State laws fail to recognize relationship between HIV, domestic violence

People living with HIV or AIDS must decide whether, how and when to disclose their positive status. In many states, different laws play an outsized role in this highly personal calculus. Many partner-notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. If someone newly diagnosed declines to disclose their status to a current or former partner, a health care professional may well reach out to their partners directly and inform them that they have been exposed to HIV. While some people may not know the source of their exposure, others will have no doubt who the unnamed individual is, creating the potential for anger and retaliation.

These public health-oriented laws are designed to encourage people who may have been infected to get tested so that they can learn their HIV status and, if necessary, connect with treatment and care providers. Meanwhile, in several states, people who are aware of the fact that they have contracted HIV yet fail to disclose their positive status prior to engaging in statutorily defined sexual acts -- often including acts that carry low to no risk of infection -- can be prosecuted and incarcerated for exposing their partners to HIV, regardless of whether HIV is actually transmitted. These criminal laws were passed to punish individuals who put others at risk by not first sharing their serostatus. In so doing, they also theoretically deter others from engaging in similar behavior.

Although both partner notification laws and criminal HIV exposure laws are meant to slow infection rates, they often serve to threaten the safety, health and liberty of people living with HIV. Analyzing HIV laws through the lens of domestic violence and reveals that both compliance and failure to comply with these laws can expose people living with HIV to a real potential for violence and abuse. Individuals who do disclose their status risk violence and retaliation; anecdotal evidence of post-disclosure abuse is all too common. In addition to violence, abusive partners may also use positive serostatus as a locus for control, threatening to share their partners' status with others or interfering with medication and treatment. Individuals experiencing abuse or people who fear disclosure-related retaliation may run afoul of criminal exposure laws if they continue to engage in sexual activities with their partners without first disclosing their positive HIV serostatus. Complicating matters further, even if someone does disclose their positive serostatus to an abusive partner, the partner may use that information to go or threaten to go to the police and falsely claim that there had been no disclosure in order to get their partner arrested and possibly incarcerated.

This double bind is particularly concerning given the reciprocal relationship between HIV and domestic violence: People living with HIV are more likely to experience domestic violence, just as survivors of domestic violence experience higher rates of HIV. Yet many state HIV laws fail to recognize this inextricable relationship and, in so doing, create additional, unwarranted dangers for many individuals living at the intersection of HIV and domestic violence.

This predicament is particularly notable given the overbreadth of many states' exposure criminal statues. While California modernized its HIV exposure criminal laws in 2017 to significantly narrow its ambit, many states have not revisited their exposure laws since they were passed in the 1980s and 1990s, before much was known about transmission and treatment. In many states, especially across the Southern United States, these broad and outdated laws are still used to charge people living with HIV who have failed to disclose their HIV serostatus to sexual partners. This is true even when the sexual acts they engaged in have little to no risk of transmission (like oral sex or sex with a condom) or when the person living with HIV's viral load has been suppressed by medical treatment to the point of being untransmittable. And, unlike in California where a defendant must have the intent to actually infect another, in many states a defendant must only intend to commit the sex act itself. In most states with specific HIV exposure laws, conviction constitutes a felony and some individuals may have to register as a sex offender after completing a potentially lengthy prison sentence.

These laws do not contemplate the possibility that disclosure was withheld out of genuine fear of violent or coercive retaliation. Nor do they anticipate the challenges of an abusive individual invoking them against a person experiencing abuse. The solution is not, however, to carve out specific domestic violence exemptions from prosecution or affirmative defenses. To succeed in such a regime entails having been arrested and possibly charged, and also requires that a survivor have adequate and credible proof of abuse. Instead, more states should follow in California's footsteps and ratchet down their HIV criminal statutes: doing so will ensure that often marginalized and stigmatized people living with HIV will not also be caught in a Catch-22 in which both compliance and noncompliance with the law creates unjustifiable risks to their safety, health, and liberty.

Additionally, it is critical that attorneys who work with at-risk individuals or communities become well-versed in the intersection between HIV and domestic violence and are familiar with local resources and referrals. Attorneys working with people living with HIV should be aware of the potential for violence or coercion against their clients and should engage in safety planning conversations. Attorneys working with survivors of domestic violence should likewise ask about sexual coercion, high risk sexual activities, and clients' health concerns. These are not easy conversations to have but can make a significant difference in our clients' and their families' lives. 