Maryland lawmakers consider new HIV-specific criminal law
Lawmakers in the Maryland legislature are considering legislation which will change the state’s HIV-specific criminal law from a three-year misdemeanor to a 25-year felony. Advocates for people living with HIV say the move is ill-advised, but one sponsoring delegate says the bill is about “justice for the victims.”
Delegate C.T. Wilson, a Democrat from Charles County, tells The American Independent he introduced the legislation after a man with HIV was charged and convicted. Wilson said that case led to a “slap on the wrist” for the man.
“It was less than slapping someone at the club,” Wilson said of the jail time the man faced.
Wilson, who is also a prosecutor with Prince George’s County, says a fight in a bar — without injuries — can land a person in jail for 10 years. But under current Maryland law, transmitting or attempting to transmit HIV can result in a three-year sentence and a $2,500 fine.
In addition to what he says are light sentences, Wilson also said he was worried about the impact of the epidemic on the black community.
“The African-American community is devastated by HIV/AIDS,” said Wilson. “And in African-American women the number is on the rise.”
Statistics (PDF) from the Maryland Department of Health and Mental Hygiene show that of those living with AIDS in Maryland in 2005 (the most recent numbers available from the group AIDS Action), 67 percent are men and 33 percent are women. Of those living with AIDS, 80 percent are black.
“There are people out there who know they have AIDS, but aren’t telling others,” Wilson said.
Karen Black, a spokesperson for the MDHMH, says the department has no way of tracking intentional infections in its surveillance program of HIV.
Studies have shown that those who know their HIV-positive status are responsible for far fewer new infections than those who do not know their status. Wilson concedes this point.
“Most of the time, there is not question, it’s purely accidental,” he said of new infections. “But I am going after those people who know. Who show a callous disregard for human life.”
Asked if he supported making transmission of HPV, or Hepatitis B or C a crime, Wilson said those viral infections are not the same as HIV. All three viruses can cause various forms of cancer in the infected person.
“There is only a casual connection between those viruses and cancer,” Wilson said. “The big difference between things that might cause you to get cancer and AIDS. HIV always leads to AIDS which leads to death.”
Advocates have long pointed to growing evidence that criminal laws have no impact on behavior and in some instances stop people from getting tested. Wilson says this is a misnomer.
“The real deterrent is that you don’t want to know,” says Wilson. “It’s a specious argument.”
As for recent studies that show successful antiretroviral medication therapy make those infected with the virus virtually noninfectious, Wilson also discounted that information.
“That medication eats you from the inside to the outside,” Wilson said. “And [the exposure] leaves a Sword of Damoceles hanging over that other person.”
In exasperation, Wilson exclaimed: “No one ever asks me about the victims. They should have justice. Three years is not justice.”
“I can’t imagine a person who would know that a person had AIDS and would sleep with them,” Wilson said of the reason to mandate disclosure. “I would say that is a very small percentage.”
For Wilson, the idea of criminalizing transmission of HIV is no different than domestic violence laws. He argues that domestic violence is really second-degree assault in Maryland, but that it is a special kind of violence.
“We call it what it is,” Wilson said. “If we don’t call the crime what it is, we minimize it.”
The legislation has also been introduced in the Maryland Senate. Sen. Norman Stone (D-Baltimore County) introduced SB 60 because, as he told TheBody.com, “Someone suggested it to us, and we thought it was a good idea.” Stone was unable to identify the person who suggested the change.
Advocates opposed to criminalizing failure to disclose an HIV-positive status say the proposed law change is ill-timed.
“This proposed legislation responds to a non-existant problem with draconian penalties,” says Beirne Roose-Snyder of the Center for HIV Law and Policy in New York City. The group houses the Positive Justice Project which has been working to overturn HIV criminal laws in the U.S. and elsewhere. “It undermines public health efforts to get people tested for HIV and keep them engaged in their own care.”
The move comes at a time when President Barack Obama’s National HIV/AIDS Strategy recommended states revisit their criminal laws to avoid further stigmatizing HIV. In Iowa, lawmakers voted Feb. 23 to lessen the punishment under Iowa’s transmission law.
“Any law that treats HIV exceptionally is problematic for the way reinforces stigma and inaccurate information about the actual routes and risks of HIV transmission,” says Roose-Snyder. “It is similarly problematic to have a law that does not clearly require intent to do harm, and does not require any likelihood that the harm could actually happen.”
CHLP points to a research showing that most studies have found that the probability of infection through a single sex act is less than two percent.
But CHLP is not alone in challenging the proposals.
Brook Kelly, a human rights attorney for the U.S. Positive Women’s Network, says Wilson’s arguments are dangerous.
“You may have created these laws to protect women and black women, but they are being used against these women more often than not,” says Kelly. “These criminal laws are used as a form of coersiveness and a form of domestic violence to make a woman stay in a violent relationship.”
She says she has worked with at least three women in recent years who were in abusive relationships. The women had disclosed their HIV-positive status, and the abusive partners had attended doctor’s appointments with them. Regardless, says Kelly, when these women left the relationship, the abusive partner used the criminal law to harass the HIV-positive woman — with all three ultimately charged under those laws.
“It really slips the script when you see the reality,” Kelly said.
Kelly says the state of Maryland would be better off spending money to empower HIV-positive persons to disclose their status and to find “women controlled” prevention methods, of which currently there are none.
She also took exception to Wilson’s claim that no one would sleep with a person with HIV.
“It’s a form of AIDS stigma and it’s very dangerous,” Kelly says. “People who test positive do, eventually, end up having sex again.”
Wilson is unmoved.
“I don’t believe I’m having a conversation about why this is bad,” Wilson said. “I’m fighting an uphill battle.[The legislation] is probably going to get killed since half the committee members are defense attorneys.”