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HIV: prosecution or prevention? HIV is not a crime

Friday, 31 March 2017 Written by // Guest Authors - Revolving Door Categories // Social Media, African, Caribbean and Black, Gay Men, Youth, Current Affairs, Women, International , Legal, Living with HIV, Revolving Door, Guest Authors

From POZ, an excerpt from Sean Strub's book, The War on Sex, edited by David M. Halperin and Trevor Hoppe.

HIV: prosecution or prevention? HIV is not a crime

This excerpt from Sean Strub's book, The War on Sex previously appeared at POZ, here.

Iowan Nick Rhoades is HIV-positive and has had an undetectable viral load for many years, making it virtually impossible for him to sexually transmit the virus. When he had sex with a man he met online in 2008, he also used a condom. Despite these protective measures, Rhoades was prosecuted and convicted for not disclosing his HIV status to his partner before they had sex. He was sentenced to 25 years in prison and lifetime sex offender registration.

Willy Campbell is serving 35 years in Texas for spitting at a police officer; David Plunkett served over six years in a New York state prison before an appeals court ruled that saliva could not be considered a “deadly weapon” in New York State. Monique Howell Moree was charged by the U.S. Army for failing to disclosure her HIV-positive status to a partner in South Carolina before having sex with him, even though the partner said he didn’t want her charged and that she told him to use a condom. Kerry Thomas is serving 30 years in Idaho, even though his accuser agrees that he always used a condom.

All over the United States — and in much of the world — people living with HIV/AIDS (PLHIV) are facing criminal penalties for nondisclosure of their HIV status prior to having sex or for perceived or possible exposure to, or transmission of, HIV. About two-thirds of U.S. states have HIV-specific criminal statutes, laws that only apply to PLHIV.

Most people believe the law should apply equally to all and that creating different statutes for different parts of society based on immutable characteristics — whether it is gender, sexual orientation, race, physical ability, or genetic makeup — is a bad idea. Yet here we are doing exactly that, creating a viral underclass in the law with one group singled out for different treatment.

Sero Project, a network of PLHIV combating HIV criminalization, has documented more than 1,300 instances of charges led under HIV-specific statutes. But HIV criminalization isn’t constrained by geography; in every state, regardless of whether there is an HIV-specific statute, PLHIV can and often do face more serious charges or harsher sentencing under regular criminal statutes than do HIV-negative individuals accused of the same crimes. Texas and New York do not have HIV-specific statutes, but as mentioned, have incarcerated PLHIV because they considered their saliva dangerous.

These statutes and prosecutions create an illusion of safety for those who do not have HIV or do not know their HIV status, putting the entire burden of HIV prevention on those who have been tested and know they have HIV. The statutes undercut the fundamental public health message that HIV prevention is a shared responsibility and that everyone should act in such a way as to maintain their own health and protect themselves from contracting HIV or other sexually transmitted infections.

This excerpt from Sean Strub's book, The War on Sex previously appeared at POZ, here.

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