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By Tom Smith, Ph.D.
A supportive and protective legal framework, rather than a punitive one, is needed for people affected by the HIV/AIDS epidemic. There is a community of interest between those infected and uninfected and between the government and individuals. An environment of mutual collaboration and support will reduce the transmission of HIV, will care for those affected and will have a beneficial effect.
To reiterate from the introduction: What is right or ethical may not be legal and legal injunctions may not appear to be ethical. However, since the emergence of the disease over 25 years ago, codes of ethics of the various health disciplines, the laws in the various states and common sense can help resolve ethical issues without too much handwringing.
The law can work for or against the transmission, treatment and prevention of HIV.
The types of law that are not effective are those that discriminate against people with HIV and puts a barrier up between them and their community and reduces the opportunities for the common interest to remedy the epidemic. Examples of such law are:
These laws do nothing to protect the public or those infected and if they are in place, they need to be repealed. There are, however, positive legal interventions that can be made. For example:
These are just a few examples. So, the law can be adequate or inadequate. It is important to have an ethics driven law formation process for the law to be an instrument of behavioral change.This section will consider Federal law, vs., the Americans with Disabilities Act, California law regarding name based reporting (CA SB 699), transmission (CA SB 705) discrimination and the duty to treat (2008 case pending against Western Dental), state criminal statues on HIV transmission and international issues and guidelines.
Current law in the United States concerns itself with confidentiality of the HIV positive person and those who may have been infected by that person; rights of those with HIV/AIDS as defined by the Americans with Disabilities Act, discrimination in the workplace and by insurance companies and health care organizations against those with HIV/AIDS, criminal transmission of HIV, mandatory testing for those charged with or convicted of sex crimes and confidential, anonymous testing and reporting by name.
As of April 2008, the CDC reports the following guidelines that influence the law:
HIV Infection Reporting
Surveillance data on HIV infections provide a more complete picture of the HIV/AIDS epidemic and the need for prevention and care services than does the picture provided by AIDS data alone. As of April 2008, all 50 states, the District of Columbia, and 5 dependent areas-American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands—use the same confidential name-based reporting system to collect HIV and AIDS data.
Before April 2008, some states and dependent areas did not use confidential name-based reporting to collect HIV data. The different methods of collecting data posed a challenge when compiling national data. To address the problem, CDC advised in 1999 that all U.S. states and dependent areas conduct confidential name-based HIV case surveillance as part of their AIDS case surveillance activities. This advice was strengthened to a recommendation in 2005. Compared with HIV reporting systems based on other types of identifiers (such as those based on a code or name-to-code), confidential name-based HIV reporting has proven to be more cost-effective, and it routinely achieves high levels of accuracy and reliability. Confidential name-based HIV infection reporting is consistent with reporting for other infectious diseases, including AIDS, and is now being conducted by all states, the District of Columbia, and 5 dependent areas.
To ensure the validity of the data, CDC includes HIV infection data from states and dependent areas that have conducted confidential name-based HIV infection reporting for at least 4 years (i.e., since at least 2003) to allow for stabilization of data collection and for adjustment of the data in order to monitor trends. Therefore, CDC’s HIV/AIDS surveillance report for 2006, published in 2008, includes data from 33 states and 5 dependent areas. It is important to keep in mind that the number of new HIV diagnoses does not necessarily reflect trends in HIV incidence (i.e., new infections) because some persons were infected recently and others were infected some time in the past. One method for estimating HIV incidence is to apply the serologic testing algorithm for recent HIV seroconversion (STARHS) to the serum specimens from which the diagnosis of HIV infection was made. As of January 2008, 25 states are funded to estimate population-based HIV incidence. The monitoring of HIV incidence will be critical in evaluating progress in decreasing the number of HIV infections that occur each year and in allocating resources and evaluating the effectiveness of prevention programs.
To safeguard the confidentiality and security of the data, CDC published guidelines in 2006 to ensure that data in the HIV/AIDS surveillance system are held under the highest of security standards and with the most stringent protections. The guidelines were based on consultations with state HIV/AIDS surveillance coordinators, CDC’s Divisions of STD Prevention and TB Elimination, and security and computer staff in other CDC centers and offices and were reviewed by staff in the state and local surveillance programs.
