Policing HIV
When It Comes to HIV, Justice Takes the Back Bench
By Cindra Feuer

It's been well over a decade since conservative pundit William F. Buckley, Jr., proposed the draconian idea of tattooing people with AIDS. Though he failed, the impulse to punish and criminalize those with HIV remains just as popular today, and may be on the rise, judging by a spate of recent cases. Around the country, it seems, having HIV is often used by the police and the courts to discriminate against individuals and inflict extra punishment.

A particularly sensational case that recently fired up HIV activists involved a Cleveland cross-dresser named "Toni" who was arrested for hustling in August by Ohio police. When it was revealed that Toni was HIV positive, his charge of soliciting was bumped up from a misdemeanor to a felony. He is now serving a 12-month sentence. As part of a plea bargain, Toni agreed to reveal his HIV-positive status in a televised public service announcement that was aired by several local stations.

The judicial justification for this public confession was to inform Toni's sexual partners of their risk of exposure to HIV, so that they could seek HIV testing and medical attention. Had Toni not agreed to a few moments of public humiliation, the higher charge could have landed him a prison sentence of up to five years, according to his lawyer Mark Rudy, who says, "If Toni was HIV-negative, he would have been in and out of the system in a day."

State Trends Are Ominous
Out of at least 29 states, 11 in the last two years have passed laws criminalizing exposure to HIV. Crimes include transmitting HIV through sexual intercourse; selling or donating blood, body fluids, organs or tissues; sharing or reusing needles; and prostitution.

Here are some examples: In late September, California passed a law stating that an HIV-positive person engaging in unprotected sex who has not disclosed his or her HIV status and who acts with the specific intent to infect his or her partner is guilty of a felony punishable by up to eight years. But critics argue that in trying to prove "intent to infect," a disgruntled partner may have more clout in a court room than someone with HIV, given the public's perception of HIV as a death sentence.

An Iowa law allows an "alleged" offender to be tested for HIV and the results used as evidence in the prosecution of sexual assault or criminal transmission. HIV-positive prisoners on death row in Pennsylvania may be found guilty of murder in the second degree for causing another person to come into contact with their blood, semen, saliva, urine or feces. The same applies to prisoners with hepatitis B and other communicable diseases. This law flies in the face of over a decade of scientific evidence showing that HIV is not spread by saliva or kissing, unless blood or open cuts are present in the mouth or gums. There is also a minimal risk of exposure to HIV from urine or feces, unless blood is present. (see "Safer Sex"). But that hasn't stopped lawmakers.

If anything, these laws illustrate how unchecked misinformation promotes criminal discrimination against people with HIV and AIDS. As people continue to seroconvert, punitive action has begun to replace sound public health prevention, according to Daniel Zingale, Executive Director at the Washington, D.C.-based AIDS Action, who thinks the criminal justice system is a dangerous substitute for legitimate prevention policy. Taking sex worker Toni's case as an example, Zingale states, "People are given the false impression that this is the only type of person who has the virus. He's not representative of the reality of the risk. Everyone is at risk, not just those who have contact with a prostititute-women can contract it from their husbands."

Another problem perpetuated by Toni's case and others like it is that the law puts the sole responsibilty for safer sex-and in turn blame-on the individual with HIV. As Jennifer Middleton from the American Civil Liberties Union stresses, "There are two people involved. To put the onus on the HIV-positive person gives the message that uninfected people don't have to worry, because the HIV-positive person's status will be disclosed."

Model Is Sodomy Law
In some ways, advocates say the passage of laws governing HIV disclosure and the increasing prosecution of people with HIV and AIDS are reminiscent of sodomy laws. Here, too, the government and courts are going into back streets and private bedrooms to police desire. What's different is that HIV discrimination is done under the guise of public health, while sodomy laws are an overt statement of social disapproval of homosexuality. But covertly, HIV policy often appears to be motivated by thinly veiled homophobia. In the eyes of conservative legislators, HIV is equated with gay male sex-a dangerous, immoral, and illegal activity, they say. Never mind that U.S. HIV infection rates have sharply dropped among gay men, while rising among heterosexuals, especially women and youth.

The National Mood
The state battles over partner notification have spilled over to the national level. In June, New York state passed a names reporting/partner notification act, which will be implemented in the spring of 1999. It is similar to a federal bill, the HIV Partner Protection Act, introduced recently in the House of Representatives by Gary Ackerman (D-NY) and co-sponsored by Tom Coburn (R-OK). The federal bill mandates the reporting by name of HIV-positive results to the state public health office, which is required to seek the names of needle-sharing and sexual partners of all HIV-positive individuals. Regardless of their consent, the agency can then proceed to inform these sexual partners that they may have been exposed to HIV.

