May 7, 2009

Media Hysteria and HIV Criminalization

Germany’s media have recently been in a frenzy over the arrest of pop star Nadja Benaissa. Her offense? Failing to disclose her HIV-positive status to three partners with whom several years ago she had unprotected sex (presumably intercourse without a condom). One of her accusers claims he acquired HIV from her.

In the United States, we have had a similar phenomenon when media-created hysteria—in conjunction with ignorant or ambitious prosecutors and politicians—frightens the public and brands people with HIV solely as vectors of disease or as “AIDS monsters.” This has prompted more than half the states to pass criminalization statutes, resulting in wildly unjust prosecutions and sentencing.

Last year Willie Campbell was sentenced to 35 years in a Texas prison for spitting at a police officer. Gregory Smith died in a New Jersey prison while serving a 25-year term for allegedly spitting at a prison guard. In another case, a mother’s HIV status was cited by a judge to deny her custody of her child. There have already been several hundred prosecutions in the United States for failing to disclose one’s positive status and, so far, more than 200 convictions.

Before embarking on a solo career, Nadja Benaissa was the lead singer of No Angels, Germany’s biggest-selling girl band. She is 26 years old, biracial (Moroccan father and German mother) and was raised Muslim. She is an attractive young woman and was in a singing group with a “bad girl” reputation. Her arrest—shortly before she was to go on stage one evening—was clearly intended to maximize publicity.

The details of her case are not all known, but it is likely that sexism as well as racial and/or religious prejudice factored in her arrest, especially in its high-profile timing. Race has typically played a role in prosecutions in the United States (both Campbell and Smith are African American). We have not yet had a high-profile failure-to-disclose prosecution in America of a celebrity or affluent person, but we surely will.

While one of those accusing Benaissa claims to have acquired HIV from her, it has not been proved. Whether transmission actually occurred, whether there was an “intent to infect” and whether the accused is on antiretroviral (ARV) treatment or even has a detectable viral load are typically irrelevant to the decision to prosecute. In some states, even using condoms or other risk reduction techniques does not preclude prosecution.

Too few have spoken out in opposition to criminalization statutes. It is indicative of a persistent and pervasive bigotry against the HIV-positive community, the poor, people of color and sexual minorities—all those categories that most conveniently comprise “the other.”

From a public health perspective, HIV criminalization is terrible policy because it discourages people from getting tested. You cannot be prosecuted for “knowingly exposing” another to HIV if you do not know you have it. That is a powerful incentive not to get tested. Yet it is important that people know their HIV status, in part because knowledge of one’s status promotes more responsible sexual behaviors.

Knowing one’s status also enables a person with HIV to commence ARV treatment to restore or safeguard his or her health. Treatment itself dramatically reduces the likelihood of HIV transmission. Those with HIV who cannot, will not or do not want to disclose their HIV status may consider treatment in order to minimize risk to others.

ARV treatment is so successful at reducing the risk of HIV transmission that last year the Swiss federal AIDS commission said that, under specific circumstances, the risk for sero-discordant heterosexual couples is so remote as to render condoms unnecessary. Those conditions require that the couple be monogamous, the partner with HIV be on treatment and have an undetectable viral load for at least six months and that neither partner has another active sexually transmitted infection.

A few weeks ago, Deutsch AIDS-Hilfe, the largest AIDS nongovernmental organization in Germany, issued a position paper that essentially supports the Swiss findings, suggesting that, in certain circumstances, ARV treatment might be as effective as condoms at preventing transmission.

Criminalization of people with HIV, especially when combined with media hype, fuels the stigmatization that creates a viral apartheid, keeps people with HIV at the margins of society and contributes to the continued spread of the virus.

It gives people who do not know their HIV status, or who are HIV negative, a false sense of security while putting the burden of disclosure and safety disproportionately on those living with the virus. For effective prevention, this public health responsibility must be shared by all partners equally.

Why not prosecute those who expose others to human papillomavirus (HPV), which causes virtually all cervical cancers as well as anogenital cancers and some cancers of the mouth and throat? Like HIV, these cancers are often fatal. HPV does not even require sexual intercourse to be transmitted. Must people disclose they have that virus—or all sorts of other potentially infectious conditions—before having intimate contact with another?

What about people who are born with HIV? If we are all born equal, why are they born with a disclosure obligation they must carry their entire lives, required by law to precede any sexual contact? We can and must combat HIV without creating a privileged class of HIV negative people who have greater rights than those of us who are positive.