Confidential name-based HIV reporting is the Centers for Disease Control and Prevention’s standard for ensuring accurate and complete reporting of HIV cases within states and territories. As of April 17, 2006, California law SB 699 requires HIV reporting by name as do the remaining states. Under this law, enhanced civil and criminal penalties will be imposed for willful, malicious, or negligent disclosures of confidential HIV case information to protect individual privacy and ensure the secure exchange of individually identifiable information pertaining to HIV case reports.
Mandatory testing
The law is generally reluctant to mandate compulsory HIV testing. Albeit, testing is an acceptable and necessary part of HIV control and prevention along with counseling if one is found to be HIV positive. In 2006, the Kaiser Family foundation conducted a survey that found that just over half of adults in the U. S. had been tested for HIV at least once in their life. This is up from previous years; nevertheless, it is thought that about 25% of Americans are living with HIV and do not know it.
Most recently, in 2006, the CDC, in an effort to reduce the number of people who are unaware of their HIV status, issued guidelines that call for automatic, routine HIV testing of all adults and adolescents in any health care agency. Such a policy permits patients to opt out if they do not wish to take a test, but removes the need for written consent and lengthy pre-test prevention counseling, which were understood as barriers to HIV testing and a universal screening approach. So, currently those who seek health care are offered the opportunity to get tested for HIV voluntarily with informed consent. One can always refuse to be tested. Testing is not mandatory. However, if a person is found to be positive they are offered “partner counseling and referral services”; that is to say, that the infected person will be offered assistance in tracking down and informing partners of possible infection and the importance of being tested.
Although the CDC issues guidelines, standard testing practice varies from state to state. The differences are in the testing of mothers and newborns for HIV, anonymous testing versus confidential testing, case reporting and mandatory testing of certain populations. For example, in New York and Connecticut, every newborn baby has a mandatory HIV test if the mother has not had a test during her pregnancy. As of May 2007, 52 states or territories had name based reporting and two had code based reporting. Forty-eight states offer anonymous testing in addition to confidential testing eleven offer confidential testing only.
There are however certain sectors of society who, for public health reasons, are required by law to take an HIV test. Prison inmates is a high-risk group that is required to get an HIV test in some states. As of 1999 nineteen states had laws in place that required all prison inmates to receive an HIV test upon entry into jail, mandatory HIV testing. Thirty-nine states tested inmates who had been in an incident that caused bleeding, and three states and all prisons run by the Federal government imposed mandatory testing of inmates upon release. Local and city prisons generally do not enforce mandatory testing however.
Both the World Health Organization and the US Department of Justice oppose mandatory testing in prisons. There is very little evidence showing that mandatory testing in prisons is effective as a public health measure, so most AIDS organizations support a voluntary opt-out policy similar to that offered to pregnant women.
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act states that any foreign national with a “communicable disease of public health significance” is “inadmissible.” HIV remains on the list that the Department of Health and Human Services keeps which defines “communicable diseases of public health significance.” Until HIV is removed from its list, foreign nationals with HIV will continue to be “inadmissible”; they may, however, receive a waiver, which, unfortunately, is difficult to obtain.
In March of 2004, the Department of Defense implemented a policy directing that all members of the military be tested every two years. Service members infected with HIV are not automatically discharged; they may continue to serve. New recruits are tested and may be rejected if found positive.
In general, crime victim-related HIV laws require the testing of alleged and convicted sex offenders for HIV/AIDS, and the disclosure of the results of the offenders’ tests to the victims. By 1997, forty-five states had adopted laws mandating HIV/AIDS testing of sexual offenders in cases involving sexual penetration or other exposure to an offender’s bodily fluids. Some of those apply to pre-conviction testing, others to post-conviction testing, and some states have laws that apply both pre-conviction and post-conviction.
Thirty-six states have laws that apply to convicted adult offenders or adjudicated juvenile offenders in sexual assault cases:Alabama; Arkansas; Arizona; California; Connecticut; Florida; Georgia; Illinois; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maine; Maryland; Michigan; Minnesota; Mississippi; Missouri; Montana; Nebraska; New Hampshire; New Jersey; New Mexico; New York; Oregon; Pennsylvania; Rhode Island (mandatory for persons sentenced to prison); South Carolina; Utah; Virginia; Washington; West Virginia; Wisconsin; and Wyoming.
