Advocates Urge Repeal of U.S. Laws Criminalizing HIV

by Winnie McCroy
EDGE Editor
Wednesday Apr 3, 2013

The producer of a new documentary about criminalizing those with HIV summed up such laws' effects at a public showing of the film.

"These horrendous punishments are vastly disproportionate to the crime," said the film's producer, Sero Project founder Sean Strub. "People were sent to prison when they used a condom, and had an undetectable viral load."

Strub was speaking earlier this month, when advocates for the repeal of HIV criminalization statutes gathered at the headquarters of Gay Men's Health Crisis in New York City for a screening of "HIV is Not a Crime," a short documentary about how arbitrary HIV criminalization laws have affected the lives of three people living with HIV.

Strub brought with him Sero Project's Robert Suttle, who was featured in the film. After the film, GMHC Public Policy Associate Elizabeth Lovinger, Alison Yager, a lawyer with the HIV Law Project and GMHC's Robert Valadez all discussed the ways such laws have impacted on public health discourse in this country.

Initially, participants said, it was hard to see the inherent danger in such laws. After all, hadn't they been created to prevent the transmission of HIV? The problem is, however, there has not been a single conviction where someone intended to harm another person via HIV infection.

Calling the issue "very complicated," Strub added, "It's not one that I find people understand the first time they engage on it. If you ask people if it should be a crime if someone with HIV doesn't disclose that before sex," he said, "almost everybody said, 'yes.'"

That includes nearly 80 percent of gay men in the U.S. "Once people understand the effect this has on public health," he warned, "their views about how this legislation is being used begin to change."

In effect, said Strub, the laws have created a class of people subject to prosecution based on an the immutable characteristics of their serostatus or active viral load at the time of sexual activity.

According to Yager, HIV criminalization legislation was adopted early in the epidemic as part of the early Ryan White CARE Act. Although those specific measures were removed, HIV-specific laws are still on the books in 35 states.

They have resulted in hundreds of convictions, 25 percent of which have been for such "crimes" as spitting or biting. Such questionable modes of HIV transmission, in fact, are now widely considered to present no risk whatsoever of HIV transmission.

Laws ’Widely Divergent From Science’

Instead of getting rid of such useless and pernicious laws, states are adding them to their books.

Nebraska recently made it a felony for a person with HIV to sneeze or vomit in the direction of a police officer. On Mar. 20, the Kansas Senate went so far as to approve a bill that could quarantine individuals with HIV despite opposition from the Kansas Department of Health.

"These laws are widely divergent from the science and facts that we know about HIV," said Yager. "And the laws don’t require transmission for prosecution. The prison sentences can be longer than those for vehicular manslaughter."

Many of these laws don’t even require malicious intent or reckless behavior to be present. Regardless, the laws continue to destroy lives.

HIV-positive soldier Monique Moree found herself booted out of the Army once her superior officers discovered she was having consensual, protected sex with a fellow soldier. Nick Rhoades used a condom and did not transmit HIV, but found himself in jail, after being told he was "a very bad person, who did a very bad thing." And Robert Suttle himself was arrested at his job as a court clerk and thrown into a Louisiana jail after, he said, an abusive ex-boyfriend who wanted revenge accused him of HIV transmission.

"I’m not a criminal or a sex offender," Suttle said. "Never did I imagine I would be prosecuted because of my status. These laws are the perfect storm for people who are vulnerable to be caught up in criminalization." He pointed out that the laws have been used to target those who are poor, black and gay as well as HIV-positive.

Take the Test and Risk Arrest

HIV criminalization is one of the most extreme manifestations of HIV stigma. Health advocates maintain that it translates into making those at risk for HIV reluctant to get tested. As the alarming new adage goes, "take the test and risk arrest": Responsible behavior (taking the HIV test) becomes something penalized while the law promotes ignorance about HIV status.

Such legislation tears apart communities and families, and creates a gender imbalance where men are locked up while women are left to raise children. "Significantly more men than women are incarcerated," Lovinger said. "So this same stigmatization of ’predators’ and ’offenders’ is also at play."

Lovinger’s clients understandably become angry when they learn they have contracted HIV; they feel as though someone misled them and should be punished for doing so. She admitted it was difficult to validate these feelings, as she was strongly opposed to the HIV.

"Advocates need to see that it’s a real-life issue," she said, "something to hold onto in your personal life."

HIV criminalization laws changed Suttle’s life. Two days after he was released from prison, he called Strub, who is also the founder of POZ Magazine, for help.

As coincidence would have it, Strub was driving through Louisiana at the time, just a half-hour away from Suttle. He hired the young man to work at the Sero Project, under the adage, "Your misery is your ministry."

"I decided I wanted to be the voice and face of HIV criminalization, especially for black men, although the issue affects all men and women, straight and gay," Suttle said. "These laws are shameful. They hurt us, and they are not protecting you or me. HIV criminalization is real -- this can happen to you."

For more information on HIV criminalization, visit or

Winnie McCroy is the Women on the EDGE Editor, HIV/Health Editor, and Assistant Entertainment Editor for EDGE Media Network, handling all women's news, HIV health stories and theater reviews throughout the U.S. She has contributed to other publications, including The Village Voice, Gay City News, Chelsea Now and The Advocate, and lives in Brooklyn, New York.


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