Laws mandating HIV disclosure are a failure

Over the last week or so, there has been an overwhelming amount of discussion about HIV disclosure laws and the criminalization of HIV-positive statuses in the United States. The discussions came about in part because of a story in Q-Notes of North Carolina about a D.J. in local club who had pleaded guilty to exposing partners to HIV. It was a misdemeanor crime in North Carolina.

In a less public story, an HIV-positive man here in Michigan has been charged with violating our HIV disclosure law, a felony, and exposing two women to HIV.

But to a lesser extent, this discussion has been boiling under the surface of HIV prevention and activist activities for some time. Reading the responses around the North Carolina case both on Bilerico and on several listservs I am a member of was, quite frankly, disgusting.

The following comment from Wolfgang E.B. here on Bilerico adequately shows the amount of fearmongering and outright stigma associated with HIV nondisclosure:

I agree with you, Lucrece. Knowingly spreading a deadly contagion is, at best, negligent homicide; at worst, first degree murder. I have the deepest sympathy for anyone who is HIV positive, no matter how they got it, but it comes with a responsibility to protect the safety of others.

I do hope this law applies to *all* serious communicable diseases though, not just HIV. I’ve never heard anything but AIDS mentioned when it’s brought up.

I am HIV-positive. I was infected in March of 2007 by a partner who was infected but afraid to disclose because he had been rejected by friends and family when he was diagnosed. We practiced safer sex; however, I was infected anyway.

Now, under Michigan law, I could charge this person with a felony, sending him to prison for up to four years and thus exposing him to exceptionally high rates of Hepatitis B and C (links to PDF) as well as HIV, or I could take a compassionate perspective and understand the social and political realities under which this partner was suffering.

What he did was negligent, there is no question about it. However, did it rise to the level of criminal activity? Hardly.

And that is the exact issue with HIV disclosure laws and their failure in America. It is time to address the real issues of HIV infection, exposure and nondisclosure.

(To be clear, do not construe this post to be an advocating for not disclosing HIV status to partners. I am not a fool enough to believe that we live in a perfect world where HIV-positive persons are afforded respect and dignity and that in some cases disclosure could seriously put persons with HIV at risk for violence, discrimination and more.)

The history of HIV disclosure criminal laws

Criminalization of HIV transmission was mandated in 1990 with the passage of the Ryan White CARE Act. In the act, states were required to certify that they had laws to criminalize the transmission of HIV. All states had reached that necessary certification by 2000, and thus the rider was not reauthorized. However, the law has left a hodge-podge of legal liabilities that vary from state to state and in some instances from action to action. In other words, an action in Michigan may be a felony, but in another state, like California, it might not even be criminal.

In Michigan, the law is particularly appalling, in that it demands disclosure of HIV-positive status prior to any “penetration … however slight.” The law follows:

333.5210 Sexual penetration as felony; definition.

Sec. 5210.

(1) A person who knows that he or she has or has been diagnosed as having acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex, or who knows that he or she is HIV infected, and who engages in sexual penetration with another person without having first informed the other person that he or she has acquired immunodeficiency syndrome or acquired immunodeficiency syndrome related complex or is HIV infected, is guilty of a felony.

(2) As used in this section, “sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.

Evidently in Michigan, if you and I decide to have sex using toys, and I don’t disclose I’m HIV-positive, I have committed a felony. To be fair, this law was written in 1987, at the height of the HIV pandemic’s most brutal assault on humans in the U.S. and because of the lackluster behavior of Ronald Reagan’s Health and Human Services Department, the U.S. did not know as much about HIV and its transmission as we do now. But why has this law not been amended to reflect a more current understanding of the biology and epidemiology of the virus?

And what makes matters worse in Michigan is that the Michigan Supreme Court has ruled the law is constitutional in People v. Jensen:

Considering the ease of transmitting AIDS and HIV through sexual penetration [*464] and the absence of any “cure,” the state’s interest in protecting the public health, safety, and general welfare of its citizenry becomes extremely significant. Although the statute may significantly infringe on defendant’s individual interests in remaining silent, the state’s interest to compel her to disclose her HIV status before engaging in sexual penetration is undeniably overwhelming.

Interestingly, Hepatitis C, which has a .6% prevalence in Michigan residents, and is just as dangerous, if not more so, an infection as HIV — is not subject to disclosure by HCV-positive persons before sexual activity. Shouldn’t that state also hold HCV to a similar criminal level, under “the state’s overriding, legitimate and compelling interest in preserving the life of its citizens,” as the court ruled in Jensen?

