HIV Decriminalization: Does it Increase the Public Safety Risk?
California Governor Jerry Brown recently signed California Senate Bill 239 into law. Starting on January 1, 2018, it will no longer be a felony in that state to knowingly expose a sexual partner to HIV with the intent of transmitting the virus. The law also eliminates the penalty for knowingly donating HIV-infected blood.
Some call it “a major step towards treating HIV as a public health issue, instead of treating people living with HIV as criminals.” Others have criticized it, saying, “that the new law is an attempt to cater to a leftist notion of right to privacy” and that it allows people to be irresponsible and to not disclose the possibility of a life-altering infection.
During the late 1980s, the HIV/AIDS epidemic gripped the United States. There was a lack of medical knowledge about this disease, a lack of effective medical treatments and tremendous fear surrounding the disease and the people who were infected. To curb this fear, two-third of states, including California, created statutes that criminalized certain sexual conduct by HIV-positive people.
California enacted four HIV-specific criminal laws. The first law was California Penal Code Section 647(f), which made it a felony to engage in sexual “solicitation, if the person tested for HIV in a prior solicitation or other sex offense that resulted in mandatory HIV testing.”
The second was Cal. Health & Safety Code Section 120291, which made it a felony punishable by imprisonment of up to eight years for “an HIV-infected person to engage in unprotected sex with another person without disclosing his or her status and with a specific intent to transmit the disease.”
The third law, Cal. Health & Safety Code Section 1621.5 made it a felony for a person “to have knowledge that one is HIV-positive while donating blood, organs, tissue, semen, or breast milk.”
Finally, there was California Penal Code Section 12022.85, which imposed an additional three years of imprisonment for any person engaging in nonconsensual sex crime with knowledge that he was HIV-positive.
The new bill drastically transforms the legal landscape because it repeals all four existing laws. It reclassifies the intentional transmission of the HIV virus and intentional donation of AIDS-infected blood from felonies to misdemeanors. Additionally, it limits the possible punishment time for willful exposure of another to the disease to imprisonment in a county jail for not more than six months.
The bill’s sponsor, Sen. Scott Wiener, spoke about the bill’s positives, saying that it “will make it more likely that people will get tested for HIV and seek treatment, by removing stigma. Criminalizing health conditions harms public health. Criminalizing HIV makes it less likely people will get tested. If an HIV infection occurs, we need to make sure that people have access to healthcare.”
Though advocates contend that this new law removes the stigma associated with HIV because it treats it as a public health issue and not a criminal issue, critics have argued that the new law fails to protect the health and safety of citizens. These critics also allege that classifying these offenses as misdemeanors limits the law’s ability to deter dangerous conduct. The argument is that the law fails to discourage predatory and reckless behavior.
While the new law decreases the criminalization of sexual conduct by HIV positive persons, an important question remains as to whether it is constitutional at all to treat people differently based on HIV status. Prior to the enactment of SB 239, there were two constitutional challenges to California’s HIV criminalization laws that made these HIV offenses crimes. The courts rejected with both challenges.
The plaintiff in the first case, Love v. Superior Court challenged the statutory requirement that a person get tested for HIV if convicted under solicitation, arguing that these tests were unreasonable searches under the Fourth Amendment of the United States Constitution. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Though a compulsory blood test is a search within the meaning of the Fourth Amendment and thus must be reasonable, the California Court of Appeals upheld the mandatory tests. The court based its holding on the special government need “to prevent the spread of AIDS,” beyond standard law enforcement. The new law does not have any mandatory testing requirement, so this won’t even be an issue.
The other potential problem is that these laws still treat those who have HIV “differently” than those with other communicable diseases. This issue was addressed in 1998. In Guevara v. Superior Court, an imprisoned sex offender challenged the three-year sentence enhancement on two grounds. First, he argued that the statute punished a person’s status as HIV positive instead of criminal conduct and as a result, it violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.” The court disagreed and found no Eighth Amendment violation because the statute required there to be nonconsensual sex crimes for the sentence enhancement to be instituted. Second, the defendant alleged that the law violated the Fourteenth Amendment’s “equal protection of the laws” clause because it treated HIV patients different from those suffering from other communicable diseases. Again, the court disagreed and found that treating HIV differently was permitted because the state had a compelling interest in public safety that warranted the difference in treatment.
Public health scholars have pointed out that HIV criminalization bears little relationship to transmission risk and fails to account for advances in medical treatment. At the national level, the Department of Justice and the Centers for Disease Control and Prevention published a joint-study in 2014 addressing the topic and recommended that states “assess the laws’ alignment with current evidence regarding HIV transmission risk, and consider whether current laws are the best vehicle to achieve their intended purposes.” With the enactment of SB 239, it appears as if California is following the federal government’s advice and has found a better vehicle to approach the intersection of HIV and criminal law.
 Love v. Superior Court, 226 Cal. App. 3d 736, 276 Cal. Rptr. 660, 1990 Cal. App. LEXIS 1363, 91 Cal. Daily Op. Service 109, 91 Daily Journal DAR 141
 U.S. Const. amend. IV.
 Schmerber v. California, 384 U.S. 757, (1966).
 Guevara v. Superior Court, 62 Cal. App. 4th 864, 73 Cal. Rptr. 2d 421, 1998 Cal. App. LEXIS 264, 98 Cal. Daily Op. Service 2305, 98 Daily Journal DAR 3129
 Kim Shayo Buchanan, “When Is HIV a Crime? Sexuality, Gender and Consent,” 99 Minn. L. Rev. 1231, (2015).
 J. Stan Lehman, Meredith H. Carr, Allison J. Nichol, Alberto Ruisanchez, David W. Knight, Anne E. Langford, Simone Gray & Jonathan Mermin, “Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States,” 18 AIDS & Behavior 997, (2014).