Not telling a sexual partner you have HIV could land you jail
When Peter Ayala set his girlfriend’s car aflame last year, he was convicted and sentenced to a year in prison in his native Ohio. But this past November, the 45 year old was charged with another crime that earned him an additional five years behind bars. Ayala committed the same error that sent Brooklyn teenager Nushawn Williams to jail over a decade ago. Both men made a choice of omission that more and more U.S. states now consider to be a felony: they neglected to tell their partners that they had tested positive for HIV, the virus that causes AIDS.
HIV legislation is not a new trend in the U.S., and many states legally require that health care providers report the names of HIV-positive patients to their respective health departments. In New York, the HIV Reporting Law was passed in June of 2000, and the premise behind it, according to Daniel O’Connell, deputy director of the New York Department of Health’s AIDS Institute, is to provide the necessary data to control an international contagion that has already claimed the lives of more than 545,000 Americans since 1981.
“For years, we were working with an older picture of the epidemic,” O’Connell said in a phone interview this week. “HIV reporting has provided the department with ongoing information about where the epidemic is, including information about new diseases.”
O’Connell added that New York’s position on HIV Reporting is not “anomalous.”
“The whole country is moving towards this,” he explained. “We were not the first.”
What New York public health law is not moving towards (though it has been proposed, according to O’Connell) is the criminalization of HIV transmission, an act that would deem reckless or intentional HIV transmission a crime. According to the latest Kaiser State Health report, such statutes exist in 32 states, including Ohio, where Peter Ayala was convicted. His failure to inform his girlfriend that he was HIV-positive, despite being sexually active with her, was a violation of the Buckeye State’s “House Bill 686.” This relatively unknown law, as described by Bill Tiedemann, administrator of the Ohio Department of Health’s HIV/STD Prevention Program, prohibits Ohio residents from knowingly having sex or sharing a needle with a partner without first disclosing an HIV positive status.
“We educate folks about [House Bill 686] because they need to be able to discuss it,” said Tiedemann. “They need to get assistance with it because they could end up in a court case.”
Criminal statutes on HIV transmission are part of the state governments’ wider effort to combat the spread of AIDS, a disease that still remains incurable and still continues to infect new people every day. But these laws are strongly contested by advocacy agencies and AIDS coalition groups, who are fearful of fostering stigma and further discriminating against an already hurting community.
“It is an emotional knee-jerk reaction by the government,” said Kevin Sullivan, Executive Director of the Ohio AIDS Coalition in Columbus, OH, of his state’s criminal sanctioning of HIV transmission. “These cases of criminal prosecution are not based on proof but on the emotions that surround a person with HIV.”
While Sullivan acknowledged that the law is rarely applied in Ohio, he said that the existence of it stimulates a culture of emotional unease for people living with the virus. What’s more, he added, is that the onus of protection lies exclusively with the HIV-positive individual rather than as a mutually-shared choice between two partners.
“It gives a false sense of security for people who are not HIV positive,” Sullivan said. “They don’t think they have to be concerned because the law will protect them, but it doesn’t.”
And as for those who are infected with the virus, Sullivan said that the law makes them feel as if “…they’re being watched.”
Perhaps the strongest argument against HIV criminalization statutes is the theory that these laws discourage people from seeking out their HIV status. If the law only prosecutes those who are HIV positive, opponents maintain that at-risk people will no longer be willing to get tested. Sullivan asserted this when he complained that House Bill 686 drove people “underground” at a time when AIDS awareness groups are already struggling to provide care for patients in need. Bill Tiedemann expressed a similar sentiment.
“It’s not an effective law, because if you knew about it, you wouldn’t get tested.” Kate Shumate, Tiedemann’s colleague and a director of Ohio Department of Health’s HIV care services, summarized Peter Ayala’s case as a “giant hiccup” and speculated whether or not his recent conviction would deter others from getting tested themselves.
O’Connell maintains that New York’s HIV laws do not negatively impact the number of people who get tested for HIV, highlighting that 2 million New Yorkers were tested last year.
Sullivan was quick to point out that the Ohio AIDS Coalition does not invest significant energy fighting the HIV criminal laws because they have been enforced primarily against people who have behaved in an “outrageously negligent” manner. Anthony Whitfield of Lacy, Washington, is one such example: he was sentenced to life in prison in 2004 after his exploits exposed 170 people to the virus. What prompted Ohio’s legislation, according to Sullivan, was the media frenzy that surrounded the 1999 conviction of Williams in upstate New York.
Williams caused an uproar in the usually quiet community of Chautauqua County, N.Y. when 13 local women tested positive for HIV after having slept with him. Some were teenagers; the youngest was 13 years old. When Chautauqua and New York City Health Department officials finally managed to track Williams down, he admitted to having close to 80 different sex partners—some local to the city and some from upstate—many of whom could have been exposed to the AIDS virus. Williams slept with some of his partners before he learned of his HIV status. But he also had unprotected sex with several women after he knew he had HIV, including six of the 13 young women from the rural towns of Chautauqua County whom he infected. The Brooklyn teen, whose checkered police record included drug dealing and robbery, was not tried under an HIV criminalization statute because none exist in New York. However, he was charged with reckless endangerment stemming from drug use and having sex with a minor.
