Thursday, February 9, 2012

Is It A Crime? A Look At HIV Criminalization in U.S.

Brooklyn native Nushawn J. Williams was informed that he had HIV in 1996.  Despite this, he was determined by health officials to have had sex with up to 75 partners.  By his own unabashed admission, he actually slept with 300 women.  He did not use protection in these encounters and caused an outbreak of HIV in upstate New York. [i]  His youngest partner was 13 years old.[ii]  By 1998, two of his partners had given birth to HIV-positive children.[iii]     His case was one of the earliest involving HIV status disclosure and Nushawn became the poster child for HIV criminalization.

When you hear stories like this, the question of whether to criminalize HIV exposure seems like a no-brainer.  Legislators apparently agreed; Williams’ case was cited in a number legal proposals, including requiring states to keep registries of HIV-positive residents and making it a felony not to disclose one’s positive status to sexual partners.[iv]   

As of 2008, 34 states in the US have laws that allow prosecution for criminal HIV exposure.  The provisions of these laws vary widely by state and by the context of exposure.  In New Jersey, for example, someone who knows he or she is HIV-positive and has sex without a partner’s informed consent is guilty of a third-degree crime.  This offense can be punished by up to five years in prison and a fine of up to $15,000.  In states such as California and Alaska, being HIV-positive can be an aggravating factor in sexual offenses.[v]

Those who argue against HIV criminalization often claim that mandating disclosure for individuals with HIV violates their right to privacy.  Additionally, it can increase the stigma associated with the virus.  Such laws therefore infringe on the civil rights of the HIV-positive person.[vi]  

William Brawner was born with HIV and had developed AIDS by the time he was in college.  Described as a ladies’ man, he had unprotected sex with numerous girls before going public with his status and participating in a documentary on his journey with AIDS.  When asked in an interview with Loop 21 if he wished he had come clean sooner, Brawner responded in the negative.  He said, I think everything happens in its time.  Everything has its time and has its purpose. It was just my time.”[i]

The obvious counter is that the right time would have been when Brawner first had unprotected sex.  The HIV-positive person’s right to privacy ends where he or she puts another person at risk.  What about the rights of this person?  You didn’t bother to tell me that if I have sex with you I may end up getting a horrible disease that changes my life and that’s ok because you have a right to privacy? Really?


While the high profile Williams and Brawner cases are cited here, there are many other cases that go unreported in the media.  Further, many are not as clear cut.  For legal purposes, it is difficult to prove which party originally had the virus, especially when multiple partners are involved.  The first person to get tested and find out his or her status may shoulder the blame, even if he or she was actually infected by someone else who was not diagnosed until later.  It also possible for people to use the legal system to seek revenge against former partners who are HIV-positive.[i] 

Laws that criminalize HIV exposure may have the paradoxical effect of increasing transmission.  Research does not support the idea that the law plays a role in anyone’s sexual behavior.  Sexual activity is often impulsive and laws based on rational analysis therefore have a very limited impact.  Getting tested for HIV, on the other hand, requires deliberation and effort.   Laws that impose obligations on those who know their HIV-positive status and make it possible for this status to be made public and used against them in prosecution may deter testing.[ii] 

While there should be legal options for extreme cases like Nushawn Williams, criminalization is not a very useful tool in the fight against HIV/AIDS.  We would hope that those with HIV do the right thing and be honest with their sexual partners.  However, legally mandating that they do so is not an effective prevention tactic.  At the end of the day, it is up to you to protect yourself. 

Here’s what you can do:

1.    Get tested
2.   Have your partner to do the same
3.   Always ask what someone’s status is before a sexual encounter
4.   Be honest about your own status
5.    Don’t go through with it if you don’t trust them to tell you the truth or you’re not willing to take the risk
6.   Use protection

To find an HIV testing site near you, please go to

--Melanie Pino-Elliott
GET DOWN Youth Blogger

[ii] Richard Elliott.  Criminal Law, Public Health, and HIV Transmission: A Policy Options Paper.

[i] Darren Sands.  “25 to Life: In New Film, Man with AIDS Confesses Unprotected Past.”

[i] Michael Cooper.  “Drifter Says He Had Sex with up to 300.”
[ii] Jennifer Frey.  “Jamestown and the Story of 'Nushawn's Girls.'”
[iii] Richard Perez-Pena.  “Two Births Lengthen List in One-Man HIV Spree.”
[v] American Civil Liberties Union.  State Criminal Statutes on HIV Transmission—2008.
[vi] AVERT.  Criminal Transmission of HIV.

1 comment:

  1. Thoughtful, smart analysis of a complicated issue. Thank you.

    Sean Strub
    HIV is Not a Crime
    SERO Project