Exposing Your Sex Partner to HIV Is No Longer a Felony in California

Advocates say the old law discouraged testing and treatment.

by Diana Spechler
Oct 9 2017, 10:32pm

Joe Raedle/Getty Images; jinga80/Getty Images

Friday marked a small victory for the crusade against HIV discrimination laws: California Governor Jerry Brown signed a bill demoting the crime of not disclosing one's HIV status to a partner before sex from a felony to a misdemeanor. These cases often become "he said/she said" as there's often no proof that the person with HIV disclosed their status before sex—the HIV-positive person can be arrested if their partner later says they didn't know, even if the infection isn't transmitted. Currently, people found guilty can receive up to an 8-year prison sentence; the new legislation lowers maximum jail time to six months. The law, which also applies to HIV-positive people who donate blood without telling the blood bank, goes into effect on January 1.

Though the bill has elicited hysteria from some conservative news outlets, advocates argue that doing away with criminalization laws is a significant step toward slowing the spread of HIV. Laws like these that were allegedly put in place to prevent transmission have been proven not just ineffectual, but counterproductive.

The threat of criminalization functions only as a scare tactic; in response, people might avoid getting tested so they can't be accused of intentional transmission. When people are too afraid to learn their status, to arm themselves with knowledge and treatment, HIV is more likely to spread. A 2015 analysis published in the Yale Journal of Health Policy, Law, and Ethics found that people living in states with greater media coverage of HIV criminalization laws were less likely to say they'd gotten tested than people in states where such laws got less coverage.

As state senator Scott Weiner, a co-author of the bill, said in a statement that "California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals. HIV should be treated like all other serious infectious diseases, and that's what SB 239 does. We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care."

"By becoming the third state to reform its HIV criminalization statute in recent years, California not only will improve public health and reduce HIV stigma, but also add momentum to the growing national and global anti-criminalization movement," says Sean Strub, executive director of the SERO Project, an organization that fights discrimination against people living with HIV.

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Strub applauded legislators for "pa[ying] attention to the science, which shows that we can prosecute HIV or we can prevent it, but we can't do both. About 10 percent of the people living with HIV in the US live in California, so ending HIV criminalization in that state is a huge achievement."

Though we can hope that everyone with HIV discloses their status to partners, it's far more sensible to work toward fostering an accepting and educated society than it is to threaten and coerce people just to give the false impression of having the situation under control. For one thing, such punishments don't exist in California for people living with any other communicable disease—and HIV is hardly the most dangerous. For another, combination therapies have rendered HIV barely transmittable. "We have gotten to 0 percent transmission when people are adhering to proper medications," says Laela Wilding, Ambassador of The Elizabeth Taylor AIDS Foundation.

Finally, the hypothetical person intent on spreading HIV is a straw man, or at least such an insignificant minority that it's an untenable basis for legislation. "We must end the fearful stigma that people intentionally pass along HIV," Wilding says. "Let's treat HIV as it should be treated, as any other communicable disease; with careful consideration and compassion."

Hopefully, passage of SB239 is not just a small victory, but evidence of the way the tide is turning in this country—away from useless criminalization laws and toward the destigmatization of a manageable chronic illness with a disproportionately bad reputation.

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