Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review
According to the Centers for Disease Control and Prevention (CDC), 1.1 million Americans are living with Human Immunodeficiency Virus (HIV).[1] In Ohio alone, there are 19,352 people who have been diagnosed with HIV.[2] In response to the Acquired Immunodeficiency Syndrome (AIDS) Crisis of the 1980s, many states enacted HIV criminalization statutes as a public health precaution.[3] Proponents of criminalizing HIV non-disclosure argue that it deters transmission between those who know they are infected and any sexual or drug use partner, and that it incarcerates and effectively quarantines, those who are willing to put others at risk.[4] A review of relevant case law and a growing number of studies shows that this may not be the case. With numerous medical and scientific advances in HIV and AIDS, an HIV diagnosis has evolved from a death sentence to a manageable disease.[5] However, as the medical knowledge has advanced, the legal response has noticeably lagged behind. Changing HIV criminalization statutes (HIV Statutes) to require an element of specific intent to transmit HIV would help bridge the gap. An intent element would ensure that individuals who engaged in sexual activity for the express purpose of infecting someone with the virus would be punished, while protecting people living with HIV who may be too afraid of stigma to disclose, but are making every effort to protect their partner from the virus.
Prosecution in the Face of Facts
In 1987 Louisiana passed the first bill of its kind; imposing a sentence of up to ten years in prison and a $5,000 fine on anyone who “intentionally” exposed a person to HIV without their “knowing and lawful” consent.[6] Georgia followed with a similar statute a year later and, by 1993, versions of an HIV criminalization bill had been introduced in Florida, Iowa, Michigan, Mississippi, New York, Nevada, Tennessee, and Virginia.[7] Between 1996 and 2004 Ohio amended its assault, soliciting, loitering to solicit, and prostitution laws to include HIV provisions.[8]
The AIDS Crisis in the 1980s struck fear in many Americans, and the law was quick to punish people who could potentially transmit the disease—even in the face of conflicting medical research. In Florida, a trial court sentenced a defendant to forty years in prison, despite the twelve to seventeen years suggested by the sentencing guidelines.[9] The court stated, “…this defendant, having been an admitted homosexual for years, knew or should have known the likelihood of his having AIDS as a result of these homosexual contacts…”[10] The court of appeals agreed with the trial court and further stated that, “…because of his life-style, Cooper knew or should have known that he had been exposed to the AIDS virus.”[11] In another instance, the “victim” got an HIV-positive woman drunk and raped her. She was then criminally charged for HIV exposure.[12] Thankfully, those charges were dropped, but only because neither party was able to recall the incident.[13] These examples showcase the problems with legislating based on fear rather than fact.
In the early days of HIV Statutes, many HIV-positive individuals were prosecuted even when science was on their side. In Weeks v. State, a Texas inmate was charged with attempted murder for spitting on a prison guard, even though the CDC has never recognized an occurrence of transmission via saliva.[14] In fact, according to the CDC spitting and scratching cannot transmit HIV, and even transmission through biting is very rare.[15]
These laws single out individuals living with HIV, which only adds to the stigma and ostracization they experience and contributes to general misconceptions about the virus. As of 2008 there was only one study that evaluated the relationship between criminalization and sexual behavior.[16] That study surveyed 459 individuals who were either HIV-positive or at a high risk of acquiring HIV (e.g. men who have sex with men, injection drug users) and found that people who live in a state that has an HIV Statute reported very little difference in sexual behavior than their counter-parts in a state that did not have an HIV Statute.[17] In addition, individuals who believed that HIV Statutes required HIV-positive people to disclose their status reported being just as risky in their sexual behavior as those who were not aware of the effects of the statutes.[18] These findings do not support the notion that HIV Statutes affect an individual’s risky sexual behavior. On the contrary, they further the idea that criminal statutes have no influence on people with risky sexual behavior.
