HIV Criminalization: What You Need to Know April 23, 7-9 p.m. at The Phillip Rush Center 1530 DeKalb Ave., Atlanta, GA 30307
Suttle, of Louisiana, was 24 when he decided to enlist in the Air Force. He went in for a physical and was told he was HIV positive.
“I was not aware of HIV when I was diagnosed,” said Suttle, who now lives in Washington, D.C.
“HIV was not in my life. I didn’t know anyone who had it. I didn’t understand the risk,” he said.
But Suttle didn’t let the diagnosis slow him down. He graduated from college and got a job working in the legal field in Shreveport.
“I wanted to live. I had plans,” he said.
On New Year’s Eve 2008, Suttle hung out with the man he had met through mutual friends.
“We were out for a night on New Year’s Eve and we decided to go to his place; we decided to spend the night together. And we engaged in sex. It was not planned. It was just a casual experience like most gay men experience,” he said.
Suttle said he informed him of his HIV status the first night they were together and the two had a contentious relationship for about three months before it ended.
He heard through the same mutual friends who introduced the two that his ex-boyfriend intended to press charges against him. Why? Because, according to the ex, Suttle did not inform him he was HIV positive before they had sex.
“I was arrested at work,” Suttle remembered.
He spent three days in jail before he bonded out. He was then sentenced to six months in jail under a Louisiana law that states it is illegal to “intentionally expose another to HIV through sexual contact or through any means or contact (including spitting, biting, stabbing with an HIV contaminated object, or throwing of blood or other bodily substances) without the knowing and lawful consent of the victim.”
Suttle will be in Atlanta on April 23 to take part in a town hall meeting on HIV criminalization laws organized by local HIV activist and journalist Mark King.
King, who has been living with HIV more than 20 years, said he wants people people on both sides to come to the town hall.
“Regardless of how you feel on topic, if you are infected or you have not always disclosed, you will get answers at this forum,” he said. “No matter what side of the fence people are on, if they want to press charges or know what their rights are, we have to meet people where they are. We don’t want people not disclosing. Please come and let your voice be heard.”
Suttle and King are proponents of honestly disclosing one’s HIV status to a potential partner. HIV is still incurable and can be transmitted through sex. Gay men have the highest rates of new infections each year, especially black gay men. A decision to have sex should be made by people who have all the facts, Suttle said.
“I do sympathize with people who have contracted HIV, gay or straight. I once was that person, too,” said Suttle, who added he does not know he contracted HIV from.
“I understand people’s pain and how they feel. But we have to take responsibility for ourselves and take our power back,” he added. “These are very complex and complicated issues. As my colleagues say, there is no right or wrong side of this issue, there is informed or uninformed. And we want people to be informed.”
Tracking HIV prosecutions
Georgia has a similar statute to Louisiana. According to The Sero Project, a nonprofit with the mission that includes getting such laws repealed, Georgia also has one of the highest numbers of convictions in the nation.
The Georgia law makes it a felony to have sex without disclosing you are HIV positive. It does not take into account whether the other partner asked about HIV status, whether a condom was used, the relative risk of the acts performed or whether the other partner contracted HIV.
Because local district attorneys don’t compile HIV cases specifically and rather include them in groups such as felonies and misdemeanors, it’s very difficult to get specific information on whether the convicted person was gay or straight and the details of the case.
In 2005, however, in a high-profile case in Georgia, Emory medical student Wayne Carriker was arrested and convicted of not disclosing his HIV status to three separate male partners. All three remained negative.
Carriker pleaded guilty and was sentenced to four years. Carriker is now an “ex-gay” working for a substance abuse and “sexual brokeness” Christian agency.
The Fulton County’s District Attorney’s Office states it has charged 35 people since 2005 with “reckless conduct related to HIV transmission.” Many of the people had other charges, explained spokesperson Yvette Brown. Brown said the office does not track sexual orientation of those charged.
One person, who had no other charges included with his reckless conduct related to HIV transmission, had a non-negotiated plea and was sentenced to 10 years to serve two years. The longest sentence a person with no other charges besides the reckless conduct charge received was five years. Another person was sentenced to eight years to serve one.
The USA and Canada lead the world in the number of prosecutions and convictions related to HIV transmission, with more than 300 convictions between them, according to a group named Criminalize Hate Not HIV.
‘There is a lot of shame’
When Suttle was released from jail, he was also sentenced to two years probation and found out from his probation officer that he would have to register as a sex offender.
As a registered sex offender in the U.S., Suttle, now 34, must send out notifications to any community he lives in to let them know. His driver’s license has “sex offender” stamped on it.
