Courts Perpetuating AIDS Stereotypes, Study Indicates

Despite an increasing body of scientific evidence about how AIDS is transmitted, judges across the nation have continued to perpetuate stereotypes and myths about the disease in both their decisions and in their courtroom behavior, according to a major report released today.

“Because judges appear undereducated on the subject of AIDS, they are permitting prosecutors to use fear and misunderstanding to undermine the rights of persons with AIDS,” said Larry Gostin, adjunct professor of health law at the Harvard School of Public Health, and author of the study.

The study, which examined the cumulative total of all AIDS-related litigation since the epidemic began in 1981, was released by the AIDS Litigation Project, which was established three years ago to help lawyers, health care providers and consumers understand the evolution of laws regarding the rights of people with AIDS or those infected with the human immunodeficiency virus. It is funded by the AIDS program office of the Department of Health and Human Services.

The study found that, with some exceptions, most decisions in AIDS-discrimination cases have been favorable to people with AIDS, or HIV infection, in recent years because of the clear body of anti-discrimination law that now exists.

But in other types of cases, “not necessarily involving discrimination, but involving people with HIV, you’re seeing the old stereotypes emerge,” Gostin said.

For example, he said, one court had what he described as a “10-foot rule” in which “they allowed guards to stand 10 feet away from the defendant (who was HIV-infected),” Gostin said. “In another case, evidence was labeled: ‘Evidence from an AIDS patient--Don’t Touch,’ and this was done in front of the jury. And the appellate court said it wasn’t prejudicial.”

Moreover, he said, criminal courts “have been convicting HIV-infected persons for attempted murder and aggravated assault and giving Draconian sentences--life, in one instance, 30 years in another--for biting, spitting, things like that, even though there’s never been a single case of AIDS transmitted that way.”

Gostin said the study showed that courts have been “reinforcing stereotypical attitudes about AIDS and people with AIDS, and their decisions haven’t reflected scientific knowledge. And they aren’t able to distinguish clearly between irrational fears and real risk.”

He blamed insufficient AIDS education for the knowledge gap.

Harvey Fineberg, dean of the Harvard School of Public Health, said, “It appears that those of us in public health have not yet done an adequate job in educating the judiciary and other key decision-makers.

“Some courts seem unable to distinguish important from inconsequential risks of AIDS transmission,” he added.

The study also found that AIDS-related discrimination cases have escalated at an unprecedented rate in recent years, making AIDS “the most litigated disease in American history,” said Dr. James Allen, director of the AIDS program office of the Public Health Service. “AIDS is a disease that has deeply affected society.”

Gostin said discrimination nationwide is “rife” because “I can measure it by the number of cases coming to courts and human rights commissions--and there is still a tremendous amount. And those coming into the courts are only the tip of the iceberg.”

Moreover, he added, discrimination is now taking “insidious new forms.”

“Employers are deciding not to hire people not on the basis of hatred and prejudice, but for economic reasons, as in ‘people won’t come into my restaurant if I hire someone with AIDS, or I can’t afford health insurance for someone with AIDS.’ ” he said. “There’s this new economic twist. Nevertheless, judges have still been pretty good on this because there is such a clear anti-discrimination law.”

The study called health insurance the one notable exception. “Health insurance companies continue to discriminate against persons with AIDS,” and the courts have allowed this to happen in some instances, the study said.

“The courts have tended to uphold many individual claims for insurance, but have also failed to support beneficiaries under rather bizarre circumstances,” the study said. “A health insurance company’s ‘right’ to deny coverage to a widow and her two children after her husband died of AIDS was upheld by the court.”

Many cases involve the validity of insurance policies on the basis of misstatement, the study said.

“An insurance company attempted to rescind death benefits after the insured died and the beneficiary tested positive for HIV, when neither knew of his infection at the time of application,” the report said. “The court ruled that the deceased had not misrepresented his medical status. . . . The company was required to honor both policies.”