In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

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Ethical Inquiry: July 2012

HIV-infected cell

HIV-infected cell

 

The Ethics of HIV Criminalization

Over the last two decades, a slew of new state statutes criminalizing the transmission or possible transmission of HIV have made their way into the law books in the United States. The laws vary by state, but most target those who have HIV/AIDS and fail to disclose their serostatus (HIV-status) during sex; perform acts of prostitution; exchange needles; or make organ, blood or semen donations.

The reason lawmakers provide for implementing these laws is simple: people who have this deadly disease must be given some deterrent in order to curtail the HIV transmission rate within the U.S. Yet, the opposing question stands and has prompted the vast majority of HIV/AIDS support and advisory organizations to oppose such laws: do these statutes, rather than preventing transmission through threat of criminal prosecution, actually inhibit public health efforts to increase serostatus awareness and therefore cause more harm than good?

Do people, out of fear of prosecution, really disclose their serostatus and avoid risky sexual activity? Or do these laws increase stigma, cause people to avoid testing in order to avoid prosecution, and not produce a significant change in peoples’ risky behaviors? (See Huffington Post article here on this debate, by Scott Schoettes, HIV Project Director for Lambda Legal, and Christopher Clark, Senior Staff Attorney for Nick Rhoades, an Iowa man sentenced to 25 years in prison under an HIV criminalization statute).

In this “Ethical Inquiry” we will explore questions surrounding HIV criminalization laws in the United States. Do these laws protect the population and reduce costs to the health care system, or are there unintended consequences that are too great to bear? (NOTE: See also a related "Ethical Inquiry": "Normalization of Testing for HIV: Should Everyone Be Tested?")

Background

HIV criminalization laws are intended to deter HIV-positive individuals from either intentionally or unintentionally spreading the disease to another person who is unaware of the risk they are being put in. HIV is treated as a weapon: just as someone can be prosecuted for firing a gun, someone can be prosecuted for having sex without disclosing their serostatus, or for recklessly putting another at risk through organ donations, biting, or exchanging needles. The idea is if you criminalize it, people won’t do it and transmission will go down.

Such laws can be found in 32 states. In 13 states there are also laws under which an HIV-positive individual can be prosecuted for spitting on or biting someone (both which pose no risk of transmission). See here for a breakdown of which states have laws and to what extent. One such law is currently making its way through the state legislature in Massachusetts. H2205 would impose a penalty of 5 to 15 years of prison time for any seropositive person who does not inform their sexual partner, commits prostitution, sells or donates bodily fluids or parts, or shares a needle.

In recent years the number of prosecutions and number of new HIV-specific criminal laws have been increasing steadily. Between 2008 and 2010 alone, at least 80 people have been prosecuted under these laws in the U.S. Examples include an HIV-positive man in Texas sentenced to 35 years in prison for spitting at a police officer, an HIV-positive woman in Georgia serving an 8-year sentence for not disclosing her HIV status “despite the trial testimony of two witnesses that her sexual partner was aware of her HIV positive status,” and an HIV-positive Michigan man charged under the state's anti-terrorism statute with possession of a “biological weapon” after biting his neighbor. (See here on p. 199-200 for a comprehensive breakdown of prosecutions under HIV-specific statutes up to 2010.)

HIV criminalization laws have been implemented on many continents and convictions have been widespread, especially in countries such as Sweden (6.12 convictions per 1000 persons living with HIV {PLHIV}), Norway (4.66 convictions per 1000 PLHIV, and New Zealand (4.29 convictions per 1000 PLHIV). (See here – chart on p. 11 has an in-depth analysis of HIV criminalization law convictions across the world.)

Support for HIV Criminalization Laws

There are several reasons for support for these laws: The high rate of HIV prevalence has caused many state legislators to taken notice of HIV transmission as a public health risk that must be deterred, the high monetary cost of the disease, public fervor – even among HIV-positive individuals – focused on holding those who pose the risk accountable for their actions, and the desire to deter violent sexual acts against women.

High number of cases in the U.S.

With the staggering number of HIV cases in the U.S., some state legislators want to enact policies that will deter transmission. The number of HIV infections in the U.S. (“prevalence”) is higher than ever before, with the CDC estimating that 1,178,350 people were living with HIV infection by the end of 2008 (the last year in which a surveillance study was conducted). This represents a 7% increase from 2006, which can be attributed to new treatment methods leading to more people becoming infected from the disease than dying from it. Additionally, the estimated proportion of persons with HIV who know they are infected has increased from 75% in 2003 to 80% in 2008, so the increased prevalence can also be attributed to this new contingent of individuals who know their status. Looking at these high numbers, many argue that public health efforts to reduce transmission have failed and new methods must be implemented. (See here on page 1.)

