The evolution of global criminalisation norms: the role of the United States

Edwin J. Bernard
Published: 18 July 2010

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With some of the first recorded prosecutions (as early as 1987), and the first HIV-specific criminal laws (enacted in 1987), it appears the United States led the way in the criminalisation of HIV exposure and transmission. As with many aspects of HIV-related policy, what occurred – and still occurs – in the United States has global repercussions.

First cases and moral panic

In 1981, the United States became the first country to recognise the emergence of a new medical disorder that became known as AIDS. As most early cases of AIDS appeared in certain marginalised US populations, the nascent epidemic became associated with “the notorious 4H’s: homosexuals, haemophiliacs, heroin addicts and Haitians.”1 Gay men were especially associated with AIDS, evidenced by an early name for the collection of symptoms, Gay Related Immune Deficiency (GRID).2

From early on, experts recognised that AIDS was likely caused by an infectious agent entering the body through sexual contact, transfused blood or the sharing of injecting drug equipment. However, inaccurate and contradictory public health statements and media reports regarding transmission of the agent, a virus that was identified in 1984, and became know as HIV in 1986, led to a state of widespread fear and confusion, with a focus on ‘guilty’ and ‘innocent’ people and practices.[ref][ref]

According to a New York Times article published soon after the United States hosted the Third International AIDS Conference in 1987, “White House polls report[ed] that when people are asked to list the most serious issues facing the country, AIDS now ranks just behind war and peace and the economy.” The article went on to say, “Anxiety, sometimes bordering on hysteria, continues to spread. The most striking image of the week was the sight of Washington [D.C.] policemen wearing bright yellow gloves as they arrested demonstrators outside the [AIDS] conference, a precaution that health officials say is unnecessary.”3

At that time, “public health law was an all-but abandoned field”4 in the United States. Uncertainty existed about how best to apply compulsory powers to reduce the impact of the AIDS epidemic on mainstream society. Using the criminal law to deter and punish individuals who were thought to be “spreading AIDS”i was one of a number of options under consideration. Others included compulsory HIV testing and the detention and isolation of people living with HIV.5

In 1987, criminal and military courts in the United States6 began to see their first HIV exposure and transmission cases involving consensual sex. The nation’s criminal courts also hosted their first cases of HIV exposure via non-consensual acts such as spitting,7 biting8 and blood donation.9 With the exception of the biting case, these early prosecutions were unsuccessful, as prosecutors often found it difficult to establish sufficient proof of intent or risk of harm under existing laws. Subsequently, in 1987-8 at least eight states introduced HIV-specific laws to criminalise “knowing transmission of the AIDS virus.”10

Shortly afterwards, the first United States conviction took place in a military court. The defendant, a 28-year-old army medical instructor, had been tried for having sex with three female soldiers without disclosing that he was HIV-positive. The man received a sentence of five months in the stockade and a dishonourable discharge.11

i. "Spreading AIDS". This inaccurate and stigmatising term has been in use since the early 1980s, but sadly continues to this day. See, for example: The New Vision. ‘Ugandan for jail over spreading HIV/AIDS’ by R Baguma, 22 October 2009. www.newvision.co.ug/D/8/12/698774. Date accessed: 25 June 2010.

Case study: Canada and the United States

Preoccupation with alleged HIV exposure and transmission during biting and spitting. Although jurisdictions in Europe12 and Oceania13 have, on occasion, arrested or prosecuted individuals with HIV for biting others, the North American jurisdictions of Canada and the United States have far outpaced most other countries in attempting to prosecute HIV-positive people who allegedly bit or spat at other people. Since HIV is not transmissible by saliva – and just two case reports have ever documented infection via this pathway when deep wounds were exposed to a substantial amount of blood in the biter’s saliva14,15– courts and law-makers have generally focused on the accused's alleged intention to transmit HIV, rather than the actual likelihood of transmission.

