Among the travesties and tragedies associated with the HIV/AIDS epidemic, perhaps its most insidious feature was the disproportionate impact the crisis had on marginalized populations: LGBTQ* communities, the poor, and people of color. The social hysteria and impact surrounding the disease exacerbated public perception of its deadly effects – the disease had a high mortality rate, methods of transmission were not very well understood, and seropositive individual faced suspicion, hostility, and anger from those with little understanding of the disease itself. Misconceptions surrounding the spread of HIV/AIDS were far-reaching and had tremendous effects on the policies and laws surrounding the spread of the disease, and legal policies disproportionately targeted historically marginalized populations, like LGBTQ* individuals and African-Americans (both populations more likely to acquire HIV/AIDS).
Of the different laws and policies implemented during this tumultuous time, some of the most controversial are state laws directly criminalizing the transmission of HIV/AIDS. In this paper, I will argue that state laws criminalizing HIV serve to perpetuate violence against marginalized groups, and, furthermore, that the state has a sovereign obligation to provide and protect to its citizenry from harm, including disease. To evidence this claim, I will be evaluating the 1. timing, creation, and impact of laws criminalizing the transmission of HIV/AIDS and how those laws held particularly negative consequences for marginalized populations already at higher risk for contracting HIV – people of color, LGBTQIA* individuals, and those of lower socio-economic status and 2. briefly discussing the obligation of the state according to a Hobbesian understanding of the sovereign and its subjects. By delving into the different areas of this extremely complex issue, I intend to show that the state has an obligation above and beyond protecting its citizens from disease and that the transmission of HIV/AIDS should not be criminalized, as doing so only further marginalizes populations already at significantly higher risk. Finally, due to the length constraints of the assignment, I will only be covering events and policies that occurred within the United States, though the application of a state’s responsibility to its subjects remains consistent across borders.
1. Laws Criminalizing Transmission of HIV/AIDS
In order to fully understand the extent of the impact of HIV/AIDS criminalization laws, it is important to understand the socio-political dynamics of the disease and how American society responded to the epidemic. At the height of the HIV/AIDS epidemic (the 1980s and 1990s), HIV-positive individuals faced an exorbitant amount of societal stigma and backlash. Many of these stigmas and negative attitudes both informed and cemented state and local-level legislation that criminalized individuals living with and transmitting HIV/AIDS. In one case, the conservative think tank “American Legislative Exchange Council” (ALEC) published a book containing over 10 legislative recommendations specific to HIV. ALEC perpetuated the growing fear and perception that HIV positive individuals were maliciously and intentionally infecting others. This widespread fear sustained a distinct stigma against HIV positive individuals, and many legislative bodies, using ALEC’s recommendations, capitalized on this fear and enacted policies and laws that criminalized the transmission of HIV/AIDS (regardless of intentionality) (Sweeney).
Additionally, there is no shortage of studies that failed to find a connection between laws that criminalized behavior associated with HIV and the rates of transmission of the disease itself. One study, which analyzed all persons over the age of 13 who had reported their disease to the National HIV Surveillance System of the Centers for Disease Control and Prevention, found that “criminal exposure laws were not associated with diagnosis rates…suggesting that these laws have had no detectable HIV prevention effect” (Sweeney et al). Evidently, the purpose of many criminalization laws is to insist that HIV-positive individuals disclose their status so proper protections can be taken to limit the spread of the disease beyond the body of that individual. While the aforementioned studies found that there is no evidence to support that criminalization laws lower rates of transmission between an HIV positive individual and sexual or drug-use partners, factors like socioeconomic status, race, ethnicity, age, gender, sexual orientation, and gender identity do play a large role in populations that are at a higher risk for acquiring HIV. Many of these factors also determine an individual’s likelihood to actively seek out medical treatment for HIV/AIDS. Specifically, a non-heterosexual, low-socioeconomic status, person of color is much less likely to seek medical treatment for HIV/AIDS than a richer, heterosexual, white individual. According to many healthcare professionals directly involved in the treatment of patients with HIV/AIDS, the criminalization of “HIV exposure could deter individuals from seeking HIV care” and the majority of medical professionals questioned in the above study “believed that criminalization could deter individuals from engaging in HIV care and remaining on HIV treatment” (Sweeney). It seems that criminalizing transmission may cause more barriers to care, and thus prevent people with HIV from seeking life-saving medical treatment.
