In a test of shifting attitudes about HIV, a group of state lawmakers has proposed that it no longer be a felony for someone to knowingly expose others to the disease by engaging in unprotected sex and not telling the partner about the infection.
The measure by state Sen. Scott Wiener (D-San Francisco) and others would make such acts a misdemeanor, a proposal that has sparked opposition from Republican lawmakers.
The same downgrade in crime level would apply to people who donate blood or semen without telling the blood or semen bank that they have acquired immunodeficiency syndrome, or AIDS, or have tested positive for human immunodeficiency virus, or HIV, the precursor to AIDS.
“HIV-related stigma is one of our main obstacles to reducing and ultimately eliminating infections,” Wiener said. “When you criminalize HIV or stigmatize people who have HIV it encourages people not to get tested, to stay in the shadows, not to be open about their status, not to seek treatment.”
Currently, those convicted of felonies can be sentenced up to seven years in prison.
Between 1988 and June 2014, there were 357 convictions in California for an HIV-specific felony that would have been downgraded by SB 239, according to a study by the Williams Institute at the UCLA School of Law, which conducts research on sexual orientation and gender identity law and public policy.
The vast majority of convictions were in prostitution solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, the researchers said. A sex worker can be charged with a felony if he or she is HIV-positive and solicits sex from another person without telling them of their infection, even if the two do not have sex, Wiener said.
He said the felony law is a vestige of a darker time during the 1980s, when there was no effective treatment for AIDS and some people were calling for putting those infected in quarantine.
Nearly three and a half decades after the disease was identified by the U.S. Centers for Disease Control and Prevention, some 35 million people worldwide have died from AIDS-related illnesses.
Medical advances in recent years that developed anti-retroviral medicines have allowed people to extend their lives significantly. Some 18.2 million people are on the medications. The number of people who died from AIDS worldwide dropped from 2 million in 2005 to 1.1 million last year, many in Third World countries where access to expensive medicines is limited.
The monthly HIV treatment regimen costs range from $2,000 to $5,000, according to the California Department of Public Health.
“These regimens have to be taken daily throughout a person’s life to help them live a normal lifespan,” the agency said in a statement. “With the life expectancy for HIV patients increasing, the lifetime cost of treatment in today’s terms is estimated at more than a half-million dollars.”
In California, 126,241 people were living with diagnosed HIV infection in 2014, the last year for which records are available, according to the department.
The agency does not track the number of people who died due to HIV infection, or from AIDS-related illness. But, in 2014 in California, 1,561 people with a diagnosed HIV infection died. Those deaths may be due to any cause, and may not be related to HIV infection, the agency says.
Legislators who support the measure say medicine has made the current law unfair.
“These laws are absolutely discriminatory. No other serious infectious disease is treated this way. HIV was signaled out,” said Wiener, who wrote the legislation with Assemblywoman Susan Eggman (D-Stockton) and Assemblymen Todd Gloria (D-San Diego) and David Chiu (D-San Francisco).
They noted that someone can be charged with a felony even if the medicine they are taking makes them virally suppressed, which means it is unlikely they would pass the infection to another person.
“Current state law related to those living with HIV is unfair because it is based on the fear and ignorance of a bygone era,” Gloria said. “With this legislation, California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence."
Opponents of the bill, including state Sen. Jeff Stone (R-Murrieta), say knowingly exposing others to a life-altering disease should remain a felony.
“HIV/AIDS remains a deadly disease,” Stone, a pharmacist, said in a statement. “Existing law provides accountability of those engaging in unprotected, risky behavior that endangers the life of another.”
Sen. Joel Anderson (R-San Diego) said the availability of medicines that can prolong life does not change the major impact an HIV-positive diagnosis has on a person’s life.
“While we have come a long way with AIDS, you still have to take drugs for the rest of your life. You still have to bear the burden of the costs of the health care,” Anderson said. “I get that this is the only disease that is treated that way, but I think any disease that you inflict on somebody against their will that permanently changes them should be a felony.”
Anderson said he would be willing to address the discrimination issue by adding other diseases to the list whose intentional spreading is a felony.
He challenged the argument that the law change is needed because otherwise some people will not get tested and will continue spreading the disease.
“Because they are so disrespectful of the people they are willing to engage in a sexual act with and risk their life, that is the reason why they need to go to prison,” Anderson said. “They can’t be trusted in society as a responsible person.”
California is one of 32 states that single out HIV for unique treatment by criminal law, according to Catherine Hanssens, executive director of The Center for HIV Law & Policy and a supporter of the bill.
Most people think that a person should inform a sexual partner about having HIV, Hanssens said.
“But there is a very important difference between what people should do, or even may have an ethical duty to do, and what they should be prosecuted as a serious felon for not doing,” she said.
While law enforcement agencies have not yet weighed in on the bill, former federal and state prosecutor Bill Portanova also said the change in the law is not warranted.
“A misdemeanor injury is a minor injury, like a slap that leaves a red mark for a short time,” said Portanova, who has advised the Legislature on legal issues. “To the extent that the HIV treatment is lifelong, one can consider that a serious injury justifying a felony.”
The measure has drawn support from gay rights groups including Equality California, the Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project and the Transgender Law Center, as well as the Sex Workers Outreach Project.
Rick Zbur, executive director of Equality California, says the current law does not recognize medical advances.
“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,” Zbur said.