HIV Decriminalization Under the Microscope in MD

A Maryland lawmaker and a handful of local advocates have started the course to repeal the state’s HIV-specific criminal law. If other states’ efforts are any indication, Maryland’s path will likely be a long and winding one.

Maryland Del. Shirley Nathan-Pulliam (D-Baltimore County) decided last week to withdraw a short-lived bill that would have repealed a state law that makes it a misdemeanor crime – punishable by a fine of up to $2,500 and/or three years in prison – for a person who has HIV to “knowingly transfer or attempt to transfer” the virus to another person.

Nathan-Pulliam said she withdrew the bill after hearing from HIV advocates who feared a straight repeal of the state law might do more harm than good.

“Some felt that just bringing the topic up would cast a shadow on people with HIV and AIDS,” Nathan-Pulliam told The American Independent in a phone interview.

The delegate said advocates told her that simply repealing the misdemeanor law without replacing it with other language could open the door to higher penalties. She said she was told that no one has been prosecuted under Maryland’s misdemeanor statute, which was added to state law in 1989.

The memory of last year’s attempt in Maryland to increase the penalties for transmitting HIV to another person is still fresh on advocates’ minds. Last year, Del. C.T. Wilson (D-Charles County) introduced a bill that would have increased the penalty from a misdemeanor to a felony, punishable by up to 25 years in prison.

The bill did not pass.

Many HIV advocates believe HIV criminalization laws are ineffective at preventing transmission and stigmatize people living with HIV. Most states that have laws criminalizing HIV do not have laws criminalizing similarly infectious, potentially deadly diseases.

Nathan-Pulliam said she’s giving advocates more time to figure out what they want an HIV-decriminalization bill to look like. Then she’ll consider whether to reintroduce the bill next year.

“I did not feel that I needed to move forward with a divided community,” she said.

In addition to opposition from people against HIV-specific criminalization laws, Nathan-Pulliam said she heard opposition from those in favor of keeping HIV criminalization on Maryland’s books, such the state police.

Department of Maryland State Police spokeswoman Elena Russo said the police opposed the bill in an effort to protect the safety of law-enforcement and corrections officers whom she said are sometimes threatened by suspects or inmates who claim to be HIV-positive.

“We did urge the [House Judiciary] Committee to give an unfavorable report because many times [suspects] will spit or disperse bodily fluids with intent to cause injury,” Russo told The American Independent.

Russo said that in addition to spitting, suspects have attempted to rub their sweat on officers in an attempt to transfer HIV. The CDC says that HIV is not found in sweat, and that the virus is not transmitted via saliva.

“I really believe some special training needs to be done to educate - to bring police into the 21st Century - of HIV/AIDS,” Nathan-Pulliam said of the police’s statement.

Today, 32 states and two U.S. territories have laws criminalizing HIV exposure, according to the Center for HIV Law and Policy, a New-York-based national legal and policy group that advocates on behalf of people living with HIV. Most of these laws were enacted in the late 1980s, at the height of the AIDS epidemic, when little was known about the disease and much was feared. In most of these laws, a person can be prosecuted without having transmitted or intended to transmit the virus. Since 2010, HIV-related criminal charges have led to more than 80 prosecutions against people living with HIV in this country, according to the LGBT legal advocacy group Lambda Legal.

“I believe that no disease should be criminalized,” Nathan-Pulliam said. “There are other infectious diseases, like syphilis and chlamydia that’s running in leaps and bounds in Baltimore and Maryland that we’re not criminalizing people for. Many of them can still know they have it and pass it on to somebody else, and they’re not being prosecuted."

She noted that Maryland’s criminal statute was drafted in 1989.

“[A] lot of people were dying then – it was a death sentence at one point when you [had] HIV and AIDS,” Nathan-Pulliam said. “But now people are living longer and [more] normal lives.”

It was one of Nathan-Pulliam’s legislative interns, Sonia Gupta, a master’s of public health candidate at John Hopkins University’s Bloomberg School of Public Health, who suggested the delegate introduce this legislation.