Biting: Between 1993 and 2006, there were nine arrests or prosecutions for biting in Canada, representing 15.5% of all HIV-exposure cases during that period.16 Between 198717 and 2001, there were 49 arrests or prosecutions for biting in the United States, also representing 15.5% of all HIV-exposure cases during that period.18 Despite advances in knowledge and understanding of how HIV exposure can occur, between 2007 and 2009, a further nine arrests or prosecutions took place in the United States, representing 11% of all HIV-exposure cases.19 In 2009, an HIV-positive man who bit his neighbour on the lip during a fight was charged under a Michigan terrorism law for “possession or use of a harmful device,” a felony punishable by up to 25 years of imprisonment. The prosecutor in the case argued that the defendant’s HIV infection constituted “a device designed or intended to release a harmful biological substance”, and that his bite was thus bioterrorism.20 In a pre-trial hearing, supported by amicus curiae documents21 22, a judge dismissed the bioterrorism charges in June 2010, concluding that HIV is not transmitted by saliva without there being blood present and that there was no blood in the accused's saliva.23 However, the ruling upheld that HIV-infected blood was still a "harmful device" under Michigan law and the man still faces charges of “assault with intent to do great bodily harm less than murder".

Spitting: Between 1993 and 2006, there were six arrests or prosecutions for spitting in Canada, representing 10% of all HIV-exposure cases during that period.16 Between 1987 and 2001, there were 24 arrests or prosecutions for spitting in the United States, representing 7.5% of all HIV-exposure cases during that period.18 Between 2007 and 2009, a further ten arrests or prosecutions took place in the United States, representing 12% of all HIV-exposure cases.19 In 2008, a Texas jury found that an HIV-positive man who spat at a police officer during his 2006 arrest for drunk and disorderly conduct was guilty of “harassment of a public servant” and that his saliva was a “deadly weapon”. The man was sentenced to 35 years in prison under a habitual offender statute because he had previously been convicted of spitting at two other officers.24 In June 2010, a Denver man was charged with attempted second-degree assault with a deadly weapon for spitting on another man during a dispute.25 The District Attorney later dropped the charges,26 an action welcomed by the local paper as "sanity prevail[ing]".27

The myth of the 'intentional HIV transmitter'

[Newspaper] headlines link the risk of HIV with a particular action, stereotype assailants as especially deviant, paint victims as "innocent", and emphasize legal action as a means of addressing the threat. In employing these devices, many headlines introduce biases which overshadow any qualifying or educational statements included in the body of the article. Taken individually, the...messages may not appear particularly damaging. But collectively, they convey a much larger, and factually misleading message. That is, "watch out for people who might have HIV...".

Professor Jeanne Flavin, Fordham University, New York, 2000.28

Public and policymaker perceptions regarding the threat of intentional transmission by malicious individuals were greatly influenced by the story of ‘Patient Zero’, a key figure in Randy Shilts’ bestselling 1987 book about the AIDS epidemic, And the Band Played On.29 A 1984 study had found that ‘Patient Zero’ was epidemiologically linked to 40 of the first 248 people identified with AIDS in the United States.30 Shilts named ‘Patient Zero’ as Canadian flight attendant Gaetan Dugas and suggested that he had brought HIV from Africa to the United States, passing on the virus to his many sexual partners (and, in turn, to their sexual partners). Dugas was characterised as a sociopathic individual who may have intentionally infected others following his AIDS diagnosis, behaviour for which, Shilts suggested, the coercive powers of the state were ineffective.

Subsequent research found the 1984 study to be substantially flawed,31 and there is now compelling evidence that HIV came to the United States much earlier than the late 1970s.32 While Dugas was promiscuous, he was not responsible for an epidemic, and there is no proof that he intended to infect anyone. In short, ‘Patient Zero’ was a myth.

This ‘AIDS avenger’ myth has since been replayed many times in cities and countries worldwide and is often the impetus for new HIV-specific laws.[ref[ref] However, cases of deliberate infection via sex appear to be extremely rare. In addition, many such cases do not involve sex but are equally likely to involve an individual who was not HIV-positive but who obtained HIV-infected blood elsewhere and injected it into their victim.1 In other, highly publicised cases, the accusation of intentional sexual transmission turns out to be a hoax.2

Although many HIV-specific laws mention concepts such as 'wilful' or 'knowing' or 'deliberate' HIV exposure or transmission they are not always well defined. General laws most often use the concepts of 'intention', 'recklessness', or 'negligence' which have specific legal meanings. You can read their definitions, and how such states of mind can be proven, in the chapter: Proof.

Furthermore, even in the sexual-transmission cases that have involved the most egregious behaviour, intention to infect another person with HIV has only very rarely been proven beyond a reasonable doubt in court.

