Despite a spate of good news for the eradication of HIV — the FDA's approval of Truvada to prevent its transmission, the Supreme Court decision upholding the Affordable Care Act and thus retaining the ACA's great benefits for those living with HIV, and the lifting of the HIV/AIDS travel ban that allowed the International AIDS Conference to take place in Washington, D.C. last month — there are still countless jurisdictions in which it is essentially a crime to be a sexually active HIV-positive man. In some states, individuals with HIV can be convicted of crimes of varying degrees, with penalties exceeding 10 or 20 years in jail, if they have sex without first disclosing their HIV status. And that is true even if they practice safe sex, are taking antiretroviral medications, have undetectable viral loads, and/or are on the receptive side of the sexual encounter, four factors that when combined make it almost impossible to transmit the virus.
Lambda Legal's Scott Schoettes (right), Director of the organization's HIV Project, and his colleague, Christopher Clark (below), represent one of the many victims of these antiquated laws. Their client, Nick Rhoades, a 34-year-old gay Iowan, was sentenced to 25 years in prison, a punishment Mssrs. Schoettes and Clark got down to time served, despite having sex in a context that made it almost impossible to transmit the HIV virus. But, those 4 years of time served included weeks of solitary confinement, among other humiliations.
The continued presence and spread of HIV is a grave public health concern. Our government has an interest in not only slowing its spread, but, hopefully, eradicating the disease entirely. But, broad criminal statutes that carpet bomb the HIV community are not the answer.
Let's be clear about the issue here. Laws that criminalize the intentional attempted transmission of HIV are different than laws that simply make it a crime for all HIV-positive individuals to have sex without disclosure. Cases like that of Philippe Padieu, who intentionally tried to infect six women with HIV, and Nushawn Williams, who is alleged to have exposed between 48 and 123 women to HIV, stir a natural emotional and punitive response. Such anger has led to the implementation of countless criminal transmission of HIV statutes and laws that punish HIV-positive individuals who intentionally spread the disease or have unprotected sex without informing partners. But, the outcry for criminalization has caused overreach.
I argue that this overbroad criminalization is the product of a longstanding stigma associated with the HIV-positive population, in general. And, that stigma is nondiscriminatory — it attaches to the Nushawn Williamses of the world just as it attaches to those who have no intent to harm anyone and to those who could not harm anyone even if they wanted to. I have seen cases where prosecutors were allowed to prove intent to kill or do harm merely by proving that the defendant had unprotected sex while aware of his HIV-positive status, even when the statute calls for more than mere knowledge of status. And, I have seen aggravated assault prosecutions of HIV-positive individuals who had a good faith belief that they could not transmit the disease, had used protection, and had no intent to harm. These are the cases that should concern us.
HIV criminal transmission statutes, many of which were written at the height of the AIDS crisis in the early 1990s, allow prosecutors to prove guilt merely by showing that the defendant was HIV-positive at the time of the sexual encounter and failed to disclose his status. But all those statutes hinge on some measure of the likelihood of transmission. And since today's medical technologies allow us to distinguish between types of HIV-positive individuals, our courts should recognize that not all HIV-positive Americans are dangerous weapons. Stigma and guilt-by-status have no place in the criminal law.
AFTER THE JUMP, let's consider the example of one case and see what the law is and what the law should be.
CONTINUED, AFTER THE JUMP…
Let's say a hypothetical state makes it unlawful for any person who knows he is HIV-positive to have sexual intercourse with another without first disclosing his HIV-positive status under a criminal statute that punishes anyone who uses a weapon in a way that is likely to do serious harm to the victim. Let's assume for the sake of this hypothetical that HIV can be considered a "weapon" and that the defendant will concede that he was aware that he was HIV-positive and that he did not disclose his HIV status prior to intercourse.
Prosecutors charged Beauregard ("Bo") Tomm with one count of this crime after his one-time sexual partner went to the police after finding out Bo was HIV-positive. The trial took less than a day with prosecutors offering the following evidence: Mr. Tomm is HIV-positive; he did not disclose his status; the defendant and the victim had anal intercourse, which is one of the primary ways HIV is transmitted; HIV is the virus that causes AIDS, a deadly disease with no cure; and, HIV/AIDS causes serious harm or death.
Alongside statistics about how many Americans have HIV and how frequently sexual intercourse transmits the virus, this kind of evidence has convicted countless HIV-positive individuals of relatively serious crimes, carrying significant prison time.
But, there are several problems with this criminal regime. I would like to discuss the most important one.
The "likelihood" of doing harm — in this case, the likelihood of transmission of the virus — depends on a host of factors that prosecutors did not address. Viral load, sexual position, and safe sex practices are just three of the most obvious. The lower the viral load — the amount of virus in the blood — the lower the likelihood of transmission, and when an individual's viral load is undetectable under current technology, the likelihood of transmission falls even further. Bo's position during his sexual encounter, as his name suggests, was as the receiving partner, and the likelihood of transmission from the receptive to the insertive partner is exponentially lower than the reverse. Finally, if Bo's sexual partner used a condom, the likelihood of transmission is even lower.
This is all to say that each case of anal sex is different. An HIV-positive defendant whose viral load is 40,000, who was the insertive partner, and who did not use a condom engaged in an activity with a significantly higher risk of transmitting the virus than someone whose viral load was under 40 (undetectable), was the receptive partner, and practiced safe sex.
If prosecutors can prove that transmission is likely merely by offering evidence that anal sex possibly transmits HIV, then two things happen. First, it is factually incorrect. Anal sex can transmit HIV, but all incidents of anal sex aren't fungible. Second, it is legally insufficient. The notion that a "likelihood" threshold could be satisfied by the mere possibility that HIV could be transmitted both actually lowers the threshold and eviscerates the requirement that guilt be proven beyond a reasonable doubt.
Think about it: If all prosecutors had to do was prove is that anal sex can possibly transmit HIV, then no doubt could be reasonable. After all, “[a]nything is possible; there are no metaphysical certainties accessible to human reason; but a merely metaphysical doubt . . . is not a reasonable doubt for the purposes of the criminal law.” This principle does not only exclude the fanciful (“it is possible that I will burst into flames”), but also the realistic, yet remote.
If mere possibility cannot survive as a reasonable doubt, it cannot survive as proof beyond a reasonable doubt. After all, there can be no reasonable doubt that anything is possible. And, “anything is possible” cannot survive constitutional scrutiny as a basis for criminal conviction. That makes logical sense. The statement that “anyone could have grabbed the gun from me in the dark before the gun went off” is neither a reason to exclude anyone as a suspect nor a reason to charge everyone else with the crime. If it were, everyone would be charged with everything, no one would be convicted of anything, and the reasonable doubt standard would have no meaning.
That something may be possible, however, is exactly what certain states and the military courts have accepted as proof beyond a reasonable doubt in cases involving HIV-related aggravated assault. By lowering the burden on the government to prove only that HIV could possibly be transmitted, these jurisdictions have obviated the need for a reasonable doubt standard. There can be no scintilla of doubt, let alone a reasonable one, that HIV can theoretically be transmitted through sexual intercourse. For that matter, HIV can theoretically be transmitted by oral sex, spitting, biting, or getting scratched by a monkey, but each is less likely than the one before it.
This is what lawyers call a due process problem, a constitutional evil of the highest order, especially when the strong arm of the criminal law is in play. And, HIV-positive Americans are victims of these due process violations all the time. Thankfully, our attorneys at Lambda Legal are working on the problem.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.