Updated HIV Laws May Only Protect the Privileged
Lawyers warn that oversimplification of cutting-edge HIV science could backfire for the most vulnerable patients.
The Times / Contributor / Getty Images
Kathryn Boulton, an HIV activist and lawyer, still remembers her excitement when the Centers for Disease Control and Prevention (CDC) finally admitted in 2017 what scientists and doctors had known for years: Modern HIV medication is so powerful that it’s virtually impossible for people on treatment to infect anyone else.
The CDC’s support of this concept, dubbed ‘Undetectable Equals Untransmittable,’ or U=U, led to “widespread jubilation” among HIV advocates, says Boulton, who's a staff attorney at the Center for HIV Law and Policy (CHLP). With support from the nation’s leading health agency, our society might finally start to see people with HIV as part of the solution of global AIDS elimination, rather than as radioactive carriers of disease.
Yet undercutting the jubilation was “a big kerfuffle” within the ecosystem of lawyers, doctors, and activists who comprise the ‘HIV advocacy community,’ says Trevor Hoppe, assistant professor of sociology, University at Albany, SUNY. In fact, Hoppe tells me that U=U spawned a “debate that’s been very nasty at times.”
On one side of the debate are those who view U=U as the win they’ve been waiting for—a powerful, zero-risk message that can be used to modernize criminal exposure laws that specifically target people with HIV based on outdated science. According to the CDC, 25 states criminalize behaviors that pose “low or negligible risk” of HIV transmission.
Yet on the other side are those who fear that using U=U as a tool for legal reform might backfire, making life even worse for HIV-positive people who are poor, disenfranchised, and therefore less likely to take daily medication needed to keep the virus in check. Only half of HIV positive people in the United States are ‘undetectable’—the benchmark for being non-infectious. At the crux of the infighting are questions about privilege and access to health services—issues that are deeply intertwined with the history of HIV advocacy itself.
At first glance, “it’s pretty intuitive to think about U=U in the criminal context,” as a way combat the notion that HIV positive people are inherently criminal, Boulton says. After all, U=U represents the pinnacle of modern science on HIV transmission risk. However, Boulton and other advocates worry that if U=U is formally enshrined in state laws, it would effectively create two classes of HIV positive people: those who can afford treatment, and those who can’t. The latter group would bear the brunt of laws that allow prosecutions of people who aren't virally suppressed.For a variety of reasons, black and Latino Americans have worse access to health services than whites, are less
“People like the safety that ‘no risk’ brings,” Hoppe says. “I do think it’s a powerful [message], but as a tool to promote legal change, it’s a double-edged sword.” Even Bruce Richman, the founder of the Prevention Access Campaign, noted that although U=U represents a major turning point for advocates, the idea of using the framework as a tool for criminal reform is “complex.”
“I've heard statements along the lines of ‘They can't prosecute us anymore because of U=U,’” Boulton says. “The reality is that the impossibility or extremely low risk of transmission hasn’t stopped states from prosecuting and jailing people living with HIV for decades.”
For example, in Missouri, people who are sued for allegedly exposing someone to HIV can’t use the defense that they were wearing a condom—a method that nearly eliminates the risk of HIV infection. Several states criminalize spitting and biting, which carry no known risk of infection. In July 2017, CHLP, the Prevention Access Campaign, and eight other activists groups released a consensus statement on the topic of U=U in criminal reform. In essence, the statement argues that “no one should be using U=U as a strategy to change HIV criminal laws,” says Catherine Hanssens, director of CHLP.
According to Boulton, HIV criminalization has never been about transmission risk—it’s been about stigma. “In that sense, U=U is not the silver bullet folks want,” she says. Instead, “relying on U=U can lead to relying on a person’s health status as ultimately leading to guilt or innocence."
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For Boulton, several progressive changes in the HIV criminal reform movement have worrying undertones. For example, in February 2017, advocates in North Carolina succeed in modernizing the state’s HIV disclosure measures to exempt people who are virally suppressed. This change was celebrated in some corners and criticized in others.
Lee Storrow, executive director of the North Carolina AIDS Action Network, acknowledged the ongoing debate but argued that “what happened in North Carolina was a really positive step forward for our community and best position us to have further conversations and further reform.”
Lawyers and advocates in other states are now looking at North Carolina as a model for HIV criminalization reform simply because so few states have succeeded in moving the needle at all, Boulton says. Meanwhile, in Ontario, Canada—a territory that also criminalizes HIV non-disclosure—the attorney general and health minister issued a joint statement promising they wouldn’t prosecute people who are on treatment and virally suppressed. Again, other people with HIV are still vulnerable to prosecution for non-disclosure.
“We have adjusted our prosecutorial practices as this consensus developed,” says Brian Gray, spokesperson for Ontario’s Ministry of the Attorney General. “Prosecutions involving exposure to HIV are complex and engage a number of legal and scientific issues. Prosecutions in Ontario are guided by the Criminal Code, direction from the Supreme Court of Canada, and the medical science.”
“We really are in a period of active negotiation on this issue within the HIV-criminalization movement,” Boulton says. These examples are “clearly expressive of this impulse to use viral detectability as a bright line in deciding who should be prosecuted and who shouldn’t.”
Hoppe says that heated debate among HIV advocates is “totally understandable.” He adds, “You want to get all your ducks in a row before you go out to the public. It’s normal, it’s productive, and it’s probably good that some of these tensions are getting aired out before we go hanging banners.”
Today, a 77 co-signers of the consensus statement agree that U=U should be used as a conversation-starter with state politicians rather than as a policy reform platform. In addition, it’s unclear whether a reformed law using U=U as a benchmark would actually have any effect on the number of HIV exposure prosecutions, Hoppe says. “Many of the people prosecuted are those most likely to have few resources, and are therefore most likely to not be on treatment,” says Hoppe.
“U=U is very splashy,” Boulton says. “But, you know, centralizing it can sideline all the other arguments we’ve been making for HIV criminal law reform for years. The core of those is that people living with HIV have the right to be free from state-sanctioned criminalization.” Instead, she points to models like California, which recently modernized its law to reduce penalties for HIV exposure, penalizing only people who intend to transmit the virus.
Regardless of its impact on criminal reform, experts agree that U=U is an extraordinary scientific achievement that is likely to reduce the stigma facing people living with HIV.
People with HIV are “looked upon by some as being dangerous, and it’s very difficult and painful for people to feel that way,” says Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases, and an early government figure to champion the scientific validity of U=U.
“This is a very important, positive step toward removing the stigma that people with HIV infection feel,” Fauci says.
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