Nevertheless, when people with HIV have been accused of intentionally seeking to harm others by having unprotected sex without first disclosing that they are HIV-positive, the media often characterises them as ‘AIDS monsters’ (for example, Nushawn Williams, New York State, 1997),33 ‘AIDS avengers’ (for example, Sarah Jane Porter, England, 2006)34 or ‘HIV predators’ (for example, an unnamed gay man, New Zealand, 2009).35

1.One such example is an American man whom an Illinois jury, in 1998, found guilty of injecting his 11-month-old son with HIV-infected blood in order to avoid paying child support. See ‘Father is guilty in HIV case’ New York Times, 6 December 1998.

2. Two such hoaxes have been perpetrated recently, one in the United States and one in China. See: ‘Porn star Jackie Braxton sparks mass panic with hoax claim to have infected 500 men with AIDS’ Daily Mail, 19 January 2010; Bernard EJ ‘China: woman accused of intentionally infecting 30 men, Criminal HIV Transmission, 9 October 2009.

The road to HIV-specific legislation in the United States

A 1988 report by a United States Presidential Commission expressed the view that “traditional criminal laws are not well suited to the prosecution of HIV transmission”36,  and “encourage[d] continued state efforts to explore the use of the criminal law in the face of this epidemic.”36

By 1990, 14 states had passed HIV-specific laws. The same year, the Government enacted legislation stipulating how federal funds were to be used for HIV prevention, treatment and care efforts nationwide. The Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (the CARE Act) included a provision requiring the Chief Executive of the state seeking funds to determine that the state’s criminal laws were adequate “to prosecute any HIV infected individual” who:

  • donates “blood, semen, or breast milk”
  • provides a used “hypodermic needle” and “intends... to expose another” to HIV

  • “[e]ngages in sexual activity if the individual knows that he or she is infected with HIV and intends, through such sexual activity, to expose another to HIV.

These laws, it said, need not apply if there has been “prior informed consent” to the risk of HIV transmission.37

The provision was repealed in 2000 because all states had satisfied the requirement by that time. Twenty-three states had HIV-specific laws, whereas the remainder were satisfied that existing laws would suffice.38 The number of prosecutions increased from around 15 per year in 1990 to a peak of more than 50 per year in 1998. Most sex-related prosecutions took place in states with HIV-specific laws, particularly those that mandated disclosure of HIV-positive status before sex. However, even in states without HIV-disclosure laws, aggravated battery and attempted-murder charges were brought against a number of people for spitting and biting, with law enforcement officers often being the targets of those reported attacks.

When POZ magazine conducted “the first-ever national survey of new HIV-transmission crimes” in 2000, it found 101 cases. “In some states, sex crimes – even sex work – can get ratcheted up to attempted murder if HIV is involved, as can spitting or biting,” POZ noted.39 (The article also includes interviews with several people convicted and makes for sober reading.)

A 2003 analysis of all HIV-related criminal prosecutions (including 95 cases where a person's HIV-positive status enhanced sentencing for other criminal acts) found 316 prosecutions (of 300 individuals) between 1986 and August 2001. Just over a quarter of all prosecutions were for sexual HIV exposure or transmission through unprotected sex without disclosure of HIV-positive status, 15% were for biting and 7.5% were for spitting. See the chapter:Details: North America - United States.

