By Eve Hill

An article caught my eye this week from the Louisiana Times-Picayune. A 32-year-old man was arrested in New Orleans because he was throwing unknown objects in a shopping mall. When Harbor Police tried to make him leave and tried to physically remove him, he resisted by biting an officer and spitting on him. After his arrest, the police did a blood test, which was positive for HIV. As a result, the District Attorney increased the charges to include “intentional exposure to AIDS” and the court set a $10,000 bond for that charge, but only a $5,000 bond on the resisting arrest charges and $2,500 on the disturbing the peace charge. It is not clear whether the man was aware he had HIV before he was tested by the police, or whether he was on antiretroviral therapy (ART).

The “intentional exposure to AIDS” statute in Louisiana law was enacted in 1987. Thirty-two other states have such laws. Like Louisiana’s law, they were largely enacted before much was known about the transmissibility of HIV, when the life-threatening consequences of contracting HIV were much greater, and when the Americans with Disabilities Act (ADA) did not exist. Moreover, states passed these laws in the 1980s when the stigma against people living with HIV was greatest. We now know that the risk of transmission from biting, spitting, or throwing bodily fluids is negligible, even in the absence of risk reduction measures. And consistently taking ART can reduce the risk even more, making a person’s viral load undetectable and making HIV untransmittable. Moreover, with testing and treatment, HIV is a manageable chronic disease. As of 2013, a 20-year-old person with HIV on ART in the United States has a life expectancy into their early 70s, nearly that of an HIV-negative 20-year-old.

There is a growing consensus that laws that criminalize HIV do not work to advance public health. A recent article from the Centers for Disease Control (CDC) studied the relationship between laws criminalizing HIV exposure and diagnosis rates over a 16-year period and found no effect on HIV diagnosis and HIV criminalization laws. Therefore, the CDC concluded that the results “suggest[] these laws have no detectable HIV prevention effect.” Sweeney, P. et al., Association of HIV Diagnosis Rates and Laws Criminalizing HIV Exposure in the United States, AIDS 2017.

The National HIV/AIDS Strategy finds HIV criminal laws “undermine the public health goals of promoting HIV screening and treatment” by discouraging people from seeking diagnosis and treatment (because knowing that you have HIV makes your behavior a crime). The 2015 National HIV/AIDS strategy recommends State legislatures should review HIV-specific criminal statutes to ensure they are consistent with current scientific knowledge of HIV transmission and support public health approaches to preventing and treating HIV.”

And numerous medical organizations have called for the modernization of HIV criminal laws, including the American Medical Association, American Psychological Association, National Association of County & City Health Officials, and U.S. Conference of Mayors. According to the American Association of Prosecuting Attorneys, “There are no known cases of a law enforcement officer getting infected with HIV in the line of duty through [spitting or biting]. That is because this type of contact with an HIV positive person poses little or no risk of HIV transmission.”

The CDC and the Department of Justice (DOJ) published an article questioning the efficacy of HIV criminal exposure laws. Lehman, JS, Carr, MH., Nichol, AJ, et al. Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS Behav. 2014. And DOJ has issued guidance on the criminalization of HIV, noting, “While HIV-specific state criminal laws may be viewed as initially well-intentioned and necessary law enforcement tools, the vast majority do not reflect the current state of the science of HIV and, as a result, place unique and additional burdens on individuals living with HIV.” DOJ, therefore recommended that states eliminate HIV-specific criminal penalties except in two circumstances: “1) when a person with HIV who knows their HIV status commits a (non-HIV specific) sex crime (e.g., rape or other sexual assault) where there is a risk of transmission or 2) when a person with HIV who knows their HIV status and, acting with intent to transmit, engages in behavior with a significant risk of transmission.”

Not only does the current state of the science not support criminalization of HIV in the way Louisiana is enforcing it, but they could also violate the ADA and other federal civil rights laws. The ADA prohibits state and local governments from discriminating on the basis of disabilities, including HIV. Treating HIV differently from other serious communicable diseases is discriminatory. Such unfair treatment stigmatizes a vulnerable population in our society, instead of encouraging people with HIV to seek treatment that will protect them and society at large. States do not appear to criminalize transmission-risky behavior for serious communicable diseases other than HIV. For example, the Zika virus can be spread through sexual intercourse and can be transmitted to a fetus, causing severe birth defects, but its transmission is not criminalized. Similarly, transmission of Hepatitis C, tuberculosis, influenza/pneumonia, Ebola, syphilis, SARS, and MERS are not criminalized, despite killing many people each year.

A bipartisan bill was recently introduced in the House of Representatives, calling for the repeal of state laws criminalizing HIV non-disclosure and exposure. Sponsored by Congresswomen Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.), the Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2017 or REPEAL seeks to bring laws in line with current science and public health goals.

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