My Public Comments on SB 1183: Repeal of HIV Criminalization Laws
SUMMARY AS INTRODUCED:
Sexually transmitted infections; infected sexual battery; repeal. Repeals the crime of infected sexual battery. The bill also repeals the crime of donating or selling blood, body fluids, organs, and tissues by persons infected with human immunodeficiency virus and the provisions regarding the testing of certain persons for human immunodeficiency virus or hepatitis B or C viruses. The bill contains technical amendments.
Because criminal liability generally only applies to
those who know their positive status, and can therefore be held morally
responsible, it is incapable of being an effective prevention tool against
transmission in this context. (Conversely, although there is relatively little
empirical evidence to suggest that people are dissuaded from testing as a
result of criminalization, there is the possibility that people may assume that
PLHA will necessarily disclose their status or insist on safer sex (in order to
avoid liability), when this may not be the case, thus creating a false sense of
security.)
Secondly, overly broad criminalization reproduces and
reinforces negative stereotypes about PLHA through (frequently inaccurate and
sensationalist) press coverage of trials and convictions. This contributes to
the stigma associated with HIV, which in turn creates obstacles to prevention
and treatment and undermines the right of PLHA to the highest attainable
standard of physical and mental health and wellbeing. Sexual health physicians,
nurses, and advisers may feel conflicted—to the detriment of their patients, their
own professional identity, and public health more generally—if they feel
obliged to raise the question of criminalization with those have been diagnosed
positive, and there is the risk that the relationship of trust critical to
patient care is compromised.
In the era of biomedical interventions that can suppress
an individual’s viral load, that is the number of copies of HIV virus in single
mL/blood, to such small quantities it can no longer be detected in standard diagnostics;
achieving viral suppression through antiretroviral treatment adherence means HIV
can no longer be sexually transmitted, making early diagnosis and access to
treatment a powerful weapon in the fight against further infection.
A willingness to get tested, to initiate treatment and
adhere to prophylaxis, or cope with unique challenges facing communities at-risk
of HIV, depend on public health efforts to reduce stigma. Stigma has the power
to undermine any progress made in ending the HIV epidemic and reducing stigma
to improve HIV prevention, treatment and care is an integral part of public
health practice; be it advocating HIV testing or adherence to treatment as prevention,
measures to control the burden of HIV depend on governing bodies to intervene
on behalf of the most vulnerable and stimulate the development of stigma
reduction interventions.
The science is clear. Undetectable equals untransmittable.
If you adhere to ARV treatment, achieve viral suppression, then you can no
longer transmit HIV through sex. In fact, these same drugs are also used for
prophylaxis to prevent HIV exposure and acquisition. PrEP is a pill taken
once-daily to prevent HIV and PEP is a drug regime prescribed within 72 hours
of exposure to HIV as a preventive measure. Together, these tools have the
power to end the HIV epidemic in Virginia, reduce HIV-related health
disparities, and improve the lives of those living with the virus and its human
toll on the diverse communities of the Commonwealth.
SB1138 boldly answers this call to action by identifying section of the code that reference the criminalization of HIV and STI exposure, infection, and transmissibility, and the ethical and empirical implications of counterproductivity in public health and health policy.
This bill says ‘Yes!’ to science, ‘Yes!’ to advances in
biomedical technologies, disease surveillance and control, and ‘Yes!’ to the
social determinants of health governing disease disparities and systemic
inequity in VA law; and rejects a priori assumptions made about HIV and other
STIs that do not align with contemporary public health practices or scholarship
on disease prevention. Repealing these sections will stimulate novel developments
in preventive strategies for ending the HIV epidemic and ameliorate the effects
of syndemic stigma, shame, and self-denialism which coalesce around health
disparity and systemic inequity in the governance of public health and disproportionality
of outcomes across diverse populations.
Accepting SB1183 into law strengthens capabilities for addressing
critical health issues by removing unjustifiable limits on public health
practice and any references that empower stigma and reduce the capacity for
public health to work with diverse communities to improve population health
outcomes for all of the Commonwealth.
The following comments target specific issues in each of
the sections legislated for repeal and reinforces our support for comprehensive
legislative action to decriminalization HIV and other STIs in Virginia.
Together, these sections represent the power of antiquated
public health policy in undermining contemporary disease prevention. While each
code initializes its own set of issues, as a whole their repeal will be an
interventional strategy for reducing stigma and help realign the medico-legal
structures government public health in Virginia.
Infected Sexual Battery
This law was established over a decade after an early onslaught
of the HIV epidemic to acknowledge the moral-political values, anxieties and aspirations
of contituents concerned about being intentionally infected with HIV, by forced-sexual
transmission or through the crime of not knowing, or not disclosing you are living
with HIV in situations where transmissibility is probable. The law was designed
to reduce risky behaviors and unknowingly spreading HIV to others. Instead, it established
a foundation for public fear, HIV stigma, shame, and self-denial that….and it
counterproductive to disease prevention as the greatest non-budgetary barrier
to ending the HIV epidemic.
Forced testing
Health workers are essential because they heal us. The testing
of individuals without their consent is a violation of human rights that defies
bioethical responsibilities of health departments and community organizations
to carry out their duty of care to harm none; and that includes physical,
structural, and interpretive acts of violence, be it HIV diagnostic testing
performed on persons without their consent in the aftermath of a vehicular accident involving bodily fluids, the nonvolitional testing of individuals
arrested for crimes associated with addiction and IV drug use, or the forcible
discovery that you are living with HIV while being criminalized for exposing, and
accused of infecting, another. Also, the vagueness of bodily fluids as a
term used to describe any evidence of transmissibility that warrants the testing
of persons against their will is an ineffective strategy.
Penalizing persons who don’t know they’re living with HIV
(1:7 virginians)
In the same vein of irrationality as infected sexual
battery targeting only HIV and no other infectious diseases, the forced testing
of vulnerable populations already devasted by the HIV epidemic, and subsequent ostracization
of those seen as the sources of scourge in this epidemic, were attempts to stymie
fears; but instead, it socialized stigma and shame as acceptable prevention
practices and tacitly encouraged succumbing
to self-denial in the anxious consumption of racist, homophobic, and anti-science
hostilities being peddled from atop the highest pillars of public health and
medico-legal structures.
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