HIV criminal laws
by Matthew S. Bajko
HIV policy advocates are harnessing the power of cinema to dramatize the consequences of laws that criminalize HIV transmission.
It is part of ongoing efforts across North America to stop the prosecution of people living with HIV for non-disclosure.
In May Congresswomen Barbara Lee (D-Oakland) and Ileana Ros-Lehtinen (R-Miami) introduced the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act. It would require a review of all federal and state laws, policies, and regulations that regard the criminal prosecution of individuals for HIV-related offenses and create incentives and support for states to reform existing HIV criminalization laws.
"We are trying to modernize the laws. U.S. laws are not comparable to the science today of HIV and AIDS," said Robert Suttle, the assistant director of the Washington, D.C.-based Sero Project, which launched in 2012 to reform the country's HIV laws.
Many of the statutes were adopted in the 1990s due to the federal passage of the Ryan White CARE Act, which incentivized the states to enact HIV criminalization laws.
"The states did that but they didn't do a good job," said Suttle, who was in San Francisco last week to promote the Sero Project and its work. "In most of the HIV criminal cases there hasn't been much transmission at all. They are arresting people for not disclosing."
Suttle, 34, is one of three people arrested on such charges who appear in an eight-minute documentary short, titled HIV is Not a Crime , filmed by Sero Project founder and Executive Director Sean Strub. In 2009, while living in Louisiana, Suttle was convicted of intentionally exposing his ex-boyfriend to the AIDS virus and served six months in prison after accepting a plea bargain.
Required to register as a sex offender for up to 15 years, Suttle told the Bay Area Reporter that he now regrets his decision not to contest the charges.
"People should fight," said Suttle. "I wish I would have fought them."
The Sero Project's film screened last week at the Roxie. The event included the showing of Positive Women: Exposing Injustice , a full-length documentary produced by the Canadian HIV/AIDS Legal Network that showcases the stories of four HIV-positive women, three of whom were prosecuted under their country's sexual assault laws after being accused of exposing partners to HIV.
Under a ruling issued last October by the Supreme Court of Canada, a person with a low HIV viral load who uses a condom during sex doesn't have to disclose their HIV status to a sexual partner. The case only involved vaginal intercourse, therefore it remains unclear how the ruling would apply to a case involving anal sex between two men.
AIDS advocates had pressed the Canadian court to rule that disclosure is unnecessary if an HIV-positive person has either a low viral load or uses a condom rather than requiring both.
"Either/or we were going for but the court said it is both. You have to wear a belt and suspenders at once," said Richard Elliott, executive director of the Canadian legal group, during a question and answer session following the screening. "It is not clear the court would adopt the same standard with anal sex. The court could say anal sex is such a risk you need to always disclose."
Also in attendance was Jessica Whitbread, 33, who identifies as queer and is the global chair of the International Community of Women Living with HIV. The Toronto resident is featured in the film as her ex-boyfriend who transmitted the virus to her was later prosecuted after infecting two more women and given a four and half year sentence.
Whitbread opted not to press charges herself, however, as she refuses to see herself as a victim.
"We are all innocent and guilty in various ways," she told the audience. "It makes me annoyed when people say, 'You didn't deserve it.' I don't like the label of innocent victim. We are all in this together."
Because Canada's legal system has interpreted its aggravated assault laws to include HIV exposure cases, it makes it harder to address the legal issues involved and reform the law, said Elliott.
"We don't have HIV-specific laws so it is trickier to attack a more general law," he said. "Through creepy interpretations we've ended up in this position. California law is better."
According to the Center for HIV Law and Policy, 32 states and two U.S. territories have HIV-specific criminal statutes and 36 states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting.
In California, HIV-positive persons may be prosecuted for engaging in unprotected sexual intercourse with the specific intent to transmit HIV and can face up to eight years in prison if convicted, noted the center's Positive Justice Project in its report "Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions," last updated in March.
The document notes that under California's felony exposure statute, it is against the law for an HIV-positive person who is aware of his or her status to engage in unprotected penile-vaginal sex or unprotected anal sex without disclosing HIV status to sexual partners with the specific intent to transmit HIV.
A person can be prosecuted even if no actual transmission of the virus occurs. The report adds that the sentencing law may be applied regardless of the defendant's viral load, whether condoms or other protection were used, or whether HIV could have been transmitted during the acts in question.
"Putting a face on these issues is important because these concepts are complex," said Marc Smolowitz, a local filmmaker who is the executive producer of The HIV Story Project, which co-sponsored last week's screening.