The States Working to Reduce Criminal Punishment for Transmitting HIV

In 2008, Betsie Gallardo, a 24-year-old Florida woman, was sentenced to five years in prison for spitting on a police officer. Her spit was considered a “deadly weapon” because she was HIV positive—even though saliva can’t transmit the virus.

Florida’s criminalization of HIV extends beyond this extreme case of a “bodily fluid exposure” charge. Since the late ’80s, the Sunshine State, like 33 others, has considered the nondisclosure of one’s known HIV status before sex to be a felony. But in late February, a proposed bill to change this made it over one of its first hurdles in the state House of Representatives.

Drafted in collaboration with The Florida HIV Justice Coalition, The HIV Prevention Justice Act (HB 79) passed through the House Criminal Justice subcommittee on February 21, while a similar bill (SB 846) was recently introduced into the state Senate. Both would amend an existing law characterizing felony charges for defendants who allegedly knew they were HIV positive and “may communicate this disease,” but failed to inform their partner (regardless of whether the uninfected partner contracted HIV). If the bill becomes law, the penalty would be reduced to a misdemeanor, which all other STI-related charges are assigned.

“This legislation will save lives and take care of the whole community,” writes Alejandro Acostacoordinator for Equality Florida’s HIV Advocacy Project. “It will help decrease HIV stigma, encourage people to get tested and get into treatment.”

People who are HIV positive, like Acosta himself, experience stigma that makes people “afraid to say anything about their HIV positive status because they get looked at wrong … and beat-up, and all kinds of things, saying all kinds of names,” said Brenda Dye in her testimony supporting the bill. “I’ve been through that. And I myself want no one else to go on that trail. It’s a hard situation. When you are by yourself, you keep it [your HIV status] to yourself.”

The people diagnosed with HIV typically already belong to marginalized groups. In 2017, the majority (61 percent) of people receiving an HIV diagnosis were men who have sex with men. The second largest demographic (19 percent) was heterosexual women. Additionally, Black Americans (42 percent) led the rates of new diagnoses, followed by Hispanics (31 percent).

Between 2008 and January 2019, the media has reported 395 arrests and prosecutions for HIV exposure in the United States. That means there could be far more that have gone unreported. An AIDS and Behavior study found that Black people in Nashville were more likely to be arrested and prosecuted for an HIV exposure charge. In Florida, specifically, women constituted the highest percentage of those targeted by HIV-criminalization laws, according to a report released by the  Williams Institute at UCLA School of Law. The report also found that Black women were the most likely to be convicted of an HIV-specific offense in sex work arrests.

Florida’s reform efforts follow a series of other state-level changes. In December, Michigan passed a law that allows for misdemeanor charges if a defendant does not infect another person with HIV, when they failed to disclose their status and adhere to a treatment plan. The amendments will go into effect on March 28. But the state maintains felony charges for the defendant who transmits HIV to the uninfected person.

Similarly, Missouri state legislators pre-filed two bills for the 2019 session that would remove language that targets HIV-specific transmissions in criminal exposure charges.

Back in Florida, though, the success of HB79/SB86 is not guaranteed. The state legislature attempted to pass similar reforms in 2017, but they were halted in the state Senate’s Health Policy subcommittee. A number of Criminal Justice committee members expressed concerns that people who intentionally transmitted HIV were not properly penalized, while others were concerned about a reduction in penalties across the board.

Another member, Representative Adam Hattersley, expressed a sentiment that most of his colleagues agreed with: “We need to make sure we are forward and together with modern technology and modern science. And we need to make sure our laws reflect that science.”

But even if the bills become law, the fight for HIV justice is far from over. “While there will be some positive reforms if HB79 is passed, the bill would still criminalize the most marginalized Floridians living with HIV,” Jada Hicks, a staff attorney at the Center for HIV Law and Policy, tells Filter. For example, the bill does not address sentencing enhancements. “A conviction for prostitution or solicitation in Florida is typically a misdemeanor offense. However, if the sex worker is HIV positive, the offense is automatically enhanced to a felony solely based on HIV status.”

“Reform for some is not reform for all,” writes Hicks. “Reform efforts have to include all communities of people living with HIV, particularly those facing disproportionate interaction with and treatment by the criminal legal system.”

Photograph: Queerocracy via Visual AIDS

Sessi Kuwabara Blanchard

Sessi is an independent drug journalist and drug-user activist. She lives in New York City.

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