California reduces penalty for knowingly transmitting HIV

October 11, 2017 10:24 AM

Previously a felony, knowing transmission of HIV is now a misdemeanor in California. (Single link WaPo). Critics of the previous law note that few cases were knowing or malicious and the law unfairly targeted those engaging in sex work, women, and minorities.
posted by stillmoving (45 comments total)

These laws are so fucked. It should be obvious that it incentivizes not knowing your status.
posted by PMdixon at 10:28 AM on October 11, 2017 [9 favorites]

It also seems like a law designed by men of status and privilege who occasionally/frequently employ the services of sex workers on the sly, while at the same time casting themselves as upstanding moral crusaders.
posted by Strange Interlude at 11:01 AM on October 11, 2017 [12 favorites]

I'm glad this law is repealed but why was the law only for HIV? What about Hepatitis? Or maybe going into a nursing home when you know you have the flu? Or not vaccinating your children? If we are going to criminalize the spreading of disease, why did they stop at HIV?

(Wild guess: it's because of the sexuality and race of the people who usually get the disease)
posted by LizBoBiz at 11:12 AM on October 11, 2017 [18 favorites]

There is nothing wild about that guess. Relatedly, no prize to anyone who can guess which race the M/F couples are in Truvada ads.
posted by PMdixon at 11:24 AM on October 11, 2017

I'm going to be the idiot in the room:

This law, I thought, was about knowing transmission, not unknowing. I would certainly have an issue with any felony law that doesn't consider mens rea. But was this happening here?

Definitely the law was applied unequally, and that should be addressed. But that should be done with decriminalization of their trade and improved health services and protections for the workers in question.

That aside, LizboBiz asks the right question, and for the right reasons. But this should have been resolved by expanding the law to treat these incidents more evenly, not curtailing it.
posted by parliboy at 11:52 AM on October 11, 2017 [2 favorites]

Criminalizing any disease is a public health nightmare. Period. Full stop. If there are any exceptions I haven't seen them.
posted by PMdixon at 11:57 AM on October 11, 2017 [9 favorites]

This law, I thought, was about knowing transmission, not unknowing. I would certainly have an issue with any felony law that doesn't consider mens rea.

And as I said in my first comment: the clear incentive is to never get tested. You provably don't know your status you can't be accused of knowing transmission.
posted by PMdixon at 11:59 AM on October 11, 2017 [11 favorites]

I mean, I would hope that for good people the incentive would be to get tested so you can then be honest about your sexual health so that people can give informed consent to have sex with you? Very disappointed in this.
posted by corb at 12:50 PM on October 11, 2017 [2 favorites]

People with HIV and AIDS have never been treated as "good" people (except for, I guess, kids and maybe some middle-class non-injection-drug-using married ladies whose husbands were Bad). People with HIV and AIDS, since the beginning of the epidemic, have been treated as pariahs and disease vectors.

You want people to feel safe enough to disclose their status? Do everything you can do stop stigma. That includes fighting against stupid laws like this, which show absolutely no evidence of lessening transmission and lots of evidence of incentivizing people to not get tested.
posted by rtha at 12:55 PM on October 11, 2017 [25 favorites]

In general I think we should avoid stigmatizing HIV. At the same time if your partner has HIV I think you should have the opportunity to make an informed choice to have sex with them. And some of the advocates for this bill have been pushing for decriminalization apparently so that they don't have to tell people they have HIV in advance:

The beginning of a new relationship has always been a struggle for Nestor Rogel, who was born with HIV.

Under current California law, Rogel, 26, could be convicted of a felony if his partner says he didn’t disclose his HIV-positive status, even if he has taken preventive measures or medication or if his partner does not get the disease.

When anti-retroviral therapy is successful, it all but eliminates the possibility that someone will transmit the infection, according to the Division of AIDS at the National Institutes of Health, citing a groundbreaking study whose results were announced in 2011.

“I feel that I have to work extra hard in these (dating) situations, and it’s hard to tell what the right action even is,” Rogel said. “And needing to do that is based on outdated conceptions about HIV and HIV transmission. But it’s still the current law.”