The cost of HIV

The cost of the disease is another factor that prompts the implementation of transmission prevention tactics such as criminalization statutes. The increase in HIV prevalence and the staggering monetary costs to the health care system mean that HIV is a very costly disease within society.

Currently, the lifetime cost of a single HIV infection is estimated at $379,668 (in 2010 dollars). This cost is absorbed by the health care system, the government, and society overall.

Additionally, the cost per new diagnosis when using routine opt-out screening ranges from $1,900 to $10,000 in a health care setting, from $10,334 to $20,410 in community based organization (CBO)-sponsored activities, and from $3,000 to $30,000 in jails.

Public sentiment

There has been enough legislative support for proposed bills that they have passed in 32 states and 2 U.S. territories, and have garnered public support, even among HIV-positive individuals. In fact, in a survey study conducted in the U.K., over 50% of the 8542 homosexual men that completed a question about criminal prosecutions for HIV transmission indicated that they thought prosecutions were a good idea, approximately 25% of respondents indicated they were unsure, and only 17% (n=1456) indicated they were opposed.

A study of 31 HIV-positive individuals conducted in Michigan “found that most participants agreed with the intent of the state’s disclosure law and expressed strong support that they had a duty to protect sexual partners from becoming infected…participants felt a duty to disclose their serostatus or when disclosure was not possible to only engage in low-risk activities.”

Deterring sexual violence

In some countries, especially in African nations, there is a growing concern among lawmakers that violent sexual acts against women are leading to the further spread of HIV. According to HIV criminalization advocates, sexual abusers are inflicting a horrible action on victims and putting victims at risk for contracting a debilitating disease, and so must face greater consequences. By adding the risk of an HIV-related criminal prosecution on top of a rape prosecution, the hope is that these acts against women can be deterred. (See here on page 1.)

The same approach has been taken in the U.S., where many HIV criminalization laws impose heavier penalties for rape or sexual abuse when there is HIV transmission or risk of transmission (See Section 48, subsection b of MA law as an example). HIV criminalization laws such as the one being proposed in Massachusetts increase the jail time one may face for committing rape while infected with HIV.

Opposition to HIV Criminalization Laws

On the other side of the debate are those who oppose HIV criminalization laws, including most if not all HIV/AIDS service, lobbying, and advisory organizations and many prominent HIV scientists (see here). Those opposed believe that these laws are counterproductive, and contend that such laws in fact cause a greater rate of transmission, do not recognize that most seropositive individuals do not pass the disease, are ineffective in achieving their goals of deterrence, promote a false sense of security and further propagate HIV stigma.

Counterproductive

Some feel these statutes are counterproductive. Rather than reducing the number of HIV transmissions, many believe they will actually lead to more transmissions (See Criminalizing HIV Does Not Make Us Safer by the HIV Project Director of Lambda Legal.) HIV criminalization laws, the argument goes, drive HIV underground, leading to fewer people getting tested and treated, and causing significant public health issues. Rather than implementing new laws, education, testing, and treatment expansion has been seen as a necessary step toward reducing and one day eliminating the effects of HIV.

HIV incidence is stable – and most people with HIV do not transmit the virus

Despite increases in the HIV prevalence within the U.S., the annual number of new infections (incidence) has remained relatively stable since the late 90s. In 2006, 48,600 persons were newly infected with HIV and in 2009 that number dropped to 48,100, showing that the number of new infections is plateauing, if not turning downward.

Additionally, the great majority of persons with HIV do not transmit the disease to others. In 2006 there were only 5 transmissions per 100 persons living with HIV infection in the U.S., meaning at least 95% of those living with HIV did not transmit the virus (and that number could be higher if we account for the possibility that some individuals infected multiple people). This represents an 89% decline in the estimated rate of transmission since peak levels in the mid-80s. Such a stark turnaround in the transmission rate is likely due to effective prevention efforts and the availability of improved treatment and testing methods (See here for an article from the Johns Hopkins Bloomberg School of Public Health discussing this data and the reasons for the decline in transmission).

New treatment methods reduce risk of transmission – so people should be tested

HIV-criminalization laws may deter people from getting tested and knowing their serostatus since they further promote stigma, which causes people to distance themselves from the disease by avoiding being tested and diagnosed, and expose individuals to legal prosecution. But testing reduces transmission.

In many countries individuals can only be prosecuted if they know they are infected. Some people realize that they would be able to argue against such a prosecution on the grounds they did not know they were infected and therefore could not have informed their partner. These laws thus create a disincentive to knowing your serostatus (see articles here and here). People such prostitutes and men-who-have-sex-with-men (MSM), those at highest risk for both infection and transmission, may forgo testing out of fear of being prosecuted in the future. Since testing and treatment have been found to be the best transmission prevention method, any obstacle to obtaining higher rates of both are seen as detrimental to the HIV/AIDS community efforts.

