In her op-ed piece in the New York Times, Sex Crimes that Shouldn't Be, Laurie Shrage, professor of philosophy and women’s and gender studies at Florida International University, makes a strong case for ending laws that criminalize behavior based solely on a person’s HIV status. Under most circumstances Americans have a legally recognized expectation of privacy. But in many jurisdictions, “people who know they are H.I.V.-positive are legally required to disclose this status to potential sexual partners, even when they intend to engage in relatively safe and protected sex.”
Shrage says that disclosure laws are ineffective at stopping the spread of HIV while selectively disregarding the privacy rights of those who know they are HIV positive. With treatment viral loads can be reduced to undetectable levels making the risk of transmission virtually zero. Given that knowledge, she says, there is no justification for mandating and enforcing disclosure of HIV status to sexual a partner.
“When the failure to disclose one’s H.I.V. status can be a felony offense (regardless of whether there is an intent to harm or a significant risk of harm), we unfairly single out people who pose little danger to others for potential criminal prosecution, and we intensify the social stigma that people with a manageable health condition face.”
Simply put, HIV is a public health issue and the countries that have made the most progress combatting the spread of HIV have done so through aggressive public health campaigns, not through criminalization.
There are signs that change is possible. The 2012 Oslo Declaration calls for the end of criminal prosecutions for HIV non-disclosure, exposure and unintentional transmission. The REPEAL H.I.V. Discrimination Act, introduced in Congress last year, calls for the modernization or elimination of laws and policies that encourage and allow legal HIV discrimination.
Shrage says by repealing laws that mandate disclosure of HIV status we “move in the direction of adopting more just and effective policies for combating the H.I.V. epidemic, while protecting the most fundamental human rights.”