Gupta has been studying HIV and HIV policy for several years now. In 2008, while an undergraduate student at Yale University, she founded the student-run nonprofit United Against Infectious Diseases (UAID), whose mission is “[t]o empower students in making our world a better, healthier place through awareness, prevention, and treatment of infectious diseases.”

When she was hired to work in Nathan-Pulliam’s office in January, Gupta said she thought it would be a perfect opportunity to try to repeal Maryland’s HIV criminalization law, noting that the delegate “was reputed to be a champion of addressing health disparities issues.”

Gupta said that over the past couple of months she tried involve stakeholders and members of the AIDS community to garner support for Nathan-Pulliam’s bill, but it was met with resistance.

“Unfortunately, two months was too short of a time to get everyone involved and on the same page,” Gupta said in an email.

She said that neither she nor the delegate believed the bill would pass at this time, but the intention was to send a message to the state that the law should be changed and to rally advocates. Gupta said momentum has already grown around repealing HIV criminalization in Maryland. She said will spend the next year working with advocates and community members to educate state lawmakers and the public about the issue and to develop legislation that addresses HIV transmission “in the most appropriate way possible."

HIV transmission should be treated as a health – not criminal – issue, she said.

In an op-ed that was published last year in The Hill’s Congress Blog, Gupta argued that HIV-specific criminalization laws are ineffective at curtailing the spread of HIV and are not based on scientific evidence surrounding HIV.

“[A]lthough HIV and AIDS are currently treatable and people can live with the disease for several years, the blood, semen, and saliva of HIV-positive individuals has been treated as a ‘deadly weapon’ which causes HIV-positive defendants to be charged for aggravated assault, attempted murder, and even bioterrorism,” Gupta wrote.

She noted that many HIV-specific criminal laws do not treat condom use as evidence that an HIV-positive person was not intentionally trying to transmit the virus to another.

“Most of the state laws that criminalize HIV transmission are based on ‘exposure’ to the disease and were adopted before effective antiretroviral treatment was available,” Gupta wrote. “They need to be revised based on updated knowledge and medical advances.

Opponents of HIV criminalization often argue that criminalizing HIV laws deter people from testing. In the case of Maryland’s law, only those who “knowingly transfer” HIV can be prosecuted.

A recent study out of Canada, published last month in the journal BioMed Central Public Health, uncovered qualitative data about a group of men who have sex with men – both HIV-positive and -negative – who believed that their local public health department shares information about HIV-positive people with the police.

“[S]ome HIV-positive participants stated that this perceived association between the local public health department and police services caused them to not access public health department services, notwithstanding their desires to seek assistance in maintaining safer sexual practices,” the study reads.

A big problem in this country, health officials say, is the high rate of people who are HIV positive but do not know their status. Approximately 7,500 Maryland residents are HIV positive but unaware of their status, according to statistics from Maryland’s Center for HIV Surveillance and Epidemiology, within the state’s Department of Health and Mental Hygiene.

Per the state’s numbers, in 2010 Maryland ranked ninth in the total number of AIDS cases, with about 37,000 cases. Additionally, Baltimore-Towson was reported to have the fourth-highest estimated AIDS diagnosis rate among adults and adolescents of any major metropolitan area, with about 27 diagnoses per 100,000 people, according to the surveillance center.

The American Civil Liberties Union of Maryland was among the few advocacy groups that supported Nathan-Pulliam’s bill specifically because the organization believes criminalization discourages people from getting tested.

“We don’t think that the criminalization law should have been set in the first place,” said ACLU of Maryland associate public policy director Joanna Diamond. “And it’s in direct conflict with the direction of public health. And that is mostly due in part due to the fact that it discourages people from getting tested, which is one of the worst public health concerns that we could think about for folks that are infected with HIV.

‘No cookie-cutter approach’

Many state HIV-criminalization laws were enacted in an effort to help prevent the spread of HIV, based on the belief that people with HIV deliberately try to infect others with their disease and use the disease as a weapon. Despite perceptions that intentional transmission is widespread, the Centers for Disease Control and Prevention can only find one case study of a person deliberately attempting to infect others with HIV through sexual activity.