Rogel is in a tough situation, but in my opinion it's easier to determine what the 'right action' is than he seems to think: namely, you should tell your prospective partner you have HIV. It's too much to make the transmission a felony, but to the extent that criminalizing such behavior as a misdemeanor (like syphilis and some other STDs) incentivizes people to disclose, I'm not sure it's a bad thing.
posted by crazy with stars at 1:08 PM on October 11, 2017 [6 favorites]

I'm pretty sure it's a bad thing. The law is a blunt instrument that consistently punches down. Nothing good can come of involving it here.
posted by vibratory manner of working at 1:15 PM on October 11, 2017 [6 favorites]

How is the intentional transmission of any disease not equivalent to assault? Also, what are the civil liabilities here, when the intentional transmission of something like HIV will mean tens to hundreds of thousands of dollars of health costs borne by the victim over subsequent decades?

Singling out HIV is foolish, but I'd be more likely to elevate the transmission of other things to equivalence with assault in its varying degrees and aggravation enhancements, depending on the disease.
posted by tclark at 1:29 PM on October 11, 2017 [6 favorites]

How is the intentional transmission of any disease not equivalent to assault?

According to the CDC, HIV-positive people who are immunosuppressed through medication cannot transmit the disease.
posted by enn at 1:47 PM on October 11, 2017 [3 favorites]

> Singling out HIV is foolish, but I'd be more likely to elevate the transmission of other things to equivalence with assault in its varying degrees and aggravation enhancements, depending on the disease.

This is terrible public health practice. It is counterproductive in every way imaginable.
posted by rtha at 1:53 PM on October 11, 2017 [8 favorites]

Man people love moralizing health and sex so I guess it's no surprise they love moralizing the intersection.

Either one says HIV is sui generis or not. If one says it is: fuck off. Seriously: Fuck. Off. That is basically the key part of the process of stigmatisation.

If not, it's an STI. What level of disclosure are you willing to legally mandate with criminal consequences? Which should be crimes:

Failing to disclose that you've had cold sores.

Failing to disclose genital herpes in the absence of a noticeable outbreak.

Failing to disclose that you've had enough sexual partners that the stats basically guarantee you have asymptomatic HPV (assuming no symptoms, obvsly)

Failing to disclose that you didn't go back for a follow up test for a buccal gonorrhea infection. (High rate of treatment failure)

Failing to disclose that you're a typical straight man who never gets tested unless someone suggests you should.

Saying you've been tested a year more recently than you have.

Saying you've been tested a month more recently than you have.

Saying you've been tested a week more recently than you have.

Saying that what you suspect is a cold is allergies.

Going into public spaces with a case of strep.

Go ahead and draw those lines. I dare you.
posted by PMdixon at 2:56 PM on October 11, 2017 [18 favorites]

Did you just compare a cold with HIV? I think that lines can be clearly drawn there.

I'd be really upset if a partner of mine knowingly gave me a deadly disease. HIV left a huge hole the gay community. An entire generation is just gone. Removing the law seems misguided to me.
posted by pdoege at 3:36 PM on October 11, 2017 [3 favorites]

Oh I see, you think Buckley was right about the tattoos.
posted by PMdixon at 3:38 PM on October 11, 2017

Even short of lethality issues, it's an issue with consent. If you are lying to a sexual partner about your STI status, you are gaining their consent to sex under false pretenses, under the idea that you are more entitled to sex than they are to make their own risk calculations. It doesn't matter if you think those risk calculations are stupid or unfair or lower your chance of getting to have sex - you don't get to override people's sexual choice just because you want it.
posted by corb at 3:39 PM on October 11, 2017 [7 favorites]

Like I said. You think Buckley was right about the tattoos. That's what this boils down to.
posted by PMdixon at 3:41 PM on October 11, 2017 [1 favorite]

Let me repeat


According to the CDC, HIV-positive people who are immunosuppressed through medication cannot transmit the disease.

Here in IL you could/can(?) be charged without actual tramission. Non disclosure can be considered a crime.
It gets really fussy when different sex acts also have different rates of transmission regardless of viral load, and it also depends which partner has HIV. The laws do not care.

With advancements in treatment, availability of PrEP for risky sexual behaviour, and !condoms! There really aren't good reasons for these laws anymore.
posted by AlexiaSky at 3:42 PM on October 11, 2017 [3 favorites]

Oh I see, you think Buckley was right about the tattoos.

This just might be the most uncharitable interpretation of a comment I've ever seen here at Metafilter, whose subtitle some days might as well be "uncharitable interpretations R us."
posted by tclark at 3:44 PM on October 11, 2017 [17 favorites]

Mod note: Ditch the tattoo talk, please?
posted by jessamyn (staff) at 3:45 PM on October 11, 2017 [5 favorites]

Sorry, that was unnecessarily hyperbolic.

