“Ask Lambda Legal” is a monthly column on legal questions affecting members of the LGBT community. Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education, and public policy work.

In the second column to appear at Bent Alaska, Lambda Legal answers questions about criminal penalties for HIV-positive individuals.

Ask Lambda Legal
HIV Criminalization

By Scott Schoettes, HIV Project Director for Lambda Legal

Dear Ask Lambda Legal,

I’m HIV positive and recently heard about someone getting incarcerated after a sexual encounter, all because of his HIV status. Can this really happen?

Thirty years after the discovery of HIV, the medical field has learned a great about the virus, its transmission, and effective treatments. Unfortunately, the legal landscape has not changed as quickly, and people living with HIV are vulnerable to outdated statutes that specifically target them. Ending HIV criminalization in the United States is a priority for Lambda Legal – these laws unfairly subject people with absolutely no intent to harm anyone to criminal sanctions usually reserved for truly egregious offenses. In addition, criminal laws based on a person’s HIV status send an inaccurate message regarding prevention responsibility, create a disincentive to getting tested, and may actually discourage disclosure of HIV status.

Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the United States in the past two years alone. In People v. Allen, a Michigan man living with HIV was charged under the state’s anti-terrorism statute with possession of a “biological weapon” after an altercation with a neighbor—prosecutors equated his HIV infection with “possession or use of a harmful device.” Lambda Legal assisted in convincing the court to dismiss this charge, but other prosecutions continue to result in convictions. For instance, a man with HIV in Iowa, who had an undetectable viral load, was sentenced to 25 years after a one-time sexual encounter during which he used a condom. You can learn what laws are in place in your state on our publications page at http://www.lambdalegal.org/publications/fs_hiv-criminalization.

Editor’s note: From the Lambda Legal fact sheet: Alaska Stat. § 12.55.155(c)(33) provides for Sentence Enhancement: The sentencing court may impose a sentence above the presumptive range if the offense was a felony sexual offense specified in Alaska Stat. §§ 11.41.410-11.41.455 and the following factors are proven in accordance with this section: the defendant had been previously diagnosed as having or having tested positive for HIV, and the offense either (A) involved penetration, or (B) exposed the victim to a risk or a fear that the offense could result in the transmission of HIV.

HIV criminalization is particularly concerning for groups that are disproportionately affected by HIV. In 2008, one in five of men who have sex with men in 21 major US cities were infected with HIV, and nearly half were unaware of their infection. In 2009, African Americans comprised 14% of the US population but accounted for 44% of all new HIV infections. In the same year, Latinos accounted for 20% of new HIV infections in the United States while representing about 16% of the total US population. In 2008, in California, 6.8% of transgender people were HIV positive, and African Americans within the transgender population of California had an infection rate of nearly 29%.

Lambda Legal has aligned itself with the Positive Justice Project (PJP), a working consortium devoted to ending the abusive application of criminal statutes against people living with HIV. Along with PJP, Lambda Legal is working toward passing the REPEAL HIV Discrimination Act, federal legislation that would require a review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses.

If you have any questions or feel you have been discriminated against because of your HIV status, please call our help desk at 1-866-542-8336, or see http://lambdalegal.org/help.