Disability Law and HIV Criminalization.

• Author: Blecher-Cohen, Joshua D.

NOTE CONTENTS INTRODUCTION 1563 I. STATE CRIMINALIZATION OF HIV 1565 A. Historical Context 1565 B. Statutory Framework 1570 1. HIV Status 1570 2. Conduct 1571 3. Criminal Sanctions 1573 C. Harms 1574 D. Challenging Serodiscrimination 1577 II. LIABILITY UNDER THE ADA 1579 A. Tide II 1579 B. HIV Criminalization as Disability Discrimination 1581 1. Adverse Treatment 1582 2. Causality 1585 3. "Qualified Individual" 1586 4. Direct Threat to Health 1587 a. Individualized Inquiry 1590 b. Significant Risk of Harm 1591 C. Injunctive Relief 1595 D. Overcoming Defenses 1596 1. Sovereign Immunity 1596 2. Fundamental Alteration 1598 3. Undue Burden 1598 III. LITIGATION AS STRATEGY 1599 A. Legal Claims 1601 B. Potential Outcomes 1605 C. Law and Policy 1607 CONCLUSION 1608 APPENDIX 1609 INTRODUCTION

In June 2008, Nick Rhoades had a consensual sexual encounter in Iowa.' He and his partner had condomless oral sex and anal sex with a condom, (2) activities that carry little to no risk of transmitting the human immunodeficiency virus (HIV) from one person to another. (3) Though Rhoades has HIV, his viral load was undetectable (4) and he was thus unable to transmit the virus even if engaged in a potentially high-risk activity. (5) Despite all of these factors, Rhoades was charged and convicted under Iowa's HIV-specific criminal exposure statute after his partner discovered Rhoades's HIV status and contacted the police. (6) Under the statute then in force, Rhoades was sentenced to twenty-five years in prison and required to register as a sex offender. (7)

In January 2019, Drew Schieber spat on two healthcare workers at an Indiana hospital. (8) For most people in Indiana, spitting on another person is a misdemeanor, punishable with up to 180 days in prison and a maximum fine of $1,000. (9) But because Schieber has HIV, (10) a different and harsher state statute applied. Under that law, spitting on another person exposed him to a felony conviction, two-and-a-half years in prison, and a $10,000 fine. (11) Solely due to his HIV status, he faced a sentence five times as long and a fine ten times as high--despite the fact that spitting cannot transfer HIV. (12)

Over thirty states across the country enforce similar criminal laws, imposing steep penalties on people living with HIV when they perform certain actions. These laws apply to the more than one million people with HIV living in the United States today (13) and result in thousands of state charges under HIV-specifi laws. (14) The statutes sweep broadly, proscribing even conduct that carries no chance of transmitting the virus to another person. (15) This pattern of discrimination due to HIV status--what this Note terms serodiscrimination--subjects people to arrests, fines, court fees, and incarceration based only on that status. (16) The statutes also carry expressive harms, singling out people living with HIV for state-sanctioned stigma.

The federal Americans with Disabilities Act (ADA), enacted to combat public and private discrimination based on disability status, provides a path-way to correct this criminalized regime. This Note offers a novel argument that the ADA's reach extends to state criminal laws that discriminate on the basis of disability, including most HlV-criminalization statutes, and precludes their enforcement. While this litigation strategy has not previously been implemented to challenge such statutes, existing ADA case law from the Supreme Court and federal courts of appeals provides a strong doctrinal foundation for its approach.

Part I describes the problem of state criminal laws that discriminate against people with disabilities. HlV-criminalization statutes reflect a long history of misinformation and stereotypes about HIV and acquired immunodeficiency syndrome (AIDS) in the United States. Dozens of states enacted HIV-specific criminal laws between the late 1980S and early 2000S. As written, they proscribe a wide range of conduct, including many forms of interaction that carry no risk of viral transmission. But despite past litigation efforts and calls from advocates for reform, these discriminatory criminal laws remain on the books in more than thirty states and continue to be enforced today.

Part II offers a solution. It develops a novel theory for litigating challenges to state HIV-criminalization statutes under federal antidiscrimination law. The ADA bans public entities from discriminating on the basis of disability, including an individual's HIV status. Most state HIV-criminalization statutes violate Title II of the ADA and are therefore unenforceable. While there are exceptions to public entities' liability when concerns about third-party health and safety exist, most HIV-criminalization statutes do not provide the individualized inquiry and risk assessment required to trigger that exception, if it were deemed applicable. As a result, these serodiscriminatory laws are straightforward violations of Title II, criminalizing a broad range of behaviors (across various levels of risk) based on an individual's disability status.