I'm going to step away from the thread and let rtha and AS handle the ignorance that has repeatedly proved to increase rates of new infection and reduce health outcomes for people with HIV when put into practice.
posted by PMdixon at 3:56 PM on October 11, 2017 [2 favorites]

As many people have pointed out:

1. It encourages ignorance. Because ignorance IS a defense, why get tested?
2. It ignores the actual public health transmission rates.
3. It is demonstrably applied in unfair, racist, and classist ways. Pretending you wish a law that is used exclusively against disadvantaged people be used differently is a hell of a tiny fig leaf to hide behind.
4. It begs for a "they said / they said" case, but that never turns out well for the person being accused. If it's in my profile, is that sufficient? If I tell you verbally, but you forget? How do I prove I told you?

Like so many things that "seem like a good idea", it's shit.

Except shit feeds flowers. This just feeds prisons, stigma, and death.
posted by petrilli at 4:06 PM on October 11, 2017 [11 favorites]

According to the CDC, HIV-positive people who are immunosuppressed through medication cannot transmit the disease.

Whose viral load is undetectable. Immunosuppression is something different, though also relevant in the context of HIV.
posted by spaceman_spiff at 6:38 PM on October 11, 2017 [5 favorites]

> I'm going to step away from the thread and let rtha and AS handle the ignorance

Yeah, I dunno if I can handle it either. We've had this conversation here before, and it's not playing out much differently. People who want to PUNISH THE BAD PEOPLE are still bringing their non-evidence-based-like-really-none words, and I just cannot. People who won't even acknowledge how stigma operates in this context, or that it exists, who live in some imaginary world where good people disclose and bad people don't and I just don't think I can. Almost 40 fucking years into this epidemic and millions dead and still with this ignorance and bullshit.
posted by rtha at 7:05 PM on October 11, 2017 [13 favorites]

It's almost like stigma, ignorance, bigotry, and lack of access to healthcare don't exist! Magic!
posted by rtha at 9:05 PM on October 11, 2017 [7 favorites]

> and want to keep having sex regardless?

Also, have you met people? People have been having sex regardless since the dawn of fucking time, no matter the consequences.
posted by rtha at 9:08 PM on October 11, 2017 [5 favorites]

I wouldn't have sex with people if I thought I might have HIV.

So why not a felony for hepatitis? Why not a felony for gonorrhea? Why not a felony for chlamydia? Why not a felony for anti-vaxers.

This law is pure gay bigotry, an ancient relic of that hateful time during the Reagan administration when politicians advocated concentration camps and tattoos for HIV victims.
posted by JackFlash at 9:32 PM on October 11, 2017 [10 favorites]

well based on floam's ironclad reasoning it's clear that harm minimization measures are a waste of time

you know like needle exchanges
posted by PMdixon at 9:35 PM on October 11, 2017 [1 favorite]

It's not an "excuse." It's an acknowledgement that sex - not rape, thank you very much - is a basic human drive and people are going to have it. People who have sex without knowing their status are not bad, evil people who don't care about the people they're having sex with. They are living in a particular cultural context, in which some kinds of people who have some kinds of sex are automatically bad people even if they do not have HIV or any other STI. The consistent refusal of far too many people to recognize makes me despair.

You set a paradigm where people who get tested are people who don't want to hurt people. Therefore, people who don't get tested do want to hurt people. Can you not see how damaging this is? How counterproductive to evidence-based public health practice this is?

All those people in Scott County, Indiana who acquired HIV shared their works without knowing their status because...they just didn't care about the people they shared works with. It wasn't that the only clinic that did testing was closed (because it was a Planned Parenthood clinic and it lost its funding because don't kill babies). That there was no syringe exchange in Indiana because that just condones drug abuse. That people don't care about injection drug users (they are junk!), especially if they are poor.

Nope. Because they don't care about other people.
posted by rtha at 9:41 PM on October 11, 2017 [12 favorites]

> Sounds good, if you transmitted it knowingly to someone else.

When it comes to public health and communicable diseases, you don't want to create more opportunities for people to hide and lie and evade. We already have plenty of that.

As for needle exchanges: nothing wrong with them! Big fan! They help destigmatize and create opportunities for people who use injection drugs to come into care. That is the exact opposite of what criminalization does, and they also remain hugely, stupidly controversial because people would rather moralize. See: Mike Pence and the Indiana HIV outbreak.
posted by rtha at 9:58 PM on October 11, 2017 [8 favorites]

floam. There are people who do not get tested now. Lots of them. Many of them have risky sex. This is a fact. Whatever the reasons for that are, that is the fact. Here is a simple multiple choice question.

