HIV Criminalization May Discourage Testing, Study Shows

After a series of high-profile criminal prosecutions of people who failed to disclose they are HIV-positive, some might hope not knowing their status protects them from jail time.

BY Todd Heywood

July 18 2012 4:00 AM ET

Carol Galletly — a lawyer, professor, and researcher at the Medical College of Wisconsin — says scientists “can’t afford to ignore” the new study but that it may not translate to U.S. experiences.

“As for whether I think we’d see the same thing in the U.S. ... I don’t think we’d see that level of awareness of law (either case law or statutes) among a sample of MSM [men who have sex with men] in the U.S. because our HIV exposure laws and prosecutions vary so much state by state,” Galletly said in an email exchange.

Unlike Canada, where prosecutors rely on traditional criminal laws such as sexual assault, attempted murder, and murder, the U.S has a patchwork of laws specifically involving HIV. According to the Center for HIV Law and Policy, 34 U.S. states and two U.S. territories have HIV-specific criminal laws. Some of those laws criminalize failure to disclose an HIV-positive status to sexual partners — regardless of whether the virus is actually transmitted. Even in states without specific HIV statutes, prosecutors can bring charges under traditional criminal laws, such as assault with a deadly weapon charges.

Galletly says even in the most optimistic scenario, knowledge of U.S. laws — as opposed to prosecutions — would be low.

“A highly informed group in the U.S. would likely have 75% HIV-positive participants and under 50% HIV-negative participants who were aware of the law,” she says.

But, she adds, “if we asked in the U.S. if people were aware of prosecutions (not laws but prosecutions), I’m thinking these percentages would increase significantly. Most everyone has likely heard about one or more of our high profile cases.”

(RELATED: For & Against Interviews Regan Hoffman and Sean Strub on HIV Criminalization)

“Should we try to replicate this in the U.S.?,” asks Galletly. “Perhaps. Would we have the same results? I’m not sure.”

Galletly says that preliminary analysis from at least one U.S. study currently undergoing review “did not reveal a deterrent effect” on testing. According to Galletly, “Persons who were aware that their state had an HIV exposure law did not test less frequently ... than their counterparts who were unaware of their state’s law.”

Until now, references to the impact of criminal prosecutions and laws on HIV testing behavior have been anecdotal. Activists have referred to the “word on the street” as “take the test, risk arrest.” In interviews with The American Independent, one tester from Indiana said that he has seen people walk away from testing after being shown paperwork detailing the state’s “duty to warn” law.

In Indiana, test subjects are required to sign a consent document for the test that explicitly outlines the impact of a positive test result and Indiana law:

“I understand that if my HIV test result is confirmed positive, I will be counseled as to my duty to notify my past and present sex and/or needle sharing partners, including any spouse ... of my HIV positive status so they may arrange medical care. I will also be counseled as to my duty to notify all current and future sex and/or needle-sharing partners of my HIV positive status prior to engaging in behavior which may put them at risk per Indiana law. I understand my counseling will also include my inability to donate body fluids and tissues or sign a donor card or document. In addition, I will be informed of the benefits of early medical treatment.”

The testing agent from Indiana says that he has had clients get up and walk out of testing because of this section of the consent document (full document can be viewed here).

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