Tom Daley
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The Crime of Being Positive

The Crime of Being Positive

Rock Hudsonx400
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.

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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