How State Laws Criminalize People With HIV
By Victoria Mckenzie
Commentators often contrast today’s treatment of the opioid crisis as a public health epidemic with the punitive approach once taken toward crack cocaine addiction. But perhaps an equally stark example of how Americans have criminalized certain socially “disreputable” diseases is the justice system’s approach to the HIV-AIDS epidemic that swept through US gay communities in the 1980s.
The harmful after-effects of that approach linger today. Some 28 states have criminal statutes that require people living with HIV to disclose their HIV status to sexual partners before having sex. Trevor Hoppe, an assistant professor of sociology at the State University of New York-Albany, closely examines those statutes and the struggle to rescind them in his recent book, “Punishing Disease: HIV and the Criminalization of Sickness.”
In a discussion with TCR, Hoppe explores the origins of the HIV-specific criminal laws in the US, how local health officials became the chief enforcers of them, and why the approach to the AIDS epidemic offers a cautionary lesson for contemporary public health officials and legislators.
(The conversation has been slightly abridged and edited.)
The Crime Report: You write that HIV exposure-and-disclosure statutes in the states were largely driven by local police departments and prosecutors.
Trevor Hoppe: Legal scholars have been saying for over a decade that these laws were a result of the Ryan White Care Actor the President’s Commission on the HIV Epidemic released under President Reagan. Both of those documents did end up advancing criminal statutes targeting HIV, but as I show in the book many of these laws or bills were introduced well before those documents came into existence.
The book is really trying to show how gay men were seen by police as a threat, especially sex workers living with HIV, but also to a lesser extent gay men living with HIV who were being arrested for other crimes. Police officers wanted a tool to punish these individuals more harshly.
TCR: What was behind the belief that HIV was being spread by sex workers?
HOPPE: Studies that I cite in the book suggested that sex workers in African countries had high rates of HIV, but it became clear very early on in the epidemic that was not happening in the United States, and that sex workers in the US had much lower rates of HIV than [those in Africa]. For many years, it was prohibited for any group to do research that might be perceived as promoting homosexuality or sex work. Those things are definitely intimately linked, and have been a problem for AIDS researchers, and HIV-prevention practitioners.
TCR: In the states that have criminal statutes pertaining to HIV, is it potentially a crime to have consensual sex after disclosing your HIV status?
HOPPE: In the vast majority of states, no. The crime is the failure to disclose the status in almost all states. There are states like Louisiana and Tennessee that have more broadly written statutes that could be construed to include cases where someone did disclose, but to my knowledge they’ve not been used in that way. That isn’t to say that there aren’t cases where the person living with HIV says “I told them,” and then the person they had sex with says, ”No they didn’t.”
TCR: You write about the ways in which local health officials in Michigan used the threat of criminal action to coerce people into specific behaviors, and how they even take on an active law enforcement role. For instance, a Macomb County Health Department form requires a client to acknowledge having been informed of a positive HIV status, and that the client is aware of Michigan’s felony laws pertaining to disclosure. On the same form, clients are informed that condoms “must” be used, making it appear they are liable to prosecution for having unprotected sex of any kind, regardless of the consent, knowledge and HIV status of their partner.
HOPPE: Right, and there are health departments around the country using similar forms, so Michigan is not alone in that respect. There’s a conflation of consensual sex with criminality, and I think that’s part of public health trying to flex muscles and coerce people. But I think it does a disservice to the community, in that it really erodes trust between public health and the communities that it works with.
TCR: Besides being an early adopter of HIV disclosure laws that pertained to a wide range of sexual activities, Michigan also began using a names-based reporting system to track people who tested positive for HIV. You write that health officials also began using this list as an investigative tool to look for people who might be breaking the law, and passing these names on to investigators, which have resulted in prosecutions.
HOPPE: I think the state would say “no, we have firm policies in place,” but when I spoke to people on the ground, they made it clear that there’s a lot of leeway in how they interpret and apply those policies. So you have local health officials who were using partner services to try to track down people they suspect might have been breaking the law, and that is explicitly not something that the state health department of Michigan condones. Nonetheless, technologies are being used to that end. I think it’s just one of those things that the state health department would rather not talk about, but it’s definitely happened at the local levels.
TCR: You conducted these interviews with local health officials from 17 jurisdictions in Michigan several years ago. Was there ever any response from the state?
HOPPE: There was a series of articles about the names-based reporting, and the way it was being used, [by] an investigative journalist named Todd Heywood. The result was that the state health department said to local health departments, “You don’t have to use these [client acknowledgement] forms.” To my knowledge that was the only result, and I don’t know that local health departments are doing anything different. But the state health department certainly did not publicly say that they had to start doing anything differently. So it’s a good question and I think one still worth asking local health departments. They certainly are not excited to talk to me about it anymore.
