Twenty-first Century Regression: the Disparate Impact of Transmission Laws on Gay Men
| Citation | Vol. 30 No. 4 |
| Publication year | 2016 |
Twenty-First Century Regression: The Disparate Impact of Transmission Laws on Gay Men
Siobhán Elizabeth Stade Murillo
This Comment outlines a new model criminal statute that could criminalize the intentional transmission of HIV but cause significantly less discrimination against gay men than current HIV criminal laws. In the late 1980s, states began enacting HIV-specific criminalization laws after panic hit the nation. However, these laws fuel the stigma surrounding HIV and disparately impact gay men. Some states have continued to advocate for these HIV-specific statutes, while others have expressed the belief that repeal would be the more appropriate approach. Rather than simply repealing these laws, this Article explores the more appropriate solution: to create a new model criminal statute with stricter intent requirements, a higher level of scrutiny, a duty to disclose one's HIV status, and with defenses, penalties, and remedies.
"I've got some bad news. You are HIV positive." That is something no one wants to hear from his or her doctor. Those nine words can invoke immense emotions: fear, panic, anger, depression, denial. When the HIV/AIDS epidemic materialized in the United States (U.S.) and internationally, these emotions invoked much more than denial, as lawmakers quickly enacted laws criminalizing the intentional transmission of HIV.1 While the trend toward criminalization seems to be increasing, so is the discrimination against and stigma towards gay men stemming from these laws.2 The history of animosity towards gay men provided a framework for a negative attitude toward sexual minorities and it has continued to grow into the twenty-first century.3 Current laws criminalizing HIV/AIDS transmission, both domestic and international, have the potential to increase both fear of and discrimination towards persons
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living with HIV/AIDS4 and disparately impact gay men. There is a growing concern that transmission laws will be selectively enforced against gay men because HIV/AIDS affects them at higher levels.5 New criminal statutes are needed to combat these disparities.
This Comment analyzes U.S. legislation that criminalizes HIV transmission amongst gay men and compares these statutes to similar ones in other countries. First, this Comment discusses the history of HIV/AIDS and the historical discrimination against homosexual men in the United States. Then, this Comment examines U.S. legislation and its approach to HIV transmission laws. Then, this Comment examines international legislation and approaches to HIV transmission laws, specifically in Uganda, Australia, and Niger. Finally, this Comment poses a solution: a non-discriminatory approach to HIV transmission laws that lessens the disparate impact on HIV-positive individuals, especially gay men.
A. History of HIV/AIDS in the United States
This Part will look at the history of HIV/AIDS in the United States and ultimately, the discrimination against HIV-positive gay men that has stemmed from both our history and HIV transmission laws. According to some scholars, "homosexuality has been 'tolerated' in many societies, but it has never been respected or looked to as a model for sexual relations."6 Sadly this remains true in 2016. AIDS went undetected until the 1970s.7 It seemed to be invisible and virtually impossible to detect. AIDS was first perceived as a disease infecting solely homosexual men.8 However, the HIV virus was around long before the disease was detected and spread amongst gay communities.9 The AIDS epidemic began in the United States in 1978.10
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In the 1980s, physicians discovered a new illness.11 They surmised that a new or mutated contagion was the cause.12 At the end of 1979, Joel Weisman, a Los Angeles physician, noticed an increase of mononucleosis-like symptoms such as weight loss and swollen lymph nodes.13 He found two commonalities amongst his patients: they were both young and from California's growing gay community.14 Tests started to show that gay American men had been infected by cytomegalovirus (CMV), a virus belonging to the herpes family.15 After linking CMV to herpes, the fact that the majority of those patients affected were homosexual was publicized in a negative context.16 It was later discovered that ninety-four percent of the gay community in California had been infected.17 The virus could cause fatal lesions in newborn babies, but posed less of a danger to adults.18 The first patient suffering from CMV died in March 1981.19 American experts concluded there was a possible immune disorder that predisposed individuals to HIV/AIDS.20 When the disease appeared on the East Coast, rumors started to spread that a "rare malignant disease" had appeared in the gay community of New York.21 The disease became known as "gay cancer," "gay pneumonia," and even a "gay plague."22 Some people started using the acronym GRID: Gay-Related Immune Deficiency.23 The gay population quickly became known as the "sexual third world."24 The disease was finally named in 1982, and AIDS became the
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accepted reference.25 After 1982, especially in the United States, the AIDS epidemic spread quickly.26 There were approximately one hundred new cases diagnosed every week in 1984.27
Gay men were quickly linked to and stereotyped by the disease, leading to both oppression and hardship. The link between AIDS and criminals similarly did not help the homosexual male stereotype associated with the disease.28 AIDS in prisons was on the rise, as was the imprisonment of drug addicts and gay sex in prisons.29 This fueled prejudice against persons affected by the disease. For instance, one woman in an interview stated "[t]his disease . . . affects homosexual men, drug users, Haitians, and hemophiliacs—thank goodness it hasn't spread to human beings yet."30 A male subject said, "if it spreads to the general public, it would be a medical crisis, demanding immediate government response."31 When the journalist asked for his view on the disease he replied, "[i]t's God punishing homos."32 As the link between AIDS and homosexuality became increasingly apparent, so too did vulgar prejudices towards gay men.
