By: Jeramy Ashton
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
During the early days of the fight against HIV, American physician and AIDS researcher Johnathon Mann made the galvanizing statement, “There is a prejudice associated with this fight, will you help me fight it?” Forty years later, the fight to eradicate the prejudice against human immunodeficiency virus and acquired immunodeficiency syndrome continues. World AIDS Day, observed on December 1, is a time to unite in the fight against HIV, to condone lingering fallacies, and strive to repeal outdated, punishing legislation targeted at people living with HIV.
In June 1981, the fatal virus, then known as gay-related immune deficiency (“GRID”), devastated the United States. AIDS, the last stage of what is now known as HIV infection, substantially weakens the immune system ultimately causing the body to succumb to “opportunistic infections.” The federal government failed to address the epidemic for almost seven years. Inaction led to a massive amount of misinformation and stigma surrounding people living with HIV. By 1985, HIV went from being “the gay disease” to rapidly overtaking the heterosexual community through blood transfusions, intravenous drug use, and childbirth. In conservative southern states, children like fourteen-year-old Ryan White, who contracted HIV through a blood transfusion, were chased out of school and attacked at their homes. In California, bumper stickers proclaimed: “AIDS – it’s killing all the right people.” Many legislative and judicial attempts were taken to maintain a focus on traditional family values and suppress HIV/AIDS related education. It was not until 1987 that President Ronald Reagan even publicly used the word “AIDS.” Activists valiantly fought for the government to take action and counter the stigma surrounding HIV.
Today, we continue to see the fruits of such stigmatization and delayed action. In February 2021, the Arkansas Court of Appeals affirmed a twelve year sentence of a man living with HIV with an undetectable viral load, citing, “even in his current medical state, appellant is still—and will always be—HIV positive, a disease to which there is no cure or vaccine and is still potentially fatal.” The ruling not only stigmatizes HIV but exposes prejudice in the failure to recognize and incorporate significant scientific progress that promotes the purpose of the statute, limiting HIV exposure. Additionally, Howton argued that such a statute “singles out disfavored persons by illness [and] labels them as dangers to the public.” The Court agreed with the State’s response, labeling a person capable of transmitting HIV as a “danger to the public” does not impose any kind of “punishment” on people living with HIV. What the court failed to consider was the historical and ongoing “punishment” suffered by the gay male community and all people living with HIV; misinformation, ongoing prejudice, and decreased well-being.
In 1988, after mounds of pressure from HIV and AIDS activists, President Reagan’s Presidential Commission on the Human Immunodeficiency Virus Epidemic recommended states enact laws to deter people with HIV from exposing others in a way likely to transmit the virus. Although few knew what the virus was, how it was transmitted, and how to prevent the spread, legislative efforts took off, motivated by political pressure, morality, and abstinence, with little adherence to public health recommendations. In response, Arkansas passed Ark. Code Ann. § 5-14-123 in 1989, which makes it a criminal offense for a person to “knowingly expose another person to HIV through engaging in sexual conduct without disclosing the person’s HIV-positive status.” Arkansas’s broad statute defines “sexual conduct” as “any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body.” Further, such exposure is a felonious offense that requires sex offender registration. By 1996, during a time when many believed the toxic fable that people living with HIV purposely exposed others for the sake of “I’m dying so you should die too,” a congressional survey showed that over three-quarters of Americans agreed that one who knowingly exposed someone to HIV should face criminal charges. Such criminalization was fueled by fallacy and stigma surrounding the virus and those living with HIV. The lingering effects of criminalizing individuals living with HIV and AIDS are experienced right here in Arkansas today.
The outdated legislation fails to consider exceptional medical advancements that destigmatize the virus and significantly reduce the spread of HIV by approximately ninety-six percent. Current HIV treatment options enable a person living with HIV to reach an undetectable viral load that cannot even be detected in most blood tests. Additionally, preventative medication (“PrEP”) is now available for HIV-negative adults at high risk for getting HIV through sex or injection drug use. Insurance coverage of PrEP includes medications as well as necessary clinic visits and lab tests. Medical progress and preventative measures are important because without the ability to actually “expose” someone to HIV, the purpose of the criminalization laws, decreasing HIV transmission rates, is no longer relevant.
Criminalization statutes such as Arkansas’s conflict with public health and medical advancements. Donald Hermann, Director of DePaul University Health Law Institute wrote, “A serious problem exists with these statutes” in terms of not recognizing the use of condoms and modern-day preventative measures as a defense. Without such a defense, “it is possible to argue that by looking at the conduct specified, the use of a condom removes the harm from the statutory definition of conduct likely to result in HIV transmission.” The court in Howton relies on the fact that even if he had an undetectable viral load, the Defendant failed to inform his sexual partners of his HIV Positive status. A frustrating part of this is the next to nothing educational resources for newly diagnosed people living with HIV to know how to have a conversation with individuals about their diagnosis, forms of transmission, and control factors. According to the CDC, “these laws have been shown to discourage HIV testing, increase stigma, and exacerbate disparities.”
Forty years after Dr. Mann pleaded for help to fight the prejudice of HIV and AIDS, we continue to experience the lingering and ripe effects of such prejudice, misinformation, and injustice. On World AIDS Day and every day after, may we educate ourselves on the facts, adhere to scientific progress, and pummel the stigma of HIV and AIDS. May we heed the call to fight the prejudice and #StopHIVTogether.