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Intersections: HIV part two Why non-disclosure laws are unjust and counterintuitive to public health

In Community/World News, Health and Wellness, Opinion/Editorial by Cindy Vicente

Currently, in thirty-two states—including Pennsylvania—it is a crime for HIV positive individuals to engage in sexual activities without first disclosing their HIV status to a sex partner. Charges may include, but are not limited to reckless endangerment, aggravated assault, and even attempted murder. To most people, this is justified; however in many cases this is not only unjust, it is in fact discriminatory.

The 1980s were marked by a swell of new wave revolutions in music, culture, sex, and politics. That decade also yielded a new infectious disease, known today as AIDS.

In the early years of the epidemic, the medical and governmental communities contradicted one another and the inaccuracies and misinformation. An example of a total inaccuracy was the initial belief that being of Haitian descent was a risk factor for contracting or transmitting AIDS. The medical community originally composed the “Four H’s” of risk factors—homosexual, Haitian, hemophiliacs, and heroin users.

Eventually, doctors correctly identified the risk factors, transmission route and developed an HIV antibody test by 1985. Unfortunately, inaccuracies, folklore, and stigma persisted. Fatal disease non-disclosure laws were subsequently created, but targeted people living with HIV.

First, the creation of these laws in the midst of such a profoundly foggy and fear-based time period lends itself to legislating out of fear and without accounting for science and the public health perspective. The Center for Disease Control and Prevention tells us that the chance for HIV transmission to occur during the riskiest sex act—unprotected receptive anal sex—is 138 out of 10,000 exposures.

This illuminates the flaw in assuming that exposure will lead to transmission; the disclosure law criminalizes the sex act, regardless of whether or not transmission occurs. Stephen Latham, Director of the Interdisciplinary Center for Bioethics at Yale, describes this as the “criminalization of conduct,” and is a proponent of abolishing the AIDS disclosure laws.

Another argument in favor of abolishing these laws is the message that is conveyed every time a person is prosecuted for HIV non-disclosure; we are absolved from personal responsibility over our sexual health. Every time any of us engages in a consensual sex act, we bare the ultimate responsibility of taking steps to keep ourselves safe from HIV and sexually transmitted infections—our refusal to do so should not then fall on the shoulders of our sex partner.

The last and most profound argument against these disclosure laws is the unfair application. No cases have been found showing a person successfully prosecuted for transmission of other potentially fatal STIs such as Hepatitis C or Syphilis. The language of the law allows room for any one of us to pursue non-disclosure charges against a person for any infectious disease that could lead to our fatality, yet none have been discovered through an internet search. This is a harmful side-effect of HIV/AIDS-related stigma and permeating prejudice for those living with the virus. Most HIV/AIDS experts, including the CDC, agree that these laws exacerbate the stigma and rate of infection. This is why the public health opinion has advised, for years, the abolishment of these non-disclosure laws. The threat of unjust prosecution does not inspire a person to disclose, according to the Black AIDS Institute interview with Trevor Hoppe, a Doctoral Candidate at the University of Michigan, who conducted a study of legal cases involving HIV non-disclosure laws in his state. Trevor reported, “they are not decreasing new infections, they are not incentivizing disclosure. It could be just the opposite…”

Laws ignoring science and humanism have no place in society. Laws that are applied in discriminatory fashion should be repealed as they corrupt the legal discourse and dignity.

Roger Lyon, a person living with HIV, in a CDC in a sub-committee meeting decades ago, as he fought for recognition and government action on AIDS, said, “this is not a political issue. This is a health issue. This is not a gay issue. This is a human issue. And I do not intend to be defeated by it.”