The Slaughter of our Holy Innocence: HIV Criminalization in the New Century

by Sean R. Glenn

Although, as I have indicated in previous work, I try my best not to allow my HIV positive status to define me by writing about it too frequently, I’m going to set that penchant aside for a moment. What I want to discuss right now is not an easy matter; there are no clear-cut either/or binaries here, and I worry that I’m likely to make some people uncomfortable in the language to follow. What I want to talk about is far more frightening for those living with HIV than rejection or health complications: the criminalization of HIV positive individuals, a new dimension of unjust and, frankly, scientifically illiterate HIV stigmatization. Today is the Feast of the Holy Innocents—an uncomfortable occasion that marks events that may have occurred following the birth of Jesus, and, perhaps more importantly, events that continue to this day: the violence of systematic oppression, stigmatization, and our own culpability therein. To some, a discussion concerning HIV criminalization may not seem an appropriate topic for such a feast day, yet on the eve of Epiphany (and the eve of my three year anniversary) there are connections I can no longer ignore.

Despite medical advances over the past two decades, HIV positive people remain a stigmatized group that reveals serious lacunae within the confines of our language. That is to say, while conventional wisdom holds that HIV is “a gay thing,” the facts tell us that HIV confronts every single one of us: the virus is entirely unaware of the age, gender, sexual orientation, race, economic status, or religion of those it marks. That said, in the United States there are certain communities that do bear more statistical risk than others: intravenous drug users, men who have sex with men (gay, straight, or otherwise), and communities of color, particularly women thereof. Life with HIV spans many categories, revealing that clear-cut grouping of peoples and conditions doesn’t work; to address it is to declare that one must always engage in conversations about HIV carefully, and always with an eye toward the broader issues social justice that the virus thrusts before our (often unwilling and unprepared) eyes.

In the months following my diagnosis I was asked several questions by friends and family, including “are you angry at the man who gave you HIV?” and “You know you can take legal action. Are you going to press charges?” The answer to both was, and continues to be, an emphatic “no.” In a matter such as this there is no room for finger pointing—that simply distracts us from more systemic issues. I made a mistake, as did the individual who likely transmitted the virus to me.

I recently came across a lengthy article on BuzzFeed detailing the state of HIV criminalization in the United States, which focused primarily on a case of HIV criminalization in Iowa. This is just one of many such cases that have found their way across my path in recent years. According to data collected by the organization ProPublica, the last decade has seen at least 541 recorded cases “in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive.” The data goes on to suggest that this number could actually be higher because in at least 35 states have laws which make it a criminal offense to expose another person to HIV; in 19 states, it is a felony. Yet, peculiarly enough, these laws can be executed and punishments proscribed even if the virus is not transmitted. Let me repeat that: these laws do not require transmission to occur. Possible exposure is enough to land an individual in prison.
I must confess, when I first learned of this, it was almost impossible to contain my rage and indignation, especially given that there are numerous other infectious conditions that are, in the age of retroviral therapy, much more deadly and far more communicable than (controlled) HIV for which no such laws exist.

This does, of course, force us to deal with issues of consent and ask the question “who bears the burden of responsibility here?” In the case of consensual sexual encounters (because, let’s face it, non-consensual sexual encounters are criminal), I would argue that, insofar as HIV transmission is concerned, the burden of responsibility is shared. Conventionally, the burden is placed squarely upon the HIV positive individual, but this, I would argue, is dangerous (and opens a complicated can of worms concerning credibility, honesty, and self-knowledge). Now, before the readership erupts in shocked dismay, let me qualify this by saying that, under the best of circumstances, I believe that an HIV positive individual should always disclose their status. I always make a point to do so because only in my silence does the virus win. However, the reality of social stigmatization and stratification complicates this wildly. As a result, it is also my stance that an HIV negative individual should always protect themselves; always. Always use protection and, as terrible as this might sound, never presume a person to be HIV negative—that person might not know their status. This also means, however, that protection does not include avoiding HIV positive people. I have found in the past that the best protection has been to openly engage with HIV positive individuals. I have always felt safer with HIV positive people who have openly disclosed their status to me. Honest disclosure means several things:

1) You can be sure of this person’s status; there is no doubt.

2) You can also likely be sure that this person, having disclosed, is receiving treatment and is taking medication to suppress their viral load, making it significantly more difficult to transmit the virus. If someone has recently contracted the virus and does not know it, presuming the safety of a previous negative HIV test, the chances of transmission are significantly higher.

3) You can also assume that this person who has disclosed has likely undergone a complicated internal dialogue about the consequences of their honesty. This is not something to take for granted, and this is where I feel the greatest danger of HIV criminalization laws lies: if people do not feel safe enough to disclose their status, they won’t. If the fear of being stigmatized by a systematically prejudiced legal system aligned with conventional societal ignorance is present, it is safer to either claim ignorance of one’s status or, more dangerously, avoid getting tested for HIV altogether.
This is a sure recipe for the continued presence of HIV for generations to come, and it is a guarantee that unjust stigmatization will win. If people are afraid to get tested—afraid to know about what might be happening within their bodies—then we can be sure that infections rates will climb. As I have often said, “HIV is something one rarely gets from someone who knows they are positive.” If people know they are positive, treatment is sought; if treatment is sought, the risk of transmission is significantly reduced.

If we cannot openly disclose, discuss, and feel safe about our HIV statuses, we let the virus, and the stigma surrounding it, win. Our innocence is accordingly slaughtered and, as a result, HIV won’t go away.

HIV wins only when HIV stigmatization wins.  

Sean R. Glenn is a composer and conductor of sacred choral music. He holds a Masters in Theological Studies from Boston University and a Master of Arts in Music from the Aaron Copland School at Queens College. His home on the web is www.seanglenn.com.