At the height of the AIDS epidemic, California’s state government was unified in its response.
The state legislature decided in 1988 that somebody who donated blood while knowingly HIV-positive could be punished with up to six years in prison. Ten years later, it became a felony to have unprotected sex with the intent of transmitting HIV to a partner.
Now, in 2017, a group of Democratic state lawmakers say times have changed — not that those behaviors shouldn’t be illegal, but that HIV/AIDS shouldn’t be singled out. Under California’s newly introduced Senate Bill 239, intentionally transmitting any infectious or communicable disease, including HIV, would be a misdemeanor, not a felony.
“When you tell people that these laws single out HIV and only apply to people with HIV and not any other infectious disease, they pretty quickly see that it’s irrational and discriminatory,” state Senator Scott Wiener, a Democrat from San Francisco who introduced the bill last week, said in an interview.
The existing laws have had a limited, but nonetheless very real, effect. According to a 2015 study by the Williams Institute at the UCLA School of Law, 800 people came into contact with the California criminal justice system between 1988 and 2014 “either under an HIV-specific law or under the misdemeanor exposure law as it related to a person’s HIV-positive status.” Of those, 95 percent engaged in sex work or were suspected of doing so.
Should the new bill become law, mandated criminal penalties for donating blood, organs, semen, or breast milk despite being HIV-positive would also be repealed. Existing law ensures all donors of any bodily substance are screened for HIV, hepatitis agents, or syphilis before any transfer occurs.
“I think some of it is based on homophobia,” said Rick Zbur, the executive director of Equality California, an LGBT civil rights organization supportive of the bill. “And these laws were based on fear of the disease. They were passed quickly, when there was very little known about the disease, and based on public fear that was occurring in the late ’80s at the height of the epidemic. This happened across the country.”
According to the Movement Advancement Project, an LGBT-focused think tank, 38 states have HIV-specific laws like the ones SB239 would repeal, and in another six, people have been prosecuted for a crime based on their HIV status.
In deep-blue California, where Democrats hold supermajorities in both legislative chambers, it’s unclear if there will be opposition, and where it might come from.
Shaun Rundle, a legislative representative for the California Peace Officers Association, said the organization had not yet reviewed the bill in depth but would do so in the coming weeks. They would likely focus on any provisions that would require prior convictions, criminal charges, and arrest records to be expunged.
Wiener said no pushback has materialized yet, but he’s aware of the potentially tricky optics of relaxing penalties for intentional HIV transmission.
In 1998, the law increasing penalties for intentional transmission drew broad support. It passed 37-0, with three abstentions, in a Democratic-controlled state Senate, and 67-1, with 12 abstentions, in a Democratic-controlled state Assembly.
“People said, ‘There ought to be a law against this,’ and I agreed,” former state Senator Richard Rainey, the Republican who introduced the bill, told the Los Angeles Times in 2003. “The way I see it, these people are handing out potential death sentences.”
While perceptions may have changed, the thinking that unsafe behavior from HIV-positive individuals should lead to severe punishment is still one that could carry weight, a potential obstacle to the new bill’s passage.
“It’ll definitely require some education, and we’re prepared to do that,” Wiener said. “Not with everyone, though, because I’ve raised this bill with colleagues in both the Senate and the Assembly with brief descriptions and overviews, and I’ve gotten positive responses.”
Advocacy groups stress that the laws not only have a disproportionate effect on the LGBT community, but also “have a disparate impact on women and people of color,” Zbur said.
According to the Williams Institute study, less than 13 percent of HIV-positive Californians are women, but women account for 43 percent of criminal justice proceedings based on HIV-positive status.
African-Americans and Latinos were also disproportionately affected. They were subject to 67 percent of criminal proceedings, while making up 51 percent of California’s HIV-positive population. White males, who are 40 percent of HIV-positive Californians, accounted for only 16 percent of those who came into contact with criminal justice system.
Democrats’ attempts to pass such legislation on a national level have stalled, with California Congresswoman Barbara Lee’s bill dying in three House subcommittees and Delaware Senator Chris Coons’s bill never escaping the Senate Judiciary Committee.
Wiener said he’s “cautiously optimistic” about the odds for passing his state-level version. The bill will be taken up by the California Senate’s Rules Committee in March or April and potentially by the full body in June.