Assembly Considers Changing HIV Transmission Laws, Saying It's Past Time.

People living with HIV can be prosecuted in Virginia

By Megan Schiffres

February 11, 2021

In Virginia, an HIV-infected person can face charges if they transmit the virus to others.

RICHMOND – People living with HIV are being criminalized under Virginia law, but there’s a bill before the General Assembly that could change things.

Under current law, people who are aware of their HIV status can receive a jail sentence or be fined for engaging in sex acts without disclosing that they have HIV. This law currently applies regardless of whether the sexual partner of someone with HIV contracted the virus. People whose HIV viral load is undetectable and therefore are unable to transmit the virus can also be persecuted under existing Virginia law.

“I am an HIV positive Black male who was prosecuted under the sexual battery statute in 2017. This statute did not require scientific proof of transmission. The only thing the plaintiff had to prove was nondisclosure. The status of undetectable versus detectable was irrelevant,” said Andre Leaphard, who plead guilty to the misdemeanor offense three years ago.

People living with HIV can also face charges and fines for donating blood, tissue, or organs to those in need under current Virginia law.

Disclosure Of A Person’s Status

Under the Code of Virginia, it is illegal for any person who knows they have an HIV infection, syphilis, or hepatitis B to have “sexual intercourse, cunnalingus, fellatio, anilingus, or anal intercourse” with another person without previously disclosing the existence of their infection. People who violate this law are guilty of a Class 1 misdemeanor in Virginia. If the court convicts them, people living with HIV could face up to a year in prison and a fine of up to $2,500.

According to the Center for HIV Law and Policy (CHLP), once someone is facing these charges it is difficult for them to prove they did not disclose their HIV status. This is because evidence of this disclosure is normally conflicting testimony from the defendant and prosecution.

Intentionally Transmitting HIV

Similarly, the Code makes it illegal for a person who, knowing they have an HIV infection, syphilis, or hepatitis B, has sexual contact with another person with the intent of infecting them. If the courts convict someone of this crime, they can be found guilty of a Class 6 felony. In Virginia, Class 6 felonies carry a sentence of up to five years in prison and a fine of up to $2,500.

Once again, without a confession it is hard to prove whether someone intends to infect another person. According to the CHLP, under this law an individual could hypothetically disclose their HIV status to their partner and still face a felony conviction if their partner later claims they intended to infect them. The court also does not currently have to prove that a transmission of the virus occurred in either of these cases. Instead, the prosecution only has to prove that someone intended to transmit the virus.

Under the Virginia Code, the donation or sale of blood, bodily fluids, organs, or tissues by people living with HIV is illegal. People who knowingly break this law can face also face a Class 6 felony charge.

Criminalizing HIV

Laws that criminalize sex acts and donations by people living with HIV became part US law in the mid ‘90s. They are a remnant of the county’s homophobic and classist response to the AIDS epidemic of the late ‘80s and early ‘90s.

“The LGBTQ community was ravaged by the AIDS epidemic. And we had a federal government that ignored it, that chose not to intervene,” said Breanna Diaz, policy director at the Positive Women’s Network.

According to Diaz, the push for federal intervention in the HIV and AIDS crisis was not in response to the deaths of thousands of LGBTQ people. Instead, it happened because of the death of a young cisgender white boy named Ryan White. White was diagnosed with AIDS at the age of 13 following a blood transfusion that was infected with HIV.

In response to his death, Congress passed the Ryan White Cares Act in 1990. This law remains the largest funding sources for states providing resources to people living with HIV. However, that funding originally came with a price.

“The caveat to receiving these funds under the Act was that states were required to enact HIV criminalization laws. Because at that time, they assumed that was one of the best ways to curb transmission,” Diaz said.

Infected Sexual Battery

In 2000, Virginia passed the legislation that currently criminalizes certain sex acts and donations by people living with HIV. According to Diaz, the passage of these laws came in part due to the Ryan White Act. But they’re also in response to another court case involving people living with HIV.

This was the 1997 case of Nushawn Williams. Williams, a Black teen living in New York, is still serving time for having sex with underage girls when he was 19. According to the CHLP, news coverage of Williams’ case dubs him the “AIDS Monster.”