Eighteen of the states require testing of those arrested or indicted for an offense: Alaska; Arizona; Colorado; Delaware; Florida; Idaho; Kansas; Louisiana; Michigan; Nevada; New Jersey; North Carolina; North Dakota; Ohio; Oklahoma; Tennessee; Virginia; and Wisconsin.
Even where a state does not have a law specifically relating to the testing of sex offenders, it may have a law that allows a person to seek a court order for disclosure of another person’s confidential HIV/AIDS information. The person desiring the information must demonstrate a compelling need for access to the information.
In nearly every state that allows disclosure of the test results to the victim, where the victim is a minor the information is disclosed to the parents or guardian. In California victims are to be counseled regarding the transmission of HIV/AIDS and the nature and reliability of the test prior to requesting a hearing on testing or before requesting the test results. States may mandate that test results only be revealed to a victim by a trained health care provider.
Criminal Transmission
As of 2008, 36 states in America criminalized the transmission or exposure of HIV, with many having laws specifically mentioning HIV. Some states punish those convicted of offences such as prostitution or rape more severely if the person knows they have HIV. Spitting or emitting HIV-infected bodily fluids at another person while in prison is also an offence in some states.
Some of the laws are:
Alabama – Engaging in activities likely to transmit an STD is a class C misdemeanor.
California – Engaging in uninformed, unprotected sexual activity (exception for consent) with the intent to infect the other person is a felony punishable by up to 8 years in prison.
Colorado – Committing or soliciting prostitution with knowledge of being HIV positive are class 5 and 6 felonies.
Florida – Unlawful for person with HIV, with knowledge both of their infection and risk of sexual transmission, to have sex without disclosure and consent having taken place.
Michigan – It is a felony to engage in sexual penetration, however slight and regardless of whether semen has been emitted, without informing the other of his/her HIV status.
Missouri – It is a class B felony to expose person to HIV if defendant knowingly acted in a reckless manner without knowledge and consent through oral, anal or vaginal sex. If the plaintiff becomes infected, the charge is a class A felony. The use of a condom is not a defense.
New York – The applicable part of the law is reckless endangerment in the first degree for engaging in “conduct which creates a grave risk of death to another person”.
Pennsylvania – The state Superior Court ruled in a 2006 case involving oral sex that HIV-positive people who do not disclose their status to their sexual partners can be charged with reckless endangerment. It follows that any kind of unprotected sex without disclosure could be prosecuted.
Texas – HIV transmission cases have been brought to court under aggravated assault laws whereby a person “intentionally, knowingly, or recklessly… uses or exhibits a deadly weapon as part of an assault”.
The critical passage in the California Law SB 705 (February 1997) is: “Any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom) when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony. “A person’s knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent” (author’s emphasis). Also, included in California law, but not specific to HIV/AIDS is: “Any person afflicted with any contagious, infectious, or communicable disease who willfully exposes him/herself to another person is guilty of a misdemeanor”. This law also allows a person’s HIV status to be disclosed if the person is the subject of a criminal investigation for criminal knowing transmission.
The specific-intent clause has caused an ongoing debate between HIV advocates, who say the language of the law protects HIV positive people from unfounded accusations, and law enforcement officials, who say that the measure constrains their ability to prosecute such cases. There is some criticism that this California law is too narrow and prosecutors cannot secure conviction for knowingly transmitting HIV. And then again, the ACLU and other national groups have expressed concern that many newly drafted laws are too vague because they may criminalize individuals by virtue of their membership of a higher risk class of person, e.g., known drug users, the sexually promiscuous, etc., which will simply encourage prejudice and discrimination against the groups identified.