TCR: Based on some of the interviews with health officials you included in the book, it seems they were pretty candid with you at first.
HOPPE: They were extremely candid, and I’m grateful for that, because they in many cases told me quite matter-of-factly about what they did. And that was one of the surprising things from my end in doing the study⸺how nonchalant they were about some of the practices they were engaged in.
They would never outright disclose someone’s status. They would dance around that [by asking] “Did anyone you had sex with tell you they were HIV positive?” And [the client] would say “no, nobody told me.” Then they would say, “are you sure?” And they would bring you back in for more questioning. They would try to prod you into realizing something was amiss. So they were really cognizant of HIPPA, health privacy laws, and very careful not to break them.
TCR: How did they use contact tracing to try and search for people who might be breaking the law?
HOPPE: The way that contact tracing works is that if I test positive for gonorrhea, chlamydia or HIV, they would ask me who my sexual partners were. I would tell them “Joe, Bob, and Larry.” And then they would go contact Joe, Bob and Larry and say “Someone you have had sex with has tested positive for gonorrhea, chlamydia or HIV; you need to get tested.”
But they would also ask: ‘Did Joe, Bob or Larry tell you that they were HIV positive?’
And I would say “No.” Then they would look at the names-based database to see whether Joe, Bob or Larry actually have HIV. They would use those names and report it to investigators if they suspected one of them of violating the law.
TCR: You write that HIV statutes were part of a negotiation to get sodomy laws off the books.
HOPPE: In states like Nevada, it was a tit-for-tat agreement between Democrats and Republicans. Democrats wanted to repeal the sodomy laws; Republicans had a lot of anxiety over what legalizing homosexuality would mean for the epidemic, because they viewed it as dangerous and as they said a “cesspool of disease.” [After the sodomy law was repealed] conservatives introduced legislation immediately to criminalize HIV-nondisclosure…literally, the next day.
TCR: Is there any mens rea requirement to the exposure-and-nondisclosure laws?
HOPPE: There’s no requirement with intent whatsoever, it’s just presumed. Drunk driving is often framed in similar legal terms— you don’t have to show intent to show that you were violating the law. HIV is treated in similar ways, with intent being explicitly not part of the requirement or element under the law.
TCR: After looking so closely at how the government, the media, and the public reacted to HIV, do you see any parallels to the “epidemics” of today, such as opioids, sex trafficking, and school shootings?
HOPPE: Well, I think we are prone to panic when it comes to our policy, so HIV is not unique in that sense. School shootings are a good example. If you wanted to understand gun violence in America, school shootings would not be the place to start, because they are such a tiny fraction of that issue. But they nonetheless dominate our consciousness.
Similarly, we became stuck on these highly sensational— and maybe rightly so, emotional— aspects of certain issues that [prevent us] from stepping back and seeing the bigger picture. Homosexuality definitely did that for HIV, and while I think the school shootings that are happening are horrible and we ought to prevent them as best we can, it’s just the tip of the iceberg when it comes to gun violence.
TCR: What were the unintended results of HIV statutes, and what does this have to teach us about criminalization in the opioid context?
HOPPE: I think lawmakers had the idea that they were going to try to punish people who were out there trying to infect other people. Which seems like a good idea, right? That’s not something that we want people to be doing. But the language that they drafted in these statutes is so broad, that it encompasses behaviors that are far less nefarious, and far less harmful than what they had in mind.
It’s not just people out there trying to intentionally infect other people who are being prosecuted— it’s people who had a one-time sexual encounter with a condom, or who have an undetectable viral load, or who even (in Michigan) gave a lap dance. These are hardly the kinds of people I think those lawmakers had in mind.
Lawmakers, prosecutors, judges have no medical training. Nor are they medical experts. There are some exceptions, but [lawmakers] ought to take special caution when they try to create a law pertaining to a medical issue. The science around those issues changes quickly, and the law is unlikely to keep up with developments in the medical world. If you get it wrong, the consequences are unpredictable and, in the case of HIV criminalization, they have been devastating to many people.
TCR: You examined 74 criminal cases in Michigan and Tennessee, looking at thousands of pages of court documents. What were you looking for?
HOPPE: I was interested in how prosecutors and judges make sense of these cases. How do they describe HIV? How do they describe the defendants? I was looking for the language that they used to represent HIV in the courtroom, and to represent the defendant’s behaviors, and what I found was that they consistently compared HIV to a death sentence, defendants to murderers, and their sexual activity as potential homicide. So they used these analogies to violent crime to kind of make sense of the punishments that they meted out.
