Since 1986, laws criminalizing HIV non-disclosure, perceived or potential exposure to HIV and/or transmission of HIV have imposed criminal penalties on persons who are aware of their HIV-positive status yet subsequently engage in various behaviors, most commonly sexual activity and needle sharing, without disclosing their HIV-positive serostatus to partners who may, or may not know their own serostatus ( Lehman, Carr, Nichol, Ruisanchez, Knight, Langford, et al., 2014 ). In 24 states, people living with HIV (PLHIV) are required to disclose their HIV-positive status to sexual partners; 14 states require disclosure to needle-sharing partners. From 1986 through 2011, a total of 67 HIV-specific criminal laws were enacted in 33 states and two U.S. territories (Lehman, 2014; See Exhibit 2 for a table of state specific laws), many or most of which do not consider the level of risk and/or intentionality of the act. In spite of the large number of HIV-specific criminal laws enacted by numerous states, little research has systematically examined whether HIV-specific criminal laws achieve their objective of reducing HIV transmission.
Over the past 30 years, hundreds of PLHIV have been arrested for engaging in behaviors that pose little, if any, risk for HIV transmission (Exhibit 3: HIV Transmission Risk, Centers for Disease Control Factsheet). In three studies conducted in the United States, 20 percent to 25 percent of prosecuted cases related to HIV exposure/ transmission have involved spitting, biting or external exposure to bodily fluids (e.g., throwing bodily fluids, most commonly in correctional facilities) that posed negligible transmission risk (CDC 2014; Patel, Borkowf, Brooks, Lasry, Lanksy, & Mermin, 2014; Pretty, Anderson, & Sweet, 2009). Many HIV-specific laws were passed before: (1) research showed that consistent condom use significantly reduced the spread of HIV (CDC, 1993; Pinkerton & Abramson, 1997); (2) the emergence of antiretroviral therapy, resulting in many PLHIV living with undetectable viral loads that reduce HIV transmission probabilities (Dieffenbach & Fauci, 2009), and; (3) increased efficacy of post-exposure prophylaxis (PEP) and pre-exposure prophylaxis (PrEP; Celum & Baeten, 2012; van der Straten, Van Damme, Hbere, & Bangsberg, 2012; Young, Arens, Kennedy, Laurie, & Rutherford, 2007). Thus, people diagnosed with HIV in states with HIV-specific criminal laws must disclose their HIV serostatus to sex partners and injection needle sharing partners and refrain from various sexual behaviors, regardless of HIV risk reduction activities (e.g., condom use, use of clean needles, being adherent to combination antiretroviral therapy (ART). In the rare instances in which intentional transmission of HIV is determined, states may use general criminal laws or communicable disease laws to prosecute persons accused of intentionally trying to transmit HIV instead of HIV-specific criminal laws.
Despite the availability of HIV testing and highly effective treatment for HIV, 14 percent of the estimated 1.2 million people in the United States living with HIV are unaware of their status and only 28 percent of PLHIV are virally suppressed (Bradley, Hall, Wolitski, Van Handel, Stone, LaFlam, et al., 2014). Many new HIV infections are transmitted by people unaware of their HIV infection (Marks, Crepaz & Janssen 2006). While PLHIV may not seek HIV testing for a multitude of reasons (e.g., inaccurately low risk perceptions, not wanting to deal with the emotional sequelae of being diagnosed with HIV, fear of stigma and discrimination), HIV-specific laws may be an additional significant disincentive for persons at high risk of HIV-infection to seek HIV testing. PLHIV are also often marginalized because of sexual orientation, race, and SES (Kinsler, Wong, Sayles, Davis & Cunningham, 2007; Logie, James, Tharao, & Loutfy, 2011); they tend to have high rates of depression and trauma which contribute to increased disease progression (Leserman, 2008); and they often experience significant stigma and discrimination with respect to housing, employment and accessing health care (Mahajan, Sayles, Patel, Remien, Ortiz, Szekeres G, & Coates, 2008). Such phenomena lead to multiple health morbidities across age groups, including in the ever-growing aging PLHIV population (Halkitis, Kupprat, Hampton, Perez-Figueroa, Kingdon, Eddy, et al., 2013). HIV criminalization laws create an additional undue burden on PLHIV by targeting risk behavior and undermining public health efforts at HIV prevention and testing (Valdiserri, 2002).
What little research has examined relationships between states enacting HIV-specific criminal laws and sexual behavior finds little evidence that these laws influence HIV disclosure and sexual behavior patterns. Burris et al., (2007) found that persons at-risk for HIV who were living in Illinois (a state with HIV-specific laws) and New York (a state with no such laws) were largely comparable in their self-reported sexual behavior. HIV-specific laws appear not only to fail to curb continued unsafe sex, but they may actually increase stigma toward PLHIV, reduce the likelihood of disclosing one's HIV-positive status to sexual or needle-sharing partners, and/or reduce frequency of HIV testing because knowledge of status is required for culpability (Burris, Beletsky, Burleson, Case, & Lazzarini, 2007).
In 2011, an original member of the commission that authored the 1988 "Report of the Presidential Commission on the Human Immunodeficiency Virus" stated that it was "probably past time" for states to revisit HIV-specific criminal laws and "subject those laws to scientific scrutiny." (Lehman, 2014) We believe an APA resolution will strongly encourage states with HIV criminalization laws to repeal such laws and provide psychologists practicing in relevant states with guidance on the impact that HIV-specific laws may have on their patients, clients, and the general public's health. In 2014, the Civil Rights Division of the Department of Justice issued a "Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors." The Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act, which was introduced in the U.S. House of Representatives in 2011, 2013 and again in 2015, has been supported by the APA (see Exhibits 4-6).
