WASHINGTON, DC -- Nearly half of HIV-positive respondents to a recently released survey on HIV criminalization say they believe they will not receive a fair hearing in the criminal justice system if they ever face charges for failing to disclose their status to sexual partners.
The findings come from the preliminary results of a study released at the International AIDS Conference in Washington DC in late July. The results, researchers say, show HIV criminal laws have created a hostile legal environment for those living with HIV.
Those preliminary results included the responses of 2,076 people living with HIV in the United States. The responses were collected online during June and July.
The study found that 49 percent said they didn’t “trust” they would get a fair hearing if they were charged in criminal court for failing to disclose their HIV-positive status to sex partners, while 30 percent said they were unsure if they would receive a fair hearing. Twenty-one percent of respondents said they trusted the system would provide a fair hearing.
“To me, that’s shocking,” says Laurel Sprague, lead researcher for the Sero Project, which sponsored the survey. The organization advocates against HIV criminal laws.
“People felt that because stigma against people with HIV is so great, that the minute they walk into a courtroom as a positive person that there is already a bias against them as not reliable or not trustworthy,” added Sprague. “And so, even if they are falsely accused, they fear they can still end up in prison.”
In addition, the survey found that 29 percent of respondents living with HIV had worried “a few times” about being falsely accused under their state’s HIV disclosure laws. Another nine percent said they worried “frequently” about false accusations.
Likely adding to that worry, 48 percent of respondents said it was “not clear” to them what the law prohibited, and 30 percent said it was only “somewhat clear.” Sixty-three percent reported they were unsure whether there was a law in their state requiring that they disclose their HIV status to sex partners.
Seventy-three percent of the respondents reported that they were not informed about the existence of criminal laws when they tested positive.
Sprague says the survey shows “tremendous alienation and vulnerability” of people with HIV in relation to the criminal justice system in the U.S.
The CDC reports that 32 states have HIV-specific criminal statutes. In 1990, the Ryan White CARE Act was passed, providing needed cash to help pay for care and treatment of people with HIV. In the law was a provision requiring states to certify that they had a way to prosecute intentional transmission of HIV in order to be eligible for the funds.
The laws were ostensibly passed in order to force people to disclose their status to prevent new infections. But Sprague says the Sero Project survey didn’t find the criminal laws were a major factor in disclosure. In an analysis of nearly 200 open-ended responses as to why people with HIV disclosed or did not disclose their status, criminal laws were cited as a reason by only five people, and only one of those people cited the laws as the only reason.
The Sero Project study also indicated that just under half of respondents said it was either “very” or “somewhat” reasonable for people to avoid testing for the virus in order to avoid prosecution. A slightly lower number (about 42 percent) of respondents felt it was reasonable to avoid treatment in order to avoid prosecution.
Adding more evidence to advocates’ claims that HIV prosecutions may inhibit testing, the study also found that 25 percent of respondents said at least one person had told them that they did not want to get tested because of a fear of prosecution.
These findings echo the results of a recent Canadian study.
In the wake of a series of high-profile HIV nondisclosure prosecutions, researchers surveyed men who have sex with men in Ottawa, Canada. They found that a significant minority of participants -- 17 percent -- said the prosecutions had “affected their willingness to get tested for HIV,” and nearly 14 percent said the prosecutions “made them afraid to speak with nurses and physicians about their sexual practices.”
The researchers found that this same group reported receiving less testing for HIV and other sexually transmitted infections, was more likely to engage in higher-risk sexual activities, and had a higher number of recent sexual partners.
The issue of testing is linked to HIV criminalization, advocates argue, because not knowing one is HIV-positive is a defense in most cases.
But lack of testing can have a negative impact on efforts to stop the spread of the virus. In the U.S., an estimated 20 percent of people living with HIV are unaware of their status, and this group is more likely to be the source for new infections.
Information released from an analysis of HIV prosecutions in Michigan indicates the fears related to the criminal justice system may not be misplaced.
Trevor Hoppe, a University of Michigan Ph.D. student, is working on a dissertation in which he has evaluated the trial transcripts of 26 HIV prosecution cases in Michigan, and media reports of four other cases. Michigan makes it a felony to know one is HIV-positive and fail to disclose that status before any sexual penetration, “however slight.”
The review did not include cases from Detroit and Wayne county -- where the majority of the state’s HIV cases reside -- due to a lack of information available to review, Hoppe said.
Hoppe said that one piece of information from his analysis that “surprised” him was the portrayal of HIV as a “death sentence” in courtrooms.
The analysis found that while care and treatment of HIV has changed the course of the disease since the disclosure law was enacted in 1988, the courts continue to refer to HIV infection as deadly and a death sentence -- often rejecting the medical evidence showing with antiretroviral treatment an HIV-positive person can live a near normal lifespan.
The analysis also found that actual transmission of the virus was alleged in only two of the cases.
He said he found the testimony of health officials in many of the cases were “wild things about HIV they had no business making claims about.”
Of the cases reviewed, Hoppe identified 18 cases where references to death for those infected with HIV were used in court, compared with 12 cases that did not feature what he called “analogies of death.” The greatest frequency of death analogies came between 2007 and 2010, a decade after antiretroviral medications had transformed HIV into a chronic, manageable health condition.
“You might expect to see that in cases before 1995, before protease inhibitors [drugs that control the virus] were introduced that really radically transformed how HIV was experienced in the sense that there were no effective treatments before them,” Hoppe says. “The courtroom has really not been affected by that shift. It’s still a death sentence [to the courts]. Not disclosing is still considered and compared to attempted murder.”
Sprague says Hoppe’s study bolsters the findings of her survey, calling them “incredibly important.”
“These are not unreasonable fears,” says Sprague. “It’s that actually people living with HIV probably aren’t safe, that the legal system probably won’t protect them, that the legal system probably won’t take into account the advances that have happened since 1996, not mention the advances in the last couple of years.”
Hoppe also identified apparent anomalies in the demographics of defendants in Michigan’s HIV cases.
Black men who have sex with women, while representing only 14 percent of people living with HIV in the counties he sampled, accounted for 41 percent of the criminal cases, he found.
“Conversely, white men who have sex with men make up about 15 percent of the defendants I identified, but they make up 39 percent of the HIV-positive people in the area,” he says, adding that “more research is needed to better understand that disparity.”