SF Weekly: Laws discriminating against people with HIV challenged in new bill

By Nuala Sawyer

Senator Scott Wiener and Assemblymember Todd Gloria announced the introduction of a new bill on Monday that would update the state’s antiquated decades-old HIV discrimination laws. 

Many of the laws were drafted in the 1980s during the peak of the HIV scare, when a diagnosis was equivalent to a death sentence. There were no effective treatments for HIV and misinformation was rampant. During this time several laws were passed which would offer more serious consequences to those who were HIV positive than those who were not. 

Of the more than 800 HIV-positive people who came into contact with the criminal system under these laws in the past three decades, 95 percent were convicted under the felony solicitation law. Normally a misdemeanor solicitation, the charge would be ramped up to a felony for those who were HIV-positive. The law was wide sweeping and didn’t require a sexual act to be enforced. With this flaw, it was possible for someone to be charged with a felony simply for talking to or engaging money with a potential client. “Activities where there’s no physical contact whatsoever still mean you can be guilty of a felony and go to state prison just because you are HIV-positive,” said Wiener. 

The bills have not been adapted to accommodate modern medical technology and advancements, meaning someone could be convicted of felony solicitation even if they are on a medicine that prevents transmission, always use condoms, or work exclusively with HIV-positive clients.

At a press conference announcing the bill, Wiener credited Rick Zbur, the Executive Director of Equality California, for inspiring him to draft the legislation. 

“Rick came to me even before I won the election, and asked that if things worked out for my campaign if I’d carry this bill, and I immediately said yes,” Wiener stated. Two months into his role as Senator, SB-239—the HIV Criminalization Law—was introduced.

Under SB-239, all felony charges for solicitation would be lowered to a misdemeanor. A law requiring those who have been caught soliciting for the first time to be tested for AIDS and undergo an AIDS education program, would be repealed. 

The bill is co-sponsored by Gloria, who represents San Diego. “This new bill is once again proving that California is a leader,” Gloria said Monday. “Not just in the context of HIV/AIDS, but with healthcare, criminal justice reform and on building a just society built around the concept of basic fairness. We will make sure that Sacramento cares about this issue.”

Also present at Monday’s press conference were several people who worked specifically with the most criminalized group of HIV-positive people: Women. According to Naina Khanna, Executive Director of the Positive Women’s Network, women represent only 13 percent of HIV-positive people in the state, but account for 43 percent of the criminal justice interactions that occur because of their status.

 Dr. Edward Machtinger, the Director of Women’s HIV Program at UCSF, spoke about how these laws nurture stigma around one’s HIV status, making it harder to keep the disease under control, as people are too scared to out themselves and seek treatment.”These laws don’t work for their intended purpose,” he stated. “Instead they actually increase the chance of HIV infection in our communities.” 

This stigma shows up in treatment centers every day. Machtinger says that in his clinic alone, 50 percent of his patients report depression, 40 percent are dependent on hard drugs to cope, and “far too many” are dying from suicide and overdose in association with an illness that can be completely preventable and treatable. 

“Since these laws were enacted we have created simple, potent HIV medication that is so effective that it can make the virus completely undetectable in a person’s blood,” Machtinger said. “This allows the person to be completely uncontagious. This fact has been confirmed by two very large international study with thousands of participants, in which there was not a single transmission.” 

Wiener’s successor as Supervisor to District 8, Jeff Sheehy, spoke openly about his HIV-positive status at Monday’s press conference. “You have someone who is HIV-positive like me, where their disease is completely suppressed, who can have sex with someone who is on PreP, and the risk of transmission is zero. Yet according to the way this law is written, the HIV-positive person would be liable for prosecution. This law should never have been written in the first place, it’s absolutely terrible public health.” 

The bill has a strong backing for its next step in Sacramento: Los Angeles LGBT Center, the Los Angeles HIV Law and Policy Project, the Transgender Law Center, Mexican American Legal Defense and Education Fund, the Free Speech Coalition, Sex Workers Outreach Project and Erotic Service Providers’ Legal, Education, and Research Project all support this change to the state’s current law. 

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