New drugs can significantly reduce a HIV-negative person’s risk of contracting HIV and reduce a HIV-positive person’s chance of transmitting it. A recent study (iPrEx trial) shows that PrEP (PreExposure Prophylaxis, which is taken by a seronegative person before engaging in sexual activity) use by high risk groups, such as MSM, can provide an additional 44% protection against HIV infection (See here for article discussing results).

A large clinical trial (HPTN 052) conducted by the international HIV Prevention Trials Network (HPTN) confirms that treating HIV-positive people with antiretroviral (ART) drugs reduces the risk of transmitting the virus to HIV-negative sexual partners by 96% (See here for article discussing the results). Some have even claimed (see page 7) that due to these results, HIV-positive individuals on ART who have an undetectable viral load for at least 6 month and have no sexually transmitted infections are non-infectious.

Some HIV criminalization law opponents point to studies that show serostatus awareness is key to reducing transmission, since if people know their status they can get on an effective drug regime and become non-infectious.

HIV criminalization laws not effective

There is very little research on the efficacy of HIV criminalization laws being implemented across the U.S. and globally, yet some studies do show that these laws do not produce the results lawmakers hoped to find.

One study found that as of April 2007, in the states with such laws there was no evidence that the threat of criminal prosecution had any effect on encouraging disclosure of HIV status or deterring behavior that poses a risk of transmission. The study stated “people who lived in a state with a criminal law explicitly regulating sexual behavior of the HIV-infected were little different in their self-reported sexual behavior from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behavior as those who did not.”

The study concluded “given concerns about the possible negative effects of criminal law, such as stigmatization or reluctance to cooperate with health authorities, our findings suggest caution in deploying criminal law as a behavior change intervention for seropositives.”  (See here for another study conducted in England and Wales with results that mirror the previous study, and here for an overview of the studies in question.)

 

Provides false sense of security

One study from the Centers for Disease Control (CDC) found that the transmission rate of a group unaware of their HIV serostatus was up to 3.5 times that of a group aware of their serostatus. The study concluded “the HIV/AIDS epidemic can be lessened substantially by increasing the number of HIV-positive persons who are aware of their status.”

Since these results show that HIV epidemics are driven by people who are unaware of their HIV status, having people disclose their status may not have a significant effect – and opponents to criminalization laws contend that these laws can promote a false sense of security among those uninfected, leading to riskier sexual behavior (See previous link). Individuals may gain the false expectation that others will disclose their HIV-status before engaging in sex due to legal ramifications (See article by the Canadian HIV/AIDS Legal Network). Yet, their partners may not know they are infected.

Risk of stigmatization and its consequences

One main concern of those who oppose HIV criminalization laws is that these statutes might increase stigma against those with the disease and set back years of progress in the fight against HIV stigmatization. Those with HIV may be purposely avoided, shunned, and turned into a “viral underclass” since they can do harm. If HIV stigmatization were again to gain ground through these criminalization laws, opponents contend that the result would be a greater rate of transmission and a greater risk to the public.

This can negatively impact individuals and public health. According to the CDC, “HIV-infected persons who fear being stigmatized are typically reluctant to acknowledge risk behaviors, avoid seeking prevention information, and may experience real or perceived barriers to treatment and other health-care services.”

Additionally, stigma aimed at HIV-positive individuals can result in discrimination and other human rights violations. “From the start of the AIDS epidemic, stigma and discrimination have fuelled the transmission of HIV and have greatly increased the negative impact associated with the epidemic” (See here on page 4).

Final Thoughts

There is great concern among lawmakers to reduce the transmission of HIV in their communities. To some, criminalization laws seem like an effective path for achieving this, following the same tactic used to reduce the risk of other harms. Yet some believe that in this case, the unintended consequences – such as stigmatization of those with HIV, a false sense of security among uninfected, and reductions in people seeking testing – may outweigh the gains these law provide.

As these laws multiply and more people are prosecuted and sentenced, we must decide whether these statutes should be allowed to stand or whether they must be repealed in light of new research and arguments against such laws. How much do we gain? How much do we lose?

An informed discussion must take place in order to weigh the pros against the cons and find a balance that maintains public health goals while properly dealing with those who put others at risk.

Perhaps these laws do enough to curtail transmission rates and scare people into deterrence. Or perhaps they are a new obstacle in the way of eliminating HIV, and we can only move past this disease by repealing them and starting with an educational, testing and prevention structure that sees to change the way in which we view and deal with this disease.

Have suggestions for additional content that looks at the ethical issues surrounding HIV criminalization? Let us know:

This installment of "Ethical Inquiry" was researched and written by Robert Mesika ’12.