When Having HIV Is a Crime

Wearing a light green shirt and beige pants, Robert Suttle was speaking to a crowd of roughly 50 people at a forum on HIV criminalization held at New York’s Lesbian, Gay, Bisexual, and Transgender Community Center. He was blunt.

“I am not a criminal,” the 33-year-old said on May 24. “I am not a sex offender, but the state of Louisiana says I am.”

Suttle served six months in prison after a former boyfriend, with whom he had a difficult relationship, told police Suttle had violated the state’s law that criminalizes intentionally exposing another to HIV, the virus that causes AIDS.

Suttle pleaded guilty to avoid a longer prison term and was required to register as a sex offender. His Louisiana driver’s license has a red banner below his picture with the words “sex offender” in large black letters. His story is not unique.

Thirty-six states and territories currently have laws that make it a crime to not disclose an HIV-positive status to sex partners and others or that punish exposing others to HIV. The laws do not necessarily differentiate between safe and unsafe sex or require that anybody be infected by the defendant.

“It undercuts the most basic message about public health, which is that every person has to be responsible for their own health,” said Sean Strub, a longtime AIDS activist who is executive director of the SERO Project, a group that opposes these laws.

The laws were enacted after Congress added a provision to 1990 legislation that funded many AIDS programs and services. The provision, removed from the 2000 reauthorization of the original legislation, required states to show that their criminal laws penalized the knowing transmission of HIV. A large number of states responded by enacting new statutes.

Some laws punish behaviors by HIV-positive people that do not transmit HIV, such as spitting or biting, and many do not weigh the relative risks of transmission among various behaviors.

“There are some states in which courts have allowed sex toys to be a means of transmission,” said Adrian Guzman, an attorney with the Center for HIV Law and Policy, a non-profit law firm.

The forum is part of an ongoing effort to repeal these laws. The SERO Project has held forums in other cities, and Strub and Suttle testified before a United Nations committee last year. The UN committee will issue a report on HIV criminalization in July.

One state, Iowa, has a “fairly developed” effort at repeal, Strub said, and others are at the start of repeal. “There are other states where there is sort of the beginning of it,” he said.

The group will have a prison float in Manhattan’s LGBT Pride March in June.

Last year, Barbara Lee, a Democratic congresswoman from California, introduced

L&summ2=m&”>legislation that requires the Pentagon, the Department of Health and Human Services, and the Department of Justice to review federal laws and regulations to identify where they place “unique or additional burdens” on people “solely as a result of their HIV status” and encourages their repeal. The legislation also uses federal funding to encourage states to repeal their laws. The legislation has 30 cosponsors.

The best evidence suggests such laws have little or no impact on people’s behavior.

A 2007 study published in the Arizona State Law Journal compared the sexual behavior of 248 men who have sex with men or injecting drug users in Illinois, which has an HIV criminalization law, to 242 such people in New York, which does not have a similar law. The study found “very weak support” for the assertion the Illinois law affects behavior. What the study found were people acting in accordance with their views of what is right or wrong.

“The notion that one can get in trouble for deceiving or endangering others does seem to matter to behavior, but does not depend at all upon the existence of HIV-specific laws or the belief that the law requires specific acts by people with HIV,” the authors wrote.

A study, published this year in the journal AIDS Care, of 384 people with HIV in Michigan, which has an HIV criminalization law, concluded the law was not associated with reduced risky behavior, “increased perceived responsibility for HIV transmission prevention,” or more disclosure to every one of a positive individual’s sex partners. Being aware of the law was “significantly associated” with study participants disclosing their status more to those who were first-time sexual partners.

The laws have resulted in harsh penalties for some people with HIV. They create a “viral underclass,” Strub said, and stigmatize people with HIV.

To the extent that those living with the virus continue to garner attention in the US, he said, “we are seen principally as a threat to society.”