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Virginia is poised to reform its HIV criminalization laws. Is the rest of the U.S. next?

“Being HIV positive is itself not a threat to public safety,” state Sen. Jennifer McClellan, a Democrat, said.
Image: Ralph Northam
Virginia Gov. Ralph Northam speaks during a news conference in the Governor's Mansion in Richmond, Va. on Feb. 2, 2019.Steve Helber / AP file

Virginia lawmakers have approved legislation modernizing laws around HIV exposure.

Passed after two versions of the bill were reconciled, the legislation would repeal the felony criminal ban on blood, tissue or organ donation by people with HIV and other sexually transmitted infections; make HIV-testing for people convicted of certain crimes, including prostitution and drug charges, optional rather than mandatory; and strike down a statute making failure to disclose HIV-positive status before sex a Class 1 misdemeanor punishable by up to 12 months jail time.

Intentional transmission of HIV, or “infected sexual battery,” would remain a felony in Virginia, rather than a misdemeanor, as proponents had hoped, but the new legislation would require proof of actual infection, rather than just exposure.

The bill now heads to Gov. Ralph Northam, a Democrat, who has until March 31 to sign the measure into law. While Northam has not specifically said he would sign the bill, he has previously signed pro-LGBTQ bills, including one requiring schools to create policies related to the treatment of trans students and a ban on so-called conversion therapy.

Virginia state Sen. Jennifer McClellan, a Democrat, who introduced the bill with fellow Democrat and state Sen. Mamie Locke, said HIV criminalization laws are an ineffective public health tool that disproportionately affect the LGBTQ community and people of color.

“They target and stigmatize people who are HIV positive, even though being HIV positive is itself not a threat to public safety.” McClellan told NBC News. “It makes people less likely to disclose or get tested.”

There’s also the question of determining someone’s intention to expose a partner.

“It’s so hard to prove,” McClellan said. “There have been instances where you’ve had a bad breakup and someone will swear out a warrant, saying ‘You tried to infect me,’ or use it as a threat.”

According to the Centers for Disease Control and Prevention, 37 states have laws criminalizing intentional transmission of HIV. Many were enacted after Congress approved the federal Ryan White Comprehensive AIDS Resources Emergency (CARE) Act in 1990. That landmark legislation provided millions of dollars in health care and support services for people with HIV. But to qualify, states had to enact laws allowing for the prosecution of anyone “who knowingly and intentionally exposes a nonconsenting individual to HIV.”

In 1997, Virginia made “infected sexual battery” a Class 6 felony, punishable by up to five years in prison and a fine of up to $2,500.

In the intervening decades, understanding and treatment of HIV have grown exponentially. But leading health organizations, including the American Medical Association, the World Health Organization and the CDC itself, say the laws have not caught up with advances in science.

According to the CDC, many HIV laws criminalize behavior that cannot transmit the virus — including spitting or biting — and can be applied whether or not there is actual transmission. They also don’t account for advances in HIV medication, which can keep an individual’s viral load undetectable, presenting zero risk of transmission.

Before Saturday, only six states had modernized their criminalization laws since 2014: California, Colorado, Iowa, Michigan, North Carolina and Washington, according to the advocacy group Equality Virginia. Just one, Texas, has repealed its laws.

While Virginia's law has rarely been enforced, between 2019 and 2020 three people in the state were convicted of felony infected sexual battery and misdemeanor sexual battery, according to the Roanoke Times.

McClellan’s bill, which made infected sexual battery a misdemeanor, passed the Senate 21-17 earlier this month. But a version keeping the felony charge intact cleared the House of Delegates 56-44 Friday. In negotiations to reconcile the two bills, the House version prevailed.

Some lawmakers were concerned the language in McClellan’s bill would allow someone to intentionally transmit HIV without fear of prosecution.

“I find it stunning that we would want to eliminate the felony for what is potentially fatal, deadly conduct,” state Sen. Mark D. Obenshain, a Republican, told The Washington Post.

McClellan argues there are other laws about intentionally infecting someone with a disease, including those prohibiting “malicious wounding.” “There’s no reason to specifically single out people with HIV,” she said.

Cedric Pulliam, co-founder of Ending Criminalization of HIV and Overincarceration in Virginia, or ECHO VA, said the group will continue to work with advocates and legislators to change the law, “whether it’s this year or the next.”

“When you’re a felon, it messes up your career, your housing, your education — your entire mental state,” said Pulliam, a public health expert at the CDC. “We want to focus on the rehabilitative things we can do rather than punish people.”Last session ECHO VA didn’t back a less comprehensive version of the bill, because it “didn’t push the needle far enough,” co-founder Deidre Johnson told NBC News. She wasn’t sure McClellan’s bill, which included repeals of the donation ban and mandatory testing, would succeed. “We knew we wouldn’t get everything but we were shocked we got what we did,” she said.

But it wasn’t a bloodless battle, Johnson said.

“It did give us some heartache to hear the draconian and outdated rhetoric around HIV” during the debate,” she said. “It was a real gut-check. We realize we have a lot more education to do. But now Virginians are talking about HIV and we’re glad it’s in a public forum.” Since gaining control of both houses in 2019, Virginia Democrats have moved swiftly to advance LGBTQ legislation: In 2020, lawmakers banned so-called conversion therapy on minors and became the first Southern state to pass anti-discrimination protections for the LGBTQ community.

This session, they’re working to repeal the state’s unconstitutional gay marriage ban and strike down religious exemptions that allow foster care and adoption agencies to turn away LGBTQ prospective parents.

Just last week, a bill banning the use of the so-called panic defense, used to mitigate violent crimes against LGBTQ people, passed with clear majorities in both houses.

“We’ve made generational change in less than two years,” McClellan said. “I think the public was there, I think there were even Republicans that were there. But the GOP leadership wouldn’t let [LGBTQ rights legislation] out of committee.”

The bill’s passage helps to cement Virginia as a leader on LGBTQ rights. On Tuesday, the Congressional HIV/AIDS Caucus reintroduced the REPEAL Act, which provides incentives to states that reform their HIV exposure laws.

Sponsored by Reps Barbara Lee, D-Calif., and Jenniffer González Colón, R-Puerto Rico, the bill also directs the Health and Human Services and Justice departments to review policies that criminalize people living with HIV.

“We cannot achieve our shared goal of an AIDS-free generation while these laws are on the books,” Lee said in a statement. “It is past time that we repeal these harmful and discriminatory laws and instead focus our efforts on promoting public health equity and public awareness.”

President Joe Biden has indicated he supports the REPEAL Act on his policy site, saying HIV exposure laws have no basis in science and “perpetuate discrimination and stigma towards people with HIV/AIDS.”

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