Monday, February 18, 2013

Should You Have to Reveal your HIV Status?

Living with HIV, whether you just learned about your status or have known about it for some time, there will be situations in your life when you will have to decide whether or not to disclose your HIV status. Who do you need to tell? Is there anyone you must tell? A spouse, a partner, or someone you have been dating? What about previous sex partners? In fact there are laws in the US that regulate some of these situations.

Legal Disclosure
If you are tested HIV positive, the clinic will report the result to the local Health Department, so that the public health officials can monitor what's happening with the HIV epidemic in your city and state. Your state health department will then remove all your personal information and send the information to the US Centers for Disease Control and Prevention (CDC).

In many cases sharing your HIV status is a personal choice. But many States have laws that require you to tell specific people about your HIV status. The laws may differ from State to State. Some have partner-notification laws, and some states have established criminal penalties for knowingly exposing or transmitting HIV to someone else. Some States also have a law called “duty to warn.” This law is somewhat complicated since physicians have a legal and ethical obligation to maintain confidentiality regarding their communication with patients. So, a complicated ethical and legal question arises when the HIV infected person deliberately avoids reporting to the interested individuals about the possibility of HIV transmission. This law allows the clinical staff to notify a “third party” if they know that a person has a significant risk for exposure to HIV from a person that staff members know is infected with HIV.

HIV Criminalization Laws
HIV criminalization laws began in 1990 when the federal Ryan White CARE Act passed. The laws were meant to protect the public, to prevent cases involving someone with HIV knowingly exposing others to the virus. Thirteen States have laws against HIV positive people spitting on or biting someone. Some States address needle sharing or blood, organ or semen donation. For example, in the State of Iowa, failing to disclose a HIV – positive status can bring a 25 year long sentence and a lifelong sex offender status. The official charge “criminal transmission of HIV” is the same as a class B felony in Iowa. Other crimes in this category include manslaughter, kidnapping, drug crimes and robbery. There have been cases when a prosecutor has won cases even when a condom has been used and the victim did not contract the virus. To date, HIV-specific criminal charges have been filed more than 1.000 times in the US alone.

Act Up/Queerocracy March

Better Solutions?
It's clear most of these laws are outdated and were adopted when knowledge about HIV was very limited. Today we know that HIV is not transmitted through saliva but there are still people in prison for committing this “crime.”

I checked in with Sean Strub, HIV positive founder of SERO Project, a non-profit human rights organization combating HIV- related stigma. He argues that HIV criminalization laws is the biggest driver of stigma in US society. Sean says that such laws are creating HIV-specific statues in some states and territories, thereby creating a “viral underclass” in the law, making the rights of those with HIV inferior to others. I asked Sean what laws regarding a person’s HIV status should look like?
“I don't think there should be laws mandating disclosure of one's HIV status. There are assault statutes in most every jurisdiction that can be used when someone is found to have a malicious intent to infect someone. Otherwise, HIV status is private and personal information, like all medical information.”

I also wanted to know if it's true that there are still HIV positive people in prison for spitting or biting another human being. “Yes, there certainly are. I received a letter yesterday from Willy Campbell, who is serving 35 years in a Texas prison for spitting at a cop. The Center for HIV Law & Policy found about 25% of cases in recent years were for spitting, biting or scratching, behaviors that are unpleasant and, depending on the circumstances, might be appropriate for some charge, but they don't transmit HIV. Years in prison and sex offender registration are not appropriate penalties”.

It has been acknowledged that these laws are outdated and may even backfire. For instance, the Obama administration's 2010 AIDS initiative argued that the laws “may make people less willing to disclose their status by making people feel at even greater risk of discrimination. Iowa Senator Matt McCoy, a Democrat, called the laws retaliatory. “This is medieval and it goes back to treating HIV as if it was leprosy and basically we need to repeal these laws.” He has introduced a bill to repeal and modernize the law to include HIV in the contagious disease section of the Iowa code. Unfortunately, his proposed legislation did not make it out of the subcommittee.

“I don't think HIV criminalization laws are the right answer to end HIV and AIDS. A bigger problem is that people who do have HIV and don't know about it, Sean told me. “More transmissions in the US. come from people who do not know their HIV status because they haven't been tested. I am guessing that is true to an even greater extent outside of the US but I don't have data.”

Sean Strub

Maybe more focus should be put on encouraging people to take responsibility to get tested? We should make testing more accessible and easier than it is today. It is not the job of everyone else to protect you. It's up to you to make sure you know your status and it's up to you to make sure you protect yourself. Don't get me wrong; it's never okay for someone knowledgeably to put another person at risk. There needs to be a balance between honesty and privacy.

To read more about testing yourself, please read this previous article :

Sanna Klemetti

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