A Few Questions Concerning Criminal Transmission
By Laura Jones

Like everything else about life with HIV, navigating the legal issue of Criminal Transmission laws is complicated. There’s no federal law addressing disclosure or the deliberate exposure of others to HIV, so states are free to pass their own laws as they see fit. New York has no laws that specifically criminalize HIV exposure, while California has five. In Illinois, an HIV-positive person who engages in “intimate contact with another” without disclosure has committed a criminal act, even though “intimate contact” is as vague as you can get when talking sex. So, how does one make decisions that simultaneously protect one’s partners and one’s own safety if state law forbids “intimate contact” without disclosure, even if that contact poses no risk of infection? How do racism, sexism, and homophobia inform who is and is not prosecuted under these laws? And how do HIV-positive people in all of their diversity feel commonality on these issues? Or are their opinions as diverse as they are?

For this article, we sought that diversity of HIV-positive voices. Barb, originally from Ohio, is Director of Programs for a Chicago agency run primarily by and for HIV-positive people. Carlos, a Cuban-American who acquired HIV early in the pandemic, works with a large community health organization that establishes medical clinics in low-income neighborhoods. Justin hails from Alabama and is preparing to move to San Francisco for graduate school. Keith, born and raised on Chicago’s South Side, organizes area deejays to bring HIV/AIDS education into hip-hop venues in Southside neighborhoods. Ann Hilton Fisher, Esq., Executive Director of AIDS Legal Council of Chicago, adds her perspective as a lawyer who has provided legal counsel for HIV-positive people since the 1980s.

Was non-disclosure or lying about HIV status involved when you acquired HIV?

Barb: I picked it up sexually from my husband in 1990. We’d been dating for a year and were planning to get married when he found out he was positive. He got a call from an ex-girlfriend who told him she had HIV and that he should go get a test. He told me after we came home from a vacation we’d planned. I went and got my own test, but I’d already had symptoms of seroconversion sickness earlier that year. It was like Rocky Mountain Spotted Fever and they were checking me for all these things, but no one thought to test me for HIV because I was this White middle-class college-educated monogamous young woman. Anyway, we went ahead and got married like we planned.

Carlos: I am sure I got infected through IV drug use — that was my highest risk activity in 1979, which is when I appear to have been infected. This was way at the beginning of the epidemic, so we didn’t even know about HIV then. I was worried about getting viral hepatitis because that was the killer bug at that time.

Justin: In January 2002, I met this beautiful boy at a local bar. I trusted him when he said he had been tested for HIV two weeks before and it had come back negative, and we proceeded to have sex without a condom. We continued having sex off and on for a week, and then he disappeared. A month after that, he called to apologize, saying he’d been freaked out by how close we were getting and asking if he could come by. Something told me to stop and have the HIV talk again. Again, he said he had been tested two weeks prior and it had returned negative. It struck me that he used the same exact words, only one month after saying them the first time. I never saw him again, and on July 3, 2002, my doctor told me that I was HIV-positive. I discussed the timing with my doctor, and he agreed that I contracted HIV from this boy.

The fact remains that I said, “Sure, it’s okay if you don’t use a condom.” I consented to unprotected sex, and while it was not informed consent, I still made my choice.

Keith: I want to start out by saying that I truly do not blame anyone besides myself. I was infected by someone who, I later learned, knew that they were HIV-positive. However, I had never asked that question. I did not take necessary precautions to prevent me from contracting it. Do I feel that my partner had a responsibility to disclose their status to me? Absolutely! Do I blame them for my infection? No!

The theoretical purpose of Criminal Transmission laws is to protect the public against HIV-positive people who are attempting to infect other people on purpose. Do you feel that these laws provide such protection, or do they primarily criminalize all HIV-positive people’s sexual expressions?

Ann: It certainly makes no sense to say you can’t have oral sex with a condom or a dental dam if you don’t disclose your status, but that you can have all the unprotected sex you want and no one can blame you for anything because you’ve avoided learning your status. But I have no problem with criminal penalties for people who deliberately infect other people, or even deliberately put them at risk (which the oral sex with the dental dam and the condom would not). There are plenty of criminal laws that would cover those situations already, But if legislators want to add one more for HIV, that’s okay with me.

Barb: They don’t protect, and they do criminalize our sexual behavior. Under some of the laws, I technically can’t kiss you or fondle you or engage in mutual masturbation even though none of those put anyone at risk for HIV, which is just crazy. At best, the laws are meant to protect people from mentally ill psychopaths because normal people with HIV who are educated about transmission don’t go around trying to hurt people.

Carlos: I do think that stories about somebody purposely infecting others, even when reported in the most unbiased way, criminalize HIV-positive people. It immediately feeds the more biased media reporters and religious pundits who point the finger and say, “See how these horrible people behave?” and then it’s immediately followed by bigots who want to quarantine people living with HIV. However, it is hard to feel pity for someone who is purposely infecting anybody with HIV or any STDs.

Justin: I do not believe they criminalize any and all sexual expression. But frankly, I also don’t believe that these laws offer such protection in practice. It is my understanding that one must prove intent to transmit in order to prosecute someone. How can you prove someone’s intent in the heat of sex?

Keith:I am not so sure that these laws actually provide such protection. As often as I hear about people willfully seeking to transmit the virus to other people, I rarely hear [about] anyone who is a victim of such behavior seeking criminal action. I personally do not feel these laws are criminalizing. I believe that HIV-positive individuals (as well as any other sexually active individual) should be held accountable for their actions and assume some responsibility for their sexual partners.

Do the Criminal Transmission laws in your state have any effect on how you handle issues of disclosure in your own relationships?

Barb: The laws didn’t change my behavior. Who I am motivated any changes I made. I was 26 when my husband died. And I think in the early 1990s when I started dating again, I really didn’t know how to deal with the issue. I didn’t want to infect anyone; I was terrified of that, and it was always on my mind. But I was scared about my own safety, too, because it’s not always safe to disclose. I spent a lot of time trying to figure out how to tell people when I was very much afraid they’d turn around and tell everyone else.

Carlos: For a very long time, I only had sex with other pos people because it was just so much easier on my mind and conscience. When I met my partner, who I’ve been with now for over 10 years, I was scared when he told me he was negative. He told me he held a couple of his past partners in contempt because they lied to him and told him they were negative when they knew they were positive. He thought this was immoral, unethical, selfish, pathological, and quite a few other special adjectives. And I was so scared because I felt the love for him immediately. By then, I knew too much about HIV. I had grown spiritually and had been in therapy for about six years. I cared for all my fellow men and women, and I could not have unprotected sex with anyone.

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