For most millennials it’s hard to imagine the panic caused by the onset of the HIV/AIDS pandemic nearly 40 years ago; there hasn’t been anything like it since. Of course STDs have been around since Christopher Columbus brought syphilis to the new world but AIDS marked the first time since modern medicine that sex could carry such deadly risks.
When the virus first took hold of the gay community, treatments were scarce and misinformation, as it tends to when scary things happen, spread like wildfire. Those who were infected were pitied as the walking dead and even worse, shunned and discriminated against for fear of contagion. It’s hard to blame that first generation that had to encounter AIDS for the mistakes they made and the stigma they created around people living with the virus. Fear is a powerful and intoxicating force that can warp us into the worst version of ourselves. And it was during this period of fear that laws sprang up across the country aimed at those HIV-positive individuals who dared to pursue a normal sex life post infection.
Thirty-two states and two territories enacted laws, some felonies, that did little more than criminalize positive individuals for simply inhabiting their own bodies. What’s worse, most of those laws are still on the books today; the vast majority predate 1990 and all of the gains we have made in combating the virus. D.C. is one of too few states and territories that have no such laws. In D.C., it is the right, as it should be, of every HIV-positive individual to decide when and if to disclose their status to a sexual partner.
You can hop and skip across the rest of the country and find no shortage of cases involving consensual sex between adults being prosecuted. A woman with HIV in Georgia received an eight-year sentence for failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV-positive status. Right across the state line, in Maryland, a 29-year-old HIV-positive man was charged with seven counts of reckless endangerment and seven counts of knowingly attempting to transfer HIV after he had consensual sex with a woman he met online and did not disclose his HIV status. And in Iowa a man with HIV, who had an undetectable viral load, received a 25-year sentence after a one-time sexual encounter during which he used a condom; his sentence was suspended, but he had to register as a sex offender.
The laws used to prosecute these people exist in a realm that is void of any medical reasoning or empirical data. There has never been a single study proving any non-disclosure law has actually worked to drive down the rate of transmission and most of them don’t even take into account intent to spread the virus. In fact, none of these laws require that any actual transmission need to have taken place in order to prosecute.
Now this isn’t to say that HIV-positive individuals always act with the utmost caution and I’m not saying an honest dialogue shouldn’t be the foundation of any sexual encounter, regardless of how brief. But forcing HIV-positive individuals to disclose their status in any scenario whether it be an encounter that could lead to potential transmission or otherwise opens that individual up to discrimination from a host of sources; be it social stigmatization, housing discrimination or even loss of their job. The choice to reveal one’s status should be all their own.
Safe sex in the year 2015 has evolved to encompass more than just condoms. With tangible options like pre-exposure prophylaxis, or PrEP, as well as knowledge of what it means to be positive and undetectable, we are better armed against transmission than at any other point in history. This makes it easier than ever to accept what has always been a universal truth: Every sexually active individual, and no one else, has the responsibility to protect themselves by practicing safe sex. I am proud to live in the nation’s capital where the routine scapegoating of the HIV-positive community is not the law of the land.
Donovan Trott is a D.C. native and locally based writer.