If knowing you're HIV+ puts you higher at risk for GOING TO JAIL, do you think the people who are not getting tested now become:

a) more,
or
b) less

likely to get tested?
posted by PMdixon at 10:02 PM on October 11, 2017 [7 favorites]

Mod note: floam, I think you've made your point, and at this point you aren't really engaging with people's responses to you about the public health realities at play.
posted by Eyebrows McGee (staff) at 10:04 PM on October 11, 2017 [1 favorite]

(and rtha covered this, but you completely missed my point about needle exchanges. needle exchanges are good for EXACTLY THE SAME REASONS CRIMINALIZATION OF A HEALTH STATUS IS BAD)
posted by PMdixon at 10:05 PM on October 11, 2017

HIV in terms of harm is pretty low on the list of chronic scary diseases with treatment these days.

Diabetes way way worse.

Thing is, someone with HIV getting standard of care with undectible labs isn't a risk regardless if they tell you or not. They just aren't. That's not how the disease works. They would have to purposefully transfer blood into your bloodstream to infect someone. Informing someone of their status doesn't change viral load.

So yeah, for someone who knows there status and is engaged in treatment with current labs, they shouldn't have to tell you. Just like I don't have to talk you if I had an STI and took antibiotics for it and subsequently tested negative . Because people on antivirals can test negative for the disease. That's what an undetectable viral load is, that they can't find the virus (in layman's terms here) because there is so little of it.

And that's the problem. It's is that responsible adults who aren't infectious get charged with crimes because someone doesn't understand they can't infect them. Or someone gets charged because someone decides that maybe HIV can be transmitted in a way it can't actually be transmitted. Because science doesn't matter in law quite as much as it should. And then people do stupid shit like avoid being tested so they can't be charged with a crime.

Yeah, someone who knows there status could go purposely infect someone else on purpose and that should be a crime, just like any other assault. But non disclosure isn't assault. Types of sex that doesn't transmit the disease isn't assault.
Because we know that HIV postive people with treatment can have a ton of unprotected sex with no consequences . We know that PrEP works if you are terrified of getting HIV but like unprotected sex or sharing needles. It's one pill a day. Call your local health department for free or low cost programs. Condoms work too!

In fact we've solved the problem of HIV positive moms transferring HIV to children. There are less than 5 cases of children born with HIV in the US in a year. Yay! The children born positive have basically have zero neonatal care. (No brestfeeding though).

So these laws need to go.
posted by AlexiaSky at 11:34 PM on October 11, 2017 [9 favorites]

Public health reality: HIV is manageable once you know you have the condition. People engaged in care die not of HIV but other causes like cancer or heart failure or old age. Being in care significantly reduces risk of transmission. The most infectious people are people not involved in care.

Getting tested is the biggest step. Knowing status is the most important thing because Ryan White makes the nessisary medical care available to everyone in the US who has HIV.

Any bigotry, crime, accusation and stigma that keeps people from step one is a problem and makes HIV more likely to spread in a community.
posted by AlexiaSky at 11:48 PM on October 11, 2017 [4 favorites]

For those who wanted HIV nondisclosure to remain a felony? Think about who you're allying with.

-The right wing attacks on SB 239, and some irresponsible media accounts, focus on the exceedingly rare situation where a sociopath runs around and intentionally tries to infect people. That’s not who’s being prosecuted under these laws. Who’s being prosecuted? An awful lot of women, particularly African American women and transgender women. Women constitute about 12% of HIV-positive people in California, but they account for 43% of prosecutions under these laws. Yet, the popular stereotype of the male sociopath trying to infect people persists, the facts notwithstanding.

posted by rtha at 11:51 PM on October 11, 2017 [9 favorites]

...the vast majority of convictions were related to sex workers, who are required to undergo testing for HIV after being convicted of crimes such as solicitation...

So, they don't get the "I just won't get tested" excuse. And they're about the only ones who don't. Also, solicitation while HIV positive was a felony - regardless of informing the other or using protection.

“These laws are so draconian that you can be convicted of a felony and sent to state prison even if you engage in behavior that creates zero risk of HIV infection.”

