Donating blood is a felony in Virginia if you're HIV-positive — but that could change

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These laws are long overdue for a change, advocates and lawmakers say.

Virginia is expected to pass legislation this week that amend laws on sexually transmitted infections that have been on the books for decades. The House of Delegates and the Senate are currently in conference to settle differences between two versions of a bill that would repeal a law making it a felony for people living with HIV to donate blood, organs, and tissue.

Advocates and lawmakers expect final passage before adjournment of the regular session of the General Assembly at the end of the month.

The legislation would also take out language about HIV, AIDS, hepatitis B, and syphilis from a statute on infected sexual battery and replaces it with the phrase "sexually transmitted infection." It would reduce the charge in such cases from a felony to a misdemeanor.

Advocates for the bill say that without the new legislation, people will continue to be unfairly criminalized for consensual sex because of their HIV status.

Infected sexual battery and infected blood donation are currently Class 6 felonies in Virginia and can carry a sentence upon conviction of up to five years of incarceration and a fine of up to $2,500.

The bill would also remove the law's current definition of HIV and other viruses as an "infectious biological substance"; current Virginia law mandates that a person found to have the intent to injure someone with an infectious biological substance is guilty of a Class 5 felony, carrying the possibility of imprisonment for up to 30 years.

Positive Women's Network, Equality Virginia, and the coalition Ending Criminalization of HIV and OverIncarceration in Virginia are among the organizations supporting the new legislation.

Democratic Virginia state Sens. Jennifer McClellan and Mamie Locke co-sponsored the Senate's version of the bill, SB 1138.

McClellan said that LGBTQ groups approached her during the summer with "the idea of bringing this bill as part of a national push to modernize HIV laws." She said that, given what scientists now know about HIV, changing these laws is "just the right thing to do."

"Criminalization doesn't protect people from acquiring HIV," McClellan said. "These laws have actually stigmatized and hindered HIV prevention measures and have been counterproductive from both a public health perspective and equality perspective. They disproportionately impacted HIV-positive people and people of color and particularly transgender people. They're based on what we now know to be incorrect science."

Federal legislation that allows people living with HIV to donate organs to other people living with HIV was signed into law by President Barack Obama in 2013.

Virginia Gov. Ralph Northam, a Democrat, has not publicly stated whether he would support the bill, but lawmakers and advocates are optimistic, given his support of other bills benefitting the LGBTQ community. The governor's Commission to End Racial Inequity in Virginia Law also found that Black Virginians were "disparately represented in Commonwealth HIV cases" and that this "disproportionate health representation leads to increased risk in terms of Virginia's criminal HIV laws."

Right now there are 32 states with criminal laws and sentence enhancements on the books that can be applied to people living with HIV, according to the Center for HIV Law and Policy.

Last year, Washington state passed a law that reduced the criminal penalty for exposing a sexual partner to HIV from a felony to a misdemeanor. In 2018, Michigan's Republican governor, Rick Snyder, signed a similar bill into law.

Changes were first made to such laws in Texas in the 1990s, and seven other states have since updated their laws on people with HIV having sex or donating blood and tissue.

There has been pushback in the Virginia General Assembly over whether charges for having sex while living with HIV should remain a felony. Currently people living with HIV do not need to have transmitted HIV to be convicted, and could even be prosecuted even if they had disclosed their HIV status ahead of time, the Center for HIV Law and Policy explained.

McClellan said the issue is a "big sticking point" between the House and Senate but that she is hopeful lawmakers can resolve it.

"The whole myth of somebody trying to intentionally infect someone— there's just no evidence that that's really happening. Intent is very difficult to prove and so when people have been charged, it's been, 'Well, you had sex with someone knowing you're HIV positive, therefore, you intended to infect them,' and that's just not true," she said. "It is, in effect, weaponizing HIV-positive status. If someone actually did intend to infect someone and actually infects them, there are malicious wounding statutes."

Vee Lamneck, executive director of Equality Virginia, said, "We cannot allow the bill to move forward with a felony penalty." They said eliminating it would ensure that people living with HIV "can still safely access health care and prevention services without the fear of a felony prosecution."

Published with permission of The American Independent Foundation.