Cliff Sanchez (R), a phlebotomist with the Chicago Recovery Alliance (CRA), tests an intravenous drug user for HIV antibodies inside one of the organization’s outreach vans May 10, 2006 in Cicero, Illinois. (Scott Olson/Getty) Images
Indiana laws criminalizing human immunodeficiency virus (HIV) transmission are “outdated” and largely unnecessary, asserts a Thursday report from the University of California, Los Angeles School of Law.
“Scientifically outdated laws work against public health goals regarding HIV testing, prevention, and treatment,” lead author Nathan Cisneros said in a news release. He directs an HIV criminalization project at the school’s Williams Institute, which researches sexual orientation and gender identity public policy.
“The criminalization of HIV could undermine Indiana’s efforts to end the HIV epidemic and reach the communities most impacted, including people of color, women, and LGBTQ people,” he added.
Also among the authors was a Hoosier: Carrie Foote, a sociology professor at Indiana University Indianapolis and a leader of Indiana’s HIV Modernization Movement.
The report examined laws outlawing the transfer of contaminated bodily fluids and HIV-infected semen, establishing a duty to inform “persons at risk” of one’s HIV status, punishing the failure to inform, and criminalizing battery or malicious mischief by bodily fluid or waste.
Four were enacted between 1988 and 1995, before the advent of effective HIV treatments, the report notes. Two became law in 1998 and 2002, prior to proof that treatment prevents sexual transmission
Nearly all are felonies punishable by years-long imprisonments and fines of up to $10,000 — and half include enhancements for actual transmission. None require intent to transmit.
Indiana’s contaminated bodily fluids and semen donations bans are the state’s oldest HIV criminal laws, per the report, which found that current U.S. Food and Drug Administration practices are “highly effective” at keeping the blood and plasma supply, as well as semen donations or transfers, safe.
The laws, according to the report, “provide no added protection to blood and semen donor supply safety above those already in place under state and federal regulations.”
In a separate report, the institute found that Indiana has arrested 18 Hoosiers with HIV on charges of donating plasma since 2000 — but not under provisions penalizing actual transmission. Nearly all were convicted of at least one HIV-related crime.
Status disclosure laws
HIV-positive people in Indiana have a legal duty to disclose their status to a “person at risk” — people with whom they have engaged, or will engage, in “high risk” sexual or needle-sharing acts.
“Reckless” violations are a mid-level misdemeanor, but intentionally withholding of status, is a low-level felony. Each day a violation occurs is a separate offense, the report observes.
Researchers pointed out that antiretroviral medications can suppress the virus to the point where it’s undetectable in blood — and untransmittable through sexual contact. People without HIV can almost eliminate the risk of sexual transmission with pre-exposure prophylaxis (PrEP) and can decrease the chances of transmission after exposure with post-exposure prophylaxis (PEP).
They wrote that recent updates making the definitions of “high-risk activities” more specific are “aligns more” with current science but doesn’t take into account prevention or mitigation measures, or acts that are low-risk even without treatment, like oral sex.
That’s created “legal uncertainty regarding the exact circumstances under which (people living with HIV) are legally obligated to disclose their status,” the report argued.
At least 60 people have been prosecuted under the failure-to-inform law, according to the report, which cites institute correspondence.
Harm by bodily substances
Indiana’s battery by bodily fluid or waste law makes it a crime for HIV-positive people to purposefully put such substances on others in rude or angry ways — and know or “recklessly fail to know” their HIV status.
The malicious mischief law is a sentence enhancement for HIV-positive people that recklessly or intentionally place bodily fluids or waste somewhere it’ll be involuntarily touched or ingested. Here, the substances are defined as including blood, saliva, sputum, semen, vaginal secretions, human milk and more.
But the researchers wrote that HIV can’t be transmitted through skin exposure or ingestion of urine, fecal waste, saliva, tears or sweat, or by sharing toilets or dishes because the virus dies quickly when exposed to air, according to the CDC.
They reported “virtually no risk” of transmitting HIV through biting, noting CDC research that rare cases involved “severe tissue trauma and blood.” Contact with blood on unbroken skin can’t transmit the virus.
Researchers also cited a 2018 report showing no cases of transmission from spitting blood that lands on a mucosal tissue, like an eye or mouth.
HIV-positive Hoosiers “are subject to harsher punishment for acts that cannot transmit HIV — for example, spitting — simply because they are living with HIV,” they argued.
“It is unclear why (people living with HIV) are singled out in this law, as there is no further risk of harm … and the underlying acts are already criminalized for everyone,” they added.
More than 40 Hoosiers have been prosecuted under these laws, according to the report, which cites a forthcoming analysis.
A 2022 interim committee recommended lessening penalties, but bills ditching some of laws have been unsuccessful.
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