Medical Advances, Criminal Disadvantages: the Tension Between Contemporary Antiretroviral Therapy and Criminal Hiv Exposure Laws in the Workplace

• Citation: Vol. 9 No. 1
• Publication year: 2013

Washington Journal of Law, Technology and Arts Volume 9, Issue 1 Summer 2013

Medical Advances, Criminal Disadvantages: The Tension Between Contemporary Antiretroviral Therapy and Criminal HIV Exposure Laws in the Workplace

Chelsey Heindel(fn*)© Chelsey Heindel

ABSTRACT

In 1988, the Washington Legislature classified intentionally exposing individuals to the human immunodeficiency virus (HIV) as criminal assault in the first degree. Lawmakers intended to penalize infected individuals without conditioning criminal liability on actual HIV transmission. Since 1988, however, medical technologies and effective HIV treatment have rapidly advanced. Recent studies indicate that effective antiretroviral therapy (ART) can reduce HIV transmission risks to a virtual impossibility during moments of intentional exposure.

Despite these medical advances, the 1988 exposure law remains unchanged. Consequently, individuals undergoing effective ART risk felony liability within the course of commonplace work conduct by intentionally exposing others to a virtually impossible chance of HIV transmission. This Article will begin by reviewing how outdated legislation and judicial precedent impact HIV-positive people, as well as the employers and employees implicated as victims under criminal exposure laws, by highlighting the stark contrast between the law and the technological advances in HIV treatment. The Article will then consider ways in which state legislatures and legal practitioners can simultaneously encourage responsible HIV treatment while honoring the utilitarian justifications underpinning criminal exposure laws.

TABLE OF CONTENTS

Introduction .................................................................................... 36

I. HIV Exposure Under Washington Law ................................ 37

II. Early Exposure Laws: Interpretation and Application .......... 38

III. Contemporary HIV Treatment and Maintenance Technology ........................................................................... 41

IV. Differences in Civil and Criminal Law Treatment of HIV Exposure ............................................................................... 43

V. Applying Criminal Exposure Laws to the Workplace .......... 44

VI. Balancing Employee Rights with Criminal and Employer Liability in the Workplace .................................................... 45

VII. Social and Emotional Stigmatization of HIV-positive Individuals beyond the Workplace ....................................... 47

VIII.Criminal HIV Exposure Laws Undermine Responsible HIV Treatment .............................................................................. 49

Conclusion ..................................................................................... 50

Practice Pointers ............................................................................. 51

INTRODUCTION

HIV-positive individuals frequently risk felony liability by engaging in commonplace work conduct that poses a theoretical risk of HIV exposure. Since one manner of HIV transmission is "through direct, skin-penetrating blood exposure (e.g., needle-stick injuries, needle sharing, and transfusions)[,]"(fn1) employment tasks prone to expose blood put infected employees in liability limbo. Two Washington cases, State v. Stark(fn2) and State v. Whitfield,(fn3) outline the elements required to charge an HIV-positive individual with first-degree assault based upon HIV exposure. First, the infected person must intentionally engage in an act capable of exposing another to HIV; second, that person must actually engage in the exposure-prone act.(fn4) Neither case, nor similar cases from other jurisdictions, identifies a limiting principle to mitigate exposure risk via safety precautions, disclosure, consent, or transmissibility risk. This per se criminal liability creates an anachronistic criminal liability scheme for infected employees, colleagues, clients, and employers.

I. HIV EXPOSURE UNDER WASHINGTON LAW

Since 1988, the Washington legislature has criminalized intentionally exposing another to HIV.(fn5) The law does not consider the actual likelihood of HIV transmission during common exposure-prone incidents. Under Washington's first-degree assault statute, criminal liability attaches when an HIV-positive individual "[a]dministers, exposes, or transmits to or causes to be taken by another. . . the human immunodeficiency virus. . . ."(fn6) Although the criminal actor must act "with intent to inflict great bodily harm[,]"(fn7) this mens rea requirement does not demand intentionally exposing another to HIV.(fn8)

The penal statutes criminalizing HIV exposure were reactions to two 1987 news stories that elicited nationwide HIV fear. First, the blood industry failed to screen for HIV infections in blood supplies, resulting in HIV infections from blood transfusions.(fn9) Second, Gaetan Dugas, an HIV-positive flight attendant, intentionally infected thousands of homosexual men. Mainstream media soon referred to Dugas as "Patient Zero," the primary HIV infector in many early United States HIV/AIDS cases.(fn10)

Proponents of criminal HIV exposure laws justify penalizing this intentional exposure-prone act, rather than intentional HIV exposure-transmission, for two reasons. First, the law deters overall HIV transmission by characterizing exposure, not transmission, as the criminal act. Second, criminal prosecution incapacitates the HIV-positive individuals most likely to intentionally expose others. Consequently, the criminal justice system progressively eliminates future HIV transmission incidents.(fn11)

II. EARLY EXPOSURE LAWS: INTERPRETATION AND APPLICATION

The first court to interpret Washington's 1988 criminal exposure law held that intentionally exposing sexual partners to HIV, even without the explicit intent to transmit HIV, constituted second-degree assault.(fn12) In Stark, the accused learned he was HIV-positive and received multiple counseling sessions about high-risk exposure activities.(fn13) Despite his diagnosis and counseling advisement, the defendant engaged in unprotected sexual intercourse with three victims.(fn14) The defendant failed to disclose his HIV status to the victims, and expressed disregard for his HIV-positive status to a third party, saying, "I don't care. If I'm going to die, everybody's going to die."(fn15)

Upholding his conviction, the Washington Court of Appeals noted that the legislature determined that HIV exposure "constitute[s] a serious and sometimes fatal threat to the public and individual health and welfare of the people. . . ."(fn16) Since the defendant knew he was HIV-positive and intentionally engaged in unsafe sex practices, he "was not forced to guess at what conduct was criminal."(fn17) The court held that Mr. Stark knowingly exposed others to HIV within the meaning of the second-degree assault statute.(fn18)

Stark provides important judicial precedent regarding present-day HIV exposure criminalization. The Stark court established the required mens rea for HIV exposure: knowingly committing an act capable of exposing another to HIV.(fn19) Furthermore, the accused need not intend to transmit HIV in order to commit assault; intentional exposure suffices.(fn20)

After Stark, the Washington Legislature revised its criminal code in order to...