Are Laws Criminalizing HIV Transmission Making Us Safer?
January 4, 2013 by Justin Lehmiller
In the United States, reckless or intentional transmission of HIV is currently illegal in 34 states. Many of you probably think that such laws make intuitive sense–an HIV infection will inevitably kill you at some point, so knowingly passing on the virus to someone else should be considered a criminal act. The intent of laws like this is obviously to deter infections and save lives. However, even the most well-intentioned of laws can trigger a range of unintended consequences. And in the case of these criminal HIV transmission laws, they are sometimes misused and may end up causing more harm than good.
Before I go on, I should mention that I am a strong proponent of sexual communication. My personal feeling is that failure to disclose any kind of known sexual infection is wrong, whether it is HIV, herpes, HPV or something else. That said, I do not think that legally mandating disclosure does much to reduce rates of sexually transmitted infections (STIs) or to keep people safe. In fact, research has found that the sexual behaviors of HIV-positive individuals are no different in states with criminal transmission laws than they are in states without such laws [1,2]. Thus, there is no evidence that these laws even achieve the goal of promoting greater disclosure and safer sex.
Why don’t these laws seem to work? We cannot say for sure, but for one thing, someone who wants to infect other people probably isn’t going to let a little thing called “the law” get in their way. In addition, such laws may have a range of counterintuitive effects. For instance, they could potentially reduce STI testing and treatment for some individuals by worsening the stigma associated with sexual infections. Some people may steer clear of testing because they know that a positive diagnosis would fundamentally alter their sex life and make it more difficult to find partners in the future. These persons may think that by remaining in the dark, they can carry on with their lives however they want, and if they end up infecting someone else, they can always claim ignorance as their defense. Beyond that, these laws may give HIV-negative individuals a false sense of security by placing responsibility for stopping the spread of the disease of those who are HIV-positive. To the extent that these laws lead people to falsely assume that their partners are negative unless they say otherwise, we may actually be undermining public safety. Instead, shouldn’t we be giving people the message that sexual communication is a two-way street and that it is not wise to make assumptions about other people’s sexual history?
In addition, the way these laws are written can sometimes generate lengthy prison sentences even if intention to transmit cannot be proven and no transmission actually occurs. For instance, consider a recent case in Iowa, which has one of the strictest HIV disclosure laws in the country. A man with HIV (Nick Rohades) did not disclose his status to a new partner; however, Rhoades wore a condom and was taking antiretroviral medications, drugs that dramatically lower the risk of passing along the infection to others. In fact, research has found that among heterosexual couples, these drugs reduce the rate of HIV transmission in couples with discordant HIV status (i.e., couples where one partner is positive and the other is negative) to near zero . Despite the fact that Rhoades took these precautions and his partner never contracted HIV, Rhoades was convicted under the law, sentenced to 25 years in prison, and forced to register as a sex offender for life. Should Rhoades have disclosed his status? Absolutely—as I said, I believe in sexual honesty and communication and people should not knowingly omit information about a current infection. However, Rhoades’ actions in this case just don’t seem to fall under the category of reckless (i.e., he was on medication, used protection, and although he didn’t divulge his positive status, at least he did not try to trick his partner by saying he was negative). Moreover, the infection wasn’t even transmitted. A 25-year sentence under these circumstances is also wildly disproportionate when you consider that far lighter sentences are frequently given to people convicted of rape, manslaughter, and other crimes in which serious harm results.
There is also evidence that laws of this nature are sometimes used in a retaliatory way. For instance, in the CNN video embedded below, you will learn about a case in which a spurned lover used such a law to punish his HIV-positive former partner after a messy breakup.
As you can see, criminalizing STI transmission and creating disclosure laws may sound like a good idea in theory, but in practice, there is no evidence that laws of this nature make us safer, and they sometimes lead persons who have STIs to be victimized twice. Going forward, it is important that the laws catch up with the science and that we do a better job of educating the public about the nature of STIs and the value of open and honest sexual communication.
Image Source: 123rf.com
 Lazzarini, Z., Bray, S., & Burris, S. (2002). Evaluating the impact of criminal laws on HIV risk behavior. Journal of Law, Medicine and Ethics, 30, 239-253.
 Burris, S., Beletsky, L., Burleson, J., Case, P., & Lazzarini, Z.(2007). Do criminal laws affect HIV risk behavior? An empirical trial. Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913323
 Attia, S., Egger, M., Müller, M., Zwahlen, M., & Low, N. (2009). Sexual transmission of HIV according to viral load and antiretroviral therapy: Systematic review and meta-analysis. Aids, 23, 1397-1404. doi:10.1097/QAD.0b013e32832b7dca
Dr. Justin LehmillerFounder & Owner of Sex and Psychology
Dr. Justin Lehmiller is a social psychologist and Research Fellow at The Kinsey Institute. He runs the Sex and Psychology blog and podcast and is author of the popular book Tell Me What You Want. Dr. Lehmiller is an award-winning educator, and a prolific researcher who has published more than 50 academic works.Read full bio >