by Matthew S. Bajko
Due to advances in how HIV is treated and its transmission is prevented, state lawmakers and AIDS advocates say it is time to amend California’s anachronistic criminal codes that target people living with the virus.
Adopted during the height of the AIDS epidemic in the 1980s, the laws are a hindrance to efforts by local and state health officials to end HIV transmission by 2020, contend policy makers and public health professionals.
“The treatment of HIV has entered the 21st century and it is time California’s laws reflect that as well,” said Equality California Executive Director Rick Zbur.
The statewide LGBT advocacy group has banded together with a number of other organizations and lawmakers to co-sponsor Senate Bill 239, introduced Monday, February 6 at a news conference at Strut, the gay and bisexual men’s health center in the heart of San Francisco’s Castro district. The legislation would amend a state penal code that makes it a crime to intentionally infect someone with HIV even if no transmission of the virus took place, as the Bay Area Reporter first reported on its blog Friday, February 3.
“Having laws on the book that treat people living with HIV as criminals is unacceptable,” said gay state Senator Scott Wiener (D-San Francisco), the lead author of the legislation. “In some cases, even if there is no physical contact whatsoever, you can be guilty of a felony and go to prison.”
The legislation would make it a misdemeanor, rather than a felony, for a person to intentionally transmit HIV or another communicable disease to their sex partner. In order for the person to be charged, they would need to know they were infected with the infectious disease and intended to infect someone with it. They would also have to engage in conduct that posed a “substantial risk of transmission” and actually transmitted the disease to the other person in order to be charged by a prosecutor.
Under current law, HIV-positive persons may be prosecuted for engaging in unprotected sexual intercourse with the specific intent to transmit HIV even if no actual transmission of the virus occurs. If convicted under the current statute, they could be sentenced to up to eight years in prison.
“Our current state law is outdated … It should be repealed,” argued gay Assemblyman Todd Gloria (D-San Diego), a co-author of the bill who flew in to attend the news conference Monday morning. “It does nothing to bring us closer to a cure or encourage people to come forward to get tested and get treated.”
Another criminal statute on the books that would be amended under SB 239 targets sex workers who are HIV-positive. If the person is convicted of solicitation, even if they did not engage in intercourse, they can be sentenced to prison for 16 months or longer. That would no longer be the case under the proposed legislation.
“This is a great day for California. This legislation will advance human rights and protect our communities,” said Naina Khanna, who is living with HIV and is executive director of the Oakland-based Positive Women’s Network-USA.
Four statutes in CA
There are currently four criminal statutes in the state that deal with the transmission of HIV. A penal code section that says an HIV-positive person who engages in a nonconsensual sex crime, such as rape, could see three years added to their sentence will not be changed by the proposed legislation.
But SB 239 will address the health and safety code that says it is illegal for an HIV-positive person to donate blood, organs, tissue, semen, or breast milk to an HIV-negative person. If convicted under the statute, they could face up to six years in prison. (Emergency legislation adopted last year made it legal for an HIV-positive person to donate their organs to another HIV-positive person.)
The Senate bill would change the statute so it would only be a crime if an HIV-positive person makes such a donation to intentionally infect someone and that person does become HIV-positive. It would make the transmission of HIV through such donations similar to the criminal statutes applicable to all infectious diseases, noted Wiener.
As Scott A. Schoettes, the HIV Project director at Lambda Legal Defense and Education Fund, told the B.A.R. in a phone interview Friday, February 3, the statutes need to be updated “because people are being prosecuted and incarcerated for no good reason under the existing HIV-specific criminal laws in California.”
According to a December 2015 study conducted by the Williams Institute, an LGBT think tank at UCLA School of Law, 800 Californians between 1988 and June 2014 came into contact with the state’s criminal justice system due to their being HIV-positive. The study noted that nearly all of the cases, 95 percent, involved people either engaged in or suspected of sex work.
The number of incidences have drastically dropped over time, found the study, with just 17 people having a HIV-related criminal contact in 2013, the most recent full year of data obtained for the study. It was the lowest number since 1991, noted the report.
Black and Latino people were disproportionately represented at 67 percent of the cases, although they account for about just half, at 51 percent, of people living with HIV or AIDS in the state, found the report. In California, an estimated 138,879 people were living with HIV and AIDS in 2014.
The HIV laws also significantly impacted women, who accounted for 43 percent of the cases the study identified even though women make up less than 13 percent of the HIV-positive population in the state.
AIDS advocates have long contended the laws are outdated and, rather than protect public safety, provide incentives to people to not know their HIV status. Yet for years lawmakers in Sacramento have refused to carry legislation to amend the statutes.
“We have been working to get this issue on the radar of legislators in California for the last couple of years,” Khanna told the B.A.R. during a phone interview last week.
Even prior to winning their elections last fall, both Wiener and Gloria had signaled to advocates that they would carry the legislation to amend the HIV criminalization statutes.
“HIV is a public health issue, not a criminal justice issue,” said Wiener, who is HIV-negative and made headlines in 2014 for announcing he was taking the HIV prevention pill known as PrEP.
While the legislation is expected to easily pass out of the state Senate, it is unclear what reaction the bill will receive in the Assembly from lawmakers or if it will be opposed by outside groups. Mark Zahner, the chief executive officer of the California District Attorneys Association, did not respond to a request for comment about the bill.
Gloria, whose job is to count votes for legislation as one of two assistant majority whips in the Assembly, vowed to ensure SB 239 is sent to the desk of Governor Jerry Brown this year.
“This is not a Bay Area thing, it is a statewide thing. We will make sure Sacramento cares about this issue,” said Gloria. “We will get this through the Assembly. Collectively, we will get this done.”
Working with him will be Assemblyman David Chiu (D-San Francisco), another co-sponsor of the legislation. (Lesbian Assemblywoman Susan Talamantes Eggman, D-Stockton, is also a co-sponsor, as is Senator Holly Mitchell, D-Los Angeles.)
“As a former prosecutor, I know firsthand the need to get outdated and unscientific laws based on homophobia and fear off the books,” said Chiu. “These laws criminalize and stigmatize people with HIV, and they must be updated.”
Gay San Francisco Supervisor Jeff Sheehy, who is the first person living with HIV to serve on the board, hailed the introduction of the state legislation as being long overdue, especially in light of the advances that have been made in controlling a person’s HIV viral load and preventing people from becoming HIV positive in the first place.
Sheehy pointed out that, under the current statutes, a person whose HIV infection is virally suppressed who has condomless sex with an HIV-negative person taking PrEP could face prosecution even though the risk of transmission of the virus is practically zero.
The existing laws are “absolutely terrible for public health,” said Sheehy, who served as former San Francisco Mayor Gavin Newsom’s adviser on HIV policy. “I look forward to this law passing and being signed by the governor.”