Laws are counter to HIV prevention messages

The fact of the matter is that most of these laws (23 states have some form of criminal law on the issue of HIV transmission; the laws are explicit in mentioning HIV) do not mention prevention efforts in sexual contact. In fact, only three of the 23 state laws mention condoms, and only two of these imply some form of protection involved. Most of the laws make no determination of harm mitigation taken by the HIV-positive person, and present HIV disclosure as paramount, over other actions.

But the reality is far more complicated. First of all, thinking back on our toys and sex question, there is not a single case of toys transmitting the virus. Yet this completely safe activity is a criminal act in Michigan if the HIV-positive person does not first disclose his or her status. But let’s look a little more closely at risk probabilities based on behavior.

To address this issue, I am going to quote extensively from from The Journal of Law, Medicine & Ethics, Summer 2004, “Toward Rational Criminal HIV Exposure Laws” by Carol L. Galletly and Steven D. Pinkerton.

Unprotected anal intercourse is the riskiest sexual activity. The probability of HIV being transmitted from an HIV-infected man to his uninfected partner through a single act of unprotected anal intercourse is approximately 1 in 50 if the infected man is the insertive partner and 1 in 2000 if he is the receptive partner. The risks associated with unprotected vaginal intercourse are relatively small as well: approximately 1 in 1000 for male-to-female transmission and 1 in 2000 for female-to-male transmission. Less is known about the probability of HIV transmission through oral sex. Although there have been a small number of cases in which HIV reportedly was transmitted through cunnilingus, analingus, or being the insertive partner in fellatio, the risk associated with these activities is generally (though not universally) considered to be negligible. In contrast, while the risk to the receptive (“giving”) partner in fellatio is less than the risk associated with anal or vaginal intercourse, it is not negligible. One study estimated the per-act risk to the partner performing fellatio to be 1 in 2500. Co-factors that can increase the likelihood that HIV would be transmitted by these activities include gum disease, infection of the mouth or throat by a sexually transmitted infection (STI), or other lesions in the oral cavity.

When used correctly and consistently, latex condoms reduce the likelihood of HIV transmission by as much as 90% or more.13 Stated another way, condoms reduce the probability of HIV transmission by about a factor of 10. For example, the probability of an infected man transmitting the virus to his partner during a single act of condom-protected anal intercourse is 1 in 500 if the infected man is the insertive partner and 1 in 20,000 if he is the receptive partner.

These transmission estimates assume that the partners engage in the specified sexual activity only once. Multiple sex acts increase the probability of transmission in an approximately linear fashion. For example, engaging in the same activity twice approximately doubles the risk of transmission.

It is important to note that there is considerable uncertainty surrounding the transmission probabilities cited above. These difficult-to-estimate probabilities represent averages over groups of people and neglect potential interpersonal and intrapersonal variability in infectiousness and susceptibility to HIV infection. A number of factors play a role in whether a person will become HIV infected after exposure to the virus, including the strength of the exposed person’s immune system, the infected person’s stage of HIV disease and, in particular, the quantity of virus in his or her genital fluids, and whether or not the infected person is receiving effective antiretroviral treatment, which decreases viral load. The presence of transmission-facilitating factors in either partner, such as genital or anal lesions or other disrupted tissue, or infection with a sexually-transmitted pathogen other than HIV also plays a role in determining whether a person who is HIV-exposed will become HIV-infected. These uncertainties preclude pinpointing the exact risk associated with a particular sexual activity. Nevertheless, it is clear that a hierarchy of risks exists and, moreover, that these risks are generally small.

One way to depict these generalized estimates of risk is to categorize sexual activities according to one of three levels of risk (e.g., lowest risk, medium risk, and highest risk.) Sexual activities that pose the lowest risk of HIV transmission include masturbation of a partner and receiving cunnilingus or fellatio. Sexual activities that occupy the mid-range of risk for HIV transmission include insertive anal and vaginal intercourse, and giving fellatio. Sexual activities that pose the highest risk of HIV transmission include receptive anal and vaginal intercourse.

So what messages do these laws send? First, they ignore the protective potential of condoms. From Gallety and Pinkerton again:

Finally, sensible and meaningful HIV exposure law is based on conscious choices about actual risk and criminal intention. Efforts to reduce the risk of HIV transmission through condom use or through the practice of less risky sexual activities impact of these central factors. Both condom use and the practice of less risky behaviors such as mutual masturbation dramatically reduce the likelihood of HIV transmission and provide substantial evidence that an individual is not deliberately attempting to infect a partner. The lack of consideration given to risk reduction measures in the majority of criminal HIV exposure statutes is a striking omission.[...]

