The Utah House voted 55-15 Friday to approve a bill that criminalizes sexual situations involving HIV/AIDS patients who engage in sex without first informing the other person about their status. The legislation calls for a one-step increase in charges when the defendant has HIV or AIDS. Also, engaging in consensual sexual activity would be a class A misdemeanor.
HB 369 (Sexual Offenses and Statutory Nonconsent Amendments), sponsored by Rep. Justin Fawson (R – North Ogden), was first heard Feb. 22 by the House Judiciary Committee.
Will Carlson, representing the Statewide Association of Prosecutors, agreed with the bill’s intent but had reservations, especially because the first draft of the bill made not informing a sexual partner prior to sexual relations a first-degree felony.
“We join with the representative in searching out ways to prevent [HIV/AIDS’] spread. We appreciate the idea that the best and healthiest form of intimacy is a fully-informed intimacy,” said Carlson. “But with first-degree felonies, which is the heaviest hammer the criminal justice system can offer, this does not do what the sponsor is trying to do. This does not say if you have a crime and the offender is HIV-positive then that crime is enhanced. This says if you are HIV-positive and you are intimate, this is a crime unless you’ve disclosed your status.”
Equality Utah Executive Director Troy Williams labeled it as “a punitive approach” that further stigmatizes those who suffer from HIV or AIDS and could actually result in a reduction in HIV testing.
“Like all people, we want to see a reduction in HIV infections. We want HIV-positive members of the LGBTQ community to be tested, know their status, and to not feel stigma in disclosing their status with intimate partners,” said Williams. “This proposed legislation could actually have the opposite effect. By increasing HIV-related stigma and potential criminal consequences for knowing and sharing one’s HIV-positive status, this bill could actually discourage HIV testing and disclosure. There’s no evidence that laws targeting people living with HIV for criminal penalties actually reduce the number of new cases of HIV or improve public health in any way.”
Ron Gordon, executive director of the Utah Commission on Criminal and Juvenile Justice, also felt that HB 369 simply goes too far.
“The question of whether that should have any kind of enhancement might be one proper for discussion, but this bill goes much further than that and takes conduct that right now would not be criminal at all and would make that a first-degree felony rape,” said Gordon. “That’s the concern that my commission has, is that it goes from being lawful under current law to first-degree felony rape. That’s a very big jump in our criminal code.”
Rep. Karianne Lisonbee (R – Clearfield) believed the legislation was fine the way it is.
“I really don’t see the problem with this bill. I think informed consent means informed consent. Whether the disease is transmitted or not, the person should inform, the person should disclose. If they don’t, it should be a crime because they are potentially infecting another person with a deadly disease. I don’t have a problem with this language.”
Rep. Brian Greene (R – Pleasant Grove) agreed that something needs to be done but questioned going as far as labeling it as rape.
“The question has been raised, shouldn’t this be criminal? Shouldn’t having sexual relations with somebody, an infected person having those relations with somebody else and not disclosing that be criminal? I think we all agree that it ought to be, but the question is should it be rape?,” said Greene.
Greene also believes the statute itself needs fixing, as reported by Utah Political Capitol.
“This is a problematic statute. It’s a poorly drafted statute, and we continue to come back to it and try to add new elements rather than fixing the statute,” said Greene. “I think [HB 369] just perpetuates the problems.”
In 2015, Greene came under fire when he questioned whether engaging in sex with an unconscious person is rape in every instance while discussing legislation in the same section of code. Greene later apologized for his remarks.
Due to the multiple concerns that were leveled by lawmakers and public commenters, the bill was held. Fawson told committee members he would prepare needed revisions and bring the matter forward soon. Two days later, it was back on House Judiciary’s agenda and debate occurred once again.
Williams echoed his sentiments from the previous meeting.
“Perpetrators should be punished for rape and causing bodily harm. The concern that we have is starting down a path of broadly and generally criminalizing people living with a disease,” said Williams.
