What is HIV Criminalization?
“HIV criminalization” refers to the use of criminal law to penalize alleged, perceived, or potential HIV exposure; alleged nondisclosure of a known HIV-positive status prior to sexual contact (including acts that do not risk HIV transmission); or non-intentional HIV transmission. Sentencing in HIV criminalization cases sometimes involves decades in prison or requires sex offender registration, often in instances where no HIV transmission occurred or was even likely or possible.
HIV criminal laws are based on scientifically inaccurate depictions of HIV risks and transmission routes. These laws perpetuate misperceptions about risks for HIV transmission and increase stigma against people living with HIV. By placing those who are aware of their HIV-positive status at increased risk of prosecution, HIV criminal laws contradict public health goals seeking to expand HIV testing and engagement in care and treatment.[i]
What Does Ohio Law Say About Felonious Assault?
- Ohio Revised Code 2903.11 – Felonious Assault. Failing to disclose an HIV positive status before engaging in sexual conduct is felonious assault, a felony of the second degree. There is no requirement for intent to transmit, nor any requirement for actual transmission.
- Prison terms ranging from two to eight years
- Can result in classification as Tier III sex offender (R.C. 2950.01)
Statutes Out of Alignment with the Public Health Strategy to Ending HIV Transmission
The public health strategy for ending HIV transmission is simple—encouraging people living with HIV to maintain an undetectable viral load (viral suppression). This is achieved by regularly taking HIV medications as prescribed by a physician. When one achieves viral suppression, studies have shown that person becomes about 96% less likely to transmit the virus to another person. Viral suppression, then, has become the dominant public health strategy to reduce the rate of new HIV infections.
The current statutes discourage Ohioans to get tested for HIV, since someone who is HIV+ but does not know their status cannot be charged or convicted for this offense. These statutes also do not encourage people living with HIV to become virally suppressed. Although we know the risk of transmission is drastically reduced, under the law there is no differentiation of risk.
The Price for Discouraging Testing and Imprisonment
Averting one HIV infection saves $402,000 (in 2013 dollars) in lifetime medical costs. The average yearly cost of antiretroviral medication is approximately $23,000. In order to cover the pharmaceutical needs of 1000 new cases in Ohio, the health care system would incur a cost of $23,000,000.
There are also additional costs associated for imprisoning a person living with HIV. The annual cost of generally imprisoning someone in the state prison system is $24,000. Additionally, the state would pay for antiretroviral medications for said inmate, costing an additional $23,000 annually.
[i] AIDS United. (2016). HIV Criminalization: A Challenge to Public Health and Ending AIDS. Retrieved from AIDS United: http://www.aidsunited.org/data/files/Site_18/AW16/AW2016-Criminalization_final.pdf