Advocates alarmed by spike in Missouri prosecutions of HIV-positive persons
Willie Bishop sits in a St. Charles County, Mo., jail awaiting trial on charges of recklessly and knowingly exposing some one to HIV. His act of exposure? The HIV-positive 20-year-old allegedly bit an O’Fallon city police officer during an attempt to take Bishop in on outstanding warrants.
According the Centers for Disease Control and Prevention in Atlanta, HIV is not transmitted via biting; but Missouri’s decades old HIV-exposure law makes biting a felony nonetheless.
That law, as well as documents being used by the state for HIV-positives, are coming under scrutiny by national advocates who say the state’s legal assault on HIV-positive people is escalating.
Since January, the Center for HIV Law and Policy (CHLP) in New York City has identified five criminal actions — including Bishop’s case — in Missouri. Jacqueline Lapine, communications director for the Missouri Department of Health and Senior Services, says the department does track how many cases are filed each year.
“The Bishop case illustrates the extent to which continuing, unaddressed public ignorance about the routes and actual risks of HIV transmission informs policy making at every level and burdens the lives of people living with HIV,” says Rene Bennett-Carlson, managing attorney at CHLP. “This young man may lose 15 years of his life to a prison cell for being HIV positive. If he hadn’t gotten an HIV test he wouldn’t be facing these penalties.”
The Missouri Law
Like Michigan, Missouri passed its HIV-specific criminal law in 1988. But unlike Michigan’s law, which criminalizes only sexual behavior without disclosure of an HIV-positive status, Missouri’s law outlines a series of behaviors which the state identifies as reckless exposure:
(a) Through contact with blood, semen or vaginal secretions in the course of oral, anal or vaginal sexual intercourse; or
(b) By the sharing of needles; or
(c) By biting another person or purposely acting in any other manner which causes the HIV-infected person’s semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person.
Lawmakers felt that was not enough, and in 1997 amended the law to make it easier to prosecute HIV-positive persons without a victim. The amendment allowed evidence of other sexually transmitted infections to stand as proof of reckless exposure. The law specifies primary or secondary syphilis infections, gonorrhea or chlamydia as evidence that an HIV-positive person has broken the law.
“This Missouri statute legalizes a witch hunt,” says Bennett-Carlson. “This is a bit severe in terms of language but Missouri is incredibly zealous in their prosecutions of HIV-positive people and added a statute a few years back that one can be prosecuted under the HIV exposure statute if, after an HIV-positive test result, the defendant tests positive for syphilis, gonorrhea, or chlamydia. These positive test results are used by officials to prove that HIV-positives are “recklessly” having unprotected sex and negate the need for witness testimony.”
Julie Scofield of National Alliance of State and Territorial AIDS Directors says, “NASTAD is extremely concerned about state laws related to the transmission of HIV that are not based on sound science and public health practice, such as the law in Missouri that suggests HIV can be transmitted by biting.
“Stigma and discrimination against people living with HIV/AIDS are fueled by policies, laws, and public health practice that are not solidly grounded science and must be changed if we are to make needed progress in fighting the epidemic in states across the nation,” noted Scofield.
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On top of this law, HIV-positive people are asked to sign a document (PDF) in which the patient is acknowledging his or her status and Missouri law. Signing those documents, Missouri DHSS’s Lapine says, is part of gaining access to medical case management and AIDS Drug Assistance Program.
“A signature is collected when one enrolls in Ryan White medical case management and/or the AIDS Drugs Assistance Program,” Lapine says.
Medical case management has been shown in studies to assist HIV-positive people maintain better health outcomes by assisting them in coordinating care with several doctors as well as nutritional care.
The AIDS Drug Assistance Program, or ADAP, provides access to life saving anti-retroviral medications. Those drugs are able to prevent the virus from replicating in the body, and prevent irreversible damage to the immune system. However, those medications are exceedingly expensive, costing as little as $15,000 a year to as much as $40,000 or more a year.
ADAP also provides medications as a prophylaxis drugs to prevent HIV-positive people from contracting opportunistic infections because of their weakened immune systems. Those medication interventions can reduce the long term costs associated with living with HIV by thousands of dollars annually and prevent having to hospitalize people.
“Prior to signing any such document acknowledging receipt of Missouri’s idiotic information about HIV transmission, a person with HIV should consult a lawyer,” says Sean Strub, founding publisher of the publication POZ Magazine and a senior fellow for the Center for HIV Law and Policy. “Too many people sign these things minutes after being told of their diagnosis and while in a state of semi-shock. In some cases they may also be unwittingly signing away important rights. It is abusive for the state to imply the person must sign them.”
