by raising awareness through his #FacebookLive and youtube series #SpillingtheTaboutHIV and releasing publications such as The Epidemic: Living with HIV in the 21st Century (Available on Amazon) and many more to come.