I make the argument that the language matters. The language that they use to describe HIV is not inconsequential. It sort of justifies the punishment that they dole out.
TCR: We now have plenty of research showing the extremely low risk of transmission when someone has an undetectable viral load. But these laws persist, under the same premise that people living with HIV represent a health threat. Where has science won in the courts? Some states have managed to repeal these laws.
HOPPE: Yes, but not through litigation. They’ve been repealed through legislation. California and Colorado have repealed their felony laws, and that surprised me, to be perfectly honest, in both cases. Because lawmakers really are not keen to repeal criminal statutes. I think states that have less left-leaning legislatures will have a harder time getting to repeal.
States like Tennessee and Iowa are instead moving to expand their laws to include other diseases. So I do think we’re at kind of a precipitous moment or a crossroads, where we could go one of two directions. And I don’t have a crystal ball. I’m hopeful that more states will repeal.
TCR: In places where laws weren’t repealed, were there any amendments or provisions added to HIV statutes due to scientific advances?
HOPPE: Since it is no longer a death sentence, people living with HIV can’t automatically be characterized as “homicidal” for having sex; and we know more about how the disease is transferred.
There have been amendments, but mostly they’re technical in nature and not substantive. Carol Galletly and Zita Lazzarini at the University of Connecticut have done a study looking at those amendments. But my understanding is that they’re not radical overhauls, they’re just sort of housecleaning in most cases.
TCR: Did the courts ever consider mitigating circumstances? For example, if someone had an undetectable viral load and used a condom?
HOPPE: They were raised as an issue by the defense several times. Mostly at sentencing, because most of these cases involved a plea. But I can think of at least one trial where a defendant tried to use his undetectable viral load as a defense, and it fell flat— it was entirely unsuccessful, to the court.
There is a possibility that could change, but those people don’t know what “undetectable” means. So I think until you have a judge, a prosecutor, etc, who has some basic understanding of HIV you’re going to still end up with the same outcomes. Part of the problem is that it’s not big cities that are leading the charge on this; it’s small towns.
TCR: Tell me more about small towns and rural counties
HOPPE: To me, the criminalization of HIV is a problem of stigma. Where there is stigma you’ll find criminalization. So I went into this study, for example, expecting that gay men would be disproportionately targeted under these laws because of the homophobia that drove their implementation.
But what the book finds is that it’s mostly heterosexuals– particularly white heterosexuals, but also black heterosexual men, who are being disproportionately impacted. And what that tells me is that the people with the lowest probability of contracting HIV have the highest probability of being prosecuted. So we’re working on an analysis that’s looking geographically to get to some finer points on this question.
But what I can say right now is that prevalence of HIV does not predict prevalence of HIV criminalization. Counties where there’s lots of HIV don’t necessarily have lots of HIV criminal cases.
TCR: How strong is the force of inertia in the court system, once scientifically invalid ideas are stamped into law?
HOPPE: It’s self-reproducing! Case law is really entrenched. It is very hard to grossly deviate from the course the courts are already on.
I think a powerful test case can certainly make a difference. But finding that test case that’s right, and getting it through the court, and finding a defendant who’s willing to go through that process seems quite difficult. Nick Rhoades in Iowa was an example of one of these test cases that I think made a huge difference, because he was sentenced to 25 years in prison for having sex with someone once and using a condom.
That’s indefensible, I think. And he’s also a very handsome white gay man, so he’s a sympathetic sort of defendant. So I do think that cases like that can have an effect, but they’re just so few and far between. It’s not a federal system, so it really takes one of these cases in every single state.
TCR: So to your knowledge the issue of viral count hasn’t really made it into the statutes?
HOPPE: When Iowa revised its law a couple of years ago, they did reduce the penalties in cases where someone has undetectable viral loads, but they did not eliminate it. North Carolina’s [statute] was revised to say that if you had an undetectable viral load, you did not have to disclose. It was a law that to my knowledge was almost never used– but nonetheless it’s a sign that there could be some movement happening.
TCR: Do you see states still moving toward repealing these criminal laws under the Trump administration?
HOPPE: I talk to people in states around the country, and many people on the ground are dedicated to making that happen, and hopeful that it will happen. And so, I’m hopeful for them.
Victoria Mckenzie is Deputy Editor (Content) of The Crime Report. She welcomes readers’ comments.
Published in the Crime Report on March 26, 2018