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White House report: End state criminalization of HIV transmission
A white paper issued this month by the Obama administration is calling for an end to state laws — including Iowa’s — that make transmission of HIV a crime.
“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” notes the report, which is copied in full below.
“CDC data and other studies, however, tell us that intentional HIV transmission is atypical and uncommon. A recent research study also found that HIV-specific laws do not influence the behavior of people living with HIV in those states where these laws exist.”
Iowa is one of 32 states where engaging in acts that could potentially result in the transmission of HIV could be ruled a crime. The law, which was passed in 1998, was done, albeit belatedly, in response to federal funding mandates. That is, if states wanted to receive federal monies for AIDS care and education, they were required to have criminal penalties related to transmission of the disease. Only two years after Iowa passed its law, the federal government reauthorized the primary legislative vehicle for HIV/AIDS funding, the Ryan White Care Act, without requiring states to criminalize transmission or related offenses.
If a person in Iowa knows that he/she is HIV positive, Iowa’s law makes it a felony if that person:
a) engages in intimate contact with another person,
b) transfers, donates or provides blood, tissue, semen, organs or other potentially infectious body fluids for transfusion, transplantation, insemination or other administration to another person, or
c) dispenses, delivers, exchanges, sells or in any other way transfers to another person any non-sterile intravenous or intramuscular drug paraphernalia previously used
The law also very specifically notes, in direct contradiction to its formal title, that actual transmission is not required for a person to be prosecuted. Engaging in activity that results in intimate contact, defined as intentional exposure of body fluid, could result in prosecution.
Under this definition, activities recognized by the federal Centers for Disease Control and Prevention as holding a minuscule risk of transmission — such as kissing — could still be subject to prosecution under Iowa law.
In addition, there is only one affirmative defense that can be offered by an HIV-positive person accused of engaging in the suspect activities: Informed consent. What Iowa law doesn’t offer, however, is a specific definition or outline of what informed consent is.
In June and July of 2009, The Iowa Independent ran a three part series that looked at several aspects and ramifications of the Iowa law. To date, no Iowa lawmaker has signaled whether he or she is willing to revisit the decade-old statute to see if existing laws governing public health risks are adequate.
The overall goal of the National HIV/AIDS Strategy is to make the country “a place where new HIV infections are rare and when they do occur, every person, regardless of age, gender, race/ethnicity, sexual orientation, gender identity or socio-economic circumstance, will have unfettered access to high quality, life-extending care, free from stigma and discrimination.”
Key objectives include:
- reducing the rate of new HIV infections by 25 percent over the next five years
- increasing access to care and prevention services, including getting treatment to 85 percent of patients within three months of diagnosis
- optimizing health outcomes
- reducing HIV-related health disparities among vulnerable populations, including gay/bisexual men, African Americans and Hispanic men and women
Reducing the number of HIV cases is of specific interest to Iowa health officials, who note that the state had an 18 percent increase in diagnosed cases during 2009, the most recent statistics available.
In 2009, there were 127 HIV cases diagnosed in Iowa — a figure that exceeds earlier 5-year and 10-year averages. The report released by the state also notes that there is “a disproportionate number of black, non-Hispanic men with an exposure risk of having with men are being diagnosed with HIV.”