The complicated dynamics of disclosure and intimate contact often make it difficult, impossible or dangerous to disclose. People with HIV are often in a weaker position to negotiate safer sex. They fear rejection. Knowledge of their HIV status by others can lead to loss of employment or housing and even result in violence.

The ethical obligation to disclose has been enshrined in the people with HIV/AIDS empowerment movement since 1983, when it was specifically included in the movement’s founding manifesto, The Denver Principles.

No one should intentionally put another person at risk, and the rare cases where a person acts with the intent to transmit the virus to an unknowing partner deserve the attention of the law. Fortunately, those cases are few and far between.

Criminalizing the failure to disclose—regardless of the level of risk actually present or whether transmission takes place—does not facilitate greater honesty and responsibility between sex partners. Because they so powerfully fuel stigma and discourage HIV testing, criminalization statutes contribute to the spread of HIV.

Sean Strub is a longtime AIDS activist and the founder of POZ magazine who recently became the president of Cable Positive, the U.S. cable television and telecommunications industry’s AIDS action organization. He has been living with HIV for 30 years. He can be reached at sean@cablepositive.org.

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Previous Comments:

Layla, Las Vegas, 2009-06-09 19:07:55
I disagree with this article. If a person knowingly preys on others and infects them with HIV they should be prosecuted.

Sir Endure, , 2009-05-21 17:24:33
I think until EVERYONE is infected there will be no end or cure to HIV. Unfortunately, those infected are asked to be responsible while no solutions are given to cure. Safesex is NOT a solution.To believe that everyone will use a condom everytime disregards the complexities of sexual behavior.

IamStone, Mulberry Arkansas, 2009-05-17 07:47:32
I think if people know they have hiv or are living with aids and dont disclose before having unprotected sex then infect someone should face some kind of criminal charge. tho I agree there has been a lot of hype over the spitters and what not. then there are those who are high profile that may have slept with someone and then that person goes out and gets infected by someone else just so they can claim they were infected by the person that has money so they can profit. law need to be reexamined.

david, athol, 2009-05-16 17:06:50
what can we do together to change this. especially spitting. how can we unite

John, Washington D.C, 2009-05-16 16:27:49
Is Nadja Benaissa even HIV+? I can't find any reference of her confirming or denying it. One would assume that the prosecution would have looked into that before hand, but you can never be sure with these ambitious prosecutors.

Steve, Morristown, NJ, 2009-05-12 17:11:12
Mr. Strub is a personal hero of mine. I have the premiere issue of POZ and have followed him (and POZ mag), through all of these amazing years. He has ALWAYS been courageous and up-front about his personal battles (and lab results), and all things AIDS/HIV related. I am glad he has been doing so well and wish him the best at Cable Positive. This is a superb, excellent, thorough and comprehensive article from Mr. Strub that EVERYONE should read and give SERIOUS thought and consideration to.

Patrick, Boston, 2009-05-12 14:21:14
We live in 2009, I lived with hiv since 86, how can someone in todays world still be so self centered and not care about going on to infect other people. The other side of the story is; Nadjas partners seem old enough and could have used protection weather they knew or did not know the status of there partner(Nadja), "it takes 2 to tango". Each one needs to protect himself... no excuses, that is the only way we can slow down the spread of AIDS.

Michael, Haslett, 2009-05-12 13:10:11
I think this is really getting out of control. Mostly because of fear of HIV. I believe that people should never take the risk of unprotected sex with someone they do not know, and when they do, if they get HIV, they only have themselves to blame and should not be able to proscute them. Plus I know of no test to date that can prove 100 percent that a person got HIV from one certain person.

Susan, Boston, MA, 2009-05-12 09:31:50
I've known this to happen a few times when drugs/alcohol is involved. It is so essential for us to get sober, for so many reasons, when we are diagnosed. Early on, I luckily found wonderful support in the AIDS community in Boston. These guys taught me how imperative it is to put others' welfare before my own regarding sex. Even if someone insists they "don't care", I use a condom. It's sort of a pact I made with myself from the beginning.

luv1soul, Mi, 2009-05-10 18:12:51
So if person A is poz and person B knows that person A is poz, person B who may be poz also from sex or drug sharing with other and not even know it, can test poz and blame it on person A, where there was no sexual conduct or sharing of needles, and blame a poz status on person A. Person A gets prosecuted simply because person B didn't like person A, and wanted to set this person up. The gov't probably will not even investigate to see if this person(A) actually infected(B).