Cultural stigma surrounding HIV/AIDS is still prevalent today. In many societies worldwide, people living with HIV are subject to both stigma and discrimination.33 For gay and bisexual individuals diagnosed with HIV/AIDS, life became even more difficult.34 The public's response to the disease led to increased attacks on homosexuals,35 and gay men became frequent victims of violence.36 In a 1999 study, researchers found that one in five gay men
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reported being physically attacked; fifty-six percent reported verbal threats, harassment and abuse; sixty-four percent experienced homophobia in the course of their employment; and ninety-three percent experienced homophobic jokes in their workplace.37 This kind of violence against and prejudice towards gay men can lead to not only a damaged self-image but also anxiety and depression.38 Furthermore, society's prejudice towards gay men could actually contribute to the spread of HIV and other STDs39 because gay men will live in reclusive fear instead of seeking necessary and often aggressive medical attention. People affected by HIV/AIDS feel vulnerable and sometimes embarrassed, especially when they are gay.40 If they feel that they are going to be discriminated against when seeking help, they will be less likely to do so.41 This hesitance to seek treatment could lead to worsening health for these individuals.42 Discrimination towards gay men still exists today. Thus, it is likely that gay men affected by HIV/AIDS will be less likely to seek the help and medical attention they need because they live in constant fear. With this fear comes the inevitable spread of HIV/AIDS, as HIV-infected individuals will go about their lives without being diagnosed and/or seeking treatment. Further, they may be less likely to disclose their status to their partner for fear of being ostracized or rejected.43 This lack of disclosure could further spread the virus to others who are otherwise uninformed.
While there is evidence that public disapproval of homosexuality is declining in broad terms,44 the hatred, violence, and stigma towards homosexuality remains prevalent today, particularly among religious Christian groups.45 The stigma that gay men are forced to live with in today's society, especially those infected with HIV/AIDS is not surprising, especially given the
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large number of Americans who believe that homosexuality is a sin.46 This disapproval towards gay men creates an environment where they feel the need to hide their homosexuality.47 Reinforcing this notion is the sense that infection is inevitable.48 Some gay men feel so much anxiety over contracting HIV that they feel like they should just go ahead and "get it over with."49 This further suggests that heterosexuals are secure with their own identity, while homosexual men are forced to prove that they are "normal" everyday.50 Having to prove "normalcy" in 2016 suggests how truly regressive our "modern" society is.
B. Criminalization of Intentional Transmission
Legislation criminalizing the transmission of HIV started after panic swept the nation in the 1980s and early 1990s.51 Because of widespread misinformation relating to HIV, some people started to believe that HIV was "invariably fatal" and states began to enact criminalization laws as a result.52 Many state legislatures adopted criminal "exposure" laws after a significant number of gay men started contracting HIV in the late 1980s and people started associating the disease with societal sin.53 Those who had HIV/AIDS, particularly gay men, were seen as sexual predators, and as hysteria pervaded the...
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