Friday, September 27, 2013

25 years prison for HIV Non-Disclosure. Medieval or Appropriate?

Last week I got a first and powerful impression of the stigma and fear that still surrounds HIV/Aids. At the Roxie Theater in San Francisco, Stefan and me attended an event to promote three new documentaries that showed current issues of the disease. The issue of criminalization of HIV left such a deep impact with me that it prompted me to write my first ever blog article.

People living with HIV in many countries are still subject to not only discrimination but also criminal lawsuits. A shocking example was that of Nick Rhoades, a 34-year old former hotel manager from Iowa, who was sentenced to 25 years in prison for not disclosing his positive HIV-status prior to a one-time safe sexual encounter in 2008. Although a condom was used, Nick’s viral load was at undetectable levels and there was actually no transmission of HIV, he was found guilty of ‘Criminal HIV Transmission’. The one-night stand was qualified as an aggravated sexual assault.

Nick and his partner had consensual sex, used protection and thanks to HIV-medication Nick’s viral load was undetectable. However, when Nick’s partner later learned about his HIV-positive status, he went to a hospital whose’ staff then pressed charges.  

The initial 25-year sentence was later suspended, but Nick still has to live with being marked a sex offender - a huge burden not allowing him to have an email account, use Facebook or spend time unsupervised with his nephews and nieces. Watch more in the short film below that was kindly made available for free by the Sero Project:

This is not an isolated case. Robert Suttle was similarly accused by a former lover of non-disclosure and had to register as a sex offender. Since then Robert has become a vocal and articulate advocate for the rights of people with HIV in the Sero Project. Neither in Robert’s nor in Nick’s case did transmission of the virus actually happen. In total more than 200 people have been convicted due to non-disclosure in the US.

HIV-Specific laws in 36 US states

Such cases are not restricted to the United States with many cases documented in Canada, Sweden and other countries. In this country, criminal law is often applied for cases of non-disclosure. More than 30 states have HIV-specific laws. Harsh sentences are often the result.

As Monique says in the Sero Project’s film: criminalization may actually deter people from getting tested. The American Journal of Public Health published a study showing no decrease in transmissions in state with mandatory disclosure. UNAIDS concurs and published a brief urging governments to de-criminalize HIV/Aids. Such laws can also create a false sense of security: if my partner had HIV he’d have to tell me.

A newly infected person will be highly unlikely to come forward with the names of people he had sexual contact with out of fear of further charges. Recently infected people cause a lot of new infections making early detection critical!

Additionally, the fact that one has disclosed to a partner is difficult and embarrassing to prove and document. Diary entries, video recordings or a joint doctor visit may all help. Testing Together is available for male gay couples in many states and offers free testing, also when one partner knows he’s positive but hasn’t told yet.Al
Laws were passed in many states in the 1990 to make the exposure of partners who are unaware of one’s status to HIV a crime. Two aspects are important here to consider:
  • Firstly, the risk of transmission in a setting
  • Secondly, the severity of an infection

Both these aspects have changed drastically in the last two decades.

What do you think the chance is you’ll catch HIV from unprotected anal sex?

As per Aidsmap the risk during unprotected sex (in contrast to the cases above where condoms were used) with an HIV-positive person per exposure is: (compare CDC data)

Receptive Vaginal sex (male-to-female) transmission risk: 0.08% Insertive Vaginal sex (female-to-male) transmission risk: 0.04% Receptive anal sex between men, partner HIV positive: 0.82% Insertive anal sex, between men, partner unknown status: 0.06%

The chance of infection rises dramatically if you’re in poor general health or have other STDs.

In the cases mentioned above, condoms were used which further decreases the chance of transmission. For heterosexual couples at least, studies have concluded that if the HIV+ partner has lowered their viral load to undetectable levels, the transmission risk is practically zero. I found these probabilities much lower than expected, which is still not a reason to not be careful.

On the severity: While contracting HIV/Aids will certainly change anybody’s life, it is not a death sentence anymore as retroviral medication can lower one’s viral load to undetectable levels and procrastinate the emergence of AIDS for many decades. An IAS study of 2013 even stated that individuals diagnosed with HIV today in the U.S. or Canada can expect to live an almost normal life span.

Consequently, Scott Burris at Temple University asks in Harvard’s Bill of Health blog whether non-disclosure should be a crime at all. Aaron Laxton blogs about his ‘HIV Journey’, gives his personal opinion on criminalization and whether to disclose one’s HIV status.

Dropping the H-Bomb

Should you always disclose? Personally I still think yes, which is easy to say if you’re not the one to say the words... Marianne Mollman, with Amnesty International, published a balanced article in the Huffington Post highlighting the complexities of the topic.

Many people with HIV will indeed disclose their status every time. Not because of laws, but because they’re convinced it’s the right thing to do. But ‘Dropping the H-Bomb’ as Jessica in Positive Women called it is a very hard thing to do! And because plenty of HIV-positive people have encountered stigma, discrimination and even physical abuse, disclosing is not as straightforward as it sounds.

Making people comfortable disclosing their status is our best bet in fighting HIV/AIDS. The best way to do this is with support and understanding - not criminal law. This puts the responsibility both on people with and without HIV.

So in conclusion, I have two questions for you:
  • If you were HIV-positive and wanted to tell a potential partner, how would you say it?
  • On the other hand, if you heard a potential partner say that he/she got HIV - what would you say and do?

Take a while to think and be honest to yourself - these are tough questions to answer


  1. How can all the evidence above to the contrary, you still maintain it's the HIV+ person's "responsibility" to disclose? That's asinine. You either have to resort to hearsay, violate someone's 5th Amendment rights and induce a self-admission of guilt, or TAKE RESPONSIBILITY FOR YOURSELF. Stop blaming others for your sexual health. No one's raping you.

  2. William, thanks. A good point we should have highlighted. The conversation about HIV/STDs in the bedroom is responsibility of everyone, with or without HIV.

  3. Great blog...I agree that the conversation about HIV/STDs is everyone's responsibility. And certainly, the laws need to be challenged on the sexual offenders outcome for individuals that conduct consensual safe sex. However, what should be done about those who do not disclose when asked and/or knowingly expose others?

  4. Excellent discussion of an issue that is surprisingly being prosecuted today in some parts of the U.S. in this era of safe and effective highly active antiretroviral therapies. Felony status for HIV transmission occurred as a result of laws that were passed 25 years ago and was intended to apply to willful transmission in an era when there were no adequate treatments and an HIV diagnosis truly was a "death sentence".


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