Notes on HIV Criminalization & Public Health Law/Policy Modernization

Disease Prevention Internship in Law, Policy, and Regulation Modernization with Virginia Department of Health 

I am an intern at the Virginia Department of Health in the Division of Disease Prevention and am working on a project to identify, catalog, and cultivate a system of essential relationships with key stakeholders invested in the maintenance and modernization of  the Code of Virginia and Virginia Legislative Code (Regulations). There is no state-level position created, thus far, for public health agencies in Virginia to formally work with, and advocate for, laws and policies affecting agency outcomes and public; and, at the same time, there are no official responsibilities designated for departmental leadership to engage in this kind of work, be it research, advocacy, or administration. So, I am in charge of developing a way forward in these circumstances, using the skills I've gained in the course of my education and employment experience to create a new way of organizing the legislative agenda for public health advocacy, especially those which involve HIV, STIs, and other infectious diseases in Virginia's law and policy apparatus. 

My work focuses on HB 864 which was set to pass and became law in Virginia but was referred to committee for the next legislative session. The proposal would change the Code of Virginia in the specific context of HIV criminalization; and would have modernized the law to include recent insights on treatment as prevention efforts and undetectable viral loads in the transmission of HIV, as well as how pre-exposure prophylaxis, or PrEP, can be used to protect from HIV infection. However, despite having the support of several political leaders and public health advocates, the bill received push back from community groups concerned about the way it new law would be written. Specifically, how HB 864 was coded to concern White gay males at-risk of HIV and not Black women, notwithstanding sexual orientation, who are the most vulnerable population at-risk for this disease.

Many legislators, namely woman who are involved in reproductive justice work, are concerned the proposed legislation did not address the unique concerns of woman living with HIV or woman at-risk of HIV infection, be it through intimate partner violence, inequities in the trans community, or vertical transmission and health literacy in communities where English is not the primary language used to navigate health care delivery. 

At this point in the "discussion," that is, the public discourse surrounding HIV, there should be little doubt that the law and policy governing individuals living with HIV in Virginia is in need of modernization; and such an update would benefit community health in the Commonwealth by protecting vulnerable populations and communities at-risk of HIV, as much as the stigma, shame, and self-denial associated with HIV disclosure norms and values, practices and politics. There is enough support in the General Assembly to make meaningful changes to the Code of Virginia and Virginia Administrative Code, wherever HIV is mentioned and identified as having a negative impact on the lives of others. However, how we come to consensus on the laws and policies set to replace them is still up for debate; and individuals and agencies alike must involve themselves in the discussion to ensure their specific concerns are coded into future proposals. 

I was tasked with making the connections between political actors, community organizations, public health officials and contemporary research on the topic of HIV criminalization in the context of the General Assembly's decision to table the vote for HB 864. Why did this happen? What can be done now to ensure the bill, or another bill with the same goal to modernize, will pass in the upcoming 2021 session? Over the past several months, I have cultivated relationships with stakeholders involved with HB 864, as well as community members and agencies interested in having their voices heard in advocating for HIV decriminalization. In addition, my research on the topic has expanded to include theoretical as much as practical and historical examples of the limited extent of criminal law in preventing HIV transmission, or any other public health outcome as a function of governmentality. All that is left now is to develop a way to bring these folks together in a meaningful way such that the development of new law and policy is engendered with the experiences and expertise of the community for whom the legislation is written.... stay tuned!

HB 864 Infected sexual battery; knowledge of convicted person.

Introduced by: Mark H. Levine | all patrons    ...    notes | add to my profiles

SUMMARY AS INTRODUCED:

Infected sexual battery. Provides that, in order for a person to be convicted of infected sexual battery, such person (i) knew that he was infected at the time of the offense with HIV, syphilis, or hepatitis B and (ii) knew that his infection was currently detectable and transmittable, and committed the offense without using a prophylactic barrier, including a condom or dental dam.

10 reasons to oppose the criminalization of HIV exposure or transmission

1.     Criminalizing HIV transmission is justified only when individuals purposely or maliciously transmit HIV with the intent to harm others. In these rare cases, existing criminal laws can and should be used, rather than passing HIV-specific laws.

2.     Applying criminal law to HIV exposure or transmission does not reduce the spread of HIV.

3.     Applying criminal law to HIV exposure or transmission undermines HIV prevention efforts.

4.     Applying criminal law to HIV exposure or transmission promotes fear and stigma.

5.     Instead of providing justice to women, applying criminal law to HIV exposure or transmission endangers and further oppresses them.

6.     Laws criminalizing HIV exposure and transmission are drafted and applied too broadly, and often punish behavior that is not blameworthy.

7.     Laws criminalizing HIV exposure and transmission are often applied unfairly, selectively and ineffectively.

8.     Laws criminalizing HIV exposure and transmission ignore the real challenges of HIV prevention.

9.     Rather than introducing laws criminalizing HIV exposure and transmission, legislators must reform laws that stand in the way of HIV prevention and treatment.

10. Human rights-based responses to HIV are most effective.