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Sex, Crime, and Serostatus Washington and Lee Law Review Volume 78 Issue 1 Article 4 Winter 2021 Sex, Crime, and Serostatus Courtney K. Cross University of Alabama School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Law Commons, and the Health Law and Policy Commons Recommended Citation Courtney K. Cross, Sex, Crime, and Serostatus, 78 Wash. & Lee L. Rev. 71 (), https://scholarlycommons.law.wlu.edu/wlulr/vol78/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Sex, Crime, and Serostatus Courtney K. Cross* Abstract The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis—especially in the South, where HIV-specific criminal laws are enforced with the most frequency. People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the * Assistant Professor of Clinical Legal Education and Director of the Domestic Violence Law Clinic, University of Alabama School of Law. This piece has benefited from thoughtful feedback received at the Southeastern Association of Law Schools Junior Faculty Workshop and the University of Alabama Faculty Colloquium. Thanks to Richard Delgado and Jean Stefancic, Ron Krotoszynski, Jenny Carroll, Cynthia Godsoe, Tamara Kuennen, Rachel Moran, Maneka Sinha, Danielle Pelfrey-Duryea, Allyson Gold, and Gillian Chadwick for their thoughts throughout the Article’s development. Thanks also to Dr. Susa Coffey and Dr. Pamela Payne-Foster for providing insights into the medical response to HIV/AIDS nationally and in the South. 71 72 78 WASH. & LEE L. REV. 71 (2021) spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans. While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction—a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country. Table of Contents INTRODUCTION ........................................................................... 73 I. THE MEDICAL EVOLUTION OF HIV .................................. 82 A. HIV Transmission ..................................................... 83 B. Contemporary Medical Interventions ....................... 85 II. HIV AND AIDS IN THE UNITED STATES ........................... 88 A. National Trends ........................................................ 88 B. A Crisis in the South ................................................. 90 1. HIV and AIDS Trends in the South .................... 92 2. The Confluence of HIV-Related Challenges in the South ..................................................................... 96 III. CRIMINALIZING HIV ....................................................... 100 A. National Trends ...................................................... 104 B. Spotlight on HIV Criminalization Laws in the South ......................................................... 108 1. Prohibited Conduct ............................................ 109 a. Prohibiting Behaviors Regardless of Risk ... 110 b. Prohibiting Behaviors in Light of Risk ....... 113 SEX, CRIME, AND SEROSTATUS 73 2. Exemptions from Prosecution and Affirmative Defenses .............................................................. 115 3. Sentencing and the Cost of a Conviction .......... 118 IV. MITIGATING THE RISK OF HIV THROUGH HARM REDUCTION ..................................................................... 122 A. Harm Reduction Generally ..................................... 122 B. Strategies that Increase Access to HIV Prevention ............................................................... 129 1. Broadening the Reach of Needle Exchange Programs ............................................................ 129 2. Expanding Sex Education ................................. 134 3. Making PrEP Widely Accessible ....................... 138 C. Harm Reduction as a Catalyst for Decriminalization .................................................... 142 CONCLUSION ............................................................................. 150 INTRODUCTION The past twenty years have seen major breakthroughs to prevent, treat,1 and even cure HIV.2 Stories of queer 1. See Robert W. Eisinger et al., HIV Viral Load and Transmissibility of HIV Infection: Undetectable Equals Untransmittable, 321 J. AM. MED. ASS’N 451, 451–52 (2019) (reviewing studies establishing that compliance with antiretroviral HIV medication could reduce a person with HIV’s viral load to the point of it being undetectable, which both improves their health outcomes while also making them incapable of transmitting HIV to others); Alison J. Rodger et al., Risk of HIV Transmission Through Condomless Sex in Serodifferent Gay Couples with the HIV-Positive Partner Taking Suppressive Antiretroviral Therapy, 393 LANCET 2428, 2434 (2019) (confirming that the risk of transmitting HIV to a seronegative sexual partner is essentially zero when the seropositive partner has a suppressed viral load). 2. Over the past decade, national and international research has yielded groundbreaking and lifesaving findings regarding inhibiting transmission of the virus and even destroying HIV in previously inaccessible parts of the body. See AIDS–An Approach for Targeting HIV Reservoirs, INSTITUT PASTEUR (Dec. 20, 2018), https://perma.cc/548U-J3DK (finding that HIV could be destroyed in tissue reservoirs that had previously been unreachable); Matthew Warren, Second Patient Free of HIV After Stem-Cell Therapy, NATURE (Mar. 5, 2019), https://perma.cc/EF9J-TK8F (describing how a bone marrow transplant intended to treat cancer also resulted in long-term HIV remission). 74 78 WASH. & LEE L. REV. 71 (2021) communities decimated by the unstoppable infection3 feel like tales from a bygone era now that HIV has evolved from a death sentence into a chronic condition.4 Yet the benefits of these pioneering medical developments are not universally accessible, even within the United States.5 In fact, by multiple metrics, HIV and AIDS6 are gaining momentum in the American South7 even as their spread is slowing elsewhere.8 As the geography of HIV has expanded from urban centers to include rural America,9 the South has been particularly hard-hit.10 Compared to the West, 3. See, e.g., Jeff Leavell, The Heartbreaking Instagram Where People Remember Loved Ones Who Died of AIDS, VICE (Oct. 16, 2018, 6:05 PM), https://perma.cc/GHQ8-7EDW (showing photos and discussions on Instagram of individuals who died of AIDS); Loss and Bravery: Intimate Snapshots from the First Decade of the AIDS Crisis, N.Y. TIMES (Dec. 3, 2018), https://perma.cc /ERM8-Q7UU (showing photographs of the tragic escalation of the AIDS epidemic in the 1980s captured by Times photographers and reporters). 4. See James B. McArthur, As the Tide Turns: The Changing HIV/AIDS Epidemic and the Criminalization of HIV Exposure, 94 CORNELL L. REV. 707, 730 (2009). 5. See HIV in the United States by Region, CTRS. FOR DISEASE CONTROL & PREVENTION (June 2020), https://perma.cc/V9U8-45ZE (last updated July 2, 2020) [hereinafter HIV in the United States by Region] (depicting data from HIV diagnoses by each state or region in the United States). 6. See id. Given that AIDS is the terminal stage of HIV rather than a separate illness, this Article will only distinguish between the two when specifically referring to this advanced stage of HIV. See Ann Pietrangelo, A Comprehensive Guide to HIV and AIDS, HEALTHLINE (Mar. 28, 2018), https:// perma.cc/E43G-87ZS. 7. This Article is using the Centers for Disease Control and Prevention’s definition of the South. See HIV in the United States by Region, supra note 5 (defining the South as Alabama, Arkansas, Delaware, the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma,
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