This past week, U.S. representative Barbara Lee reintroduced a bill to repeal HIV criminalization laws across the nation, and it couldn't have come at a better time.
Earlier this year, LGBT people went on red alert when a public health bill in Kansas proposed that people living with HIV could be quarantined.
It felt shockingly familiar to those days in the 1980s when people like Jesse Helms actually called for “quarantine of those infected.” One poll at the time revealed that 50 percent of Americans supported this.
Luckily, activists secured revised language in the Kansas statute making sure this couldn’t happen. So for a hot second, the marriage equality fight (rightly) shared the stage with this potential shocker. Crisis averted. Resume previous heading.
Not so fast, Mr. Sulu. The thing is, we already have quarantines just as shocking and dangerous in 33 states across the country: virtual quarantines, “quarantines” literally written into our criminal law. And these laws aren’t old laws slowly and finally being pulled from the books: They’re relatively new (and new ones in more states are being proposed and debated).
I’m referring to the biggest civil rights issue that should be — but largely isn’t — on everyone’s radar: HIV criminalization.
In varying degrees across the country, people are going to jail or receiving heightened penalties for otherwise minor crimes for not disclosing their HIV status to their sexual partners. The stark reality of this is no less shocking than those calls for quarantine in the ’80s.
People living with HIV are going to jail and they’re going because of their HIV status. Going to jail despite doing all the right things: getting tested, getting treated, using condoms. Yes, you can use a condom and still be tried. Going to jail for failing to disclose, or being falsely accused of not disclosing, their positive status.
Laws differ in the various states. Some are unclear and confusing. Some require intent to actually transmit HIV. Many don’t. Some apply to unprotected sex. Many don’t. Some are so vague and confusing they’d apply to any intimate behavior, like kissing or spitting on someone.
In fact, a Texas man is serving 35 years in prison for spitting on a police officer. HIV is not transmittable by saliva — at least according to those hacks at the Centers for Disease Control and Prevention.
Moreover, because there are no clear guidelines on enforcement of these laws, their application often ends up in the hands of some religiously overzealous county prosecutor.
What is clear is that people who did nothing wrong but contracted a virus are being singled out. In the words of Sean Strub — the brilliant, tireless activist on the front lines of this issue — we are creating a “viral underclass.” Call it what you want, but quarantine sounds like the right word to me.
Make no mistake. This isn’t just about HIV. When these laws are passed, we’re told it’s about the laudable goal of effectively addressing a medical issue and combating a virus. But if that were true, why aren’t there similar laws for things like HPV and gonorrhea?
Every year, 4,000 women die of cervical cancer that is traceable to HPV. Why is there is no disclosure requirement there?
No. This is about agendas of hate and homophobia, stoked by repeated appeals to fear and ignorance, using the ugly stigma of HIV to further that hate.
The civil rights side of this should be enough to shock you into action. When I first heard about this, I’m embarrassed to say, I knew shockingly little about it. And I’m a lawyer. But it gets worse.
These laws are a serious threat to the progress we have made fighting the spread of HIV and finding a cure and vaccine. How? Because the laws turn on your knowledge of your status.
In the poz community a scary slogan has developed: “Take the test, risk arrest.” People would rather remain ignorant than get placed in criminal jeopardy. And sadly, this line of thinking isn’t all that irrational. So the laws are doing the opposite of what they’re supposedly intended to do: get people tested and treated so that they can reduce transmission. Scary.
Legally speaking, when courts examine a law or action by the state that singles out one group of people, they often conduct a searching review of how well that law is tailored to address a problem or societal need.
As we’ve seen, courts are starting to grant higher levels of scrutiny to laws singling out LGBT people. It has become empirically clear that each of these laws singling out people living with HIV (gay, straight, bisexual, whatever) is preventing realization of this critical public health goal.
Any of us can be one step away from HIV — a broken condom, a botched blood transfusion, or even being a child born with HIV — just like we are always just one step away from numerous viruses or illnesses. It is sadly part of the human biological experience.
Right here in New York City, not two miles from where I sit, is an abandoned island that was used as a forced quarantine facility for people with infectious diseases: typhoid, scarlet fever, leprosy. This is where these kinds of laws lead. Long ago, we realized that putting people in camps wasn’t the answer. Neither is using our criminal laws to create virtual camps for those living with HIV.
These laws have enabled a scary symbiotic relationship to thrive between the forces of homophobia and HIV ignorance. This is why it’s critical to add addressing this to our list of musts. It falls on us to fight because the forces of homophobia continue to spew the like that HIV/AIDS is a gay-only disease. Of course it isn’t. But they will not make that connection while pursuing policies that will hurt themselves by furthering the spread of HIV not just among gay people but among everyone. Most hetero voters living in these 33 states with HIV criminalization laws haven’t even considered this danger. They simply buy the facile, reasonable-sounding propaganda that “Yeah, people should disclose their status.”
It’s up to us to expose the simple truth that the second we start fighting people with HIV instead of HIV itself is the moment we start losing this critical public health battle. In 33 states that second has come and gone. We all better wake up and get on board with this fight before the entire nation becomes a quarantine for the more than 1.1 million people currently living with the virus — and for us all.