April 25, 2014
A Re-examination of HIV-Specific Criminal Laws
by Ron Valdiserri
A senior official from the U.S. Department of Health and Human Services reviews federal policy.
A recently published review of HIV-specific state criminal laws by colleagues from the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Justice (DOJ) examines the prevalence and characteristics of laws that criminalize potential HIV exposure in the 50 states and the District of Columbia and discusses the implications of these laws for public health practice.
According to their review, published in the journal AIDS and Behavior, the first state laws criminalizing potential HIV exposure were enacted in 1986 and, as of 2011, a total of 67 laws had been enacted in 33 states. The authors note that many of these laws criminalize behaviors that pose low or negligible risk for HIV transmission. In fact, the majority of laws were passed before studies showed that antiretroviral therapy (ART) reduces HIV transmission risk and most laws do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis.
The National HIV/AIDS Strategy (NHAS) observes that “an important step we can take is to ensure that laws and policies support our current understanding of best public health practices for preventing and treating HIV” and that “laws that run counter to scientific evidence about routes of HIV transmission…may undermine the public health goals of promoting HIV screening and treatment” (pages 36-37). Accordingly, the NHAS recommended that state legislatures “consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV”(page 37).
Of note, the Presidential Advisory Council on HIV/AIDS (PACHA) has also weighed-in on the subject of HIV-specific criminal laws. In their February 2013 resolution, “Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments,” PACHA observed that, “Legal standards applied in HIV criminalization cases regarding intent, harm, and proportionality deviate from generally accepted criminal law principles and reflect stigma toward HIV and HIV-positive individuals…Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.”
The CDC and DOJ authors of the recently published review encourage states with HIV-specific criminal laws to use the findings of their paper to “re-examine those laws, assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle to achieve their intended purposes.”
View the full article online. Learn more at the CDC's new web page, HIV-Specific Criminal Laws.
At the U.S. Department of Health and Human Services, Ronald Valdiserri, MD, MPH, is deputy assistant secretary for health, infectious diseases, and director of the Office of HIV/AIDS and Infectious Disease Policy. This article was originally published on AIDS.gov.
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