In what can be euphemistically described as a misguided endeavor, Governor Jerry Brown signed Senate Bill 239 on Friday, Oct. 6. In California, beginning in January of next year, knowingly exposing someone to HIV without informing them beforehand will no longer be a felony punishable with up to eight years in prison, but a misdemeanor with a maximum jail sentence of a mere six months. Additionally, the law will completely decriminalize donating blood infected with HIV, which is currently a felony under state law. Proponents of the changes, such as California State Senator Scott Wiener and Melissa Goodman of the American Civil Liberties Union, touted these as much-needed updates to “draconian” laws regarding HIV that disproportionately punished prostitutes, people of color and LGBT people. Furthermore, supporters claimed that current laws exacerbate stigmas about HIV and discourage those at risk of contracting HIV from seeking testing and treatment.
Yet, despite whatever good intentions Wiener and the law’s co-authors had when crafting the bill, they have chosen a horrendously oversimplified way of addressing the shortcomings of current HIV-related laws. Stigmas about HIV have developed for over 30 years, and will not be reduced overnight by a blanket change in policy; indeed, the backlash in response to the signing of this new law has demonstrated the opposite. Wiener’s lofty, ideological claims that laws like this will keep people who have HIV from being treated like “criminals” and also somehow miraculously serve as steps to “end new HIV infections” indicate a myopia about the effects that a sweeping revision like this will have. California needs to adopt a more nuanced approach toward HIV prevention, diagnosis and treatment before we look at the laws and punishments for its transmission and decide if they are or aren’t worth keeping.
In arguing for SB 239, Wiener downplayed the severity of HIV and its transmission by saying modern medicine can treat the symptoms of HIV and reduce the risk that one will infect others. It is true that antiretroviral therapy, medications and preventive measures such as the use of condoms and pre-exposure prophylaxis (something that Wiener himself uses, as he announced in the Huffington Post) can help suppress the effects of HIV and reduce the chances of transmission. However, those infected are still consigned to a lifetime of taking oftentimes highly expensive drugs, which are not always covered by health insurance plans and can sometimes cause severe side effects, such as liver damage. Furthermore, failing to consistently take the medicine exactly as prescribed can lead to their HIV infection becoming resistant to the drugs and more difficult to suppress, and current prevention methods do not completely eliminate the risk of transmitting HIV.
When considering the Trump administration’s recent attacks on the Affordable Care Act’s subsidies to insurance providers, it is likely that low-income persons will soon face even more barriers in affording the medicine necessary for preventing and treating HIV infections. Wiener’s haphazard “argument” that current medicine makes HIV all better utterly fails to acknowledge the complexities and inadequacies of current HIV prevention and treatment techniques, and simply ignores the reality that all the medicine in the world will not do you any good if you cannot afford it for the rest of your life.
Yet, not all the arguments in favor of SB 239 were so completely faulty. Wiener noted that the current criminalization of HIV exposure can discourage some from getting tested for HIV, presumably because their knowledge of their infection gives them the responsibility to inform sexual and needle-sharing partners that they are HIV-positive, which in turn exposes them to shame and stigma. Additionally, according to the Center for HIV Law and Policy, the results of an HIV test can be used to “exclude individuals who test positive for HIV from programs, employment or insurance,” despite state and federal laws which prohibit this, and can also “be the basis of criminal prosecution for those who are sexually active.”
In this way, Wiener makes a fair point; if people who engage in behaviors that put them at risk of contracting HIV don’t want to get tested because of the potential stigma, criminalization and discrimination that knowledge of their status can bring, they cannot identify if and when they become HIV positive, and others whom they may have exposed to HIV will not know that they may have contracted it — in fact, the Center for Disease Control and Prevention (CDC) estimates that, of the 1.1 million people in the US who have HIV, one in seven do not know they are infected.
However, Wiener has chosen a very poor way of encouraging testing. The current laws are meant to deter those who are infected from attempting to intentionally spread the infection to others. Many, including the Washington Post and Equality California, have pointed out that cases such as these are extremely rare, and that in California, the current laws were mostly used against sex workers (ironically, SB 239 will abolish the current requirement that sex workers are tested after being convicted), as well as people of color and transgender women, even if there was no contact that could have resulted in the transmission of the virus. But although these disparities in enforcement are real, they must not be used as a justification to massively reduce the punishment for intentionally exposing someone to HIV. Helping those who have HIV while also stopping its transmission requires a more complex, holistic approach.
There are still many insufficiencies in dealing with HIV. Testing individuals for HIV is the first step in determining what kind of treatment they need, but tests are not always free or easily accessible, especially in poor or rural areas. This is something that can be remedied by the state providing funding to make testing cheaper (if not free) and raising awareness about the multitude of testing options, which include at-home DIY tests and confidential or anonymous tests. For drug users, needle exchange programs have routinely been found by the CDC and California Society of Addiction Medicine to reduce transmission rates of HIV and other STDs, especially among minorities. Thus, expanding the availability of those programs into affected communities can be another step to combating the virus. Another, albeit controversial, method for consideration is the regulation of prostitution in programs similar to Nevada’s, wherein brothels are allowed to operate in certain rural areas, and employ strict methods for testing for and preventing HIV transmission among their employees.
Individually, none of these methods are enough for combating the spread of the deadly, and currently incurable, HIV — but neither is this half-baked, shortsighted, feel-good law put forward by Senator Wiener and his co-authors. Although much fear and misinformation regarding HIV still persists today, the stigmas associated with the virus are, for the time being, the wrong thing to take aim at; stopping the virus itself through comprehensive approaches that address the many aspects of HIV infection and transmission is what we should focus on.
Only once a cure for HIV is discovered, and it becomes a trivial thing to remove, can we safely examine laws regarding its spread and conclude whether they are too extreme. So-called efforts to “decriminalize” HIV, such as SB 239, fail to adequately address the complexities of dealing with HIV and will not succeed in properly caring for those with the virus, nor will it protect those who may be deliberately exposed to the virus. Unfortunately, this bill has been signed into law, but it must be responded to with a far more nuanced approach that will better protect Californians.
Editor’s note (17 October 2017, 10:23 AM): The print version of this article incorrectly states that SB 239 was signed on Friday, Sept. 29. It was signed on Oct. 6.