Prosecution in Ohio
Between 2003 and 2013 Ohio had 356 HIV-related prosecutions and fifty-nine convictions—making it the state with the fourth highest record of HIV criminalization.[19] The Ohio Revised Code §2903.11(B) (Ohio HIV Statute) states that no person, with knowledge that they have tested positive for HIV, shall knowingly engage in sexual conduct without disclosing their HIV-status; engage in sexual conduct with someone who does not have the mental capacity to understand their status; or engage in sexual conduct with someone under eighteen years of age.[20] Violating the Ohio HIV Statute constitutes felonious assault, which is a felony in the second degree, and carries a two to eight year prison sentence.[21] Prostitution and soliciting for sex are typically considered third degree misdemeanors in Ohio, which carries a prison sentence of no more than sixty days. Once an individual is deemed HIV-positive that charge increases from a third degree misdemeanor to a fifth, fourth, or third degree felony with a jail sentence of anywhere from six to thirty-six months depending on the case.[22] It is a fifth degree felony if an inmate threatens, harasses, annoys, alarms, or throws a bodily substance at another person.[23] As soon as that person is HIV-positive, the crime increases to a third degree felony, which could potentially add an additional thirty-six months to the inmate’s sentence.[24]
Ohio’s HIV laws automatically treat HIV-positive individuals like they are criminals. It is currently the only disease in Ohio that is treated like a weapon—Ohio law is silent when it comes to all other sexually transmitted infections (STIs).[25] By virtue of struggling with this life-changing illness a person is automatically classified as a second-class citizen by the Ohio HIV Statute.
The Argument for Intent
In the fall of 2013, James McGonegal, an HIV-positive minister, visited Cleveland’s Edgewater Park to solicit other men for sex, where he unknowingly solicited an under-cover police officer for oral sex. When he was brought back to the police station for questioning about the solicitation charge he voluntarily disclosed his HIV-positive status and was charged with a third degree felony which could have resulted in thirty-six months in jail.[26] McGonegal’s attorney asked the court to consider Ohio’s HIV Statutes outdated, stating, “Eighteen years have passed since this law was enacted, and facts that existed then don’t exist today… My client is being charged with a felony for the mere presence of HIV.”[27] Cuyahoga County Common Pleas Court Judge Friedman agreed with McGonegal’s attorney and, under the provisions of a plea bargain, McGonegal will attend an intervention program, complete fifty hours of community service, and agree to stay out of all Cleveland parks.[28]
James McGonegal’s case exemplifies the issues with Ohio’s current HIV laws. Ohio only requires that a person to know that they have HIV to meet its intent requirement.[29] Provided that you are aware that you are HIV-positive, you must disclose your status. However, risk of HIV transmission depends on a number of factors including the nature of exposure. For example, the CDC has found that oral sex with an HIV-positive person would result in transmission of the disease in only four out of 10,000 cases.[30] The risk of transmission also decreases significantly when people are taking antiretroviral medications and have an undetectable viral load.[31] In McGonegal’s case, he was taking his medications and engaging only in low-risk activities. He did not go to Edgewater Park with the intention of infecting someone with HIV. Yet, somehow, he was still treated as a criminal for his actions.
There are rare cases where individuals use their HIV status as a weapon and those people should be punished. But a newly-positive individual trying to come out to their partner for the first time should not be lumped in with these criminals. In New York an HIV-positive man was accused of intentionally infecting at least thirteen people with the virus.[32] He pled guilty to one count of reckless endangerment and two counts of statutory rape, for which he received a twelve-year sentence.[33] When he completed his sentence he was kept confined under state laws that permit dangerous, mentally unstable patients to remain in prison. The circumstances of this case are rare, but it shows policymakers that there are other laws in place that help keep people with HIV who actively try to infect others behind bars.
Current laws undermine human rights. For example, under the current laws, a woman who is afraid to disclose her status to her emotionally abusive partner could be charged for knowingly having sexual relationships with her partner without disclosing, even though she took precautions by being on treatment and her partner created an environment where she is fearful to disclose. One could presume that lawmakers were not trying to trap a woman in an unhappy relationship, yet this is one of many examples of challenging cases that would be prosecuted under the current HIV laws. The current laws also reinforce the potential stigma and rejection that can result when someone discloses their HIV status. For example, Reed Vreeland, a 27-year-old who was born with HIV, was rejected in middle school by his girlfriend—her mother went so far as to ban him from seeing her—and it took him five years before he felt comfortable disclosing his status again.[34]
Conclusion
Changing HIV Statutes to include an intent mens rea would provide the much needed reform. In the New York example, an intent mens rea would ensure that the plaintiff received a suitable sentence for intentionally infecting thirteen innocent people, but would not punish someone like Reed who is afraid of rejection and stigmatization. Under this potential new standard, the HIV-positive woman who was unable to disclose or leave her relationship, but took every precaution to protect her partner from getting infected, would be excluded from prosecution. The intent behind the original lawmakers’ ideas—to stop the spread of HIV—would still be met, while protecting positive persons from feeling like second-class citizens. As a society we should be supporting the 1.1 million persons living with HIV, not treating them as criminals.
