In 2008, an HIV-positive man in Texas was sentenced to 35 years in prison for spitting at a police offer.
In 2009, an Iowa man with HIV received a 25-year sentence for failing to disclose his status to a sex partner.
And in 2010, an HIV-positive man in Michigan was charged with violating the state's bioterrorism law after biting a neighbor.
These were just three of the striking examples presented Nov. 9 at "When Sex is a Crime & Spit is a Dangerous Weapon: Defending Against HIV Criminal Laws," a panel discussion hosted by the Positive Justice Project.
"When people hear about these laws," said Scott Schoettes, HIV project director at Lambda Legal, "they kind of think of them as being from the bad old days when people didn't understand the risks of HIV transmission—the beginning of the epidemic when there was widespread panic. But the fact is, they're mistaken in that view. These prosecutions are happening now, and they're actually on the rise."
Presented as a precursor to the United States Conference on AIDS ( USCA ) , the event drew about 40-50 guests who represented HIV/AIDS organizations from states as far-reaching as Oregon and South Carolina.
Schoettes kicked things off with a primer on HIV/AIDS laws in the United States; he highlighted states that had had recent prosecutions, and pointed out problematic aspects of the laws—some of which were surprising.
"Transmission is not required," Schoettes said. "People talk about these laws as if they are HIV transmission laws, as if they prosecute and punish people for transmitting the HIV virus. That's not anywhere in the statute; there doesn't have to be an actual transmission."
In each of the earlier examples, transmission never occurred. All across the U.S., Schoettes said, there are HIV-positive people living in prison for engaging in activities that never led to HIV transmission.
While laws vary from state to state—and some are more progressive than others—there is a fairly consistent disregard for medical facts in much of the legislation.
"There's absolutely no medical standard," said John Peller, vice president of policy at the AIDS Foundation of Chicago, "and there's no realization that spit or tears or anything else won't transmit HIV."
A longtime Springfield lobbyist, Peller discussed Illinois' criminal transmission law, which he described as "pretty bad."
If an HIV-positive individual in Illinois has "intimate contact" with someone without notifying that person of his or her status, he or she can be prosecuted for criminal transmission. "Intimate contact" loosely translates to exposing one person's body to another person's bodily fluids—even those that don't transmit HIV.
"It is one of the [ laws ] that's really, really archaic," Peller said.
For many of those sentenced, conditions in prison pose additional healthcare risks, said attorney Owen Daniel-McCarter, who founded the Transformative Justice Law Project.
Daniel-McCarter shared a story about one of his HIV-positive clients who's currently awaiting sentencing for a series of charges she believes were brought on by homophobia and stereotypes; the client is a transgender woman.
" [ We have to ] think about what the actual human impact of these laws are," Daniel-McCarter said. " [ My client ] is waiting in Cook County jail. She's getting infrequent access to her meds, and she's freaked out because she knows she could develop resistance. She knows that infrequent access could have a lifelong effect for her, and it effectively could shorten her lifespan."
The client, who wished not to be named, has already developed resistance to one of her medications since being sentenced, Daniel-McCarter said. At one point, she went three months without any medication.
Poor planning policies and subpar medical care make it difficult for many HIV-positive inmates to access lifesaving medication, Daniel-McCarter said. And the process by which inmates can receive meds often entails unwillingly disclosing their HIV statuses to the general prison population.
"What happens to people in jail who can't post bond really effects what happens in their criminal case," Daniel-McCarter said. Though his client maintains the charges against her are bogus, "she was eager to take a plea just to get out—just so she could get back on her meds in a steady way where she knew when to get them, who was going to prescribe them, and when to take them."
Daniel-McCarter said the rush to agree to harmful deals is common among those with HIV. And the sentences doled out to people found guilty of HIV 'transmission' are often disproportionately severe.
"If you really wanted to hurt someone in a lot of states, you'd be better off going out and running them over with your car," Schoettes said, as he pointed out that many states' sentences for manslaughter are less severe than those for HIV transmission. "There's just no proportionality to the way we're handling the laws and this conduct. If there is some conduct that should be regulated here, are we doing it in the appropriate manner? Is the criminal law the way to do it?"
While some in the room advocated on behalf of HIV protection standards ( e.g. for women who contract HIV from male partners returning from prison ) , Schoettes argued the current batch of HIV transmission laws are counterproductive.
"Regardless of whether laws are being enforced and states are going through with prosecutions, they still send the same horrible message," he said. " [ You send a message ] that these people are criminals. The laws don't actually promote public health, and they further stigma."
Illinois Alliance for AIDS Policy staffer Evany Turk and human-rights attorney Brook Kelly, who works for the U.S. Positive Women's Network, also spoke at the event. Lisa Fager Bediako of the Act Against AIDS Leadership Initiative emceed.
The 2-hour discussion was held at the AIDS Foundation for Chicago's Loop offices, 200 W. Jackson. Event co-sponsors included: the AIDS Foundation of Chicago, the Center for HIV Law and Policy, Lambda Legal and the U.S. Positive Women's Network.
