Sex, Lies and HIV: When What You Don't Tell Your Partner Is a Crime, Part 3

The third in a series of stories on HIV and criminalization.

In 1986, scientists had just christened the virus that causes AIDS, the human immunodeficiency virus, or HIV. The government had already logged more than 16,000 AIDS cases and 8,000 deaths since the American epidemic began, mostly among gay men and drug users. At the time, not a single drug was approved to target HIV, and the diagnosis was, for many, a death warrant.

In a panic, state lawmakers across the country — starting with Kernan "Skip" Hand, a Republican state legislator from Jefferson Parish, La. — began to take a law-and-order approach to keeping HIV out of their communities.

Hand's bill, the first of its kind in the country, passed in 1987. It imposed a sentence of up to 10 years in prison and a $5,000 fine on anyone who "intentionally" exposed a person to HIV without their "knowing and lawful consent."

The next year, Georgia adopted a statute that made no mention of intent; it could be applied to anyone who did not disclose their HIV status before having sex or sharing needles.

In 1989, the American Legislative Exchange Council, or ALEC — a conservative nonprofit that develops policy positions and drafts model bills for state legislatures — assembled a special HIV task force, which published a set of prototype statutes on subjects ranging from mandatory testing to insurance coverage. Buried in Chapter 6, alongside a proposed emergency quarantine law, was a single-page bill called the "HIV Assault Act," which became the template for state HIV exposure laws for the next decade.

Alan Smith, who served on the committee that drafted ALEC's model HIV bills and later served as ALEC's executive director, recalled members' concerns that people might intentionally try to spread the virus to drive more funding toward medical research.

"I guess there was a worry that there would be a lot worse disease than it could've been if people were actually on a mission to make sure more people got it so more research money could be devoted to curing it," Smith said.

A turning point came in 1990, when Congress inadvertently gave the criminalization effort a boost by passing the Ryan White CARE Act, a landmark law that funded HIV/AIDS services.

In the run up to passage, Jesse Helms — the late Republican senator from North Carolina — proposed an amendment that would have criminalized HIV-positive health care workers who failed to disclose their status to patients and made it a federal crime for anyone with HIV, as well as anyone who had ever used injection drugs or engaged in prostitution, to donate, sell or attempt to donate or sell blood, semen, tissues, organs or bodily fluids. (The act itself was named after a hemophiliac teenager from Indiana who became a national poster child for the AIDS crisis when he was expelled from middle school after contracting HIV from a tainted blood treatment.)

But Ted Kennedy, the late Democratic senator from Massachusetts and the act's primary sponsor, offered an alternative: Defund services unless states passed legislation to safeguard their blood and organ donation networks.

"No state," Kennedy said from the Senate floor, describing the compromise amendment, "could receive funds under the act, unless laws are in place to prosecute a person who donates blood or organs if one knows that he or she is infected with the HIV virus and knows the risk of transmission from making such a donation."

Waiting in the wings was the ALEC bill, which outlawed blood and tissue donations by people with HIV and also made it a crime for anyone with HIV to have "intimate contact" with another person without first disclosing his or her HIV status. By 1993, versions of the HIV Assault Act had been passed in Florida and introduced in Iowa, Michigan, Mississippi, New York, Nevada, Tennessee and Virginia. By the end of the decade, copycat bills had passed in nine states, including Iowa, which enacted its law in 1998.

A side-by-side comparison shows that the Iowa law was almost identical to ALEC's HIV Assault Act. Iowa's only major change was to its name: The "HIV Assault Act" became the "Criminal Transmission of Human Immunodeficiency Virus" law, itself a misnomer because transmission isn't necessary for the charge to stick.

When Congress reauthorized the Ryan White CARE Act in 2000, it dropped the criminalization provision for blood and tissue donations. Nevertheless, since then, at least 14 bills have been passed across the country either enacting new HIV exposure laws or toughening existing laws' penalties, especially when the victim is a police or corrections officer.

In 2011, for example, Nebraska passed a measure that made biting or spitting on public safety officers a misdemeanor punishable by one year in jail and a $1,000 fine — unless the offender is HIV-positive. Then the same crime is a felony punishable by up to five years in prison and a $10,000 fine.

At the same time, three states — Mississippi, Nebraska and Tennessee — have criminalized exposing someone to hepatitis B or C. In Nebraska and Tennessee, this is a misdemeanor, while HIV exposure is a felony, even though, according to the World Health Organization, hepatitis B is up to 100 times more infectious than HIV.

by Sergio Hernandez, Special to ProPublica.

This story was co-published with BuzzFeed.