The law didn't cover "infect someone with HIV." It covered "exposes another person." Which means any sexual activity at all for sex workers; for others, only penalized "unprotected sexual activity," which was defined as "not using a condom." Sex was defined as PIV or anal sex - oral was irrelevant. Receptive PIV sex was just as much a felony as the other kinds, despite the lower risks involved. Only consensual receptive sex (vaginal or anal) counted - but a man who was forced to penetrate someone could be guilty of a felony if he didn't inform his rapist of his HIV status. This was a panic law, not one based on medical science.

Of the 379 HIV-related convictions in California between 1988 and 2014, only seven — less than 2 percent — included the intent to transmit HIV

The rest were likely attached to solicitation; that law doesn't require intent, and doesn't even require actual sex. Solicitation while HIV positive was a felony, regardless of the sex acts or safety measures involved.

From a report about HIV criminalization in California:

Across all HIV-related crimes, White men were significantly more likely to be released and not
charged (in 61% of their HIV-specific criminal incidents) than expected, and Black men (38%),
Black women (44%) and White women (39%) were significantly less likely to be released and
not charged.

I know you're all shocked by that. I'm more than happy for this to join other contagious diseases in misdemeanor status.
posted by ErisLordFreedom at 12:21 AM on October 12, 2017 [13 favorites]

According to the article it's "exposure," not "transmission" that is the crime. This is a pretty big difference. In a remotely sensible world it would be impossible to charge anyone virally suppressed of knowingly trasmitting HIV.

The vast majority of the convictions — 90 percent — were for solicitation cases where it was unknown whether any physical contact had occurred.

Huh. I guess we're not living in a remotely sensible world.
posted by mark k at 12:45 AM on October 12, 2017 [4 favorites]

Getting tested is the biggest step.

Yes, 100%, amen, and if you don't believe that's so, read about Michael Friedman. And weep.
posted by blucevalo at 8:21 AM on October 12, 2017 [3 favorites]

At the same time if your partner has HIV I think you should have the opportunity to make an informed choice to have sex with them

This construction of the situation where the law comes into play is a false equivalence.

If I as a financially stable individual decide to swap gravy with a new partner, I expect them to disclose to me, especially because I am immunocompromised. They are also welcome to ask me to get a test even though I am in an extremely low-risk group as the overwhelming majority of my partners are other women.

If a survival sex worker needs to get money to feed their kid today because they didn't eat yesterday, they don't have the same opportunity to be choosy about who they have sex with. They don't get to expect their partner to disclose to them and they may not get to screen people at all. They don't get to sue their johns if they infect them, because johns will deny that it was them and insist that they got it from the sex workers, even if the sex workers know they were clean before that.

These situations are not the same. Pretending that people engaged in survival sex work have the same choices and opportunities for discretion that is available to more privileged folks is not okay.

If we want to stop the spread of HIV, we need to increase our social safety net, not criminalize people who are already having a really hard time.
posted by bile and syntax at 10:59 AM on October 12, 2017 [12 favorites]

With undectible viral load being immuosuppressed doesn't matter, because the likelyhood of transmission with body fluid contact is scientifically extremely extremely improbable because there just isn't virus in the blood. There is nothing for your body to fight.
It isn't 100 percent because there is a super miniscule chance but your way more likely to be hit by a car crossing the street or a million other risks you take on any given day.

read here

And here
posted by AlexiaSky at 11:49 AM on October 12, 2017

I was thinking of my immunosuppression more in the context of something like herpes or hepatitis C rather than HIV, but you are correct, AlexiaSky.
posted by bile and syntax at 12:01 PM on October 12, 2017

I missed this thread on the first go round. Thanks to PMDixon and AlexiaSky and rtha for fighting the good fight. Some of the rest of you need to learn how to think longer term.

Years ago I was in a situation where I'd had unprotected sex with a guy multiple times. It was extremely stupid since he was also having sex with other men (presumably unprotected) and I make no excuses for myself. At some point after having sex a few times, I asked him if he'd been tested and he said yes. As we were breaking up (because he cheated on me) he said he'd lied, that he'd never been tested.

Cue some of the most stressful weeks of my life.

I got very very lucky and everything turned out fine, but he didn't get tested because he didn't want to know. This wasn't 1980; everyone knew about HIV prevention and testing, especially if you had any connection to the gay community. PrEP and PEP weren't a thing yet so HIV was more serious than it is now. But criminalizing his behavior wouldn't have encouraged him to go get tested.
posted by AFABulous at 1:59 PM on October 14, 2017 [4 favorites]