Under New Bill, Not Disclosing HIV-Positive Status To Sex Partner Faces Lighter Punishment

By Katrina Pascual | Mar 20, 2017 07:21 AM EDT

If new legislation from a group of state lawmakers passes, it will no longer be a felony for someone to have consensual sex with others and expose them to human immunodeficiency virus without their partners knowing.

The measure, filed by state Sen. Scott Wiener (D-San Francisco) and other senators, seeks to downgrade the punishment to a misdemeanor, something that Republican lawmakers have opposed to.

The same downgrade could apply to other felonies currently punishable via imprisonment of 16 months to eight years, namely donating blood or semen without disclosing that they have acquired immunodeficiency syndrome (AIDS) or have already tested for AIDS precursor HIV.

Reevaluating HIV Laws And Attitudes

For Wiener, the stigma surrounding the disease is a barrier to lowering and ultimately eliminating related sexually transmitted infections.

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“When you criminalize HIV or stigmatize people who have HIV it encourages people not to get tested, to stay in the shadows, not to be open about their status, not to seek treatment,” the senator said.

The bill drew support from right advocates such as Equality California and the Los Angeles LGBT Center. According to Equality California's executive director Rick Zbur, current legislation does not recognize headways already made in medicine, where old practices have made the current law discriminatory.

A person with HIV, for instance, can be charged with a felony under current laws even if their medication makes them virally suppressed, meaning they are unlikely to pass the infection to others. This was according to bill authors Wiener and Democrat lawmakers Susan Eggman, Todd Gloria, and David Chiu.

California, Gloria stated, takes a crucial step to update these laws and reflect medical advances made to better treat persons living with HIV.

Weighing in on the new bill, Catherine Hanssens, the Center for HIV Law & Policy’s executive director, said there is a difference between people’s ethical duties — such as informing a sexual partner about having HIV — and what they need to be prosecuted as a felon for not doing.

Republican Sen. Jeff Stone opposes the bill, stressing that HIV/AIDS remains a fatal condition, and existing laws should hold accountable those who engage in “unprotected, risky behavior” endangering others.

Current HIV Criminal Laws And Enforcement

California laws relating to HIV/AIDS were made to prevent harm but were created when HIV was nearly always deadly, and thus putting another person at risk was equated to attempted murder, according to patient rights advocates.

“These laws were passed at the height of the AIDS epidemic … But it’s time to take a science-based approach to HIV, not a fear-based approach,” explained Wiener.

Across the United States, HIV laws were born from the late 1980s to the 1990s. In California alone, there were 357 convictions for an HIV-specific felony from 1988 to June 2014. These could have been downgraded under the proposed law, according to research from the UCLA School of Law.

Many of the convictions were made against those soliciting prostitution, where it was unclear where any sexual contact or exchange of money was made, or if there was sex at all.

A woman from San Francisco who worked as a prostitute in the 1980s said the laws made her reluctant to reveal her HIV status even to family and friends and to seek medical help.

“You felt like a leper, like you can’t be in society,” she told San Francisco Chronicle.

About 35 million people around the world have died from AIDS-related sicknesses since almost 35 years after the condition was identified. In recent years, advances include the development of antiretroviral medications, which extended lives significantly and are being provided to some 18.2 million people.

Researchers have also explored antibody-based treatments to gain long-term control of the virus and found the side effects of antiretroviral therapy in the patient’s body.

While AIDS fatalities worldwide dropped to 1.1 million last year from 2 million back in 2005, many who died were patients in developing nations who cannot access or afford medicines.

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