Understanding the extent and timing of different criminalization laws is important because much of the legislation was written and enacted before HIV/AIDS was widely understood. These reactionary legislative responses to the HIV/AIDS crisis were just that – reactions. Laws passed by state legislatures made the intentional and unintentional transmission of HIV/AIDS illegal and punished those who engaged in needle-sharing and sexual behavior for failure to disclose HIV positive status (Sweeney). These non-disclosure and unintentional transmission laws are particularly nefarious because of the populations they most impacted – people of color, the poor, and LGBTQIA* individuals, status, who are more unlikely to be aware of their HIV-positive status because of the capitalist structures of the American healthcare system (which are integrally intertwined with racism and homophobia).
Laws criminalizing the transmission of HIV/AIDS (or the non-disclosure of status) have vital ethical implications. How can we understand laws to criminalize the body along bio-medical lines? And why are there such laws specific to the transmission of HIV/AIDS? The law deems the transmission HIV/AIDS particularly nefarious, despite modern medical advances through which living with HIV is entirely possible. Laws criminalizing the transmission of this specific disease are rooted in racism and homophobia, given the majority of those infected were people of color and/or gay men. While analyzing the origins of these laws is an important question, it is beyond the scope of this paper. Yet, it is important to acknowledge that the roots of these laws are entirely in purposeful marginalization, and thus violence against minority (racial and sexual) bodies is not an aberration but a continuation of state-enforced bigotry.
Additionally, the language of criminalization is important to engage with: when an individual is HIV positive and unknowingly transmits HIV to another, their body becomes criminal. Those with HIV/AIDS are not considered the “other” in abstraction, but rather in pragmatic terms. Beyond unintentional transmission, however, in criminalizing the those unknowingly transmitting of HIV, these laws entirely eliminate the corporeal agency of that individual. In maintaining and promoting such legislation, states claim authority over and onto the bodies of those with HIV, and thus those same bodies are villainized as “criminal” in the process. Agency by those same individuals criminalized, then, can be regained not through legal means but through an undertaking of bodily autonomy. This retaking of bodily autonomy takes many forms but can be fatal if an individual fails to disclose status for concern for their same body.
Through the development and enforcement of these laws, the state codifies violence against vulnerable populations and perpetuates a system of discrimination and harm against those same marginalized groups. The layers of social and political discrimination in the United States are so deeply ingrained into the healthcare and criminal justice systems that it is difficult to imagine people of color, the poor, and LGBT individuals are not disproportionately affected by laws criminalizing the health of a body. In criminalizing transmission, particularly unintentionally, the state continues to make the bodies and actions of people of color, LGBT, and the poor decidedly illegal.
