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Criminalizing HIV Status Is Wrong And Governor Brown Should Stop It

The California governor must decide whether to sign legislation ending stigmatization of people with HIV.

10/04/2017 15:37 EDT | Updated 10/04/2017 17:11 EDT
Mariana Bazo / Reuters

Right now, a bill sits on Governor Brown’s desk that could do more to improve the lives of people with HIV than any other state-level policy change in recent years. If the governor signs SB 239, passed last week by both houses, California will join Iowa and Colorado in leading the national movement to overhaul outdated, discriminatory HIV laws. By signing, he will increase the number of people tested and treated, simultaneously protecting public health and reducing discrimination against people with HIV. 

As the executive director of Positive Women’s Network USA, a national organization of women living with HIV, and a former member of President Obama’s HIV/AIDS Advisory Council, I have seen the damage done by the current laws, passed during the height of the AIDS epidemic.  

These laws treat people living with HIV differently than those living with other serious communicable diseases and can result in felony prosecution, even when the individual does not engage in any behavior that could result in transmission of HIV. Criminalizing people living with HIV in this way is a discriminatory and stigmatizing relic from decades of homophobia, misunderstanding, and outdated AIDS hysteria. SB 239, by Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego), would modernize HIV criminal laws and bring them in line with evidence-based means to prevent the spread of HIV.

The message these laws send? Take the test and risk arrest."

Research now shows indisputably that if a person living with HIV takes medication suppressing their viral load, it is impossible for them to transmit the virus to their partners -- even when a condom is not used. That’s why the absolute best way to prevent new HIV infections is to ensure that everyone who is HIV positive knows their HIV status and has quality medical care.

But laws designed to target people with HIV have been shown to increase stigma, thus reducing testing and engagement in care. You cannot be prosecuted if you don’t know your HIV status and recent studies have found that many people do not get tested out of fear of prosecution. The message these laws send? Take the test and risk arrest.

Current law is especially dangerous for women. Research shows that 43 percent of HIV-related prosecutions in California were women, despite the fact that women comprise less than 13 percent of people living with HIV in the state. As leader of a national network of women living with HIV, I have seen women remain in violent or otherwise abusive relationships because partners, aware of their HIV status, threatened to prosecute them. Shame, fear of losing employment or housing, and the threat of violence to themselves or their children can be immobilizing. And they have good reason to be afraid: proving that a former partner knew their HIV status is virtually impossible and people have faced discrimination and deadly violence when their HIV positive status was publicly disclosed. Current law puts people living with HIV in a situation where they have to prove their innocence. And if the case gets to court, HIV stigma, homophobia and racism can prejudice juries and judges, leading to unfair prosecution and conviction of innocent people. 

For HIV-positive women in relationships with male partners where physical violence is a factor, condom use may never even have been possible. A woman can’t force her partner to use a condom or use one discreetly without his awareness. Although she may have no control in this situation, she would still face the risk of prosecution. What she may be able to control, however,  is whether she consistently takes her anti-retroviral medication improve her own health and to protect her sexual partner from acquiring HIV. SB 239, by reducing fear and adding new protections, will help women living with HIV stay healthy while avoiding the economic and emotional extortion made possible by existing law.   

To be clear, SB 239 maintains criminal penalties for those extremely rare bad actors who intentionally transmit or try to transmit HIV to another person. But the bill ensures that people living with HIV cannot be prosecuted if they take measures to reduce the risk of transmission ― like using a condom or being on treatment. These changes will keep our communities safe, while preventing the unfair prosecution of people living with HIV and other communicable diseases. Iowa reformed its laws in 2012, and Colorado did so in 2016. Now it’s time for California, a renowned leader in humane and fair treatment of all its residents, to advance the safety and dignity of people living with HIV and improve public health.  SB 239 awaits signature on Governor Jerry Brown’s desk; it is in our state’s best interest that he sign it promptly into law.

Naina Khanna is executive director of Positive Women’s Network-USA, an Oakland-based national organization of women living with HIV. She served on President Obama’s Advisory Council on HIV/AIDS, and is a Public Voices Fellow of the Op-ed Project.

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