Criminalizing HIV Transmission Does More Harm Than Good - Pacific Standard

Criminalizing HIV Transmission Does More Harm Than Good

Can the American Psychological Association's stand against HIV criminalization laws convince state policymakers that transmitting the virus should not be a crime?
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Angelica Tome does a chalk drawing of a red AIDS ribbon on Castro Street on World AIDS day in San Francisco, California. (Photo: Justin Sullivan/Getty Images)

Angelica Tome does a chalk drawing of a red AIDS ribbon on Castro Street on World AIDS day in San Francisco, California. (Photo: Justin Sullivan/Getty Images)

Last week, the American Psychological Association published a resolution against HIV criminalization laws—measures that punish people with the virus for not telling their sexual partners about their HIV status. These measures grew out of panic over AIDS in the 1980s, driven partly by a lack of knowledge about how HIV is transmitted, and partly by prejudice against the population in which the virus was spreading fastest—men having sex with men. But the APA argues that, rather than reducing the spread of the virus, these laws can actually fuel the epidemic.

These HIV-specific laws can discourage people from getting tested by making ignorance of their HIV status a form of protection against sex-related criminal charges, according to David Martin, senior director of the APA's office on AIDS. "If you don't know whether you have [the virus], you can't be prosecuted for having sex with someone and not telling them you have HIV," he says. "But if you do know and don't inform your partner, even if you use a condom and everything you did was safe with regards to the possibility of transmission, you can be incarcerated." After being locked up, Martin explains, people become much more likely to transmit HIV, due to the prevalence of high-risk sexual behavior and drug use in prison—as well as a lack of condoms.

A wave of research has already argued against HIV-specific laws.

And yet, HIV criminalization measures remain popular. Thirty-three states have HIV-specific laws on the books. The justification for these laws is that having sex while infected with HIV means running a substantive risk of passing on the virus, and partners have the right to know exactly what risks they're taking. But people with HIV can take effective steps to prevent transmission. As early as the late 1990s, researchers had found that consistent condom use is at least 90 percent effective in preventing HIV transmissions. And the base risk of contracting the virus itself is small: The most likely route of transmission is from unprotected anal sex, and in that case epidemiologists have estimated the risk to be below two percent.

A wave of research has already argued against HIV-specific laws, noting that those rare cases in which people do intentionally spread HIV can be prosecuted under broader criminal law and so do not require targeted legislation. The White House chimed in against HIV criminalization in 2010, followed by a 2014 Department of Justice guide for updating the laws to reflect the latest research. But states have yet to respond.

Though the APA has long voiced support for reversing HIV-specific laws, their recent resolution gives them greater clout for advocacy with government officials, according to Martin. Now, when the APA sends representatives to lobby on Capitol Hill, "They can say, 'This is the APA's official policy,' rather than just, 'We think this is a good idea,'" Martin says.

Decisive resolutions from the APA are noteworthy. The organization frequently weighs in on issues to which psychological research can be applied—including best practices in delivering health care, sexual assault in the military, and affirmative action policies—by distributing press releases of relevant research findings or contributing briefs to individual court cases. But the APA takes a unified, official position on social issues far less often.

Still, Martin says, staying silent on political issues relevant to public-health research runs counter to the APA's mission. He points to the APA's past resolutions against sexual orientation-based discrimination, and, in 2014, the organization called for greater gun control measures and warned against treating gun violence as chiefly a problem of mental illness. "People think of the APA as mostly a professional guild agency," Martin says. "But its stated mission is to advance the creation, communication, and application of knowledge from psychology to improve lives. Passing this resolution is perfectly within that scope."

Psychological research can be applied to everything from policing to education disparities, and the APA has an important role in determining whether the field's findings are being applied constructively or harmfully. But the organization's public image as an advocacy organization took a hit last summer, when it broke that APA psychologists had cooperated with the Central Intelligence Agency and Pentagon to develop torture techniques after the 9/11 attacks, as documented in a report by a former federal prosecutor. The APA promptly responded to the report by banning psychologist participation in national security interrogations.

Still, the scandal undoubtedly damaged the APA's credibility as an organization committed to bettering society. But Martin and his colleagues are hopeful that the organization's latest resolution will help the APA have a positive social impact, by bringing researchers' and federal policymakers' consensus on HIV criminalization to the state level.

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