Finally, Part III discusses the merits of implementing this litigation strategy as part of broader efforts to challenge and reform existing HrV-criminalization statutes. After considering the prudence of the proposed legal arguments, the consequences that attach to possible litigation outcomes, and the interaction between litigation and legislative advocacy, the Note concludes that bringing ADA claims against state HIV-criminalization statutes offers a viable untapped pathway for reform.

1. STATE CRIMINALIZATION OF HIV

   1. Historical Context

      State criminal law has often functioned as a means to marginalize and control disfavored social groups. Sodomy laws, for example, used criminalization to discourage same-sex intimacy and regulate lesbian, gay, and bisexual people. (17) Outlawing same-sex sexual conduct had broader social and legal effects as well, as states' criminalization of sodomy served as "an invitation to subject homosexual [and bisexual] persons to discrimination both in the public and in the private spheres." (18) In a similar vein, states have long used criminal statutes to regulate and subordinate people with physical and mental disabilities. (19) Perhaps most famously, Pennsylvania enacted a nineteenth-century "ugly law," which made it a crime for people with visible disabilities to appear in public spaces. (20)

      This nexus of state criminal law and disability status also extends to HIV and AIDS. (21) When the first clinical reports of HIV/AIDS in the United States emerged in the 1980S, the federal government imposed aggressive restrictions on people living with HIV. (22) Noncitizens with HIV were banned from entering the country in 1987; this bar on immigration and travel stood for more than two decades. (23) People with HIV were (and remain) blocked from active deployment in several branches of the military. (24) And, since 1983, men who have sex with men have faced significant restrictions on blood donation due to the specter of HIV transmission. (25)

      Throughout this period, state legislators also responded to fears of transmission, invoking the states' traditional authority over criminal Iaw. Dozens of states and territories have at some point enacted laws that criminalize certain conduct when performed by people living with HIV; of these, more than thirty still maintain HIV-specific laws today. (26) As a class, state HIV-specific statutes vary considerably and apply to a wide spectrum of behaviors and situations--so much so that such laws are often siloed into particular issue areas and analyzed separately. (27) These HIV-criminalization statutes are a legislative form of serodiscrimination, a term this Note invokes for the first time to describe public and private discrimination on the basis of an individual's HIV status--and especially on the basis of being HIV-positive. (28)

      The rise of serodiscriminatory laws in the United States, despite their prevalence, is understudied in legal and historical scholarship. (29) While a full genealogical account goes beyond the scope of this Note, a few critical moments help to frame the steady accretion of HIV-criminalization regimes. Some of the earliest state serodiscrimination statutes were enacted in the initial wake of scientists' identification of HIV/AIDS. Florida, for example, criminalized conduct by people living with HIV in 1986, (30) just four years after the Centers for Disease Control and Prevention (CDC) first offered a clinical definition of AIDS. (31) Within two years, dozens of additional HIV-specific criminal bills had been proposed by state legislators across the country. (32)

      Other states' HIV-criminalization Iaws emerged later. Colorado and Nevada first enacted their statutes in the 1990S, (33) during a period in which Congress tethered states' public-health funding to their efforts to reduce intentional transmission of the virus. (34) One Tennessee law, enacted in 1994, was based on a model statute promulgated in a 1989 report by the American Legislative Exchange Council. (35) That report also served as a model for at least twenty-one unsuccessful state bills between 1990 and 2004. (36) Some states' HIV-criminalization laws are yet more recent, enacted well after the scientific and public-health uncertainty that marked the early years of HIV/AIDS. Alaska codified HIV-criminalization legislation in 2006, (37) while Nebraska passed a new serodiscriminatory statute as late as 2011. (38)

      Across this multidecade span, the stated purposes of HIV-criminalization laws have remained remarkably consistent. Based on legislators' statements and state laws' statutory text, these laws are framed as reducing interpersonal transmission of HIV, thereby preventing new individual infections and slowing the spread of HIV/AIDS across the population. (39) To that end, the laws focus on regulating the behavior of people living with HIV in two primary ways...