Capitol Alert

Should HIV-positive people still face felonies for not telling partners?

The beginning of a new relationship has always been a struggle for Nestor Rogel, who was born with HIV.

Under current California law, Rogel, 26, could be convicted of a felony if his partner says he didn’t disclose his HIV-positive status, even if he has taken preventive measures or medication or if his partner does not get the disease.

When anti-retroviral therapy is successful, it all but eliminates the possibility that someone will transmit the infection, according to the Division of AIDS at the National Institutes of Health, citing a groundbreaking study whose results were announced in 2011.

“I feel that I have to work extra hard in these (dating) situations, and it’s hard to tell what the right action even is,” Rogel said. “And needing to do that is based on outdated conceptions about HIV and HIV transmission. But it’s still the current law.”

Rogel said California laws targeted at HIV-positive people contribute to continued misinformation and stigma around the disease. That’s one reason a San Francisco lawmaker is is trying to overturn laws that punish people who don’t divulge their HIV- or AIDS-positive status.

Democratic state Sen. Scott Wiener has proposed Senate Bill 239 to repeal the laws, saying they do not reflect current HIV medical practices, and have not helped stop the spread of HIV and AIDS.

“We’re very serious about this reform, and moving away from this criminalization model around HIV and going to a more public health approach,” Wiener said. “Fundamentally, HIV is a public health problem, not a criminal justice problem, and it needs to be treated this way.”

California law says it’s a felony for an HIV-positive person to have unprotected sex without informing their partner that they are infected. It is also a felony for HIV-positive people to donate blood, body organs or other tissue. Those convicted can spend up to seven years in prison if found guilty. Another law upgrades a misdemeanor for prostitution to a felony if the person charged has HIV or AIDS.

Knowingly transmitting other communicable diseases, including other sexually transmitted diseases such as herpes and hepatitis, are charged as misdemeanors under California state law. Wiener’s bill would put HIV and AIDS in the same category.

State Sen. Joel Anderson, R-Alpine, acknowledged that HIV is not the death sentence it was when the laws were enacted. But he believes anyone spreading any communicable disease intentionally should be charged with a felony.

“If I infect someone with a disease from which they’ll never recover, and I do it purposefully, should I not be punished to the fullest extent of the law? I believe you should be,” Anderson said. “I think it should be the same thing about TB or any disease that alters your life for the rest of your life.”

Rogel said the laws, enacted in the late ’80s, are still in place because of fear and false information about the disease.

“Talking to others who support these laws, I’ve seen that it’s not from any malicious intent,” Rogel said. “It’s just that most people don’t understand the current science and are afraid of it spreading. There are many reasons and ways in life to deal with this disease, and these laws stop people from speaking honestly about the disease due to fear of criminal punishment.”

Advocates for repeal say criminal sentences can be used as leverage against people with HIV in situations like abusive relationships. Because it’s difficult to prove that someone told a partner about their HIV status, they say the partner could claim he or she was not told about the disease before sex and press charges.

The laws, which are found in more than 30 states in the U.S., have not decreased the number of new HIV cases, said Kate Boulton, staff attorney at the New York-based Center for HIV Law and Policy. “Modernizing these laws means moving away from singling out HIV... and making it more comparable to how other diseases of this nature are treated,” Boulton said.

More than 95 percent of HIV-related criminal incidents involve a “penalty enhancement” measure on people convicted for prostitution, according to Hussain Turk at the UCLA School of Law.

Under current law, when people are convicted of prostitution – a misdemeanor in California – they are tested for HIV. If the test determines they are HIV-positive and they are arrested again, they can be charged with a felony.

People of color, LGBT people and women are disproportionately affected by the laws, according to a report on HIV criminalization by the UCLA School of Law’s Williams Institute.

For example, while 40 percent of people living with HIV in California are white men, only 16 percent of people who have had contact with the criminal justice system because of their HIV status are white men. Only 4 percent of the HIV population are black women, but they make up 21 percent of those who have dealt with the criminal justice system due to their HIV status.

“These laws were passed at the height of the HIV/AIDS epidemic when there was enormous fear and ignorance and misinformation around HIV,” Wiener said. “This was the same time people were advocating quarantining people with HIV. It’s sadly not surprising laws based on ignorance and fear were passed in California. It’s time for California to lead and repeal these laws, and take a science-based approach to HIV, not a fear-based approach.”

Preventive and treatment medicine for HIV and AIDS has improved significantly since the 1980s, Rogel said, and current law should reflect that.

“You’re trying to punish severely many people for the potential actions of very few,” Rogel said. “These laws are again based on outdated facts and ideas, and they hurt many more people than they protect.”

Robin Opsahl: 916-321-1176, @robinlopsahl