Strub is not alone in challenging the documents.
“Thirty years into the epidemic it is maddening that health departments continue to put the seal of approval on this type of gross misinformation,” says Bennett-Carlson. “The development and use of this form by government health officials contributes to the perpetuation of stigma and the HIV epidemic as a whole.”
Similar documents in Michigan came under fire earlier this year when Michigan Messenger uncovered their use. Civil rights officials said they were prepared to investigate them, and the Michigan Department of Community Health issued a statement telling local health officials to cease using the documents, or at the very least, make sure they properly cited Michigan’s law.
Number of Criminal Cases Unknown
While the law has been in effect since 1988, Missouri health officials do not track the number of cases brought in state courts. Missouri’s DHSS says it is aware of fewer than 10 cases.
But the Center for HIV Law and Policy says it is aware of 19 such cases in the state, including five brought since January of 2011. Those records are based on media reports of the cases.
Perhaps the most publicized criminal prosecution involving HIV was brought in St. Charles County in 1998. There, prosecution officials charged [Brian Stewart with first-degree assault](http://en.wikipedia.org/wiki/Brian_Stewart_(phlebotomist)) for allegedly injecting his then 11-month-old son with HIV. Stewart was a phlebotomist at the time, and prosecutors said he injected the child with the virus in order to avoid paying child support.
The child was allegedly injected in 1992, and was diagnosed with AIDS in 1996. While he was expected to die at the time of Stewart’s trial, the child is alive today.
In 1999, Stewart was found guilty and sentenced to life in prison. Ironically, while the exposure law was an option in the case, authorities chose to use traditional criminal law to pursue justice.
The Bishop case
While media reports from Missouri indicate Bishop was identified as HIV-positive after further investigation, St. Charles County Prosecutor Jack Banas tells Michigan Messenger that, in fact, the disclosure was made to officers in another way.
“The officers were told by the defendant that he was HIV positive,” Banas said in an email. “They also confirmed that he was HIV positive with a caregiver that was assisting him and he had medications consistent with a person that is HIV positive.”
Some of those disclosures may have violated Missouri state law on the confidentiality of HIV records. Missouri law strictly limits the information and who can access it, and under which situations. In fact, in order for law enforcement to be informed of Bishop’s HIV-positive status by the caregiver, law enforcement was obligated under law to get a court order. Missouri law makes such judicial orders difficult to obtain and extremely limited.
While the law under which Bishop is being charged specifically identifies biting as reckless exposure, there are questions as to whether this is even accurate. The CDC in Atlanta has documented one case wherein HIV was allegedly transmitted via biting. That is one case in one million identified HIV infections. But that case is frowned upon by many experts because it was a case involving a sex worker and her client. The sex worker allegedly bit the client, and he claims that is how he was infected with HIV. But the sex worker in interviews said she bit the client because he declined to pay her for the sexual activity the two had just engaged in.
For its part, Missouri’s DHSS says it has no cases of documented transmission of HIV via biting, spokesperson Lapine says.
Regardless if that one case is accurate, the fact remains that it is one case out of one million in the U.S., meaning the risk of HIV transmission via biting is exceedingly rare. The CDC has opined that for there to be an actual risk, the biter’s mouth must be suffering extreme trauma, and thus bleeding, at the time of the bite. The bite has to break the skin, and have no barrier between the biter’s mouth and the victim’s skin.
But Banas, the prosecutor, dismisses those concerns in a statement.
“The statute prohibits a person knowingly infected with the HIV virus to recklessly expose an individual to the virus by biting them,” Banas said in an e-mail (emphasis in the original). “It is conduct specifically addressed by the statute.”
“How can we expect the public to understand the real risks and routes of HIV transmission when the state of Missouri itself is a leading purveyor of stigmatizing falsehoods?” asks Strub.
Banas declined to answer questions about the impact on public perception and public health impacts of prosecuting HIV-positive people for reckless exposure to HIV for allegedly biting another person.
“The Missouri statute is just wrong on multiple levels. It is not unusual in these types of cases that the first person to know his HIV status is the first person to face prosecution regardless of whether HIV is transmitted or who exposed or infected whom,” says Bennett-Carlson. “It is selective prosecution and persecution that is completely out of proportion to any risk of transmission or actual potential harm. And only HIV is singled out — not HPV, not other diseases that can be particularly risky for people living with HIV.”