The Crime of Being Positive
BY Todd Heywood
April 01 2013 5:00 AM ET
At left: Rock Hudson died of AIDS-related complications in 1985.
Reagan’s Response to AIDS
Other working group members similarly hailed from other HIV task forces and commissions, thus helping to inform the ALEC group. Information garnered at the federal level was particularly influential.
Long criticized for not doing enough about the AIDS epidemic, which exploded onto the American medical scene in June 1981, President Ronald Reagan established the first Presidential Commission on the Human Immunodeficiency Virus Epidemic in 1987.
The first months of the commission, which deliberated for a year, were plagued by public infighting, leading to the resignation of the chair and another member. The final commission included Richard DeVos, cofounder of Amway and frequent donor to social conservative causes; the late Cardinal John O’Connor, who had served as the archbishop of New York and who openly opposed condoms as an HIV-prevention method; and Penny Pullen, a conservative lawmaker from Illinois.
During hearings held by the commission in March 1988 at Vanderbilt University in Nashville, the issue of criminalization appears for the first time in the commission’s records. Polly Gault, the commission’s executive director, outlined four areas of discussion for a panel of legal scholars.
“The fourth is some type of federal law, perhaps a withholding of funds, which did or did not encourage states to enact criminal statutes related to the transmission of HIV,” Gault told the commission.
Among the five recommendations laid out in one chapter of the commission’s final report, released in June 1988, the panel called on states to include strong confidentiality provisions in their HIV laws and to refrain from criminally prosecuting people living with HIV for conduct that “did not involve a scientifically established mode of transmission.”
However, none of those recommendations made it into the commission’s top 20 recommendations as presented in the final report’s executive summary. Instead, the commission opined, “The HIV epidemic has highlighted several ethical considerations and responsibilities, including: … the responsibility of those who are HIV-infected not to infect others.”
Many members of the commission opposed criminalization as the first go-to action to curb the spread of HIV. Commissioners were unanimous in their determination that criminalization should only happen after public health departments had exhausted all legally available public health actions. And two of the three legal experts to testify to commissioners said a criminal law would have little impact on the HIV epidemic.
And yet the transcripts of the final executive sessions of the commission reveal that some commission members were overwhelmingly concerned about those “rare” persons who were “intentionally” transmitting the virus or purposely “engaging in activity that would spread the virus.”
References to intentional spread are found throughout the executive session transcripts, such as a discussion on creating public health partner notification laws.
“I’m really concerned that the net effect of this would be that, with regard to intentional spread, which we’re all concerned about, that people will be crippled to act until laws are passed,” said commissioner Theresa Crenshaw, a sex therapist from California.
The late commissioner Frank Lilly, an openly gay man and a geneticist employed by the Albert Einstein College of Medicine of Yeshiva University in New York, told the commission he was worried about the criminalization proposals in the report.
“The one thing that I would like to see done is a further softening on the section of criminalization which I think — I worry about the criminalization section very simply because I think we must do everything possible to keep people from using — acting upon their anger about AIDS by rushing to the district attorney as a first stop,” Lilly said.
In a passage specific to HIV criminalization, Lilly moved that the commission insert the word “knowingly” in the criminalization recommendation. The recommendation was adopted with very little discussion.
The commission’s recommendations, in combination with the transcripts of the hearings and meetings, show that this body intended for HIV criminal laws to be very narrowly tailored and used only to address the behavior of those persons who were intentionally acting with “malice aforethought” to infect others. However, the recommendations on criminalization never made the commission’s executive report, which highlighted the 20 recommendations the commission felt were most important to addressing the HIV crisis. It is unclear why these recommendations did not make the executive report.
As Tanner recalls, the ALEC working group’s process of arriving at final recommendations was also “contentious,” particularly when legislation proposals were HIV-specific, rather than general health policy recommendations. The contention was a result, in part, of the battling ideology represented on the working group, he said.
“I tried to approach all the issues that came before the task force and came before me, as very narrowly defined, dealing with the facts, trying not to get to be emotional about it,” he said.
Tanner said he recalls that former Presidential Commission member Pullen, who testified before the ALEC working group, introduced the model HIV Assault Act during her testimony. Pullen, who now runs the anti-abortion organization Life Advocacy Resource Project in Illinois, declined to comment for this story, saying it was a “25-year-old story.”
Tanner said that no notes or transcripts from the ALEC meetings exist, but he said he remembers that the HIV Assault Act was one of the model bills that generated heated debates. But ultimately, it was adopted by a majority vote.