Keeping HIV+ Status From a Partner Is a Felony. A Bill Would Change That
A scene from LA Pride last year
In 1988 and in subsequent years, the California Legislature passed a series of laws that essentially made it a felony to fail to inform a sex partner of one's HIV status. The virus was particularly devastating in that era — contracting HIV was often a death sentence.
But no other serious disease, not tuberculosis, not hepatitis, gets treated the same way under the law in California, says Becca Cramer, legislative coordinator for the ACLU of California. So, in effect, a law meant to protect people has cast a criminal cloud over an entire community — gay men are the majority of HIV patients — at a time when the virus has become eminently treatable.
A bill that would reduce nondisclosure of HIV status from a felony to a misdemeanor is making its way through the Legislature. Jeff Cretan, a spokesman for state Sen. Scott Wiener, co-author of the legislation, says it will face its first major test March 28 when it comes before the Senate's Public Safety Committee.
"SB 239 would bring parity with existing laws regarding other communicable diseases," according to a fact sheet from the San Francisco lawmaker's office.
Supporters say it's simply no longer fair to single out the HIV-positive population for harsher prosecution.
"I think it's really crucial to note that top HIV researchers agree, based on extensive studies, that people living with HIV with sustained undetectable viral loads (the result of adherence to treatment) cannot transmit HIV to their partners, even without condoms," Jennie Smith-Camejo, spokeswoman for Positive Women's Network USA, said via email. "The current law does not take this into consideration, meaning people can be prosecuted for a consensual sexual act in which not only did HIV transmission not occur but in which it was virtually impossible for HIV transmission to occur.
"This is just one clear snapshot of how outdated and discriminatory these laws are, and why these changes are already long overdue," she said.
In a statement, Rick Zbur, executive director of Equality California, the organization perhaps best known for spearheading the campaign to overturn California's same-sex marriage ban, agreed: "These laws impose felony penalties and harsh prison sentences on people who have engaged in activities that do not risk transmission and do not endanger public health in any way."
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The bill would make it a misdemeanor to fail to inform a partner of a serious communicable disease if the transmission was intended and if the partner did end up getting the disease. It would strip older legal provisions that could give sex workers with HIV stiffer penalties if they're prosecuted for transmission. Sex-work suspects would no longer have to undergo HIV testing upon first arrest. "SB 239 furthers public health goals by ensuring that California treats people living with HIV the same as people living with other serious communicable diseases — instead of singling them out for harsher punishment," Cramer of the ACLU wrote in the civil liberties organization's endorsement of the bill.
If the legislation, co-authored by Assemblyman Todd Gloria of San Diego and Assemblyman David Chiu of San Francisco, gets through Public Safety, it's off to the Appropriations Committee, then to the full Senate, Cretan of Wiener's office says.
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