The “Lister Case” demonstrates the difficulties of prosecution. In 2002, Ron Hill was accused by his former partner, Thomas Lister, of knowingly infecting him with HIV and repeatedly lying about it. After discovering Mr. Hill’s status in a medical document, Mr. Lister confronted Mr. Hill, but Hill continued to lie about his condition. The San Francisco Superior Court ordered Hill to pay $5 million in damages for knowingly infecting Lister and lying about it. Lister was subsequently indicted and arrested because he engaged in a pattern of such behavior with other men. Amazingly, Hill was a San Francisco health commissioner and an AIDS activist. He went to trial for criminal transmission in December 2003. The case was thrown out of court on the grounds that there was insufficient evidence to support the charges. Last heard, Hill was on his deathbed. Hill’s behavior was not accidental but reckless and reprehensible and apparently not intentional.
Not all cases fail successful prosecution. In 1998, in Louisiana, Richard J. Schmidt, M. D. was convicted of knowingly injecting a nurse with HIV tainted blood; he was sentenced to 50 years. Also, in 1998, Brian Stewart from Illinois was sentenced to life in prison for knowingly injecting his son with HIV tainted blood. In 2004, Anthony Whitfield was sentenced to 178 years in a Washington state prison for exposing 17 women and infecting his wife and four others with HIV. Most recently, Cecelia Silker, in October 2008 was successfully prosecuted for mother-child transmission. Her boy later developed AIDS.
Let it be said that people lie about their status and others assume too much when they engage in unsafe sexual practices. There are substantial arguments for criminalization and against criminalization.
Cases outside of the United States
Outside of the United States, several cases of criminal transmission have been successfully prosecuted: In 1997, Pavlos Georgiou of Cyprus was sentenced to 15 months in prison in one of the first successful prosecutions for criminal transmission. In 2004, Christophe Morat was sentenced to six years in a French prison for infecting two women, one who later committed suicide. Also, in 2004 Hans-Otto Schiemann was sentenced to 2 months in a Thai prison for infecting over 100 women; he was later deported. Mohammed Dica was convicted in 2005 of knowingly infecting two women in the U. K. and sentenced to 4 1/2 years after two trials. Over a dozen other convictions were obtained in the U. K. for criminal transmission. Convictions have been obtained in Canada, New Zealand, Libya, South Africa and Switzerland.
Many countries have laws that make it a crime to transmit HIV, and have used use either general laws relating to assault or have introduced HIV-specific legislation. As of November 2008, 33 countries are considering legislation that would prosecute people who transmit HIV and 58 countries have similar laws or use existing laws to criminalize transmission; among them are United States, the United Kingdom, Canada, Benin, Togo, Guinea, Sierra Leone, South Africa, Libya, New Zealand, Australia and Switzerland.
Different nations and states and territories within nations have different criteria for prosecutions and convictions to occur, as well as varying degrees of punishment. Moreover, the language of the laws is not necessarily an indicator of how they are administered. Some countries may be far more punitive than others despite prohibiting similar offences.
References
HIV Infection Reporting
http://www.cdc.gov/hiv/library/reports/surveillance/index.html
Cases of HIV Infection and AIDS in the United States and Dependent Areas, 2006. Vol. 18. Atlanta: U.S. Department of Health and Human Services, CDC; 2008:1–55.
http://www.cdc.gov/hiv/pdf/g-l/hiv_surveillance_report_vol_25.pdf
CDC. Dear Colleague letter re name-based HIV reporting from Julie Gerberding, July 2005
http://www.cdc.gov/hiv/pubs/070505_dearcolleague_gerberding.pdf
CDC Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health-Care Settings
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5514a1.htm
Criminal transmission of HIV
http://www.avert.org/criminal-transmission.htm
http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=55520
Guidelines for National Human Immunodeficiency Virus Case Surveillance, Including Monitoring for Human Immunodeficiency Virus Infection and Acquired Immunodeficiency Syndrome.
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr4813a1.htm
HIV name reporting by state 2007
http://www.statehealthfacts.org/comparetable.jsp?cat=11&ind=559
Kaiser Survey of Americans on HIV/AIDS 2006
http://www.kff.org/kaiserpolls/pomr050806pkg.cfm
Military testing
http://www.thebody.com/content/art26305.html
Testing in the prison system
http://www.cdc.gov/idu/facts/cj-ct.htm
Weber, David W., AIDS and the Law, Fourth Editon, Wolters Kluwer, Aspen Publishers, New York, NY, 2008