On December 3, 2018, Missouri State Representatives Tracy McCreery and Holly Rehder pre-filed bills that would modernize HIV criminalization laws and make them current with the 21st century. When these laws were originally made, they were designed to deter people from knowingly spreading HIV and causing the death of another person. But with the latest medicinal advances and proper lifelong treatment, we now know that an HIV diagnosis is not necessarily a death sentence.
If unable to prove that the HIV-positive status of the defendant was disclosed to their partner,
Missouri’s current HIV-specific criminal codes enable prosecutions of persons where the defendant can face up to 30 years’ imprisonment, which is similar to the sentences for manslaughter or child abuse. It seems a little harsh to equate a medical diagnosis of HIV with murder and the abuse of children. Moreover, with HIV criminalization cases, it is the accuser’s word against the defendant. How do you define the “burden of proof” in such cases?
HIV criminalization laws spread throughout the 1990s and early 2000s. Now over 34 states and two territories have some type of HIV criminalization laws. A variety of acts in which bodily fluids are exchanged, such as having sex or sharing needles without disclosing one's status, are illegal if a person has been diagnosed with HIV.
The intent of these laws was meant to slow the spread of this fatal disease, but instead it actually causes more health disparities. HIV criminalization laws disproportionately affect minorities and sex workers. It is already established that racial disparities exist related to many matters of law enforcement and public safety nationally. For example, according to the NAACP Criminal Justice Fact Sheet, African Americans are incarcerated at more than five times the rate of whites; the imprisonment rate for African-American women is twice that of white women; and, though African Americans and Hispanics make up approximately 32 percent of the U.S.
population, they comprised 56 percent of all incarcerated people in 2015.
From 1996-2005, there were 19 more African-American defendants than white defendants in HIV-related trials in Missouri, about 55 percent of persons charged. This was true even though African Americans are a distinct minority in Missouri, comprising 11.8 percent of the state population in 2018, according to the U.S. Census Bureau.
Furthermore, there is no evidence that HIV criminalization laws reduce HIV transmission or make people more likely to disclose their HIV status or get tested. In addition, several professional organizations oppose these laws, including the American Psychological Association and the Association of Nurses in AIDS Care.
Since the 1980s, there has been a stigma associated with HIV and AIDS. Even though the Centers for Disease Control and Prevention recommends universal HIV testing, people continue to opt out of testing for reasons such as fear of the diagnosis or believing they are not at risk. Criminalizing individuals with HIV further complicate public health initiatives to decrease the rates of transmission.
Denise Hooks-Anderson, M.D., is assistant professor at SLUCare Family Medicine and the medical accuracy editor of The St. Louis American. Email email@example.com.