The federal bill did not come up for a vote in the fall, but is likely to be introduced again, possibly in early 1999. If it passes, all states will be required to implement the bill in order to receive federal AIDS funding under the Ryan White CARE Act. It would also override state laws that provide state sovereignty in determining the most effective form of HIV surveillance and partner notification. The Ackerman-Coburn bill, while calling for names reporting, also softens any penalties that may result from a breach of confidentiality. In addition, the bill encourages states to make HIV transmission a felony.

The bill also states that it will enable those who contract HIV to have greater access to treatment, but others point out that serious gaps now exist in access to health care (see "The Other War On Drugs," page 24.). Medicaid, for example, is difficult to obtain until people get full-blown AIDS. The HIV Partner Protection Act has no provision for expanded medical treatment.

The authors of the federal bill believe it would improve public health policy and prevent the spread of HIV by ensuring that more people learn their HIV status. But Dr. Helene Gayle, Director of the Centers for Disease Control National Center for HIV, STD and TB Prevention sees the bill as a deterrent to testing: "The act departs from the CDC guidelines and science-based public health practice by mandating reporting of all HIV-positive tests, by client name, without any provision to support the continuation of anonymous testing," Gayle testified at a hearing on the bill. "The resulting effect will be to discourage and drastically reduce anonymous testing opportunities."

Another pending federal bill called the "Protection for Innocent Victims of AIDS Transmission" is being sponsored by Congressman Dan Burton (R-Ind.). It calls for the death penalty or life imprisonment for knowingly transmitting HIV through sexual contact.

Critics fear these bills will scare away members of high-risk groups who already fear institutionalized discrimination-including people of color, drug users, gay men, and women. Or as Larry Gostin, a lawyer and HIV policy expert, puts it: "It will very much be in the interests of risk group members not to know if they have the virus."

"To be effective, partner notification must be voluntary, consensual, and run by experienced, trusted health care professionals, not a new government police force," asserts AIDS Action. For its part, the CDC requires all states provide "voluntary" partner notification as a condition of funding.

Where does that leave the average citizen? Although the state can notifiy a partner without consent, there is an important loophole in the Ackerman-Coburn bill and other partner notification programs. There is no civil or criminal penalty for not cooperating. No one has to give out his or her name or any information concerning sexual or needle-sharing partners. If you're worried, your best bet for now is to get tested in states that still offer anonymous testing (see map). Home HIV test kits may be another option, but can be more expensive. But bear in mind tht physicians are still required to report all new HIV infections to the state health department: if you live in a state where there is names reporting, your name will be reported after you seek treatment.

The Debate Continues
While AIDS deaths nationally have sharply dropped, rates of HIV infection are increasing among women, minorities, and the poor, a fact that has spurred the demand for a more efficient system to track the HIV epidemic, one that monitors not only AIDS cases, but also HIV cases. Such epidemiological information could be used to better allocate scarce funds for HIV prevention and treatment to communities where the need is most pressing. Where opinions diverge is over exactly how to execute HIV surveillance.

To date, most community advocates favor a no-names "unique identifier" model, in which information is coded so that it can't be traced back to the individual. There is almost no threat to confidentiality with this method. Those who back the unique identifier model argue that as long as there is a risk of disclosure and discrimination against people with HIV or AIDS, the only appropriate surveillance system is a coded one that keeps names off government lists. Unique identifier systems mainly gather epidemiological data.

But some say that isn't enough. They favor a system of names reporting that, they argue, provides more complete surveillance data, and allows public health officials to "follow back" subjects in order to offer them services such as follow-up HIV test results, partner notification, and medical services. According to Dr. Sharon Melville of the Texas Department of Health, that's why her state is switching over from a unique identifier system to a name-based system.

In December the CDC issued draft guidelines for improved HIV tracking systems. The agency's primary recommendation is names-based reporting with the unique identifier model as an alternative. Both systems warrant federal funding, says the agency. It also advises states to offer annonymous testing. Over the next few years the CDC will evaluate the state programs to see which surveillance methods work best.

Looking ahead, all signs point to more battles and more laws over these complex public policy issues. And that worries HIV advocates. "Criminal laws may very well exacerbate the AIDS epidemic," states lawyer Larry Gostin, adding, "The last thing public health officials want is a population frightened over punitive solutions to their health problems."