Majority of US gay men support HIV transmission laws

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Two-thirds of US gay men believe that it should be illegal for an HIV-positive man to have unprotected anal sex without disclosure, investigators report in the October edition of AIDS Care.

“Believing that it should be illegal was associated with HIV-negative or unknown status, less education, having a non-gay sexual orientation, living in a state that was perceived as hostile towards GLBT persons, reporting fewer UAI [unprotected anal intercourse] partners…and feeling greater responsibility”, write the authors.

Since 2008, at least 30 individuals in the US have been prosecuted for exposing others to HIV. Penalties vary between states and range from a small fine to a lengthy prison sentence. The impact of such laws on HIV prevention efforts are hotly debated. Moreover, there is uncertainty about the attitudes of the communities most affected by HIV about the criminalisation of HIV exposure.



In HIV, usually refers to legal jurisdictions which prosecute people living with HIV who have – or are believed to have – put others at risk of acquiring HIV (exposure to HIV). Other jurisdictions criminalise people who do not disclose their HIV status to sexual partners as well as actual cases of HIV transmission. 


In HIV, refers to the act of telling another person that you have HIV. Many people find this term stigmatising as it suggests information which is normally kept secret. The terms ‘telling’ or ‘sharing’ are more neutral.

prospective study

A type of longitudinal study in which people join the study and information is then collected on them for several weeks, months or years. 


The transition period from infection with HIV to the detectable presence of HIV antibodies in the blood. When seroconversion occurs (usually within a few weeks of infection), the result of an HIV antibody test changes from HIV negative to HIV positive. Seroconversion may be accompanied with flu-like symptoms.



An umbrella term for people whose gender identity and/or gender expression differs from the sex they were assigned at birth.

Gay and other men who have sex with men remain the group most affected by HIV in the US. In 2008 investigators therefore used gay social websites to recruit 1725 to a study designed to:

  • Describe overall attitudes towards the criminalisation of exposure to HIV due to unprotected anal sex without disclosure.

  • The factors associated with such attitudes.

Overall, 65% of men believed that it should be illegal for HIV-positive individuals to have unprotected sex without disclosure, 23% thought it should not be illegal and 12% did not know.

Support for criminalisation was highest  (79%) among men aged between 18 and 20, and lowest (56%) among those aged 41 to 70. The investigators note that younger gay men were significantly less likely to have been tested for HIV. Separate research has shown that untested men are more likely to adopt a disclosure-based HIV prevention strategy “that gains credibility by transmission laws.”

The overwhelming majority (70%) of HIV-negative and untested men (69%) supported legal sanctions, but only 38% of HIV-positive men endorsed criminalisation. “These differences most likely reflect a shift in orientation toward criminal statues on HIV transmission following seroconversion”, comment the investigators.

Men with the lowest educational achievements were most likely to support criminalisation (75%), and those with a degree least likely (58%).

Over three-quarters of men who did not identify as gay or bisexual supported criminalisation compared to 63% of those who had some form of gay identity.

In addition, those who were least comfortable with their sexual orientation were most likely to endorse criminalisation.

Living in a state which was perceived to be hostile to gay, bisexual, lesbian and transgender people was also associated with support for criminalisation.

Sexual behaviour was also significant. Men who reported two or more episodes of unprotected anal sex within the previous three months were least likely to support criminalisation (52%), and those who reported no unprotected sex the most likely (69%).

Finally, the investigators found that a sense of responsibility was associated with support for criminalisation.

Statistical analysis showed that men who were HIV-positive were less likely to support criminalisation (OR, 0.33; 95% CI, 0.24-0.44), as were those with a higher degree (OR, 0.42; 95% CI, 0.27-0.64). Living in a state that was perceived to be more accepting of homosexuality was also associated with less support for criminalisation (OR, 0.75; 95% CI, 0.59-0.96), as was having had a greater number of episodes of unprotected anal sex (OR, 0.72; 95% CI, 0.56-0.93) and a lower feeling of responsibility towards the sexual health of sex partners (OR, 0.75; 95% CI, 0.69-0.81).

Conversely, men who did not identify as gay or bisexual were 54% more likely to support criminalisation (OR, 1.54; 95% CI, 1.08-2.02).

The investigators found no evidence that laws deterred high-risk sexual behaviour. However they conclude “further research is needed to examine whether they act as a barrier for MSM [men who have sex with men] at highest risk for acquiring or transmitting HIV.”

Research carried out among MSM in England and Wales in 2006 found a strong relationship between the expectation that a man should disclose his HIV status to prospective sexual partners and support for criminal prosecution of HIV transmission. The authors of that study, conducted by SIGMA Research at the University of Portsmouth, concluded that the practice of prosecuting transmission worked to reinforce the expectation that men would disclose, thereby impeding any HIV prevention efforts that seek to educate men against making assumptions about HIV status on the basis of a lack of disclosure.

Further information on HIV and the criminal law

Further information on HIV and the criminal law can be found in the NAM publication HIV and the criminal law, which is available online here.


Hovath KJ et al. Should it be illegal for HIV-positive persons to have unprotected sex without disclosure? An examination of attitudes among US men who have sex with men and the impact of state law. AIDS Care, 22: 1221-28, 2010.