AIDS activists seek to revamp states' HIV-specific laws

Actor Charlie Sheen discusses his HIV-positive condition with Matt Lauer on NBC’s Today show. Although there’s no indication Sheen will face prosecution, in his home state of California it’s a crime to expose others to the virus or fail to disclose the status.
Actor Charlie Sheen discusses his HIV-positive condition with Matt Lauer on NBC’s Today show. Although there’s no indication Sheen will face prosecution, in his home state of California it’s a crime to expose others to the virus or fail to disclose the status.

LOS ANGELES -- Charlie Sheen's recent revelation that he's HIV-positive served as a reminder that his home state of California remains among a large group of states with HIV-specific criminal laws that activists consider outdated.

And the U.S. Justice Department says they should be revised.

According to the U.S. Centers for Disease Control and Prevention, 33 states have HIV criminal laws, generally making it a crime to expose others to HIV or fail to disclose HIV-positive status. Sheen, who said his sexual partners knew of his diagnosis, has not been charged, and there's no indication he would face prosecution under California's laws.

The earliest of the laws -- in Florida, Tennessee and Washington state -- date back to 1986, when fears about AIDS were intense. Most of the measures were enacted over the next several years, before anti-retroviral therapies sharply reduced the risk of transmission and transformed the human immunodeficiency virus, which causes AIDS, into what is now considered a manageable medical condition.

The laws vary from state to state. According to the CDC, 24 states require people who know they have HIV to disclose their status to sexual partners, and 25 states criminalize one or more behaviors now known to pose a low or negligible risk for HIV transmission -- such as oral sex, spitting and biting.

In recent years, there's been a growing push by advocacy groups, health experts and others for states to modify or eliminate those laws. Critics have formed task forces in several states -- including Colorado, Ohio, Georgia and Tennessee -- to lobby for changes and draft new legislation.

In California, a coalition of 14 groups has drafted a bill that would change several criminal laws, although they are still seeking a lawmaker to lead the effort to enact it.

The overarching theme would be to remove HIV-specific language in several laws to bring them in line with the current understanding of the virus, said Craig Pulsipher of AIDS Project Los Angeles.

The proposed changes would address five laws on the books in California. One, in place since 1939, makes it a misdemeanor to willfully expose someone to a contagious, infectious or communicable disease. Another, enacted in 1998, makes it a felony punishable by up to eight years in prison to intentionally try to transmit HIV through consensual, unprotected sex.

California also has laws that target HIV-positive prostitutes and people with HIV who donate blood, organs, tissue, semen or breast milk. Another law adds three years to a prison sentence for exposing a victim to HIV through a sex crime. None of the laws currently require HIV transmission for a conviction.

In general, the proposed changes would remove HIV from the language so the laws could apply to all serious communicable diseases. The changes would also require transmission of a disease.

"What this does is eliminate these laws that single out HIV from other diseases," Pulsipher said. "We want to make sure we have statutes that take into account things that may come down the line later that aren't on our radar currently."

The misdemeanor law would be revamped to require that someone intentionally transmit a disease, Pulsipher said.

Requiring proof of intent has made prosecution under the felony law a rarity in California, said Ayako Miyashita, a UCLA law professor.

"Intent makes it harder to bring a case," she said. "It's a step above negligence."

The most recent prosecution in California was in a case in which a man falsely claimed to be HIV-negative and urged his boyfriend at the time to have unprotected sex, according to San Diego prosecutors. The other man later was diagnosed as HIV-positive.

Thomas Guerra pleaded no contest to a misdemeanor health-code violation and was sentenced to six months in jail, the maximum.

The judge called the term a "travesty" and said she wished she could give him more prison time.

On the national level, Rep. Barbara Lee, D-Calif., has been trying for several years to build support for a bill in Congress that seeks to modernize federal and state laws that can discriminate against people with HIV.

"These laws serve only to breed fear, distrust and misunderstanding," Lee said.

With similar goals in mind, the U.S. Justice Department's Civil Rights Division issued a "best practices guide" in July 2014 encouraging states to reconsider laws that no longer reflect contemporary medical understanding of HIV transmission and thus perpetuate unwarranted stigma affecting HIV-positive people.

Both the Justice Department and the CDC say such stigma can dissuade some people from learning their HIV status, disclosing their status to others and accessing medical care.

The Justice Department recommended that states eliminate HIV-specific criminal penalties except in two distinct circumstances applying only to people who know they are HIV positive. These instances would be sexual assault in which there is risk of transmission, or when an HIV-positive individual clearly intended to transmit the virus.

A Section on 11/25/2015

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