The Crime of Being Positive
BY Todd Heywood
April 01 2013 5:00 AM ET
The Obama administration’s 2010 National HIV/AIDS Strategy encouraged states to revisit their laws.
The Michigan Example
Even as the Presidential Commission was struggling to come together, some U.S. states were on a parallel track. In the early 1980s, the death toll from AIDS was mounting, and fear ultimately seized the country as the disease spread from a small group of gay men to children undergoing blood transfusions to the beloved Hollywood icon Rock Hudson, who died of AIDS-related complications in 1985. Lawmakers wandered into this environment of fear, creating laws to fight an epidemic of a virus that respected no laws and understood no boundaries.
In Michigan a legislative package updating the state’s public health laws was introduced in October 1987 by Michael J. Bennane, a Democratic representative from Detroit.
Included in the package was the language that would become Michigan’s HIV disclosure law. It also included legislation, which would become the so-called health threat to others law, that allowed health officials to intervene with those living with HIV using civil court legal proceedings. The legislative package also included legislation that made it a misdemeanor for anyone to disclose someone’s HIV testing information — such as if a person had been tested for the virus or what the results of those tests were.
While the “health threat to others” law is less punitive than the felony disclosure law — which can land a person a four-year prison sentence for engaging in sexual penetration, “however slight,” without first disclosing his or her HIV-positive status — it has come under scrutiny in recent years as allegations have surfaced that health departments in the state have used the law to stigmatize pregnant women and others identified as sexual partners of newly diagnosed HIV-positive people.
As Michigan’s Democratic proposal languished in committee, Republican lawmakers, then in the minority, created their own AIDS task force to explore the issues of the epidemic and to recommend specific legislative reforms to address the crisis. The group issued its report in February 1988.
“An HIV-infected person who knowingly, or with reckless disregard for the safety of others, exposes another to HIV infection by having sexual contact with him or her without first warning that sexual partner about the infection should be subject to criminal sanctions,” was one of the recommendations of the GOP report.
A legislative analysis of the bills from October 1987 outlines possible opposition arguments to the legislation. Copies of draft reports on whether or not to work for repeal of Michigan’s felony disclosure law generated by the Michigan Department of Community Health and obtained by the Independent show the department opposed the law because the issue of intentional infection was a “minor problem.” The state GOP House task force came to a similar conclusion.
“In conclusions, the Task Force believes that our compassion and concern for those already afflicted should not blind us to the irresponsible and immoral behavior of a few infected individuals,” the Task Force report reads. “Society, through the enactment of its laws, needs to send a clear and unequivocal message to those who would deliberately or recklessly expose others to infection. By establishing a criminal sanction for such behavior, society has placed them on notice that such behavior will not be tolerated.”
During debates in both the state House and Senate, lawmakers attempted to reduce the proposed disclosure crime from a felony to a misdemeanor.
In an audio recording of a Senate debate on December 29, 1988, Sen. Jack Faxon, a Democrat from the Detroit area, argued against the felony, saying the law would deter the testing of persons at risk.
“Now we’re talking about the incarceration in prison of persons having AIDS so that the disease, instead of being treated, is going to be jailed,” he said.
Later in his floor speech, Faxon said, “This one [law] takes on a certain concentration camp mentality. Where you put into prison a certain category of people who are sick. Now the objectives ought to be to education and safe sex and prevention and all the ways that we know about it, but when you put prison terms for people who have the disease and have to go into court and start proving when they found out and who they saw and who they didn’t see — I think you’re defeating the purposes for which this bill is intended to serve. Senator Kelly’s amendment only makes it a misdemeanor. I would think we should not make it a crime, but rather, we should look to what we can do to help people and educate them. I don’t think criminal sentences work.”
In the end, Michigan’s HIV disclosure law went into effect, as a felony, in 1989.
“We were trying to find a middle ground where hopefully someone could reach out to the person — if there was a person out there continuing to spread the virus – and try and stop it,” Grimes Munsell told the Independent. She would soon after take the recommendations of the Michigan GOP task force to ALEC’s working group.
In 1990, Congress adopted an amendment to the Ryan White Comprehensive AIDS Resources Emergency Act that required states to certify with the secretary of Health and Human Services that legal provisions in each state existed to prosecute individuals with HIV who intentionally spread the virus. The secretary was legally forbidden to distribute the money under the act to states unless they certified the ability to prosecute HIV-positive persons for intentional infection. The act provided the first comprehensive funding strategy to address the AIDS epidemic, including money for care, housing, and prevention efforts.
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