For years, states couldn’t access AIDS-related federal funding if they did not have some kind of HIV-criminalization statute. When Congress enacted the Ryan White Comprehensive AIDS Resources Emergency Act in 1990, it was suddenly required for states to have criminal penalties related to HIV transmission if they wanted to receive federal funding for HIV/AIDS care and education.

But the federal government has recently come out in favor of repealing laws that criminalize HIV transmission.

In 2010, the Obama Administration issued a national HIV/AIDS strategy report calling for an end to state laws that criminalize HIV transmission. Quoting the CDC, the report says that “intentional HIV transmission is atypical and uncommon” and notes that many of the current laws are based on largely on ignorance rather than scientific fact.

“Some criminalize behavior like spitting and biting by people with HIV, and were initially enacted at a time when there was less knowledge about HIV’s transmissibility,” reads the report. “Since it is now clear that spitting and biting do not pose significant risks for HIV transmission, many believe that it is unfair to single out people with HIV for engaging in these behaviors and should be dealt with in a consistent manner without consideration of HIV status. Some laws criminalize consensual sexual activity between adults on the basis that one of the individuals is a person with HIV who failed to disclose their status to their partner. CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon.”

And last month, the Presidential Advisory Council on HIV/AIDS passed a resolution calling for federal health and justice departments to offer incentives to state attorneys general and health departments to end HIV-specific laws.

So far, no state has eliminated its HIV-criminalization law. But Maryland is among a handful of states working to repeal their HIV-specific laws, a process that for most of these states has been marked with trial and error.

Efforts to repeal HIV criminalization laws are under way in several states, including as Iowa, Michigan, Missouri, and Washington.

Missouri advocates recently staged a lobby day on the issue in Jefferson City and are planning to meet with the state attorney general about repealing the state’s criminalization law. And Michigan’s state health department has said they are reviewing that state’s law. According to internal reports obtained by The American Independent, the department appears to be leaning towards supporting repeal of the law.

Iowa appears to be the furthest along in its repeal process. A repeal bill had been introduced to the legislature previously but was withdrawn because of disputes from HIV activists. A revised version was introduced this year, with what many believe to be a strong chance of passing. The bill replaces the HIV-specific law with a law related to the intentional transmission of all contagious and infectious diseases.

Under the current statute, a person charged with having “intimate contact” with another person without disclosing his or her HIV status is subject to a felony charge punishable by up to 25 years in prison and a permanent spot on the state’s sex-offender registry, regardless of whether or not the person charged infected or intended to infect the other person. Under the proposed legislation, felony penalties would be reserved for those who knowingly have unprotected sex without disclosing their HIV status and who actually transmit the virus to another person. Under this new law, a failed attempt to transmit the disease would be classified as an aggravated misdemeanor.

The Iowa bill was drafted with help from the Center for HIV Law and Policy, which works with states “to develop strategies to modernize criminal laws and prosecution policies that target people with HIV” through its Positive Justice Project, a national coalition of organizations working to end HIV criminalization in the U.S.

Sean Strub, executive director of the Sero Project, an advocacy group that promotes HIV decriminalization, based in Milford, Pennsylvania told The American Independent that the process to decriminalize HIV requires time, effort and targeted strategy.

“Every state’s political reality is different,” Strub said in an email. “Sero’s view is that the political and strategic decisions must be made at that local level, informed by the best expertise available. Where we have seen significant progress on this issue, in Iowa for example, the strategy evolved over time and different legislation was introduced in several sessions before the current session, where a bill is now under serious consideration.”

Strub said he has not seen a consensus among advocates and policy experts as to the optimal course of action for decriminalizing HIV in Maryland – a big reason he believes Del. Nathan-Pulliam’s bill was not successful this year. But he praised the delegate and her intern Sonia Gupta for raising awareness and organizing activists around this issue.

“I think this is an example of one of the most respected and expert legislators on HIV issues in public office in Maryland using the bully pulpit of her office in a strategic and effective manner,” Strub said of Nathan-Pulliam in an email. “This is a dynamic issue and all of us fighting against criminalization are dealing with many priorities requiring more time and attention than any of us have. Each state’s effort will go at its own pace, in its own style. There is no cookie-cutter approach when dealing with legislative bodies.”

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