Edward Casto was 19 years old when he had a drunken threesome that led to his arrest. While most sexual encounters don’t typically garner the attention of law enforcement, Casto’s was different: he was HIV positive.
Due to intoxication, Casto and his girlfriend didn’t tell their partner, another woman, about his HIV status, and they didn’t use condoms. The woman never got HIV, and neither did Casto’s girlfriend.
What followed, however, was a string of trials, and Casto ended up being charged with assault in the first degree. He was sentenced to 31 months in prison and was released in 2012 after serving 22 months.
“I guess what I’ve learned from this prison experience for me is coming to terms with [being HIV positive],” Casto said. “I was running from it for so long, it was scary.”
Casto, now 23 years old and studying at Spokane Falls Community College, is not the only one. Throughout the country, 33 states and two U.S. territories have established laws criminalizing HIV exposure, according to the Centers for Disease Control and Prevention (CDC). Many of these laws were established in the mid-‘80s to early ‘90s during the beginning of the AIDS epidemic.
For states that have no specific HIV law, as many as 10 have charged people for HIV-related exposures under other statutes. For example, the CDC reports that all states have general criminal laws, such as assault and battery, reckless endangerment and attempted murder, which can and have been used to prosecute individuals for HIV exposure.
In Washington State, a person is “guilty of assault in the first degree if he or she, with intent to inflict great bodily harm, administers, exposes, or transmits to or causes to be taken by another, HIV.”
While many of the laws were established to prevent people from intentionally exposing HIV to others, some states also consider failure to disclose HIV status as “intent to inflict” even when HIV isn’t transmitted. The penalties range from a couple of years in jail to several decades.
However, prosecution under the HIV criminal law is rare because proving intent to transmit a sexually transmitted infection “is extremely difficult,” says Matthew Golden, University of Washington professor of medicine and director of King County Public Health’s HIV/STI program.
“[What is] more common is that people are potentially indifferent or insufficiently concerned about the welfare of a sex partner,” Golden said, although he noted that these circumstances are not widespread.
In December 2013, the Washington State Legislature introduced House Bill 2107, which was passed for second reading last February. HB 2107 aims to “eliminate the disparate treatment of HIV in the criminal justice system.” It amends the written definition of assault in the first degree — a common statute that generally deals with intentional or reckless physical injury toward others — by removing the specific mention of HIV. The statute also now includes “blood-borne pathogen” or diseases (such as HIV) under the definition of “destructive or noxious substance.”
In addition, the current bill includes failure to disclose HIV-positive status as a gross misdemeanor, which entails penalties of up to one year in jail or a fine of up to $50,000. Previously, the status disclosure portion specifically excluded the mention of HIV and is only applicable to other sexually transmitted diseases such as herpes or human papillomavirus.
“That would be a massive expansion of the number of people with HIV who are guilty of a crime,” Golden said. “A lot of people — myself included — believe that a change in the law is in order but that the proposed change is not a good one.”
He added that the law is also problematic in dealing with other STIs such as herpes or especially HPV. Under the new bill, because HPV can only be tested in women, non-disclosure of HPV status would then be a crime for which only women can be prosecuted.
During the legislative sessions, Washington State Department of Health officials discussed that not mentioning blood-borne diseases at all in the new bill “didn’t seem to be an option,” said DOH director Maria Courogen. Instead, they aim to put together language that better reflects the science of HIV today.
Since the 1990s, major research advances have changed the landscape of the disease. What used to be 100 percent infectious and fatal is now a disease that, when treated properly, does not kill or spread readily through sexual intercourse.
“Some of this is just a question of, as medical science advances, the implication of the law changes, and so [the laws] really requires some reconsideration,” Golden said.
Because of his HIV-positive status, Casto always strives for safe sex and being ethical with his disclosing his status. Yet, he said that dealing with the stigma can still be challenging.
“Everyone talks about how HIV kills, and ‘don’t touch that person or you’re gonna get it.’ It’s just a scary thought, and I didn’t want to talk about it,” Casto said.
Golden said the discussion is not a two-sided one. He added the issue is also nuanced, because transmission happens more often in men who have sex with men (MSM). Another grey area yet to be resolved, he said, is whether the legal standards should differ between MSM and heterosexuals, and what the implications of that action may be.
“It’s a difficult ethical dilemma. I think the right thing to do is a person should disclose their status,” he said. “Whether not doing so is a criminal behavior is not necessarily the same thing, is it? That, to me, is where the controversy resides.”