California and other states would be pressured to amend or repeal criminal laws that single out HIV-positive people under a bipartisan bill co-authored and introduced this week by Rep. Barbara Lee.
Lee, D-Oakland, said 32 states and two U.S. territories have laws that criminalize exposing another person to HIV even if the virus isn't actually transmitted. And 36 states have reported at least 350 cases in recent years in which HIV-positive people have been arrested or prosecuted for consensual sex, biting and spitting, according to the Center for HIV Law and Policy.
Lee wrote H.R. 1843, the Repeal Existing Policies that Encourage and Allow Legal (REPEAL) HIV Discrimination Act, with Rep. Ileana Ros-Lehtinen, R-Fla., to press for review of such laws.
"These laws are based on bias, not science," Lee said. "We need to make sure that our federal and state laws don't discriminate against people who are living with HIV. These laws breed fear, discrimination, distrust and hatred, and we've got to modernize them. That's exactly what this legislation would do."
As the sole American on the United Nations Development Program's Global Commission on HIV and the Law, Lee was shocked to discover a few years ago that "lo and behold, in the United States we're one of the top bad actors on this," she said Wednesday.
The Ryan White Care Act of 1990 bankrolled local and state HIV programs but also required states to criminalize the virus' intentional transmission. In February, the Presidential Advisory Council on HIV/AIDS passed a resolution calling for an end to federal and state HIV-specific criminal laws and prosecutions.
"Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it," the resolution said.
Lee's bill would let the U.S. attorney general, the secretary of Defense, and the secretary of Health and Human Services monitor new and existing laws, and create a set of best practices for lawmakers to consider.
A similar bill Lee introduced in September 2011 had 41 co-sponsors -- all Democrats -- but died without a single hearing or vote. But having Ros-Lehtinen as a co-author should help attract more Republican support this year, Lee said.
"I'm not saying we're going to get this done tomorrow," she said, "but we're going to get it done sooner or later."
California law makes it a felony to expose someone to HIV if you know you're infected at the time you have unprotected sex with that partner, haven't disclosed your status to that partner and act with specific intent to infect that partner. It's punishable by three, five or eight years in state prison.
But the law specifies that "evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent."
Some other states' laws are more vague. Alabama criminalizes "conducting oneself in a manner likely to transmit the disease," and South Carolina can prosecute someone for "exposing another person to HIV without first informing."
California law also allows HIV-positive people to get longer prison terms or aggravated assault charges for sex crimes; stiffer penalties for prostitutes or johns with HIV; and criminal penalties for HIV-positive people who donate blood, organs and other tissues, semen or breast milk.