US criminal HIV disclosure laws may do more harm than good

United States criminal HIV disclosure laws may be unintentionally doing more harm than good by undermining safer sex messages, argue two academics specialising in the intersection of HIV prevention and the law in an article that was electronically published last month in the journal, AIDS and Behavior. Of the 23 states that currently have HIV transmission laws, the vast majority make it a crime for HIV-positive people to have sex without first disclosing their status, regardless of condom use or whether transmission occurred. However, the authors point out that there are few data determining these laws' impact on HIV prevention, and call for research in order to discover whether these laws are, in fact, undermining proven public health messages.

The impact of the law on the lives of HIV-positive individuals is currently a hot topic in the United Kingdom. Although the UK has no specific laws regarding the criminalisation of HIV transmission, case law now strongly suggests that an HIV-positive individual must disclose their HIV status to prospective sexual partners to allow for 'informed consent', otherwise they are open to prosecution for HIV transmission, should that subsequently occur.

However, the legal situation in other countries, and jurisdictions within those countries, varies greatly. In at least 15 European countries(including Denmark, France, Germany, the Netherlands, Norway, Poland, Russia, Sweden and the Ukraine) it is a crime to expose another person to the risk of HIV transmission, whether or not transmission has occurred. However, there are no reliable English-language data on whether any of these countries also have mandatory HIV disclosure laws.

Until recently, it was unlawful for an HIV-positive person to have even protected sex in New Zealand without first disclosing their status. However, a groundbreaking ruling last year found that "the steps necessary to prevent the transmission of HIV can be met without the requirement for disclosure. In other words, the use of a condom for vaginal intercourse is considered sufficient."

Nevertheless, according to Professor Carol Galletly and Professor Steven Pinkerton from the Center for AIDS Intervention Research, at the Medical College of Wisconsin's Department of Psychiatry and Behavioral Medicine, of the 23 US states that currently have laws criminalising HIV transmission, most make it a crime for HIV-positive individuals to have sex without first disclosing their HIV-positive status. This is the case regardless of condom use, and whether or not HIV transmission subsequently occurs. Penalties for exposure without disclosure (and without malice) range from a short prison sentence or a fine of $2500, or both, in Virginia, to a maximum of 30 years in prison in Arkansas.

However, they point out, since policing the bedroom is not currently feasible, comparatively few prosecutions for HIV exposure without disclosure (and without transmission) have taken place, compared to how often these laws must be broken. Consequently, they argue, "the purpose of US HIV disclosure laws seems to be to establish and promulgate expected norms of behavior."

They review the success of US national HIV information campaigns over the past two decades, and argue that they have served both the public, and HIV-positive individuals, well, by focusing on the 'universal precaution' strategy of assuming everyone may be HIV-infected, and by promoting condom-based safer sex when abstinence and mutual-monogamy was not possible. "Public health interventions aimed at preventing HIV transmission emerged as formidable, though not infallible, forces with which to contain the US epidemic," they write. "Unfortunately, one of the nation's most broad-reaching, and some might argue, potentially most powerful tools with which to disseminate and reinforce this public health response, the criminal law, promulgated a message of a different kind."

They then contrast ubiquitous and proven public health safer sex messages with the criminal HIV exposure laws and find, "perhaps surprising[ly], that only 3 of 23 existing US HIV disclosure laws mention condoms, and only 2 of these laws appear to acknowledge their protective benefit." After discussing the wording and details of several of the different states' laws, they conclude that "existing HIV serostatus disclosure laws not only fail to complement public health prevention efforts to promote condom use, they appear to undermine them."

They next examine some states' laws which criminalise certain behaviours that have no HIV transmission risk. For example, in Idaho it is illegal for an HIV-positive person to expose someone to urine or saliva without first disclosing their status. In addition, few states distinguish between high-risk sexual exposure, like unprotected vaginal or anal intercourse, and low-risk activities, like oral sex. "These laws directly contradict the public health emphasis on harm reduction," they write, "which encourages people to minimize risk when risk elimination is unfeasible."

"Moreover," they write, "the disclosure-based norm endorsed by these laws encourages at-risk persons to rely on prospective sex partners to disclose their HIV status, if positive, and to assume that there is minimal risk absent positive serostatus disclosure. Serostatus disclosure laws thus may foster a false sense of security among HIV-negative persons who may choose to forgo condom use unless notified of their partners' HIV-positive status."

Whilst public health officials have recognised the benefits of reducing the stigma of being HIV-positive, primarily to increase the likelihood that untested HIV-infected individuals come forward for voluntary HIV testing, HIV disclosure laws may increase HIV-related stigma, they argue. They may do this by highlighting the distinction between HIV-infected and -uninfected individuals. The latter's "consensual sexual activities," the authors point out, "are not subject to criminal scrutiny." The laws also link HIV with that which is "undesirable and dangerous", and "by suggesting that criminal laws are needed to protect an 'innocent' public from HIV infection, HIV disclosure laws may perpetuate the stereotype of the wanton or desperate HIV-positive person who is a threat to society, thereby contributing to continued HIV-related stigma."

The authors also discuss the many flaws inherent in using mandated or voluntary disclosure as a prevention strategy. "To be effective," they argue, "HIV-infected persons must be aware of their positive HIV status; second, HIV-positive persons must possess the skills needed to enable them to disclose their serostatus under all social and environmental circumstances; third, HIV-positive persons must choose to disclose their serostatus to all potential sex partners despite the sometimes substantial disincentives to doing so; and fourth, prospective partners, once informed, must either forgo sex entirely or practice safer sex."

They also point out that the US Centres for Disease Control (CDC) estimate that 25% of those HIV-infected in the US do not know their status, and note that "if asked, a substantial proportion of persons with HIV would report that they are HIV-negative or do not know their HIV status." The CDC have recently calculated that this 25% are responsible for up to 70% of sexually transmitted HIV infections.

In an attempt to understand why these laws exist they point out that 14 of the existing HIV disclosure laws "were enacted in the 1980s amid a climate of fear and uncertainty about the future course of the epidemic" and suggest that the laws' authors "did not have the time, or perhaps the expertise, to carefully consider the public health implications of these statutes." Nevertheless, most have been updated since, and some have been enacted recently.

The researchers point out that "despite the fact that nearly half of the 50 US states have criminal HIV disclosure laws, virtually no research has been conducted to evaluate whether these laws are needed and if so, whether they are effective and whether they are associated with any of a host of potential negative consequences." They subsequently call for research "to determine the extent to which criminal HIV disclosure laws undermine public health initiatives to encourage sexually-active persons to protect themselves and their partners by practising safer sex."

Finally, the authors argue that "HIV disclosure laws, which by-and-large omit any reference to condom use, turn the public health response to HIV upside down by implying that reliance on disclosure is an effective strategy for reducing HIV risk and by weakening efforts to reinforce presumptive condom use as a social norm."

They conclude that if these laws were "intended to prevent the spread of HIV", it is possible that criminal HIV disclosure laws actually do the opposite, and "may inadvertently do more harm than good."