The presumption of innocence is something that we in the United States hold dear as one of the most sacred fundamental aspects of our Criminal Justice System. In courts across this nation hundreds of thousands of cases are heard ranging from civil disputes to criminal action alleged to have taken place. The justice system is a key element that holds others accountable for their actions and places punishment according to the laws enacted in an effort to keep order throughout the country. We entrust our judicial system to give everyone a fair trial balanced with the decision from twelve of our peers. The outcome of a court decision can change the fate of someones life forever including financially, physically, and in some states even the act of living itself. The courts play a vital role by upholding the laws on the books but what happens when the courts enter into the bedroom? What happens when there are laws on the books that the courts are upholding that target those living with HIV/AIDS?
In 35 states across this great nation including 2 commonwealth US territories, people’s lives are being turned upside down for failing to disclose their HIV status. This is not only an issue that we face here within the United States but a cause for global concern as various countries have enacted similar laws. The original goal for these laws are often well-intentioned however the impact these laws have in terms of people’s lives and ongoing prevention efforts far outweigh any benefits of them remaining on the books. These laws have taken the conversation that should be happening between two people within the bedroom into a public forum of debate. We must decide as a nation whether accepting personal responsibility for our sexual actions is the correct method or wether we will continue to place our own health in the hands of others.
As I enter the world of social media on the daily, I am seeing more and more cases where people are being sentenced to decades if not more in prison for failing to disclose their HIV status while having sexual relations with others. These laws vary from state to state and in many cases are not even current with the medical information available to date. Wether protection was used, the viral load of the HIV positive party, the actual transmission of the virus, and whether a verbal disclosure happened are irrelevant in many scenarios. Unless one has a written contract or acknowledgement that one has been told about ones HIV status then the ability to defend against these allegations are often extremely difficult. The courts have taken on the role of moral police when interpreting these laws and have entered into an area that has devastating effects for all involved. The risk or actual transmission to someone else is not what is important, it is simply sorting out whether disclosure took place or not.
I am completely for giving others the choice before having sex with someone who is living with HIV. Do I believe it is the government’s duty to get involved in this conversations? No. Of course there are cases of intentional infection but proving intent is much more than having sex and failing to disclose. When you are having sex with someone then you should be asking the questions regarding HIV status including the presence of other STD’s from the very get go. The responsibility of disclosure does not outweigh the responsibility of taking an active role in your own sexual health.
These cases often turn into a case of who the courts find more credible and trying to convince a jury of 12 that someone willingly exposed themselves to HIV is about as hard as it can get for a criminal defense attorney. These cases not only challenge the issue of disclosure but the long embedded stigma seen within the majority of America when it comes to the topic of HIV/AIDS. The HIV + defendant is guilty from the start due to this overwhelming stigma and people’s misconceived notions of how one contracted the disease. When added to various other factors such as race, socioeconomic status, and lifestyle it is an uphill battle that seems almost impossible to overcome.
These laws not only discourage people from getting tested as at that point they can be held legally accountable for their actions however they also open the door for our government to be more deeply involved in the most intimate part of our lives. I have personally always disclosed to every one of my partners and encourage others to do so at all times when it gets to any point where intimacy is inevitable however that is as far as my role can go. Disclosure is a complicated issue and people’s reasons for not disclosing can be vast and complex. In my opinion disclosure is the right thing to do because I would never want someone to ever go through what I have went through. People should not be intentionally trying to spread this disease and as an activist my goal is to see an end to this epidemic once and for all.
New laws are on the horizon such as H.R 1586 REPEAL HIV Criminalization Act of 2015 which would aim to end these laws once and for all. Brave organizations such as CHLP & Positive Justice Project continue to pave the way alongside many fellow HIV activists & allies to see a day when HIV is treated as a condition, not a crime. This is obviously a very brief overview on HIV Criminalization and I encourage you to do your own research on the matter. It is astonishing that in todays day and age with all the medical advancements we have made, these laws have remained in effect. It is a complex issue that we must map through in order to get true justice for all however we can do it together one step at a time :).