Hiv No Longer a Death Sentence but Still a Life Sentence: the Constitutionality of Hiv Criminalization Under the Eighth Amendment

• Publication year: 2022

HIV No Longer a Death Sentence but Still a Life Sentence: The Constitutionality of HIV Criminalization Under the Eighth Amendment

Lauren Taylor
University of Georgia School of Law

HIV No Longer a Death Sentence but Still a Life Sentence: The Constitutionality of HIV Criminalization Under the Eighth Amendment

Cover Page Footnote
? J.D. Candidate, 2022, University of Georgia School of Law; M.P.H. Candidate, 2022, Emory University; B.S., 2017, Emory University. Post-graduation, this author accepted a position as an Assistant District Attorney with the State of Alaska Department of Law. Any opinions expressed in this student Note are the author's alone. I would like to extend my gratitude to the Georgia Law Review Executive and Editorial Boards for their hard work editing and publishing this Note. I would also like to thank Drs. Sophia Hussen and Kimbi Hagen in the Global Health Department at Emory University's Rollins School of Public Health for bringing the issue of HIV criminalization to my awareness. Finally, I want to thank Matthew Eby for always being willing to talk through my views on HIV criminalization and the direction in which I believe the law should turn.

HIV NO LONGER A DEATH SENTENCE BUT STILL A LIFE SENTENCE: THE CONSTITUTIONALITY OF HIV CRIMINALIZATION UNDER THE EIGHTH AMENDMENT

Lauren Catherine Elizabeth Taylor^*

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When the HIV/AIDS epidemic began in the 1980s in the United States, there was mass confusion and hysteria regarding HIV transmission and prevention, leading many states to enact HIV criminalization statutes to prosecute persons living with HIV who either exposed another person to HIV or put someone in danger of being exposed to HIV. Yet, almost forty years later, these statutes are still used to criminalize and control the behaviors of people living with HIV, and in some cases, impose lengthy prison sentences hinging on the possibility of exposure. These HIV criminalization statutes and subsequent criminal cases often do not consider the vast understanding society now has regarding HIV/AIDS or the fact that persons living with HIV can reduce their risk of exposing another to zero through consistent anti-retroviral therapy. This Note argues that HIV criminalization statutes are unconstitutional as applied to virally suppressed persons living with HIV under the Eighth Amendment by using Robinson v. California's bar against "status crimes" as a guide.

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Table of Contents

I. Introduction..................................................................1192

II. Background and History of HIV in the United States .............................................................................................1197

A. the rise of hiv.....................................................1197
B. hiv transmission, prevention, and treatment 1200

1. Methods of Transmission...............................1202
2. Prevention.......................................................1204

III. HIV Criminalization Statutes..................................1207

A. problems associated with hiv criminalization ................................................................................... 1210
B. hiv criminalization statute types...................1212

1. HIV-Specific Statutes...................................1214
2. STD/Communicable/Infectious Disease-Specific Statutes...........................................1215
3. Sentence Enhancement Statutes..................1216
4. No HIV or STD-Specific Statutes................1217

C. defenses..............................................................1217
D. modernization of statutes..............................1219

IV. Previous Constitutional Challenges to HIV Criminalization Statutes.........................................1220

A. first amendment challenges...........................1221
B. eighth amendment challenges........................1224
C. fourteenth amendment challenges...............1225

1. Establishing the Right to Privacy...............1227
2. Equal Protection Clause .............................. 1229

V. HIV Criminalization Statutes as Applied are Effectively Unconstitutional as Status Crimes .. 1230

A. constitutional bar against "status crimes" .. 1232

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1. Robinson v. California.................................1232
2. The Robinson Doctrine................................1234

B. hiv criminalization statutes are status crimes under ROBINSON..................................................1237

1. "Reformed" Yet Still Punished....................1238
2. Requirement of an "Actus Reus" under Powell and Robinson...............................................1239
3. Failure to Meet Standards of a Compelling Government Interest....................................1241

