Nick Rhoades was originally sentenced to 25 years in prison for failing to disclose to a sex partner that he was HIV-positive. The fact that he had used a condom during intercourse and was on anti-AIDS drugs, which make transmission unlikely, didn’t matter.
While Rhoades’ sentence was an outlier and was later reduced to five years’ probation, many other states have laws against “criminal transmission of HIV” — regardless of whether the partner actually contracts the virus. Some states also criminalize HIV “exposure,” even in ways that experts say carry little, if any, risk of infection. Among the stories in our recent investigation:
● An inmate in Ohio was accused of “felonious assault with HIV” for performing oral sex on a fellow inmate, though scientists agree there’s nearly zero chance of HIV being passed this way.
● In Nebraska, spitting on a cop is a misdemeanor, unless the offender is HIV-positive. Then it’s a felony, punishable by up to five years in prison and a $10,000 fine. The Centers for Disease Control and Prevention says that spitting cannot transmit HIV.
● Nigalia Gibbs, a former St. Louis sex worker who was born with HIV, was convicted of prostitution while “knowingly infected” with the virus. Gibbs told police she always practiced safe sex, and none of her former customers were found to be infected.
● A South Carolina man spent five months in the Marion County jail awaiting trial for “exposing another to HIV.” He pleaded guilty and was credited with time served, but not before U.S. Immigrations and Customs Enforcement filed to detain him on immigration charges. In February 2011, a federal judge ordered him deported to Mexico.
Proponents say the laws protect people from unknowingly contracting HIV and keep the responsibility on those who can pass on the virus. “Shifting the burden of HIV disclosure from the infected person, who is aware of a known danger, to one who is completely unaware of their partner’s condition smacks of a ‘blame the victim’ sort of mentality,” said one state prosecutor.
But some health and legal experts say using criminal penalties could backfire and fuel the spread of HIV. According to the CDC, 1.1 million Americans are currently living with HIV, but one-fifth of them don’t know it. And studies show that about half of newly infected people got the virus from those who didn’t know they had HIV. So relying on a partner to know, let alone disclose, their HIV status is a risky proposition.
The laws “lull people who are not HIV-positive — or at least think they are not HIV-positive — into believing that they don’t have to do anything,” said Scott Schoettes, a lawyer who supervises HIV litigation for Lambda Legal, the national gay-rights advocacy group.