Rep. Tim Quinn (R – Heber City) strongly disagreed with the idea that HIV/AIDS sufferers would be stigmatized.
“You keep referring to stigmatizing people with a disease. This bill, in my mind, does not stigmatize a disease. This stigmatizes an activity, and that activity is having sexual intercourse with people who do not know that they’re at risk. That’s the stigma. It’s not people with a disease,” said Quinn.
Carlson said the law could be difficult to prosecute since there would have to be proof beyond a reasonable doubt that the defendant was aware that they were HIV-positive.
Several amendments to the bill were proposed. The first, proposed by Rep. Bruce Cutler (R – Murray), called for all those with a sexually transmitted disease to be penalized rather than just singling out HIV/AIDS patients. That amendment failed. The second, proposed by Greene, attempted to replace the definition of what constitutes a sexual offense from “an act of sexual intercourse” and various references to rape with “sexual activity.” Rep. Brian King (D – Salt Lake City) criticized the proposed amendment, calling it the most “facially ambiguous use of language” he has ever seen during his time in the Legislature. Greene withdrew his amendment. The third and final amendment, proposed by Lisonbee, deleted references to rape but kept “an act of sexual intercourse” and added “sexual conduct that may result in becoming infected [with HIV or AIDS].” That amendment was also withdrawn by Lisonbee after it became clear that the proposal wouldn’t pass.
In the end, committee members voted 9-2 to move the bill forward.
Once reaching the House floor, the bill quickly moved through the process.
Rep. Rebecca Chavez-Houck (D – Salt Lake City) wondered why HIV/AIDS was being singled out when infections like gonorrhea are experiencing exponential increases. “I think I would argue that in some cases gonorrhea, related to unchecked gonorrhea and untreated gonorrhea, can be much more severe than treated HIV. I think there are also some other infections related to other STD’s. Chlamydia and syphilis are also rising, and I think that those are all very disconcerting types of STI’s. I’m still perplexed as to why HIV was identified and as something that you want to target versus all STI’s. They can have long-term health effects that are very, very detrimental if not checked,” said Chavez-Houck. “Anyone in this body is welcome to add STD’s to this bill next year,” responded Fawson.
King found the idea of criminalizing consensual sexual behavior troubling. “I just don’t think that this is good public policy right now,” said King. “I worry that it stigmatizes a particular group, the HIV-infected population, without taking into account that there are a lot of sexually transmitted infections that sometimes are even more problematic in terms of health consequences than HIV.”
Rep. Michael Kennedy (R – Alpine) decried the notion that the bill stigmatizes HIV/AIDS sufferers. “With all due respect to the comments of my friends and colleagues that have made prior implications as to singling out a certain group, I believe two things have happened with this bill. One is the unique exposure of the sponsor and representative to a case in his district and we should represent our individuals. In this case, it was an exposure of HIV,” said Kennedy. “The second thing is that these are serious diseases with serious, long-term implications in spite of the fact that people live long and healthy and productive lives with HIV. It’s still a life that’s altered because of the exposure. I believe this is a good policy step.”
“If we were to not criminalize HIV in this case and we only acted upon transmission, if we had to prove transmission actually happened, it would be akin to firing at someone and missing and simply not being charged because we missed,” said Fawson. “If you believe that an individual who can transmit HIV should disclose to a sexual partner, then I encourage your support on this bill.”
The bill now moves on to the Senate. The 2017 Utah Legislative Session ends this Thursday, March 9.
Presently, 34 states and territories have laws relating to HIV exposure. In October 2012, the HIV Medicine Association of the Infectious Diseases Society of America urged for the repeal of HIV-related criminal statues.
“Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV-infected are unjust and harmful to public health around the world. In the U.S., HIV criminalization has resulted in unacceptable human rights violations, including harsh sentencing for behaviors that pose little to no risk of HIV transmission,” wrote the HIVMA. “These laws and prosecutions unfairly target individuals with HIV infection and are not based on the latest scientific knowledge regarding HIV transmission, including the finding that transmission risk from biting or spitting is negligible.”