Suttle said he was lost after getting out of jail. He didn’t know anything about what happened to him. So he went to the internet looking for answers and found an article about HIV criminalization laws.
“It catapulted me to advocacy,” said Suttle, who is now the assistant director of The Sero Project.
“If you understand any black gay men, or gay men … there is that question of why would you want to have sex with a man who is HIV positive. There is a lot of shame,” Suttle said.
Suttle’s ex “was one of those people not wanting to deal with that issue,” he said.
“When I disclose now, there are good and bad reactions. But in terms of the law, it doesn’t matter if you did disclose — how do you prove you did? That’s very unfortunate. And you have no credibility when you are accused,” Suttle said.
Did the other man test positive? Suttle said he doesn’t know even after asking the prosecutor.
In Louisiana, like Georgia, it doesn’t matter.
‘Throwing diseased fags in jail’
King, who writes the blog “My Fabulous Disease,” was on the front lines in the early 1980s when young men were contracting the virus and dying en masse. At that time, accesss to treatment was the rallying cry for AIDS activists.
King said times have changed.
There are 37 states, including Georgia, with criminal statutes on HIV transmission, according to Lambda Legal. They range from misdemeanors to felonies, from sentences of no more than three years to no more than 10 years, and many include fines that range from $2,500 to $10,000.
“I really believe criminalization is the defining HIV issue of our time,” King said.
“We haven’t had to deal with something uncomfortable with HIV for awhile. Criminalization plays into our stigma and our fear and I believe as those with HIV have gotten healthier, the social stigma of HIV has risen. Stigma is much, much worse,” he said.
People on hookup sites often say they want a sex partner who is “drug and disease free” or are seeking “clean” people.
“And there is so much shame about testing positive [today]. So when someone does test positive they are looking for someone to blame,” King added.
“We all know somebody who is positive because someone lied to them. That is awful and arguably immoral. But is it criminal? I believe the answer is no. We all share responsibility,” he said.
King rails against the “medical stupidity” of the laws and the variations in each state that has them, including Georgia where you can be prosecuted for wearing a condom and taking every precaution to ensure the partner is protected.
“For conservative prosecutors, this is a chance to throw some diseased fags in jail. They don’t believe we should be having sex at all,” he said. “This feeds off our own stigma of gay men.”
Leslie Wolf is professor of law at Georgia State University’s College of Law and conducts research in HIV laws and policies.
“In the beginning of the epidemic, there was lots of fear, stigma, discrimination and lots of public pressure to address the issues of intentional transmission of HIV,” she said.
“More states adopted such laws because of the concern, ‘We have to do something.’ And as part of the Ryan White Act, Congress required states as a condition to receive federal funding to have a law on the books,” she added.
That requirement ended in 2000.
Wolf agrees with King that such laws make for bad public health policy because once someone learns of the laws, they are less likely to get tested — so they don’t know their HIV status and cannot be accused of intentional transmission.
“When I talk to HIV testing counselors, many say one of the questions of those who test positive is, ‘Who do I talk to about pressing charges?’ Their first reaction is not about treatment,” King said. “They’re prosecuting people wearing condoms. Medically speaking, they are ignorant laws and bad for public health. Who’s going to get tested if they run the risk of being arrested one day?”
Wolf of GSU describes the statutes as “blaming through expression of law.”
“If you look at statutes across the country, you can see how heavy-handed they are. That is about stigmatization,” she said. “We should be providing a safe place to encourage disclosure.”
FROM GA. CODE ANN. § 16-5-60: A person who is an HIV infected person who, after obtaining knowledge of being infected with HIV knowingly engages in sexual intercourse or performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person and the HIV infected person does not disclose to the other person the fact of that infected person’s being an HIV infected person prior to that intercourse or sexual act … is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not more than ten years.
Support for change
• In February, the Presidential Advisory Council on HIV/AIDS passed a resolution calling for an end to federal and state laws that criminalize or prosecute people based on HIV status, stating that “singling out HIV or any other health condition or disability as a basis for prosecution or sentence enhancement is unjust and unwarranted from legal, ethical, and public health perspectives.”
• U.S. Rep. Barbara Lee (D-Calif.) is author of the Repeal HIV Discrimination Act, to eliminate discrimination in the law for those who have tested positive for HIV. It was introduced in Congress in 2011.
37 states with HIV criminalization laws
Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia , Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin
Top photo: Robert Suttle, 34, was charged with not disclosing he is HIV positive and sentenced to six month in a Louisiana jail. He is now a registered sex offender in the U.S. (Courtesy photo)