Lambda Legal Urges Congress to Pass the REPEAL HIV Discrimination Act

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May 8, 2013
Lambda Legal HIV Project Director Scott Schoettes

Lambda Legal is voicing its support the REPEAL HIV Discrimination Act, which would encourage states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission.

Scott Schoettes, Lambda Legal's HIV Project Director, says:

The more messages we can send to states to modernize or eliminate HIV criminalization laws the better—and that is exactly what this bill does. It is high time the nation's HIV criminalization laws reflect the current reality of living with HIV, both from medical and social perspectives. Except for perhaps the most extreme cases, the criminal law is far too blunt an instrument to address the subtle dynamics of HIV disclosure.

The REPEAL ("Repeal Existing Policies that Encourage and Allow Legal") HIV Discrimination Act, H.R. 1843, which was introduced by Rep. Barbara Lee late yesterday, calls for review of all federal and state laws, policies and regulations regarding the criminal prosecution of individuals for HIV-related offenses. If enacted, it would be the first piece of federal legislation to take on the issue of HIV criminalization. The proposed bill is being met with widespread support, including endorsements from the National Alliance of State and Territorial AIDS Directors (NASTAD), the HIV Medicine Association (HIVMA), the Positive Justice Project, and AIDS United.

Thirty-four states and two U.S. territories now have laws that make "exposure" to or nondisclosure of HIV a crime. Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years, even in the absence of intent to transmit HIV, actual transmission, or even the potential for transmission. Though most convictions are based on consensual sexual activity between adults, those convicted are often required to register as "sex offenders."

Lambda Legal has been working around the country on changing HIV criminalization laws. In a case pending before the Iowa Supreme Court, Rhoades v. State, we are seeking to overturn the sentence of a man with HIV who received a 25-year sentence for a one-time sexual encounter during which he used a condom and HIV was not transmitted. In State v. Rick, a case in which the Minnesota Supreme Court heard oral argument yesterday, we co-authored a brief explaining the likely violation of constitutional rights in criminally punishing an HIV-positive man for having consensual sex without a condom even after disclosing his status. Most recently, in In the Matter of Ramirez, we asked the Board of Immigration Appeals to overturn an immigration judge’s ruling ordering the deportation of an HIV-positive immigrant convicted of solicitation for oral sex, based on the erroneous belief that HIV is "highly communicable" in this way.