The NY DA’s Office is firing on all cylinders to have a man classified as a sex offender under SORA based on his conviction under a 1987 Louisiana law called “Intentional Exposure to AIDS Virus.” The statute is one of a spate of discriminatory laws that single out HIV+ persons for criminal prosecution for engaging in consensual sexual conduct before disclosing their status — even when the conduct creates little or no risk of transmission.
Needless to say, New York has no such law. These HIV-specific criminal exposure laws have been condemned by every reputable public health organization. Their effect is to fuel stigma which in turn discourages people from seeking testing and treatment. As the CDC succinctly puts it, “stigma hampers prevention.” New York has expressly rejected this punitive approach for that very reason.
But here’s DA Alvin Bragg’s Office enthusiastically endorsing the Louisiana law, swallowing hook, line, and sinker its discredited and discriminatory premises. In a 37-page brief, the NY DA’s Office praises this and similar HIV-specific criminal exposure laws for “preventing any further transmission of HIV,” glibly equating non-disclosure with a nefarious intent to expose the sexual partner to the virus.
If DA Bragg favors discrimination against HIV+ persons, the voters should know about it.
If you were around in the 1980’s, you remember the AIDS panic, when our national prophets proclaimed that it was God’s punishment of homosexuals. Cashiers would refuse to take money from the hands of gay men for fear of infection. Prisoners with AIDS were segregated, forbidden to touch books in the law library and had to wear plastic gloves if using a typewriter. Their property was marked with red stickers for all to see. See Nolley v. Erie Co. Fear and hostility towards infected persons ran high, sparking numerous legislative proposals for forced quarantine and coercive control.
Louisiana’s “Intentional Exposure to the AIDS Virus” is a typical product of those times. It reads: “No person shall intentionally expose another to any acquired immunity deficiency syndrome (AIDS) through sexual contact without the knowing and lawful consent of the victim.”
“Intentional,” as construed by the Louisiana courts in State v. Gamberella, means only that the person knew he was HIV+. The State doesn’t have to allege, let alone prove, a conscious objective to expose.
“Sexual contact” means any physical contact for sexual gratification, even if “not capable of transmitting the virus.” Say what? That’s “considering the uncertainty of the medical community concerning all aspects of the disease,” explains the court. “Spitting, biting, stabbing with an AIDS-contaminated object, or throwing blood or any other bodily substance” are also included, with or without sexual gratification. (Note: the medical community is certain that biting, spitting, or throwing bodily fluids don’t transmit the virus).
Non-disclosure is a felony with a sentence up to ten years of hard labor and registration as a sex offender.
Naturally, only HIV+ persons are singled out for criminal prosecution. There’s no law against having sex without telling your partner you have the clap.
The DA’s Office thinks this is a swell law. Ironic, since DA Bragg claims to be so progressive about HIV laws. They admit it’s not “precisely” the law in New York, but at least it can be enforced through SORA.
The Appellate Division agreed.
Robert Suttle is a leading activist for HIV decriminaliztion.