In one of our recent blog posts, we detailed how sex crime defendants can face additional charges if they are HIV-positive. We followed that post up with an overview of how other states handle the problem of spreading HIV.
What we did not mention is the fact that lots of states criminalize having consensual intercourse if you are HIV-positive and have not told your partner, yet. These laws are rife with controversy and absurd outcomes that throw entirely too many people into the criminal justice system for no good reason.
HIV-Exposure Laws in the U.S.
There are 24 states in the U.S. that criminalize the act of having consensual intercourse with someone without disclosing your HIV, first. Pennsylvania is not one of them, though several nearby states are, including New Jersey and Virginia.
These laws require HIV-positive individuals to inform their partner that they have HIV before intercourse, or face severe penalties. In New Jersey, convictions are felonies and come with three to five years in jail and up to $15,000 in fines.
Absurd Results from HIV-Exposure Laws
Proponents of the laws say that the spread of HIV needs to be stopped or slowed, and that harsh penalties are the only way to do it. They overlook the absurd results that the law creates, though.
For example, HIV-exposure laws tend not to care about whether a defendant used a condom or otherwise prevented the transmission of their disease. Worse, HIV-exposure laws can be violated even if the partner of the HIV-positive defendant was also HIV-positive. No harm could have been done in these situations, but the law still demands punishment. Some laws even criminalize the act of spitting if the person doing it is HIV-positive, even though the disease cannot be transmitted through saliva.
The Controversies Surrounding HIV-Exposure Laws
The repercussions of these laws have created several controversies, each of which suggests that HIV-exposure laws do more harm than good.
First, the presence of HIV-exposure laws creates legal culpability for someone who knows they are HIV-positive, prompting people to avoid testing. If they do not know they are HIV-positive, they cannot break the law.
Second, harshly criminalizing someone's status as HIV-positive increases the stigmatization surrounding the disease. This actually decreases the odds that someone is going to talk about their HIV with a partner.
Third, some people rely on the law when they decide to have intercourse with their partner. If they are unaware that their partner is HIV-positive and are relying on the law's requirements that their partner tells them, they are put at a much higher risk.
Finally, most people are unaware that their state has a law in place that could lead to a criminal charge for consensual but uninformed intercourse. One study in New Jersey found that only 51 percent of HIV-positive people were aware of their state's HIV-exposure law.
Joseph D. Lento: Criminal Defense for Philadelphia
HIV-exposure laws are an excellent example of how reactive legislative work does more harm than good. Eager to score points with voters, lawmakers in numerous other states took an overly-aggressive stance against HIV-positive people and passed laws that could drastically alter their way of life, for no good reason.
Let us keep Pennsylvania free from this nonsense