“It’s that kind of outlandish characterization of HIV… that spurred a lot of HIV criminalization laws including here in Virginia,” said Diaz.

Though his sentences for reckless endangerment and statutory rape are complete, Williams’ HIV status is preventing him from being free. That’s because days before his release from prison, the New York Attorney General filed a petition to keep him confined indefinitely.

“New York state said he is a danger to society and so they elongated his sentence. And so he’s still in jail, he’s still in prison. And his conviction was extended solely because of his HIV status,” Diaz said.

Biased Enforcement of HIV Criminalization

Laws criminalizing people living with HIV can and are currently persecuting people in Virginia. For example, someone was facing charges for having sex without disclosing their HIV status in 2013, according to WTVR.

These laws also disproportionately impact minority communities. According to the Virginia Department of Health (VDH) in 2018 there were 25,073 people living with HIV in the Commonwealth. Most of those with HIV infections, 58%, were Black people. That year, the Black community only made up 18.8% of Virginia’s population.

Blood, Tissue, And Organ Donations

Like the criminalization of certain sex acts by people living with HIV, the criminalization of their donating blood, tissue, and organs also happens in the late ‘90s.

That’s because in 1983 the United States Public Health Service releases guidelines for the prevention of AIDS. These guidelines included a recommendation that clinics not accept plasma or blood from someone with AIDS. This ban also applies to members of groups at increased risk of contracting the virus.

All blood donations go through tests for a number of infectious diseases, including HIV, according to the American Red Cross.

However, Americans living with HIV can only donate blood, tissues, or organs to patients who also have the virus. Despite this, they can not make those donations in Virginia until the repeal of laws criminalizing HIV finally happens.

Modernizing HIV Laws In Virginia

A bill before the General Assembly will modernize the Virginia Code by repealing most of the infected sexual battery charges.

It also proposes to allow people with HIV to donate organs and tissues to someone who knows about their HIV status. If it passes, the bill removes the charges from the Code that people living with HIV can receive for donating their blood and body parts.

Vee Lamneck, executive director of Equality Virginia, says their support for the bill relates in part to public safety concerns.

“What this bill does is modernizes law, again, so that we have a healthier more equitable Virginia. Which I think we can all agree we all want,” Lamneck said. “We know that these current laws are deterring people from knowing their status. And so, going this route, this modernization route, will help to encourage people to feel more comfortable knowing their status, getting tested, getting into treatment and prevention, which will help to quell the HIV epidemic.”

Senate Bill 1138, proposed by Sen. Mamie Locke (D – Hampton), also removes references to HIV, hepatitis B, and syphilis from the Code. If it passes, they will be replaced with references to sexually transmitted infections generally.

Criminalizing Intended Transmission

Unfortunately, the bill currently before the General Assembly stops short of repealing all crimes related to HIV in the Code. Amendments to the bill added in committee deliberations reinstated the criminalization of people living with HIV who intentionally transmit the infection.

“The majority of the senators are lawyers. Whether they’re former prosecutors or judges in the Commonwealth or just private attorneys as well. So a lot of the pushback in the caucus that we received on this particular piece was that there needs to be something that criminalized someone that… intentionally is going to transmit a sexually transmitted infection,” said Cedric Pulliam, co-founder of Echo Virginia Coalition.

Echo Virginia Coalition helped legislators craft Senate Bill 1138. They were unable to achieve a full repeal of the charges in Virginia that criminalize people living with HIV. However, advocates did succeed in reducing the charges. Under the amended bill, people the court finds guilty of intentionally infecting someone will face a Class 1 misdemeanor.

The amended bill also requires that the prosecution in these cases prove that the defense’s sexual partners actually contracted HIV.

“It’s going to be harder for them, because in the past they didn’t have to prove transmission,” Pulliam said.

What You Can Do

On Monday, the bill was continued to the General Assembly’s special session, which began today. Its already been approved by the Senate, and now must work its way through the House. If you want to encourage your representative to support the bill, you can find their contact information here.

To support people living with HIV, you can also donate or volunteer your time at the following organizations: