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Nebraska legislature moves towards passage of ‘medically inaccurate’ HIV criminal law


Lawmakers in Nebraska on Tuesday came one step closer to passing a controversial piece of legislation which activists say is not based in sound science and is likely to increase stigma around HIV and Hepatitis infections.

Sen. Mike Gloor of Grand Island introduced LB226, which would “(c)reate the offense of assault with a bodily fluid against a public safety officer,” on Jan. 10. The legislation was suddenly upgraded to a priority legislation on March 14 after many advocates thought the legislation was dead. It received a hearing in the Judiciary Committee earlier this month, then was advanced on Tuesday by the unicameral legislature for a second reading. A final vote could come anytime before the end of the legislative session on June 8.

“I was approached by law enforcement who shared with me the increase in the instances of having people who are incarcerated, inmates, basically assaulting public safety officers by throwing body fluids on them. It was not just a function of spitting on them which is bad enough, but urine and feces,” Gloor said in an interview with Michigan Messenger. “The inmates developed a term for it; they called it ‘gassing.’”

Gloor said that the legislation originally used the phrase “lethal disease,” but Gloor felt that was too broad.

“We have a lot of immigrants in Nebraska, like from Sudan. I was worried about it covering some rare tropical disease,” Gloor said.

He says the legislation was amended to include the current diseases because 30 percent of Nebraska prisoners are infected with HIV, Hepatitis B, Hepatitis C or a combination of viruses.

The legislation would create a misdemeanor crime for a person who strikes a public safety officer with body fluids. The legislation identifies body fluids as follows:

Bodily fluids means any naturally produced secretion or waste product generated by the human body and shall include, but not be limited to, any quantity of human blood, urine, saliva, mucus, vomitus, seminal fluid or feces

To be guilty of this new crime, an assailant has to “knowingly and intentionally” strike a public safety officer with a body fluid.

But what most advocates find particularly troubling is that those persons who know they are HIV positive or infected with Hepatitis B or Hepatitis C would be subjected to a felony for “knowingly and intentionally” striking a public safety officer with any of the identified body fluids in the eyes, mouth or skin.

Advocates say the list of fluids undermines 30 years of HIV prevention education and basic science and understanding of HIV transmission in particular.

“By insinuating that any ‘bodily fluid’ can transmit HIV, the bill flies in the face of scientific evidence and 30 years of educational efforts to teach people that HIV (and Hep) is not transmitted by casual contact (spitting, sharing a drink, etc). Thus trashing all our efforts and increasing stigma,” said Jordan Delmundo, Grants and Public Policy Manager at the Nebraska AIDS Project, in an email. “By stating the fluid must hit eyes, mouth or skin, the Judiciary committee tried to make this medically accurate, but they came up way short. Transmission is possible through contact with mucosal membranes (eyes, mouth) but none of these viruses can be transmitted by contact with skin. There would have to be an open wound or cut.”

Delmundo says the bill reinforces misinformation and stigma about HIV.

“LB 226 still punishes the decision to get tested for HIV,” he said.

Gloor says the legislation outlined those body fluids because they can contain blood, “which is what is actually infectious.” Asked why the legislation didn’t say body fluids which may contain blood, Gloor was silent for a moment. No one had proposed such language, he said, taking time to write it down for a possible amendment on the legislative floor when the legislation goes up for its final vote.

But even that move was challenged by advocates.

“Our issue with LB226 is that, in regards to HIV, it contains vague, unclear and especially incorrect statements about the risk of HIV transmission within the bill which will thus create confusion and lead to misinformation,” says Delmundo. “I am relieved that Senator Gloor is willing to make this legislation correct by amending the language to be more accurate, but why not make it as accurate as possible by naming that actual fluids and/or fluids which may contain blood? Laws keep us safe, but they also educate the public. Seems like an easy fix that does not compromise the goal of LB226. This would be a major and forward thinking step to educating the public about how HIV is truly transmitted and maybe, just maybe people will no longer think that HIV can be transmitted through casual contact.”

The Centers for Disease Control and Prevention in Atlanta lists only breast milk, blood, vaginal secretions, semen and spinal fluid as containing enough HIV to be infectious. But even the infectiousness of those fluids is impacted by whether or not an HIV positive person is on effective anti-retroviral treatment. Such successful treatment renders the viral load — or measure of the virus in the blood — to undetectable.

Delmundo says the state has identified 1,673 cases of HIV in Nebraska. The Nebraska Department of Corrections says it has 19 cases of HIV positive people in its entire system — from prisons to parole.

The CDC reports the 2008 prevalence rate of Hepatitis B was .5 cases per 100,000 people in Nebraska. Hepatitis C had a .8 cases per 100,000 people prevalence rate in 2008. By comparison, Michigan had a rate for Hep. C of .4 per 100,000 and Hep. B at 1.5 per 100,000.

Nebraska’s Department of Corrections says that it has 480 cases of Hep. C in the prison system. The department does not track Hep. B cases, said spokesperson Dawn-Renee Smith.

The CDC says that Hep. B can be spread through sexual activity and blood products, including from intravenous drug use. However, the federal government agency specifically says the virus is not spread through many of the body fluids identified in the Nebraska legislation.

What are ways Hepatitis B is not spread?

Hepatitis B virus is not spread by sharing eating utensils, breastfeeding, hugging, kissing, holding hands, coughing, or sneezing.

The CDC says Hep. C is most usually spread through needles or in mother-to-child transmission cases. There are some cases of sexual transmission as well as a small number of cases from sharing personal use items which have been contaminated with Hep. C-infected blood. The agency says Hep. C is not spread through casual contact or through many of the body fluids identified in the Nebraska law.

What are ways Hepatitis C is not spread?

Hepatitis C virus is not spread by sharing eating utensils, breastfeeding, hugging, kissing, holding hands, coughing, or sneezing. It is also not spread through food or water.

In spite of the misinformation contained in the legislation, the Nebraska Department of Health and Human Services has not taken a stance on the legislation, says spokesperson Kathie Osterman.

Sen. Brenda Council’s staff members confirm that she is preparing an amendment for the legislation to be added during its final reading and passage — which still has not been scheduled. The amendment would change the legislation to accurately reflect the actual routes of body fluid transmission for the viruses in question.

Gloor says that concerns by advocates are overstated.

“This is a very small bill. No one was paying attention to it except law enforcement,” Gloor, a former hospital administrator said. “If it does cause misinformation about how these diseases are spread, it will be the result of well meaning advocacy groups bringing attention to the legislation.”

He says that he spent his career in hospital administration educating people about HIV and other diseases and preventing transmission. He says in the early years of the epidemic he spent time convincing surgeons to perform necessary operations on patients that they otherwise would have refused to work on because the surgeon though “they might live an alternative lifestyle.”

“The entire bill is hinged on gross ignorance about the actual routes and risks of HIV transmission,” says Beirne Roose-Snyder, staff attorney for the Center for HIV Law and Policy in New York City. “Nowhere in the nearly three-decades-long history of the epidemic has a corrections officer been infected by the routes described in the bill. As for serious misinformation, there is real harm caused to law enforcement staff who themselves may be living with HIV, and to those who are not but who are being sold an unsound bill of goods on how to protect themselves, by placing a legislative imprimatur on the unfounded fears about how HIV and other diseases are spread. It also clearly has a negative impact on the way people with HIV are treated in and out of the criminal justice system, and has resulted in people serving decades of time behind bars on the basis of ignorance and hysteria.”

Delmundo said the Nebraska AIDS Project “adamantly” agreed with the goal of protecting public safety officers. But in the end, misinformation won’t help.

“I believe it is very important for public safety officers and law enforcement in general to be factually and comprehensively educated on this subject to fully protect themselves and also help educate the Nebraskans they serve,” Delmundo said.

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