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
s.klemetti@globalaging.org
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