The Crime of Being Positive
BY Todd Heywood
April 01 2013 5:00 AM ET
In the late fall of 1988, state lawmakers and representatives from major insurance and pharmaceutical companies were hard at work addressing the looming AIDS crisis for the American Legislative Exchange Council, a conservative-leaning think tank that produces state-based business-friendly model legislation.
The efforts of ALEC’s AIDS policy working group were published that year in a 169-page book containing 13 HIV-specific legislative recommendations. Some of those model laws would, after becoming real state laws, go on to effectively criminalize the behavior of people living with HIV and perpetuate a lasting stigma against HIV-positive people. Today, a majority of states have laws on the books that criminalize HIV exposure regardless of whether the virus was transmitted or there was an intention to infect another person with HIV.
ALEC was not alone in trying to find legislative solutions to the HIV epidemic, though its combination of lawmakers and industry insiders was unique. In the late 1980s federal and state officials across the country were convening special commissions and task forces to address the crisis. These groups — many of which worked in tandem — collectively helped create laws to regulate the conduct of those living with HIV.
The American Independent has reviewed transcripts and reports from some of these task forces in an effort to shed light on the history of HIV criminalization laws, something that to this day is not widely understood. What these documents demonstrate is that lawmakers and policy experts were responding to an overwhelming fear in America that HIV would impact the broader American population. Underlying many of these legislative actions was a growing fear and perception that HIV-positive people were maliciously, intentionally infecting others.
Nearly two and a half decades later, there is more knowledge about how to treat HIV as well as increasing evidence that HIV criminalization laws deter disclosure and may prevent those infected from receiving effective treatment. Now some of the people involved in creating these laws say they were an overreaction motivated by fear and ignorance and should be revisited.
Corporate-Backed Response to the AIDS Crisis
ALEC’s National Working Group on State AIDS Policy marked the first time the organization had used its power gathering of corporate and legislative interests to address a single issue.
“Every half hour in America someone dies of AIDS!” wrote ALEC’s then-executive director (and former Denver Bronco) Samuel Brunelli and Florida state representative Frank Messersmith, then ALEC’s chairman, in 1989 in their introductory letter published in the AIDS working group’s final report. “Yet, despite this terrible toll, we have been unable to implement a coherent public health strategy for dealing with this modern plague. Instead, we have allowed political special interests to paralyze the legislative process and block effective public health measures. This politicization of the public health process is exacting a deadly price.”
One of the pieces of model legislation drafted by the working group was the HIV Assault Act. This model bill created a felony charge if a person knew he or she was infected with HIV while engaging in “intimate contact” with another person (exposing one’s bodily fluids to another in a way that could transmit HIV); donating blood, organs, or tissues; or sharing intravenous or intramuscular injection equipment.
Other proposed laws included mandatory reporting of identified persons living with HIV, provisions to quarantine persons with HIV, mandatory HIV testing for insurance coverage, and isolation of HIV-positive prisoners (the latter has been overturned by a federal court in Alabama and repealed in Mississippi but remains on the books in South Carolina). The proposed legislation creating testing and partner-notification programs included provisions for governments to access names-based lists of people infected with HIV. The names-based reporting law was justified, in part, as a tool to identify persons to prosecute under the HIV Assault Act.
A person could be charged under the HIV Assault Act regardless of whether or not he or she infected or intended to infect another with HIV. Additionally, under the law, the burden is on the defendant to prove that the person exposed to HIV consented to whatever action is the focus of the charge while knowing about the defendant’s HIV infection.
Today, laws addressing the conduct of persons living with HIV can be broken down into broad categories. There are HIV-specific laws, such as those in Missouri or Michigan, which apply to HIV. And there are general criminal laws, such as in Texas or New York, in which people living with the virus are charged with reckless conduct for anything from sex without HIV disclosure to biting.
When ALEC produced its model HIV Assault Act in 1989, nine states had HIV-specific criminal laws on the books. Today, 32 states and two U.S. territories have laws criminalizing HIV exposure, according to the Center for HIV Law and Policy. Only a handful of laws require intent to transmit the virus, and none requires an actual transmission for criminal prosecution to proceed. Since 2010, HIV-related criminal charges have led to more than 80 prosecutions against people living with HIV in the U.S., according to the LGBT legal advocacy group Lambda Legal.
Michael Tanner, who authored ALEC’s 1989 book The Politics of Health: A State Response to the AIDS Crisis. He told The American Independent in a phone interview that the AIDS task force was “unique” in the history of ALEC. While the organization often issued policy books and model legislation, including on health care issues, Tanner said it was the first time ALEC focused its energy on one specific issue. He noted that ALEC has since done so with other issues, like education.
Tanner said ALEC, which brings lawmakers and corporate interests together to hammer out legislative recommendations, came to address the HIV epidemic because of pressure from “private interests.”
Specifically, he recalled that drugmaker Hoffmann-La Roche was a “big mover” and “put up a lot of funding behind publication of the book.”
This pharmaceutical company had the HIV-treating drug zalcitabine (also known as ddC) in clinical trials a couple of years prior. That drug would ultimately win Food and Drug Administration approval in 1992 after three successful trials conducted in cooperation with, among others, the National Cancer Institute.
Hoffmann-La Roche did not respond to multiple interview requests.
The cochairs of the ALEC working group were J. Brian Munroe of Hoffmann-La Roche and Delaware state representative Richard Davis. Representatives from Nationwide Insurance and Alexander Hamilton Life Insurance also served on the AIDS working group.
Michigan state representative Susan Grimes Munsell was tapped to serve on the working group. In a phone interview with the Independent she said she was invited because she had previously headed a Michigan GOP task force on AIDS. That task force led to the Michigan legislature creating a law that criminalized the nondisclosure of one’s HIV status. She said she “shared a lot of the background information we had acquired.”
“At that time people were scared to death of [AIDS],” Grimes Munsell said.
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