People with HIV fear unfair treatment in courts
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.”