Next week the XIX International AIDS Conference will convene in Washington, D.C., and for the first time in 22 years it will be back on American soil, thanks to President Barack Obama's lifting of the ban on travel into this country by HIV-positive individuals.
With research published recently showing that treating HIV-positive folks to the point of viral suppression reduces the likelihood that their HIV-negative partner will acquire HIV by 96 percent and that HIV-negative individuals taking a two-drug antiretroviral combo on a daily basis can reduce their risk of getting HIV by around 90 percent (pre-exposure prophylaxis, or PrEP), expectations are high that the Obama administration will announce proposals providing the resources needed to break the back of our epidemic by implementing these research findings in communities across America.
Obama's national AIDS strategy has already started through measures to expand HIV testing and treatment, along with linking and retaining patients in care. Treating upon diagnosis with HIV and the rollout of PrEp are likely additions in new initiatives. (The Food and Drug Administration on Monday approved Truvada for PrEP.)
However, I fear the recalibration of the criminal laws used to prosecute people with HIV remains sorely neglected. Let me give an example of the problem.
Nick Rhoades, HIV-positive since 1999, was taking antiretrovirals and his viral levels were suppressed to an undetectable level when he had sex with a negative partner in 2008. They had oral sex without ejaculation and without condoms. They had anal sex, with Rhoades as the top, and he wore a condom. No HIV transmission took place, yet Rhoades was arrested and prosecuted under Iowa's criminal transmission of HIV law. Convicted and sentenced to 25 years in prison, he was released after a year in jail and his sentence reduced to five years probation. He remains a registered sex offender and is battling his conviction (huge thanks to POZ I AM and the Center for HIV Law and Policy for this background).
According to the Center for HIV Law and Policy, 32 states, two territories, and the federal government have "HIV-specific" criminal laws. If Test and Treat, plus Linkage to Care is implemented across the country as hoped, how does it square with a legal environment where seemingly responsible behavior by HIV-positive folks, like Rhoades, is harshly prosecuted?
If the plan is to dramatically increase testing and to encourage newly diagnosed poz folks to immediately start treatment with the explicit understanding that they can dramatically reduce their chances of infecting their partners if they succeed in achieving undetectability on their meds, is it still fair to subject them to severe criminal prosecutions if they have unsafe sex? And what if their negative partner has been taking a two-drug antiretroviral combo diligently on a daily basis to prevent HIV infection?
I think the hope is that if unsafe sex takes place, it occurs under exactly those conditions and the expectation is that HIV transmission will be negligible. In fact, a study was conducted in Switzerland of 46 sero-discordant heterosexual couples seeking to conceive with the HIV-positive male partner treated to suppression and the female HIV-negative partner taking PrEP. The results, published in AIDS by Vernazza et al in 2011, found no HIV transmissions along with several babies safely conceived.
And as an aside, in 2008 the Swiss Federal Commission for HIV/AIDS resolved that, "an HIV-infected person on antiretroviral therapy with completely suppressed viremia is not sexually infectious, i.e. cannot transmit HIV through sexual contact and that this statement is valid as long as: the person adheres to antiretroviral therapy, the effects of which must be evaluated regularly by the treating physician, and viral load has been suppressed for at least six months, and there are no other sexually transmitted infections."
If he were Swiss, Rhoades would not have been arrested, much less prosecuted and convicted. And again I ask, how can we start talking about ramping up biomedical prevention to "end AIDS" in America, without refining the laws that criminalize sexually acts by HIV-positive individuals?
Trust, communication, and cooperation with communities hard hit by HIV and the success of new initiatives would be greatly bolstered by taking on and changing the draconian legal environment that envelops most Americans with HIV. And, enacting laws that reflect the latest scientific evidence will help reduce the staggering burden of stigma endured by people with HIV.
Jeff Sheehy has been living with HIV since 1997 and was the HIV/AIDS adviser to former Mayor Gavin Newsom. He is attending next week's AIDS conference and you can follow him on Twitter at @jeffsheehysf.