Condom use or the practice of alternative sexual behaviors reduces risk sufficiently to be considered a mitigating factor or a defense to criminal prosecution for exposure, omitting discussion of condom use entirely runs counter to prevailing public health messages which stress practicing safer sex with all partners until they are sure of their own and their partners’ serostatus. To whatever extent possible, HIV exposure laws and public health recommendations should avoid sending mixed messages to HIV-infected persons (and to persons at risk of HIV infection) regarding what is or is not risky, and what is or is not prosecutable behavior.

Another study by Professor Carol Galletly and Professor Steven Pinkerton from the Center for AIDS Intervention Research at the Medical College of Wisconsin’s Department of Psychiatry and Behavioral Medicine found:

Public health interventions aimed at preventing HIV transmission emerged as formidable, though not infallible, forces with which to contain the US epidemic. Unfortunately, one of the nation’s most broad-reaching, and some might argue, potentially most powerful tools with which to disseminate and reinforce this public health response, the criminal law, promulgated a message of a different kind.

The two researchers conclude “existing HIV serostatus disclosure laws not only fail to complement public health prevention efforts to promote condom use, they appear to undermine them.”

Moreover, the disclosure-based norm endorsed by these laws encourages at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is minimal risk absent positive serostatus disclosure. Serostatus disclosure laws thus may foster a false sense of security among HIV-negative persons who may choose to forgo condom use unless notified of their partners’ HIV-positive status.

Stigmatization

The same authors write, “By suggesting that criminal laws are needed to protect an ‘innocent’ public from HIV infection, HIV disclosure laws may perpetuate the stereotype of the wanton or desperate HIV-positive person who is a threat to society, thereby contributing to continued HIV-related stigma.”

The fact remains that people, HIV-positive or not, require intimacy. When faced with the unbearable decision to disclose an HIV-positive status or to be able to have intimacy (whether it is kissing, a potential felony for an HIV-positive person in Idaho, or all-out sex) — most people will fall on the side of intimacy. This is a basic reality of Maslow’s Hierarchy of Needs and to expect anything less is unfair to the basic humanity of persons with HIV.

The community’s responsibility

These laws place the responsibility for HIV prevention not on everyone having sex, but on the person who is HIV-positive.

But what the hell happened to personal responsibility? If Person A engages in sex with Person B and gets HIV or any other infection, who is responsible for that infection? Both partners are equally culpable. Let’s say in our scenario Person A knew he was infected with HIV but failed to disclose. And let’s further presume that Person B assumed Person A was HIV negative and was less than cautious sexually (like I was). Person B is just as responsible as Person A.

Why?

He has a personal responsibility to protect himself from potential deadly contagions. And ultimately that is the greatest concern I have about the HIV disclosure laws, that they allow one party to abdicate his or her responsibility for his or her own safety to another person, then hold the other person criminally responsible.

So where do we go from here?

First of all, we have to take the words of Matt Foreman, the former executive director of The National Gay and Lesbian Task Force, seriously. During the Creating Change Conference here in Detroit this year, Matt said, “We cannot deny [HIV] is a gay disease. We have to own up to it.”

We, as the LGBT community, have to own up to how this disease is still impacting our community in the U.S. in a manner that is out of whack with HIV infection rates in other communities. And we have to admit that we have abandoned our brothers of color and not offered a hand up to confront the epidemic that is eating away at them when they are young (13-24). We have to tell the older men that the HIV epidemic is not over and that we cannot loosen the grip on safer sex practices we held at one time.

Second, we must move ourselves back into a discussion of personal responsibility. This discussion must not condemn or judge, but it must be open and honest. The fact is that many gay and bisexual men have found that bareback sex is pleasurable to them. Rather than tell them there is something wrong with them for fetishizing it, we need to stop and address the reality of barebacking by addressing the harm reductions HIV negative men can take. We must also allow for, and accept the fact, that HIV-positive men are sexual beings still.

Finally, we need to have a bit of a reality check. Twenty-five percent of persons infected with HIV in the U.S. do not even know they have the virus. We must revert back to the prevention message of the 90s of using a condom with every sexual act, consistently and correctly, and that both participants have an obligation to act in a manner that protects themselves from infection not only from HIV, but from other STI’s as well.

That means to a point that no matter how hot the trick on Saturday night is, and no matter how much you want to believe him when he says he is HIV negative, it means you put a condom on him anyway. And you wear one too. There is no excuse not to do so. That hot trick might think he is negative, but in reality he might be infected and not know. He might also be infected and know and so lonely and in need of intimacy, that he can’t tell you he is positive for fear of rejection.

It means it is time to walk away from criminalizing HIV-positive serostatuses, and back into the operation that anyone could be infected with HIV and the only way you can prevent becoming infected is to take responsibility for yourself and protect yourself.

This post was originally published as a guest post on Bilerico on September 15, 2008.