by James Whitely -
SGN Staff Writer
On April 30, Lifelong AIDS Alliance hosted an open community forum on HIV criminalization. Although criminalizing people with HIV has been commonplace for years, the effort to reexamine the laws that discriminate against people with HIV is fairly new.
The forum, which featured three speakers and a short film by the SERO Project, was attended by about 25 people that were interested in learning more and adding their input to the movement that is still in its developmental stages.
'It's easy for us to see HIV in the context of a bullet,' said Renee McCoy, one of the featured speakers. 'When we criminalize people with HIV, we basically take a group of people who have a health issue and make them criminals.'
According to the Positive Justice Project, an organization dedicated to the repeal of HIV criminal statutes and the end of HIV-specific prosecutions, '36 [U.S.] sates and territories have HIV-specific criminal laws, but people with HIV also are being prosecuted for assault and other crimes under regular criminal laws.'
Washington is one of these 36:
Assault in the first degree.
(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
(b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm.
(2) Assault in the first degree is a class A felony.
All the legal jargon means that if someone who is HIV-positive doesn't disclose their status, it's first-degree assault. In Washington, a class-A felony can bring a maximum punishment of life imprisonment and/or a fine of $50,000. Across America, people who are HIV-positive are receiving sentences of up to 25 years.
Again, the crime is, essentially, non-disclosure of HIV-positive status, but these laws can be used against the HIV-positive individual even if they use a condom. Whether HIV is actually passed - and in most of these cases nationally it isn't - is irrelevant. Additionally, an estimated 25% of these cases are for spitting and biting incidents perpetrated by HIV-positive individuals that pose no or only a remote risk of HIV transmission.
'HIV criminalization creates a viral underclass with different laws or enhanced punishments based on HIV-positive status,' says the SERO Project, a non-profit initiative 'combating HIV and viral-related criminalization, discrimination, and stigma and promoting the empowerment of people with HIV and viral conditions to improve the quality of their lives and advocate for sound public health policy based on science and epidemiology, rather than ignorance and fear.'
This is an issue on which the community is divided. Sixty-eight percent of Gay men polled said that if someone doesn't disclose their status, it should be a crime. Thirty-eight percent of those polled who identified themselves as HIV-positive said they supported the laws, as well.
Sean Strub, founder of POZ Magazine, co-founder of the SERO Project, and longtime HIV activist, puts it best.
'Imagine meeting someone online, having a nice chat, and then deciding to hook up. You have HIV, but you're adherent to your meds and have had an undetectable viral load for years. You and your sexual partner use a condom. Sometime later, the partner learns you have HIV and presses charges against you for failing to disclose your HIV status prior to sex.
'Your life is suddenly turned upside-down, with your name and picture splashed across the media. You are called an 'AIDS Monster.' You and your family and friends feel humiliated and embarrassed. Your employment, housing, and relationships may be put in jeopardy and you need to find tens of thousands of dollars for legal fees for the impending prosecution.
'If convicted, you face decades in prison, lifetime registration as a sex offender, and other restrictions - if acquitted, your life is still never the same, because you will always be known as the AIDS Monster.
'Think about that for a moment: consenting adults. No intent to harm. Undetectable viral load. A condom was used. No HIV transmission. Twenty-five years in prison. This isn't hypothetical; it is exactly what happened in a recent case in Iowa.
'Many criminalization prosecutions are about a person with HIV being unable to prove they disclosed their HIV status to a partner prior to intimate contact,' says the SERO Project. 'Criminalization also encompasses people with HIV who are charged with a crime like assault or prostitution but, because they have HIV, the charges or penalties are made much more serious. For example, a simple assault charge might become 'assault with intent to kill.'
To McCoy, HIV does not belong in the law books; it belongs in hospitals, clinics and support groups.
'Criminalization is especially an issue for marginalized people of color,' said McCoy.
'These laws keep people from getting tested. & These laws are a barrier,' said BJ Cavnor, public policy coordinator at Cascade AIDS Project.
'Take the test and risk arrest,' is a phrase that's mentioned in the eight-minute film that was presented during the forum, because if one doesn't know that they're positive, they can't be charged through these laws. According to Cavnor, this means that, in some sense, people are being punished for being responsible.
As controversial as the issue is, the HIV Is Not a Crime film by the SERO Project sheds a lot of light as to why this issue is worth examining. You can watch the video online at www.seroproject.com.
The film features three stories of people affected by these laws, all interviewed by Strub, one of which is Robert Suttle, the other co-founder of the SERO Project.
Suttle was HIV-positive and in a 'contentious' relationship. He disclosed his status while still in the relationship, but when the couple broke up, his partner pressed charges. Suttle pled guilty to save himself from decades of imprisonment, serving only six months, but now he's a registered sex offender.
Strub is calling for a reexamination and modernization of these HIV specific laws. For Strub, an HIV-specific statute doesn't make sense, as other no statues exist for other STDs.
According to McCoy, it's about telling the truth, but, 'In the threat of criminalization, we silence the truth.'
A reexamination of these laws, like marriage has been thus far, will likely have to go state by state, according to Strub. Iowa is the only state where a bill has been introduced to take another look at these laws. If these laws are indeed barriers as Strub suggests, they - like SERO's film - are worth a look.
'I believe that in my lifetime, we will see an end to this disease,' said McCoy.
For more information and for information on how to protect yourself as an HIV-positive individual, Check out the Positive Justice Project at www.hivlawandpolicy.org/public/initiatives/positivejusticeproject.
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