Two cases brought in the Florida have found that HIV transmission laws, which criminalise withholding HIV status from a partner, only apply to straight couples.
The first case involved two men in the Pinellas region of central Florida, who were romantically involved for four years, without one knowing the other’s HIV status.
The victim, who has not been named, claimed to have found out about his partner’s status after they broke up.
But the state’s 20 year old law, which criminalises the act of withholding one’s status, was held only to apply to straight couples.
The 2nd District Court of Appeal held that the language of the statute has to be interpreted as referring only to sex between a man and a woman.
The statute makes it a crime for someone with HIV to have “sexual intercourse” without their partner’s “consent”, and the only definition for “sexual intercourse” in Floridian law refers specifically to sex between men and women.
The man told Florida’s St Petersburg Times: “The law isn’t updated, and that is the problem. Especially for a community that faces such a high risk.”
Meanwhile, a similar case was brought before the same court involving two women.
The judges held, similarly, that their definition of sexual intercourse could not apply to sex between women.
They ruled: “We presume that the Legislature knows the meaning of the words it uses.
“The result here is neither unreasonable nor ridiculous; it is merely an application of the statutory language to (the defendant’s) actions.”
While these cases highlight the inequity of current HIV transmission laws, the movement to decriminalise HIV transmission across the US is gaining strength.
Congresswoman Barbara Lee of California is floating draft legislation, dubbed the Repeal HIV Discrimination Act.
The document says that criminalising the exposure or transmission of HIV “violates the civil and human rights of individuals who are HIV positive”.
The text continues: “The use of the criminal law to attempt to deter or alter sexual behaviors has been completely ineffective and conflicts with public health principles.
“Studies amply demonstrate that HIV-specific laws do not influence the behavior of people living with or at risk of HIV in those States where these laws exist.
“Furthermore, placing legal responsibility for preventing the transmission of HIV and other pathogens exclusively on people diagnosed with HIV undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases.”
The President’s Advisory Council on HIV/AIDS voted in favour of addressing the issue of criminalisation after a letter was sent by the Center for HIV Law and Policy.
It said: “It is time to turn the expression of legitimate concern about HIV stigma and discrimination from a throw-away line to a three-dimensional plan for action. And this plan must start with addressing one of the ugliest manifestations of the problem – government-sanctioned discrimination in the use of the criminal law against individuals who test positive for HIV.”
A recent UK study found sixty percent of men were unaware of the symptoms of early HIV infection.