Critics assail crime laws aimed at people with HIV

NEW YORK — A man in Texas is serving a 35-year prison sentence for spitting at a police officer — because he has the virus that causes AIDS and his saliva was deemed a deadly weapon. In Michigan, an HIV-positive man who allegedly bit a neighbor during an argument faced a bioterrorism charge.

Charges for the same acts would have been far less severe if the defendants had been virus-free. Now, a coalition of advocacy groups — backed by an outspoken champion in Congress — is ratcheting up a campaign to press for review and possible repeal of criminal statutes specifically targeting HIV-positive people.

"These laws are archaic," said Rep. Barbara Lee, D-Calif. "They're criminalizing a population of people who should not be criminalized."

Lee introduced a bill in September that would provide states with incentives and support to reform criminal laws aimed at people with HIV. Lee assumes the bill has little chance of passage while Republicans control the House, but hopes it will help raise awareness about the state laws.

"It's very important to start these debates, to get governors and legislators to look at it," she said in a telephone interview.

Thirty-four states have criminal laws that punish people for exposing another person to HIV, according to the advocacy groups working with Lee. Prosecutions occur even in the absence of actual HIV transmission, and the laws generally do not consider use of a condom as a defense, the groups said.

Many of the laws were enacted early in the AIDS epidemic, when fear of the disease's deadliness was at its highest and before advances in understanding how HIV was transmitted. The laws have not been revised even though AIDS — thanks to the development of medication regimens — is no longer viewed as a death sentence.

Scott Burns, executive director of the National District Attorney's Association, suggested that most prosecutors would oppose Lee's bill and argue that the laws remain necessary to deter HIV-positive people from reckless or irresponsible behavior.

"Not withstanding that we've made tremendous medical advances, I don't know anyone who'd want to be infected with HIV and go through the treatment regimen," he said.

According to the Centers for Disease Control, HIV is spread primarily by unprotected sex with an HIV-positive person, sharing of tainted needles or syringes, and births by an HIV-infected mother.

HIV is not spread by saliva, tears or sweat, and there are no documented cases of it being transmitted by spitting, according to the CDC. As for biting, the CDC says there is no transmission risk if the skin is not broken; in a "very small number of cases," transmission did occur when a bite drew blood and caused severe tissue damage.

While prosecutors defend the HIV laws as appropriate for certain cases, some activists argue that criminalization of exposure to HIV can backfire and actually fuel the spread of the disease.

They note that under most of the state laws, people who don't know they have HIV are less culpable than those who do know. This fact could deter some people from learning their HIV status, and thus preclude some HIV-positive people from getting treatment.

A better approach, the advocates say, is to encourage responsibility and disclosure without the underlying threat of arrest and prosecution.

The Obama administration's National AIDS Strategy, released in July 2010, echoes those concerns, saying some of the state laws "may make people less willing to disclose their status by making people feel at even greater risk of discrimination."

"It may be appropriate for legislators to reconsider whether existing laws continue to further the public interest," the strategy says. "In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence."