Why We are For HIV Law Modernization

HIV criminalization should instead be called HIV voluntary transmission criminalization on the law books. HIV criminalization has structural dimensions, making it assume far reaching repercussions linked to social, political and economical deprivations for people with an HIV positive diagnosis who are booked for cases of voluntary transmission. This paper draws examples from US, Russia, China and RSA. HIV criminalization affects the marginalized and compounds further ostracism. In USA, the criminal justice varies according to state and can make statements where a +ve HIV diagnosis is ranked the same as a biological warfare calling on really long sentences (Hoppe, 2013). 

In Russia, those facing debilitating effects of drug-addiction were impacted most (Kukhterin, 2000) and in prisons they face further vulnerability to TB (Fairbairn et al, 2016). In China, a positive HIV diagnosis in sexually active persons leads to further stigma and discrimination and for working class members this leads to automatic expulsion from work (Zhongwe et al, 2013). In RSA, women are the most affected persons right from homes and in their dealings with power structures which favor males (Rebecca, 2017). HIV criminalization in USA was a reaction to federal government policy of the 1980’s to use legislation to control HIV transmission. Later states were compelled to have criminalization laws if they were to benefit from federal grants (Bhattacharya, 2013). Countries receiving American grants were also compelled to have criminalization laws on the books. These laws have tended to be extremely punitive for people with a +ve HIV diagnosis who are also guilty of HIV transmission.  On the other hand a humane or public health model rectifies this care disparity missing from the process and this is why it should be integrated.

                                          

HIV criminalization fuels further debilitation of persons living with HIV once put under incarceration. The negative effects of HIV criminalization are multi-fold: the effects range from bias, stigma to actual incarceration. HIV affects one’s immunity and in a prison setting where the model involves some form of manual labor it may lead to adverse effects. Incarceration denies the offender proper treatment and places one in conditions that continue to expose one to vulnerability contexts of TB, Hepatitis, HIV-strains other than those the offender carries. It interrupts adherence to ART. This has been documented by different scholars.

                                 

HIV criminalization is legislation that penalizes passing HIV virus to another. In the US, this has the backing of liberal and conservative white connecting it to a past in which continued opportunities to deprive economic, cultural and civic metrics of certain population groups with the sanction of federal and state government continue. Garside (2008) in article  The purpose of the criminal justice system, states that there are vested interests who are more concerned with due process, checks and balances, core values and an underlying institutional strength, rather than the pragmatic appeal to the effective and efficient control of crime. What this means in the event a persons living with HIV is incarcerated chances of uninterrupted ART are very minimal.  If prisons were efficient they would take in consideration the status of a person with a +ve HIV diagnosis. There is a tendency to assume one is able-bodied when it comes to say, in-mates with a +ve HIV diagnosis. It is assumed that incarceration serves it purpose when it comes to putting a person guilty of voluntary HIV transmission behind bars. After all, “prisons reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders,” argues Garside. Scholars are drawing our attention to the fact that the justice system has two other forces controlling it. On one side is the crime control model whose underlying logic is to contain and repress criminal behavior. Successful criminal detection, prosecution and conviction are hallmarks  that make it an effective criminal justice model. The due process model, places much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation of the due process model according to scholars. Scholars advise that when it comes to a person with a +ve HIV diagnosis, there is need to incorporate the humane treatment or a principle of appropriate protections due to a compromised body immunity status. 

                                         

There is a social context within which the criminal justice system operates. Scholars draw parallels of HIV criminalization with politics of law and order. It is an encounter in which treatment of culprits, who are mostly minorities in US are still treated much the same way as Civil War-era America. HIV criminalization laws are severe and are written in the same static manner and spirit that has persisted in USA. They are coached in a manner ensuring antagonistic law and order abuses intended to punish certain racial groups (Brown 2016). Scholars continue to state that even when dignity affirming laws for all Americans could be enacted there are fears of white backlash which appears in many forms. It could be voter apathy at the voting booth or appease meant of the power-players in the state and other vested interests.This has been shown to be the case from the times of President Johnson and other liberal Democrats who were overly cautious in dealing with the intense racial issues. They created a culture  in which it was easier to deny  existence of these concerns and instead they sought to construct a narrative about the issues that was accordingly constructed to appease those in power and was politically expedient. Conservatives are bolder and have cultivated a narrative using majority white sentiment-supporting institutions, they appeal to this group’s demonstrable fears such as the archetypal savage and uncultured over sexualized black male attacking the noble, vulnerable and innocent white female. This cognitive model has been behind the need to prescribe law and order infused rules. There are various examples of this from Alabama, Georgia, California, Arkansas, Ohio to New York.  Ronald Reagan, Richard Nixon and George Wallace, are known as the promoters of the “law and order” model. To them and many others law enforcement was not the problem; it was the solution. According to an AIDS law report, in Pennsylvania, HIV shifted from a public health problem to a criminal justice issue and so many other states followed suit. 

                                      

An in-depth look into the social context and political-economic structures within which the criminal justice process operates can shed more light on sentencing disparities. This disparity arises due to many other factors including what comprises the criminal justice system itself. There are numerous sections within the criminal justice system to make it operational. The very make up the criminal justice system is what leads to the different outcomes of sentencing. Scholars show that the criminal justice system is composed of or has to put so many interests in mind ranting from: policing and police powers, the prosecution process, the rights of suspects and victims, court processes, and appeals against conviction. Young and Sanders (2007), further show that the criminal justice system is a complex social institution which regulates potential, alleged and actual criminal activity within procedural limits supposed to protect people from wrongful treatment and wrongful conviction. This can be done through social cues such as ostracism, bias, stigma, discrimination, shaming, outing, naming or incarceration. Criminal justice, as a social regulatory set of institutions, operates within a society characterized by inequalities in wealth and power notes. The implication of this for the operations of criminal justice, is that power will be defined along hierarchies. Young and Sanders argue that “in a society in which power, status and wealth are unequally distributed along lines such as age, gender, race, and class, much criminal justice activity will compound wider social divisions. Enforcement of the criminal law reinforces a hierarchical social order which benefits some while disadvantaging others.” In a society already stigmatizing HIV, a person with a +ve HIV diagnosis convicted of voluntary HIV transmission is stripped of human dignity.

                                       

HIV criminalization is a path to incarceration and strips the “criminal” of her/his autonomy. It does so when it attributes its definitions located in substance, ideology, or normative claims which are a reflection of the powerful majority as shown earlier by Brown (2016). HIV criminalization earns the “criminal” a citizenship behind bars.  Scholars have critically evaluated this kind of scenario and it parallels critiques put forward on earned citizenship of immigrants. There shortcomings are embedded in politics, morality, policy, and law (Ahmad, 2017) On one extent it laudable in that it deters voluntary transmission or malice-driven HIV transmission. It has been shown to suffer from serious and previously unaddressed theoretical and conceptual flaws that re-inscribe the moral claims of restrictionists, illuminate and imperil larger understandings of citizenship, and invite consideration of alternative frameworks for legalization.

                              

On close examination HIV criminalization demonstrates that, while ideologically it espouses deterrence, it is predominantly neoliberal and punitive in orientation; it may not consider health status, it does not explore relation dynamics leading to HIV disclosure,  strips one of autonomy, subjects one to expectations laid down by the prison system, moral self-governance and under threat of various sanctions according to scholars. The neoliberal and punitive aspects of this framework cast the person who having failed to disclose HIV status to a partner and comes out with an HIV positive diagnosis in a deficit position. In doing so, HIV criminalization implicitly subscribes to the core claim of restrictionists — namely, that an HIV positive diagnosis in a person who previously did not disclose their HIV status have committed moral transgressions that require some form of moral recompense. Such an approach, scholars show is empirically flawed because it ignores the complex, structural causation of how people get into relations, and it is conceptually flawed in that it locates legalization within the restrictionists’ terms of the debate.

                                         

An analysis of the criminal justice system will draw our attention further to why its neoliberal and punitive orientation fuel sentencing disparities. This paper’s thrust is not a denunciation of the criminal justice system. However, it is a critique of HIV criminalization which as I have shown earlier should instead be called HIV voluntary transmission criminalization. According to scholars, the criminal justice system monitors the practices, acts and behavior of community members through community, society and government agencies such as the police, sheriff’s departments, the courts and the state and federal prison systems. Law enforcement personnel patrol communities to ensure that neighborhoods remain safe, and citizens may report crimes they witness or personally experience. Suspected criminals are given fair trials in U.S. courts, and if convicted, sentenced to rehabilitation or incarceration.