2. The Responsibility of the State
Thomas Hobbes, in Leviathan, developed a compelling and complex case defining the relationships both between man, and between man and sovereign powers. Hobbes’s definition of sovereign obligation and the power of the state was critical in the development and understanding of the obligation of the state to its subjects. In a particularly compelling statement, Hobbes writes,
The obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasteth by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished. The sovereignty is the soul of the Commonwealth; which, once departed from the body, the members do no more receive their motion from it
Thomas Hobbes Leviathan Chapter 21
Hobbes’s quote above plays an important role in constructing the powers of the state relative to the agency of the subjects. Hobbes establishes that there is a distinct relationship between the sovereigns and its subjects, and I argue that relationship entails an obligation of the state to serve its subjects. This argument is not to say that the subject's loyalty to the state is a precursor to that state providing protection, but rather that the subjects have no valid reason to be loyal to that same sovereignty if that state has no power to protect its subject. Such an abstraction can have pragmatic effects, especially in the case of pandemic crises like AIDS. Given how quickly and maliciously HIV/AIDS transformed and presented a threat to the health and well-being of the commonality, the state has an outright obligation to defend and protect its citizens from this threat. Be that through the development of healthcare programs that develop and provide preventative treatment, or through treatment outside the bio-medical realm, a Hobbesian view of the AIDS crisis would entail direct action on part of the state to protect its loyal subjects. The United States failed to provide adequate measures to protect its citizenry, in many cases enacting laws that exacerbated the suffering and strife of those most vulnerable to the disease itself.
Beyond simple protectionary measures (which, as aforementioned, the United States failed to provide), I argue that the Hobbesian social contract includes protects beyond prevention, such that when preventative measures fail, the state remains responsible to its subjects. In the case of the AIDS pandemic, the responsibility of the state to its subjects does not end that same state fails to protect its citizens from contracting the virus. Rather, I’d argue the state’s role of protection extends to characteristics of sincere interest and respect. Citizens who acquire HIV/AIDS (or any disease of such pandemic caliber) are not to be ignored or outcasted by the state whose failure of protection resulted in that same diagnosis. The state must not criminalize or otherwise demonize individual who has become sick or ill, and the sickness of those individuals must not be seen as rooted in personal failures, but rather reflective of larger systemic failures of the sovereign.
A claim of state responsibility is not to say that the individual has no culpability for their own actions or for the potential those actions have to negatively affect other subject’s lives. The interpersonal nature of sex and the inherent characteristics by which HIV/AIDS is transmitted lends itself to larger discussions of agential choice. The specific case of “bug chasers,” those that purposefully seek out the transmission of HIV/AIDS, presents a particularly critical and convoluted question of agency: to what extent can we criminalize those who actively seek out an infection? Does criminalization act as a deterrent to such acts, or are the acts, in and of themselves, seeking to subvert common understandings of normative health structures? While these questions are certainly interesting, they are unfortunately outside of the scope of this eight-page paper. Yet, it is important to acknowledge the complexities of the relationship between the state and disease, especially when the disease itself is based and passed through un-regulatable acts. To that end, I argue that the individual has the power, and therefore the responsibility to protect himself, to the best of his known ability, from the immediate harm of infection. This responsibility is important only so far in the ability of that individual to prevent the spread of further infection to others more limited in their ability to protect themselves from said diseases. Thus, while the state certainly has a larger responsibility to protect citizens from infection, the individual (the subject) must be personally responsible for their own health given the consequences their status can hold for others.
IV. Conclusion
Laws criminalizing the spread and transmission of HIV/AIDS not only serve to further marginalize and violate the lives of minority populations but reflect upon the failure of the state to protect its citizens from infection and defend their character in the onset of infection. The state, in enacting laws that criminalize non-disclosure and (unintentional and intentional) transmission, perpetuate structural violence, silence, and make invisible previously marginalized groups. The state has a forthright obligation to 1. Protect its subjects from undue harm and violation and 2. Should the state fail to protect that individual from harm (in the case of HIV/AIDS, infection), the state must continue to protect and treat those individuals as equal to those they succeeded in protecting from harm. Again, the state’s absolute obligation protect its subjects from harm does not alleviate the individual’s responsibility to protect himself from infection or from spreading that infection. The individual has a distinct responsibility to disclose HIV positive status (if known) in order to reduce the potential of harming sexual partners through the transmission of infection. Ultimately, laws criminalizing the transmission of HIV perpetuate an ignorant violence against marginalized populations. Eliminating such abhorrent laws and ensuring state responsibility, education, and social awareness would fulfill the state's obligation to its subjects, irrelevant of HIV positive/negative status.