HIV and punishment

California lawmakers revisit AIDS epidemic-era laws that critics say backfired

This is an extended version of a story that ran in the March 16, 2017, issue.

Decades after the height of the AIDS epidemic, California lawmakers are looking to reform outdated HIV laws that critics say backfired and put the public more at risk. Legislators convened March 8 for a joint session at the state Capitol to discuss Senate Bill 239, which aims to lessen the stigma associated with HIV by reforming laws that target HIV-positive individuals throughout the state.

Under three current state laws, not disclosing one’s HIV status before engaging in unprotected sex, prostitution or donating blood are considered felonies. There’s also a three-year sentencing enhancement on the books for HIV-positive people who commit nonsexual crimes.

According to a joint report from the Williams Institute and California HIV/AIDS Research Program, the vast majority of HIV-positive people who came into contact with the criminal justice system between 1998 and 2014 were sex workers.

According to Dr. Edward Machtinger, director of the Women’s HIV Program at UC San Francisco, these laws were enacted during a climate of AIDS hysteria, when people still believed transmission was possible through saliva, urine, vomit and sweat.

The proposed bill would treat HIV like any other communicable disease under California law, making it a misdemeanor, rather than a felony, to intentionally expose someone to HIV.

Some experts who spoke at Wednesday’s session claim the legislation would improve public health.

“These laws deter people from disclosing their HIV status,” said Naina Khanna, executive director of Positive Women’s Network USA, who herself is HIV-positive. “They deter access to testing. They may deter people from seeking treatment or being engaged in care and consequently actually increase risk for everyone.”

Recent studies have shown that HIV is much harder to transmit—even through unprotected sex—than was originally thought. When controlled with medication, the rate of transmission is nearly zero.

“HIV is like any other illness,” said Joyce Mitchel, who serves as chair of the Sacramento-based Capital City AIDS fund. “It is unfortunate that there is stigma attached.”

Another Senate hearing has been scheduled for later this month. Although S.B. 239 still has a ways to go before it can move to the state Assembly, co-author and Assemblyman Todd Gloria of San Francisco saw it as a potential trendsetter. “I think if California can do it, certainly the rest of the county can take this step as well,” he said.