                                     

Criminalization, has something to offer in form of offender rehabilitation, offender punishment, victim restoration and community safety (Thompson, 2017). Offender rehabilitation can be punitive and rehabilitative. According to scholars, offender rehabilitation has changed through the years, has adopted a humane touch and placed offenders in the community under probation or parole. For minor infractions such as crimes involving minimal property losses or possession of small amounts of drugs, rehabilitation has been the best option. Through community supervision it is possible to monitor criminals while helping them in becoming productive members of society.

                                

Offender punishment is in form of punitive sanctions such as fines, community service and probation which have been shown to effectively deter future criminal behavior. However, for some crimes that are much too serious to justify rehabilitation efforts, punishment in the form of lengthy prison sentences is seen as the best option. Judges consider several factors when determining sentencing of a defendant to prison. These may include social, economical and political status, age, criminal history, family background and support system, concerns of victims and interested parties, attitude and counseling needs. This impacts on who is incarcerated and gravity of sentence. 

                                         

Victim considerations and restoration are part of the goal of the criminal justice system. In the event a defendant owes restitution to a victim, this can be directly to a court. It is the court which  forwards the money or form of restitution to the victim. Victims have the right to be heard at sentencing and parole hearings via written or verbal statements (or both). They may also speak with probation officers to provide input or request general information. This is the ideal due diligence expected of the criminal justice system. But, in the case of a person with a +ve HIV diagnosis there are health issues to consider. Adherence to medication which in turn ensures low virus count, immunity against opportunistic infections and further acquisition of say, TB or other HIV strains while in custody. 

                               

While the goal of safety is important, people whose immunity is compromised need to be placed in such spaces where they would not be vulnerable or spread for instance, TB. The criminal justice system is responsible for overall community safety and it should not be ground zero for re-infections. Safety is both for communities within and outside incarceration settings.  Children should be able to play outside without fear and families should be able to take evening walks. Even though this idyllic view tends towards wishful thinking, Americans view safe communities as a right. Taxes paid to law enforcement personnel are the responsibility of all citizens.

                                

There are four conditions necessary for HIV criminalization to pass a morality test: the motivation, the act itself, the rehabilitation and the consequences. The motivation behind putting one behind bars is punishment, retribution, and deterrence. For people living with HIV this act needs to be followed with humane treatment and non-interruption of ART/ARV treatment whether in or out of correctional settings. Scholars have shown that HIV is difficult to transmit, that precautions effectively reduce transmission risk, and that with access to treatment, HIV is a chronic, manageable condition, not a death sentence. A public health model needs to be supported and an +ve HIV diagnosis in criminal settings should call for care that ensures ART support and adherence. 

Cited Books

Ahmad, M.I. 2017. Beyond Earned Citizenship. http://harvardcrcl.org/wp-content/uploads/2017/07/Ahmad.pdf.

American Heritage Dictionary. https://www.thefreedictionary.com/criminalization.

Bhattacharya, Dhrubajyoti. Public Health Policy : Issues, Theories, and Advocacy, John Wiley & Sons, Incorporated, 2013. ProQuest Ebook Central. HIV Criminalization in USA.

Brown, T.L. 2016 . Different Lyrics, Same Song: Watts, Ferguson, and the Stagnating Effect of the Politics of Law and Order. http://harvardcrcl.org/wp-content/uploads/2017/07/Brown.pdf.

Fairbairn NS, Walley AY, Cheng DM, Quinn E, Bridden C, Chaisson C, et al. (2016) Mortality in HIV-Infected Alcohol and Drug Users in St. Petersburg, Russia. PLoS ONE 11(11): e0166539. doi:10.1371/journal.pone.0166539. 

HIV Transmission Law. http://www.aidslawpa.org/get-help/legal-information/criminalization-of-hiv-transmission/.

Kukhterin, Sergei. 2000. “Fathers and Patriarchs in Communist and Post-Communist Russia.” In Gender, Society and the State in Soviet and Post-Soviet Russia, ed. Sarah Ashwin. New York: Routledge. 71-89. 

Sanders A and Young R. 2007. Criminal Justice. Oxford University Press.

Thompson E. 2017. Primary Goals of the Criminal Justice System. https://legalbeagle.com/7238171-primary-goals-criminal-justice-system.html.

Trevor Hoppe. From sickness to badness: The criminalization of HIV in Michigan. Elsevier. 2013. https://www.deepdyve.com/lp/elsevier/from-sickness-to-badness-the-criminalization-of-hiv-in-michigan-DQ9V1ywZGZ.

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