Recently, California legislators took the first steps towards combatting HIV criminalization by introducing a bill that would downgrade the charge for failing to disclose positive status to sexual partners from a felony to a misdemeanor. The bill would also apply to penalties against non-disclosure to blood banks.
The lawmakers who sponsored the bill believe it could assist in countering the widespread stigmatization of those who live with disease, in hopes of encouraging them to come forward and utilize resources.
“When you criminalize HIV or stigmatize people who have HIV it encourages people not to get tested, to stay in the shadows, not to be open about their status, not to seek treatment,” State Senator Scott Wiener said, as reported by the LA Times.
There have been at least 260 prosecutions of HIV-positive individuals since 2008, with some being sentenced to decades in prison for simply spitting at or biting another person.
However, the bill has already garnered intense backlash from Republican lawmakers and citizens alike. Because HIV is still a deadly disease, many believe knowingly withholding such information from a partner puts a life in danger. One lawmaker even described it as “disrespectful,” as originally reported by the LA Times. and many took to Twitter to share stories of loved ones who died after contracting the disease from a partner who did not disclose.
Though there are now more (often costly) drugs available to help prolong life for those infected with HIV, a cure is far from available. The concerns around non-disclosure are, in many ways, valid. There’s no denying the feelings of betrayal and disrespect (among others) that comes with learning that someone you trusted, if only for a brief period of time, knowingly withheld information that could result in contraction of a disease with no cure.
However in an email exchange, Black, queer writer Timothy DuWhite explained, “Carceral solutions to this ‘problem’ is really just an outcry for justice, however, definitely misguided.”
He’s more than right.
In a world in which non-punitive approaches to justice exist, one should seriously consider the harm done by locking someone up for nine or more years, and further limiting their access to resources due to now having a felony on their record—especially when those incarcerated for this crime are overwhelmingly Black and Latinx LGBTQI individuals.
Most reasonable people can agree that people who know they have HIV/AIDS should disclose to all partners. But most people should also be able to agree that, regardless of whether or not someone discloses, it is still just as much of your responsibility to protect yourself from diseases as it is your partner’s, if not more. Safe sex is a two way street, and it is never wise to base the decision to use protection on word of mouth—especially due to the fact that not everyone who has an STD/STI is aware of their status. According to the Center for Disease Control (CDC), 13 percent of the 1.2 million Americans living with HIV/AIDS in 2013 were unaware of their status.
More importantly, such backlash—particularly those comments threatening violence—prove the point the California legislators were trying to make. Just introducing the possibility of treating HIV positive individuals as human beings, rather than deviants or criminals, makes some people feel as though they are justified in murdering them.
That is stigmatization at work.
That same stigma is responsible for dissuading people who are at risk of exposure from getting tested.
That same stigma is also responsible for preventing people who are HIV positive from seeking out resources and treatment, because who wants to be subjected to the constant judgment and shaming?
That same stigma is also what keeps people from disclosing to their partners, or would-be partners.
See how we’ve come full circle?
It still remains unclear as to just how much of an effect classifying willful non-disclosure to a misdemeanor will have. A wide array of experts, from psychologists to public health professionals, believe it would significantly assist in decreasing the transmission of HIV/AIDS. However if the goal is to one day achieve complete destigmatization, then retaining any form of penal criminalization might not achieve that end—especially when the state’s refusal to recognize and respond to the HIV/AIDS epidemic at its heyday led us directly to where we are today.
“We as a people cannot sit around and allow our family members to be snatched up and made to work as a slave in a cage for the state–for transmitting a disease that the state made sure was placed in our bodies in the first place,” DuWhite argues.
It is high time for us to stop using our own misconceptions around HIV, various phobias, and personal laziness to justify the criminalization and incarceration of a vulnerable population within an already marginalized community. Once and for all.