VI. Conclusion..................................................................1242

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"As a trans woman living with HIV, I'm always worried that if I don't disclose to my partner before we even approach the bedroom that they'll turn around and charge me with a crime. When you have to tell a potential partner that you're trans and poz, there's always a fear that they will use that information to make your life hell. I try to always disclose online so that there's a record of them knowing. That way no one can ever come back and claim I didn't tell them before we hooked up. The fear and danger of being sent to jail just for having sex is strong enough that many times, I won't even bother trying if I think someone is litigious." Dee Borego, 29, Boston¹

I. Introduction

In June 2008, Nick Rhoades, a thirty-four-year-old man who is HIV-positive,² engaged in consensual sexual intercourse with a twenty-two-year-old man named Adam Plendl without first disclosing his HIV status.³ Upon discovering Rhoades's HIV status, Plendl went to the hospital for testing, and the hospital informed the police of the incident.⁴ Plendl's test later revealed that he had not contracted HIV from Rhoades.⁵ Although Rhoades managed his viral load (the amount of virus in his blood) with regular antiretroviral medication (ART),⁶ achieved an undetectable and untransmissible level of HIV in his body with these medications,

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and wore a condom during intercourse, Rhoades was arrested and charged with criminal transmission of HIV, a felony in Iowa.⁷ At the time of Rhoades's case in 2009, criminal transmission of HIV in Iowa had four elements: (1) the defendant engaged in intimate contact with the victim; (2) the defendant was HIV-positive at the time of this intimate contact; (3) the defendant knew of their HIV-positive status; and (4) the victim did not know of the defendant's HIV-positive status at the time of the intimate contact.⁸

The Iowa statute criminalizing HIV transmission defined "intimate contact" as "the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus."⁹ This language renders any protective measures—including, for example, consistent antiretroviral medication and condom usage like Rhoades used—immaterial. Rhoades pled guilty to his charge, received the maximum sentence of twenty-five years (which was later reduced to time served and a five-year probationary period), and became a registered sex offender upon his release.¹⁰

The first records of Human Immunodeficiency Virus (HIV) and Acquired Immunodeficiency Syndrome (AIDS) in the United States date to 1981 among homosexual men.¹¹ Although AIDS quickly

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became known as a "gay disease,"¹² by the end of 1982, AIDS had also been identified in patients who received blood transfusions and in infants of mothers living with HIV, and by 1984, persons who inject drugs were also displaying symptoms.¹³ At the height of the hysteria¹⁴ surrounding the U.S. AIDS epidemic, cities and states implemented restrictive legal measures to prevent the spread of the virus, including criminalizing behaviors that could expose another person to HIV.¹⁵

The Centers for Disease Control and Prevention (CDC) categorized these statutes, more commonly called "HIV criminalization statutes," into four categories: (1) specific laws that criminalize or control behaviors that can potentially expose another person to HIV; (2) specific laws that criminalize or control behaviors that could expose someone to STDs and communicable or infectious diseases, which could include HIV; (3) sentence enhancement laws for persons living with HIV or for persons with an STD that do not criminalize a behavior but increase the sentence length when a PLWH commits certain crimes; (4) and no specific criminalization

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laws.¹⁶ In all, thirty-five states criminalize HIV exposure in some manner,¹⁷ and twenty-two criminalize¹⁸ or control¹⁹ behaviors through HIV-specific statutes and regulations.²⁰

When HIV criminalization statutes focus solely on whether a PLWH disclosed their seropositivity (HIV-positive status) to their sexual partners, they punish not only those who might be trying to maliciously infect others, but also PLWH like Nick Rhoades who are virally suppressed and try to mitigate the risk of transmission through condom usage or are having consensual sex within a relationship.²¹ In some cases, this distinction has led to arrests following bad breakups where the HIV-negative person calls the police and reports that their HIV-positive former partner exposed them to HIV.²² These laws are also medically outdated.²³ While in the 1980s and 1990s HIV/AIDS was poorly understood and was

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considered fatal, persons living with HIV today can achieve a viral load so low that they are unable to transmit HIV to other persons.²⁴

This Note analyzes whether modern medicine has effectively rendered these statutes unconstitutional under the Eighth Amendment's bar against "status crimes"²⁵ or whether the act of non-disclosure would prevent these offenses from being considered a status crime in the traditional sense. The...