Will the Seattle Case Represent a Sea Change in HIV Criminalization Laws?

When is consensual sex a crime? For people living with HIV, it can result in felony charges in a majority of U.S. states. Despite massive advances in medical treatment and even HIV-blocking pre-exposure prophylactic medications like Truvada that can be taken like birth control, having the HIV virus can still lead to decades in prison for something as small as spitting on a person.

But criminalizing a treatable virus has been proven to be an even bigger public health risk.According to a 2014 report released by Columbia University’s Center for Gender & Sexuality Law, laws that make it a crime to have sex when you know you have HIV have resulted in lowered rates of testing and increased public misperception of HIV’s risks and methods of transmission. The logic makes people question: if knowing you have HIV is a crime, is it better not to know at all?

Seattle’s county public health agency decided to go a different route when they issued a September 4 court order mandating that an HIV-positive man, known only as “AO,” seek medical treatment. Even though AO is thought to have potentially transmitted HIV to as many as eight sex partners, he isn’t being prosecuted according to Washington’s felony HIV transmission law.

“We’re not trying to criminalize sexual behavior here,” Dr. Matthew Golden, director of Kings County pubic health’s HIV program, told the Seattle Times. “We are trying to protect the public’s health. And we’re trying to make sure that everyone gets the care they need, including the person involved in this.” [Golden did not respond to our request for comment.]

In Washington State, intentionally infecting someone with HIV is a class A felony assault. But intent is hard to prove in cases of transmission.

“All of the [HIV criminalization] laws require that you have been tested,” Catherine Hanssens, director of the Center for HIV Law and Policy, told HIV Plus. “The irony is that people tend to be at their most infectious shortly after they have been infected. At that point, they are teeming with viremia. If you do the standard test that everybody offers, it doesn’t detect antibodies. A lot, in fact most, infections are caused by people who don’t even know they are infected.”

But even in the extreme outlying cases like that of Seattle’s AO, who public health officials say knew his positive status, it is very difficult to prove whether or not a person disclosed their status before engaging in behaviors that can result in transmission.

Sean Strub, director of HIV advocacy organization Sero Project, told HIV Plus that most criminal statutes are not based on actual HIV transmission but on disclosure of HIV status. That complicates the ability of HIV positive persons to defend themselves, because it’s ultimately their word against that of the accuser.

“Some of these people being prosecuted did everything right: they got tested and treated, they used a condom,” Strub told HIV Plus. “I’ve been living with HIV my entire adult life, and what I often say is we’re all one disgruntled ex-partner away from finding ourselves in a courtroom.”

In Mark Hunter’s case, it was two disgruntled exes. Born with hemophilia, Hunter acquired the HIV virus through a 1981 blood transfusion at the age of seven. At the time, doctors advised Hunter’s family to keep his status a secret.

“As a child we were told not to tell people about our HIV status, and it became ingrained in my mind that I would be stigmatized because of it,” Hunter, a Louisiana native, told HIV Plus. “People seem to forget what happened with Ryan White and Ricky Ray, how their families were persecuted.”

Hunter said he told his ex-fiancé about his HIV status when he proposed marriage, and she agreed to marry him regardless. When the relationship ended, he briefly dated another woman who he says was informed of his status from the start.

But in 2008, Hunter was arrested, while living in Arkansas during grad school.

“I was stunned,” said Hunter, who told HIV Plus he had a long career at the Pentagon and had never been in any kind of legal trouble. His ex-girlfriend filed charges five years after they broke up, initially telling police that he had failed to inform her of his HIV status. Hunter said she later changed the story and said he had disclosed but that she didn’t believe him at the time. Neither of Hunter’s exes actually acquired the HIV virus.

Hunter spent two and a half years in an Arkansas prison for felony HIV status. Under Arkansas law, "exposing another person to human immunodeficiency virus" is a class A felony.

But even though Hunter is out of prison, he told HIV Plus the most painful part of his prosecution is the fact that he must now continually register as a sex offender, which places him in a class with people who have committed rape and molested children.

“It's a very disgusting place where I am.  These crimes are utterly despicable to me,” Hunter said in reference to his sex offender status.

Even if one of Hunter’s former partners had tested positive for the HIV virus, it would be difficult for the state to prove exactly where she had acquired it. And as Hanssens pointed out, it’s one thing for public health officials to track the source of an infection, but quite another to turn illness into a crime. Especially because the virus is primarily transmitted sexually — after all, it takes two to tango.

“When you hear reports that allege someone infected seven or eight people, well the science is just not there to track that,” Hanssens told HIV Plus. “Someone has to engage in behavior that exposes them to a variety of disease. If you have a disease, whether HPV, herpes, or HIV— all of which are lifelong — the question is whether it belongs in a criminal court and whether it should be a felony.”

Hanssens told HIV Plus she’s relieved to see some state policies, like Washington’s, evolving away from criminalizing and moving towards public health solutions. In June, the Justice Department issued new guidance to states that advised limiting the use of HIV-specific criminal statutes. And in 2011 and 2013, Congresswoman Barbara Lee (D-CA) twice introduced the Repeal HIV Discrimination Act, which failed in Congress both times.

What some see as progress, though, Strub sees as increased stigma for those living with HIV.

“Up until combination therapy started in the mid '90s, there was a fair amount of human compassion. People with AIDS were suffering, were going to die,” Strub told HIV Plus, explaining that medication’s success in allowing HIV-positive people to live long, healthy lives has changed they way they were viewed. “People with HIV started to be seen as an inherent threat to society, as viral vectors and potential infectors, because we were going to be around longer.”

“Most people with HIV think the stigma now is worse than it’s ever been,” he adds. “We haven’t spent much effort on combating stigma. You can increase awareness of the epidemic and increase stigma and fear at the same time.”

Mary Emily O’Hara has written for a variety of media outlets including Vice, Daily Beast, and Al Jazeera English. Follow her on Twitter: @maryemilyohara.