Criminalizing A Pandemic

By Cody R. (TX)

In light of the COVID-19 pandemic, it’s important to remember the legal ramifications of the other pandemic, HIV/AIDS. Hopefully, you’ll never find yourself in the position of defending someone simply because they have an illness but there are important things you should know in any case.

Prior to 1994, the state of Texas had a penal code that made it a third degree felony, punishable by up to 10 years in prison for a person living with HIV/AIDS to intentionally and without consent, transfer bodily fluids to another (Tex. Penal Code Ann. 22.012 (1987)). Although the state legislature amended the statutes to remove this statute in 1994, PLHIV/AIDS are still prosecuted for HIV exposure under general criminal laws including assault, sexual assault or even attempted murder. The assault statues in Texas make the use of a deadly weapon an aggravating factor which provides a felony of the second degree for aggravated assault and a felony of the first degree for aggravated sexual assault.

To clarify, Texas statutes say a deadly weapon is anything that, in its use or intended use, is capable of causing serious bodily harm, injury or death. Texas courts have held that the “bodily fluids” of a PLHIVAIDS may constitute a deadly weapon even when the alleged conduct poses no known risk of transmitting HIV, despite other cases within Texas that have stated a deadly weapon must pose more than a “hypothetical” chance of harm or injury.

Unlike 15 other states which have ”intentional (HIV) exposure” laws, Texas criminalizes PLHIVAIDS on a far broader scale and because HIV/ AIDS is strongly associated with bad behavior or stigmatized populations, such as men who have sex with men, transgender women and people of color, this criminalization tends to put an unfair bias towards these persons. In some states, HIV laws have even harsher sentences than those that cause death.

HIV is no picnic, but its completely manageable. Considering it a “deadly weapon” is cruel to PLHIVAIDS who with a pill a day, can live a relatively normal life. These laws don’t target conduct likely to result in harm because there is a 1 in 100 chance of transmission, even without prevention methods. Yet still, thousands nationwide have been prosecuted under HIV criminalization. With this in mind, HIV criminal laws and punishments make no sense. A man in Texas is given a life sentence for attempted murder after spitting on a corrections officer. A college student in Missouri received a 30.5 year sentence for having consensual sex with men he met online. A Michigan man with HIV charged under the state’s anti-terrorism statute with possession of a biological weapon after he bit a neighbor.

I need you to understand, possibly most importantly, that today’s science states unequivocally that the chance of a PLWHIV/AIDS with an undetectable viral load transmitting the virus to a sexual partner is scientifically equivalent to zero. This stance (adopted by the CDC and other US health agencies) means that PLHIV/AIDS who adhere to their anti-retroviral therapy treatment and maintain an undetectable viral load pose zero threat of transmission. Despite the hypothetical requirement outlined in Johnson, PLHIVAIDS are still being convicted and incarcerated in Texas prisons.

Now, in light of COVID-19, what stops an overzealous prosecutor seeking 10 minutes of fame from charging a person for transmitting COVID-19, even if precautions were taken? Nothing. Why stop there? HPV? Herpes? Flu? In each of these illnesses, the bodily fluids meet the definition required of a deadly weapon as they’re capable of causing “serious bodily harm or injury or death.” Here is where you ask: How do we defend against this? Here is where I shrug my shoulders. Based on my research, I’ve found no prosecutions for illnesses aside from HIV which makes you question further, why HIV?

Until our courts understand the serious ramifications of allowing the criminalization of diseases, they will continue to ignore the well-recognized principles of criminal justice.

Riley is currently serving a 70-year sentence in the Texas Department of Criminal Justice system for HIV-related charges. He wishes to thank the Center for HIV Law and Policy for valuable information. He may be reached via his TDCJ number (01750077) or at the Michael Unit, 2664 FM 2054, Tennessee Colony, TX 75886