The Crime of Being Positive

Rethinking the Laws

With the advent of powerful antiretroviral treatments in the mid 1990s and studies that indicate successful treatment with those drugs may make a person less infectious, some of the people involved in creating the laws say it is time to revisit them.

“I think it would be time to go back,” said Colleen Conway-Welch, a former member of the Presidential Commission, in an interview with the Independent. “In fact, it’s probably past time to go back and subject those laws to scientific scrutiny.”

Former ALEC member Tanner agreed.

“I think it was not well understood at the time,” Tanner said. “I think there was a general belief that this was potentially an epidemic that was going to spread into the general population, that was sort of a guaranteed death sentence, that was extremely transmissible — I think the scientific knowledge has changed in the years since those bills were written.”

Tanner left ALEC years ago and is now employed by the Cato Institute, a libertarian public policy think tank in Washington, D.C.

While he stopped short of calling for a repeal of all HIV-specific laws, he did say they needed to be reviewed.

“Some of the criminalization there really needs to be revisited and narrowed,” Tanner said, noting that he would like to revisit the issues and weigh the positives and negatives of transferring the issue out of the criminal arena and into the civil arena. He also said he would surely frame any legislation he was writing now to include an intent to infect.

The movement to reform or repeal the laws is already under way in some states. The leadership of the Iowa Department of Public Health has recently announced it is backing activists trying to change that state’s law.

And recently the Associated Press reported that a Des Moines lawmaker is planning to introduce a bill that would reduce penalties for people with HIV who have sex without disclosing their disease.

In Michigan the health department is currently concluding a review of the state’s law, while activists in the Grand Rapids area have begun to meet informally to develop a coalition to drive repeal of the law. In Missouri activists and representatives of the state health department have begun meeting to chart a path toward repeal of that state’s law.

On the federal level, the Obama administration’s 2010 National HIV/AIDS Strategy encouraged states to revisit their laws and directed the Department of Justice to prepare technical assistance for states. A DOJ spokesperson told the Independent via email that no state has asked for assistance yet. And yet early in 2013 the Presidential Advisory Council on HIV/AIDS adopted a resolution condemning HIV criminalization and calling for repeal of the laws.

U.S. representative Barbara Lee, a California Democrat, introduced the REPEAL HIV Discrimination Act in 2011. The bill never got a hearing and died when the 112th congressional session ended in January. The legislation had 40 cosponsors, all Democrats.

Former Michigan Republican lawmaker Grimes Munsell said she too is on the repeal bandwagon.

“I think it is time to repeal the [felony] law,” she said. “In fact, I don’t do this very often, but I am willing to lobby for that change.”