References

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  2. AVERT The history of AIDS in America in the 1980s. Available online at: www.avert.org/aids-history-america.htm, date accessed: 14 April 2010
  3. New York Times AIDS alert: politicians awaken to the threat of a global epidemic. Available online at: www.nytimes.com/1987/06/07/weekinreview/aids-alert-politicians-awaken-to-the-threat-of-a-global-epidemic.html, 7 June 1987
  4. Burris S and Gostin LO The impact of HIV/AIDS on the development of public health law. in Valderiserri RO (ed.) Dawning Answers: how the HIV/AIDS epidemic has helped to strengthen public health Oxford: Oxford University Press, 2003
  5. Gostin L The politics of AIDS: compulsory state powers, public health, and civil liberties. Ohio State Law J. 49(4):1017-58, 1989
  6. Lacayo R et al. Law: assault with a deadly virus. Time, 20 July 1987
  7. Fitting T Criminal liability for transmission of AIDS: some evidentiary problems. Crim. Just. J. 10 (69): 69-97, 1987
  8. Stauter RL United States v. Moore: AIDS and the criminal law. The witch hunt begins. Akron L. Rev. 22(4): 503-524, 1988
  9. Los Angeles Times 5 attempts to confine AIDS patient told. Available online at: http://articles.latimes.com/1987-07-01/news/mn-672_1_attempted-murder, 1 July 1987
  10. Sullivan SK and Feldman MC Imposing criminal liability on those who knowingly transmit the AIDS virus: a recommendation for legislative action. U. Dayton L. Rev. 13 (3): 489-509, 1987
  11. New York Times Soldier with AIDS virus to be imprisoned for sexual contacts. 4 December, 1987
  12. Bild HIV positive Big Brother star bites six at parade. www.bild.de, Date accessed: 21 June 2010
  13. Bernard EJ Australia: Brisbane man jailed 12 months for biting a policeman. Criminal HIV Transmission blogspot, 17 January 2008
  14. Pretty IA et al. Human bites and the risk of human immunodeficiency virus transmission. Am J Forensic Med Pathol. 20(3):232-9, 1999
  15. Bartholomew CF and Jones AM Human bites: a rare risk factor for HIV transmission. AIDS 20 (4): 631-632, 2004
  16. Bernard EJ Canadian prosecutions, 1989 to 2009. Unpublished, 2010
  17. Statuer RL United States v Moore: AIDS and the criminal law. Akron L. Rev. 22(4): 503-524, 1989
  18. Bray S Criminal prosecutions for HIV exposure: overview and analysis. Yale University Centre of Interdisciplinary Research on AIDS, 2003
  19. Bernard EJ Kafkaesque: a critical analysis of US HIV non-disclosure, exposure and transmission cases, 2007-2009. 18th International AIDS Conference, Vienna, abstract THPE1016, 2010
  20. Heywood TA State lawmakers question terrorism charges for HIV-positive man. Michigan Messenger, available online at: http://michiganmessenger.com/29816/state-lawmakers-question-terrorism-charges-for-hiv-positive-man, 10 November 2009
  21. Lambda Legal Defense and Education Fund et al. People v Allen - Amicus Brief, Lambda Legal, Michigan, 2010
  22. American Civil Liberties Union of Michigan, Judge Dismisses Bioterrorism Charge Against HIV-Positive Man, ACLU press release, 3 June 2010
  23. Michigan Messenger Activists, advocates applaud dismissal of bio-terrorism charges. Available online at: http://michiganmessenger.com/38455/activists-advocates-applaud-dismissal-of-bio-terrorism-charges, 3 June 2010
  24. New York Times Prison for man with HIV who spit on a police officer. 16 May, 2008
  25. Colorado Independent Denver HIV-positive man charged with using spit as deadly weapon. 9 June, 2010
  26. Colorado Independent Denver DA drops “spit as deadly weapon” charge against HIV-positive man. 11 June, 2010
  27. Denver Post Sanity prevails in HIV spitting charges. 19 June, 2010
  28. Flavin J (Mis)Representing risk: headline accounts of HIV-related assaults. American Journal of Criminal Justice 25 (1): 119-136, 2000
  29. Shilts R And the Band Played On: politics, people, and the AIDS epidemic. New York: St. Martin’s Press, 1987
  30. Auerbach DM et al. Cluster of cases of the acquired immune deficiency syndrome. Patients linked by sexual contact. American Journal of Medicine 76: 487-492, 1984
  31. Moss AR Letter in response to ‘Aids Without End’. New York Review of Books 35 (19), December 8, 1988
  32. Gilbert MT The emergence of HIV/AIDS in the Americas and beyond. Proc Natl Acad Sci USA 104(47):18566-70, 2007
  33. Shevory T Notorious HIV: the media spectacle of Nushawn Williams. Minneapolis: University of Minnesota Press , 2004
  34. Independent Sarah was no 'AIDS avenger'. 26 June, 2006
  35. Bernard EJ New Zealand: alleged “HIV predator” highlights gay community tensions. www.criminalhivtransmission.blogspot.com, 15 May 2009
  36. Watkins J et al. The Presidential Commission on the Human Immunodeficiency Virus Epidemic Report, PCHIVE, Washington, 1988
  37. US Government, Ryan White Comprehensive AIDS Resources Emergency Act of 1990, Pub. L. No. 101-381, 104 Stat. 576 § 2647 (codified as 42 U.S.C. § 300ff-47) (repealed 2000), 1990
  38. New York Times Wave of laws aimed at people with HIV. 25 September, 1998
  39. Whitehorn L America’s most unwanted. POZ, August 2000
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