HIV Criminalization Is Bad Public Policy and Terrible Science

An undated file photo of Nicholas Rhoades
An undated file photo of Nicholas Rhoades provided by the Iowa Department of Corrections

Iowa Department of Corrections

Nicholas Rhoades did not give anyone HIV—and he has just finished serving 18 months in prison for criminal HIV transmission. To grasp how this egregious injustice could occur, you first need to understand the bigotry, idiocy, and terrible science underlying HIV criminalization laws.

The notion that HIV transmission should be criminalized is a relic of the early days of AIDS panic. Before the advent of modern HIV treatments, AIDS was a speedy and terrifying killer, turning an otherwise healthy human into an emaciated corpse with horrifying speed. The regrettable trope of the AIDS predator, maliciously infecting as many sex partners as possible, still held cultural currency. And most people—legislators included—didn’t really comprehend how the virus spread, leading to hypervigilance about transmission that bordered on hysteria.

In response, Congress passed a law in 1990 that provided HIV-related health care funding to the states—on the condition that they criminalize HIV transmission. The states obliged, but some went even further, forcing HIV-positive people to disclose their status before every sex act and making possible exposure to HIV a felony. Most states retain these laws today.

There are three problems with these laws. First, they don’t work. In a report prepared by a presidential HIV/AIDS prevention task force, HIV experts from around the country concluded that HIV criminalization statutes do nothing to halt the spread of the virus. Instead, these laws actually “undermine the public health goals of promoting HIV screening and treatment,” scaring people away from learning their status by implying that sexually active HIV-positive people are, effectively, criminals. The United Nations’ HIV/AIDS prevention task force has reached a similar conclusion.

Second, the laws are unjust and counterproductive. An immense stigma already surrounds HIV; turning every sexual encounter into a possible criminal act can only add to the shame. The penalties, moreover, are wildly disproportionate. The Iowa law charges offenders with 25 years in prison, a fairly typical sentence. This is absurd. The vast majority of people who spread HIV do so through carelessness or ignorance, not malevolence—it’s a mistake, certainly, but not one that merits a quarter-century behind bars. Besides, HIV criminalization laws target people who spread HIV to a partner who consented to have sex in the first place. While status disclosure is important, the burden still falls on the HIV-negative to protect themselves from exposure.

Third, and most irritatingly (to my mind), these laws are simply bad science. Most have not been updated since the early ’90s, and thus reflect an almost laughable misunderstanding of the virus. Some criminalize spitting, biting, and “throwing of body fluids.” Many make no mention of condoms. And, perhaps most disturbing, all create a vastly overbroad definition of HIV “exposure.”

Consider the Iowa statute that put Rhoades in prison. Rhoades has been charged with criminal HIV transmission for allowing a sex partner to perform unprotected oral sex on him without informing him of his HIV status. He didn’t ejaculate during fellatio, and he later wore a condom during intercourse—but the Iowa Supreme Court upheld his conviction on the theory that a risk of exposure remains. This is dubious at best. Researchers at the University of California, San Francisco found that 4 out of every 10,000 acts of fellatio on an HIV-positive partner could lead to HIV transmission if the partner ejaculates; if he doesn’t, the risk is essentially nil. (I’ve spoken with HIV experts off the record who speculated that oral sex might not actually carry a risk of HIV transmission at all.) And Rhoades was on antiretroviral therapy, decreasing his infectiousness by orders of magnitude.

In terms of safe sex, then, Rhoades did almost everything right—which is why he didn’t transmit HIV to his sex partner. (The partner accused him only of risking exposure.) But that doesn’t matter under Iowa’s draconian law. In fact, it doesn’t even matter that Rhoades wore a condom during intercourse—condoms can break, after all—or that Rhoades’ partner never asked about his status. All that matters is that Rhoades is HIV-positive and still dared to have sex without disclosing his status. That was enough to turn him into a convicted felon and lifelong registered sex offender.

Sex always entails some level of risk, a risk we’re all responsible for protecting ourselves against. In a perfect world, the disclosure discussion would precede every sexual encounter. But this isn’t a perfect world. And we’re not going to make it any better by locking away people like Rhoades under an obsolete law rooted in hysteria, homophobia, and junk science.