[1] Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime, ProPublica (Dec. 1, 2013), http://www.propublica.org/article/hiv-criminal-transmission.
[2] Ohio Dep’t of Health, State of Ohio HIV Infections Annual Surveillance Statistics (2015).
[3] Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime, ProPublica (Dec. 1, 2013), http://www.propublica.org/article/hiv-criminal-transmission.
[4] Sarah Bray, Criminal Prosecutions for HIV Exposure, 3 Ctr. for Interdisciplinary Research on AIDS (2003).
[5] Guidelines for the Use of Antiretroviral Agents in HIV-1-Infected Adults and Adolescents, Department of Health and Human Services (Apr. 8, 2015), available at http://aidsinfo.nih.gov/guidelines.
[6] Id.
[7] Id.
[8] Mark DeMarino, A crime not to tell: HIV laws debated in wake of high-profile arrest, Eye on Ohio (Dec. 26, 2013) http://eyeonohio.org/a-crime-not-to-tell-hiv-laws-debated-in-wake-of-high-profile-arrest/.
[9] Cooper v. State, 539 So. 2d 508, 511 (Fla. Dist. Ct. App. 1st Dist. 1989)
[10] Id.
[11] Id at 512.
[12] Sarah Bray, Criminal Prosecutions for HIV Exposure, 3 CIRA (2003).
[13] Id at 5.
[14] 834 S.W.2d 599 (Tex. App. Eastland 1992)
[15] Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime, ProPublica (Dec. 1, 2013), http://www.propublica.org/article/hiv-criminal-transmission.
[16] Scott C. Burris et al., The Case Against Criminalization of HIV Transmission, 300 JAMA 578, 578-81 (2008).
[17] Scott C. Burris et al., Do Criminal Laws Influence HIV Risk Behavior?, 39 Ariz. St. L.J. 467, 467-95 (2007).
[18] Id.
[19] Sergio Hernandez, How we Built Our HIV Crime Data Set, ProPublica (Dec. 1, 2013) http://www.propublica.org/article/how-we-built-our-hiv-crime-data-set.
[20] Ohio Rev. Code Ann. §2903.11(B) (LexisNexis current through the 131st General Assembly).
[21] Ohio Rev. Code Ann. §2903.11(D)(1)(a) (LexisNexis current through the 131st General Assembly); Ohio Rev. Code Ann. §2929.14(A)(2) (LexisNexis current through the 131st General Assembly).
[22] Ohio Rev. Code Ann. § 2907.24 (LexisNexis current through the 131st General Assembly); Ohio Rev. Code Ann. §2907.25 (LexisNexis current through the 131st General Assembly); Ohio Rev. Code Ann. §2907.241 (LexisNexis current through the 131st General Assembly).
[23] Ohio Rev. Code Ann. §2921.38(A)(B) (LexisNexis current through the 131st General Assembly).
[24] Ohio Rev. Code Ann. §2921.38(C) (LexisNexis current through the 131st General Assembly).
[25] Mark DeMarino, A crime not to tell: HIV laws debated in wake of high-profile arrest, Eye on Ohio (Dec. 26, 2013) http://eyeonohio.org/a-crime-not-to-tell-hiv-laws-debated-in-wake-of-high-profile-arrest/.
[26] James McCarty, Judge questions the constitutionality of HIV law used to charge Cleveland priest, The Plain Dealer (Aug. 18, 2014) http://www.cleveland.com/courtjustice/index.ssf/2014/08/judge_questions_the_constituti.html.
[27] Id.
[28] James McCarty, West Side Cleveland priest pleads guilty to solicitation; sentenced to early intervention program, The Plain Dealer (Sept. 5, 2014) http://www.cleveland.com/courtjustice/index.ssf/2014/09/west_side_cleveland_priest_ple.html.
[29] Ohio Rev. Code Ann. §2903.11(B) (LexisNexis current through the 131st General Assembly).
[30] Id.
[31] Rachel A. Royce et al., Sexual transmission of HIV, 336 New Engl J. Med. 1072, 1072-8 (1997); Jesus Castilla et al., Effectiveness of highly active antiretroviral therapy in reducing heterosexual transmission of HIV, 40 J Acquir. Immune Defic. Syndr. 96, 96-101 (2005).
[32] Id.
[33] Id.
[34] Sergio Hernandez, Sex, Lies and HIV: When What You Don’t Tell Your Partner Is a Crime, ProPublica (Dec. 1, 2013), http://www.propublica.org/article/hiv-criminal-transmission.
