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Photo: Mother Jones

Should it be illegal to keep your HIV status a secret? Most states agree that it should. Forty-five states have laws against HIV-positive persons not disclosing their status during sex, acts of prostitution, needle exchanges or when donating organs, blood or semen. Some of those states also make it illegal for HIV-positive persons to bite or spit on someone, though neither biting or spitting has ever been proven to transmit the virus.

Since 1990, an estimated 250 to 300 HIV-positive persons have been prosecuted in the US for criminal transmission, which is usually defined as failure to dislose HIV-positive status as intent to do harm. Iowa has perhaps the harshest criminal transmission laws in the country, dishing out 25-year prison sentences and lifelong offender status to those who fail to disclose their HIV-positive status.

Mother Jones’ Nicole Pasulka reports on a case that exemplifies the severity of these laws:

Iowa’s law does not require that the sexual partner at risk of transmission actually contract the virus, and prosecutors have even won cases where a condom was used.

That’s what happened to Nick Rhoades. Though he and Adam Plendl used a condom when they had sex, and Plendl didn’t contract HIV, Rhoades was arrested and charged with criminal transmission of HIV. He plead guilty on the advice of his lawyer and was sentenced to 25 years in prison.

The current laws still reflect legislation drafted two decades ago. The Ryan White Care Act of 1990 funded local and state HIV treatment and prevention programs, but also required states to criminalize the intentional transmission of HIV. As an attempt to update and amend this legislation, in September 2011 California Representative Barbara Lee introduced the REPEAL Act.

The bill argues that intentional transmission is rare; that criminalizing transmission “undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases”; and that the life expectancy of people with HIV has increased in the years since most of the laws were passed, so their severity does not reflect medical advances.

Illinois and Iowa have also moved to modify laws at the state level. Still, the proposed new amendments are not perfect.

While opponents of criminal transmission laws in Illinois hail the bill as an improvement, they are critical of a provision that would amend the state’s law and allow courts access to HIV test results to prosecute criminal transmission. The fear, legal advocate Owen Daniel-McCarter told the Chicago Phoenix, is that “[These new enforcement measures] may dissuade someone from getting tested because then there is no way to prove a crime.”

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