The past two decades have brought rapid advances in the treatment and prevention of HIV. Current California law ignores that progress, as did two recent opinion pieces by Kurt Kleier published in the East Bay Times. Inaccuracies in those pieces compel us to set the record straight.
In the 1980s and 1990s, gripped by fear of HIV, then a new and deadly infection, California passed a number of laws that criminalized and stigmatized HIV. These laws created harsher punishments for people living with HIV than for those with other serious communicable diseases, including deadly diseases such as Ebola.
Research tells us that such HIV-specific laws failed to protect public health. In fact, a 2017 study from the Centers for Disease Control and Prevention found that HIV-specific laws across the country have done nothing to reduce the number of new HIV infections.Rather than limiting transmission of HIV, these overly severe laws only stigmatize HIV further and drive those living with it underground, away from testing and treatment that dramatically improves their health and nearly eliminates the possibility of transmission. Because knowledge of one’s HIV status is key to a conviction, these laws create a perverse system where ignorance means safety. Criminalization of HIV may actually worsen public health by discouraging individuals from getting tested.
At last, California Senate Bill 239, by Sen Scott Wiener, D-San Francisco, and Assemblyman Todd Gloria, D-San Diego, would end this “HIV exceptionalism” by repealing several laws that target people living with HIV for criminal penalties, including for activities that pose no risk of HIV transmission.
At the same time, and consistent with guidelines from the U.S. Department of Justice, SB 239 maintains criminal penalties for intentional transmission of HIV and other serious communicable diseases. The proposed bill also clarifies that taking steps to reduce the risk of transmission — using a condom or being on treatment for HIV — is incompatible with the intent to transmit.
Of note, a careful examination of hundreds cases revealed only two cases of actual intentional HIV transmission — nationwide, over more than 30 years.
Far from being the work of a secretive cabal of gay men, as Kleier offensively suggests, SB 239 enjoys broad support from public health experts, community organizations and people living with HIV. In fact, the impact of existing laws criminalizing HIV is experienced disproportionately by people of color and women, particularly women of color and transgender women.
Despite comprising much smaller percentages of people living with HIV in California, nearly half of those charged under existing laws are women and more than two-thirds are black or Latino.
Stigmatization of HIV doesn’t shut down argument as Kleier implies, but stigma can shut down HIV testing and treatment. We know this from our work administering HIV public health programs and medical care in Alameda County, but we are not alone.
In fact, reducing stigma related to HIV is one of the chief goals of the National HIV/AIDS Strategy. The current laws are not only outdated and ineffective, they are actually dangerous, because they create a climate of fear and discrimination that can lead to more HIV infections.
Good public health policy is not a partisan issue and neither is SB 239. It’s time to bring California out of the past and adopt policies that will keep people living with HIV safe and healthy. In an era in which communities across the world are working toward zero new HIV infections, ongoing criminalization of HIV takes us backwards.
Author: J. PHOENIX SMITH AND NICHOLAS J. MOSS