The Chautauqua County AIDS outbreak quickly emerged in the press as a sensational and scandalous story with Williams cast as the villain. Newspaper headlines screamed “Lethal Lothario” and “One Man HIV Spree.” At the time of Williams’s arrest, N.Y. Mayor Ruldolph Giuliani announced that ”There’s no question he should be prosecuted for attempted murder, or worse.”
Catherine Hanssens, the executive director of the Center for HIV Law and Policy in New York City, recalled the frantic outrage and the subsequent hysteric news coverage that stirred the HIV community during the Williams case.
“They grossly mishandled it,” Hanssens said of the media during a phone call made from her office on Broadway this week. “They all talked about him as this man, but he was a kid; he was 19.” And while everyone was up in arms about the girls who were given the AIDS virus, Hanssens said she did not remember anyone asking Williams, who is black, how he got infected.
Hanssens also reproached the Chautauqua County health officials who, she claimed, distributed flyers with Williams’s picture above a caption that read ‘If you slept with this man, you’re at risk’ to local high schools.
“They should have been saying, ‘If you’re having unprotected sex, you’re at risk,’ said Hanssens. “To suggest that white girls sleeping with black men causes AIDS is extraordinarily destructive and does not encourage responsible behavior.”
Neal Rzepkowski, a physician who serves at various rural HIV clinics in Western N.Y. State, still treats several of the women whom Williams infected over ten years ago. Driving to work this week, Rzepkowski said over the phone that all the women “were doing great,” and that several of them were married with healthy babies. He felt that Chautauqua County, a small region, handled a major health problem as best as they could. But he agrees with Hanssens that the media made the Brooklyn teen out to be a monster.
“Some of the girls told me that Williams would use a condom if they asked, but they didn’t always ask him,” Rzepkowski said. This included the 13-year-old whose sexual activity with Williams led to his statutory rape charge.
“I know her, and I still treat her, and she was not a virgin. She had sex with six other partners before Williams,” said Rzepkowski.
And while Williams should not have had unprotected sex, Rzepkowski believes that it was because he was in denial of his HIV status, not because he was cruelly attempting to infect partners with a disease.
“People who transmit HIV don’t go doing so on purpose,” he said.
Regardless of Williams’s intentions, his story launched a wave of new HIV legislation among U.S. states that criminalized HIV transmission and called for mandatory reporting of HIV-positive individuals. New York’s Reporting and Partner Notifcation Law was enacted less than two years after Williams plead guilty to exposing women to HIV. Under this legislation, New York physicians are bound by law to report the names of persons who test positive for HIV as well as to share with them their options for notifying their partners. Whether an HIV infect person chooses to notify his or her partners is not required. According to N.Y. Health Department experts like O’Connell, Partner Notification provides important benefits in controlling the epidemic and helps alert people to a serious health risk.
“We have to be able to track the disease,” O’Connell said.
Many in the medical field also support New York’s Reporting and Partner Notification laws. Rzepkowski is one of them, as is Dr. Robert Wasnick, an internal medicine physician who works at Greenwich Hospital in Greenwich, Conn. Wasnick described the efficiency of the nurse practitioners who oversaw HIV testing at New York’s St. Vincent’s Hospital, where he completed his residency.
“For us as doctors, we wish that people knew they had diseases when they do to empower them to prevent its spread,” Wasnick said. “A person with HIV has an obligation to tell their partner, and that person has a right to know.”
But there are plenty of others, like Catherine Hanssens, who think the current HIV laws are useless in preventing the spread of AIDS.
“To legislate anything that relates to sex is disastrous,” she said. “HIV laws have no impact on risk behavior any more than prohibition had on people’s desire to drink.”
Rather than coerce people to notify their partners, which Hanssens claims is a consequence of many state Partner Notification laws, she would rather the government work to develop a positive relationship with public health. Institutionalizing condom use would promote that, she said, as would the decriminalization of clean syringe exchange programs since a third of all HIV transmission cases are related to IV drug use. But HIV criminalization statutes, according to Hanssens, are entirely unproductive.
“Criminalization laws is the government saying that people with HIV are so toxic that we need laws to stop them.” And though she recognizes that there are psychopaths in every imaginable social situation—including HIV transmission – she believes that they have nothing to do with the epidemic.
And however well-intentioned they are, Hanssens is adamant that HIV crime laws are ineffective.
“Getting people to have the right goals is never the issue,” she said, equating futile HIV prevention strategies to people who still smoke or overeat despite knowledge of the consequences.
“I see obese people in our cafeteria eating themselves to death, and I don’t think it’s a product of them not knowing that cheeseburgers are bad for you. You can’t turn goals into reality or behavior. That has always been the challenge of HIV prevention.”
This week in The New York Post, a story was published about a man from Queens who falsified his AIDS test so that his girlfriend would have unprotected sex with him. Duane Lang, who has been HIV positive since 2003, may become the second man in N.Y. to be sent to prison for reckless endangerment on account of knowingly exposing a partner to the HIV virus. It is unlikely that criminalization of HIV transmission statutes will be repealed anytime soon.LL
