Commentary

02.05.16

Living With HIV Should Not Be A Crime

By

Scales of Justice

If a person living with HIV in Ohio is convicted of a crime, they may automatically receive a harsher sentence just because they have HIV. These punishments are applied without regard to the facts of how HIV can be spread. Even worse, they actively hinder efforts to prevent new infections.

HIV Criminalization Laws Ignore Science

Unlike when HIV criminalization laws were passed, we now know how HIV spreads and have much more accurate measurements of the risk associated with certain sexual activities. The chart below shows risk rates for contracting HIV without the use of any preventative measures, such as condoms or antiretroviral therapy.

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Used with permission from The Center for HIV Law and Policy

Criminal laws in Ohio take none of this information into account. Instead, they automatically enhance charges and sentencing for people living with HIV and criminalize behaviors that pose zero risk for spreading HIV.

For example, it is illegal in Ohio to loiter with the intent to solicit someone to engage in sexual activity. For most people, this crime is a third degree misdemeanor. For a person living with HIV, it is a fifth degree felony. To put it in perspective, that is the difference between spending 30 days in jail and spending six to twelve months in prison and carrying a felony record.

HIV criminalization laws attach harsher criminal penalties to some crimes that carries zero risk for spreading HIV.

The same flawed logic extends to other crimes that carry zero risk of spreading HIV. The Center for Disease Control categorizes “the risk of transmission of HIV from biting, spitting or throwing bodily fluids, even in the absence of risk reduction measures, as negligible.” But say two prisoners spit on a corrections officer. One is convicted of a fifth degree felony, and has six months added to his sentence. If the other is living with HIV, he is convicted of a third degree felony. In this instance, a person’s HIV status just earned him six times the amount of jail time for the same behavior.

Bad Laws Can Discourage Behavior that Promotes Safety

Harsher criminal penalties only apply to people who know that they have HIV. This makes Ohioans less safe by perpetuating a stigma that discourages people from getting tested for HIV. When people are unaware of their HIV status, they are less likely to seek treatment or use prevention methods that can keep them from spreading the virus to others.

The Ohio legislature needs to repeal or substantially alter these bad laws. Doing so will not only treat people living with HIV fairly, but will also bring our criminal code into alignment with public health best practices. No one should be punished for having a chronic disease.

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