To Help End the HIV Epidemic, Missouri Must Modernize its HIV Criminalization Laws

Next Monday, health-related committees in both the Missouri House & Senate will hear testimony on nearly identical bills to significantly modernize our state’s HIV criminalization laws.  For the last three years, Empower Missouri has been home to the Missouri HIV Justice Coalition. This coalition is led by People Living with HIV (PLHIV), their service providers, and their allies; it works to improve public policies that impact PLHIV and those at risk, including ending the criminalization of HIV. Ultimately, the group envisions a world where PLHIV will achieve full equality, civil rights, legal protections, and excellent healthcare in a culture free of stigma. 

This HIV modernization legislation, sponsored by Senator Holly Rehder and Representative Phil Christofanelli, has been slowly building momentum over the last four legislative sessions. HIV is currently criminalized under three sections of Missouri law, so sweeping legislation is required to negate the harm done by the current statutes. If you’re a long-time supporter of Empower Missouri, you are likely familiar with our ongoing commitment to this legislation. But, if you’re new to our organization, allow me to quickly get you up to speed. 

In the 1980s, when HIV criminalization laws were passed in states all across the country, the original intent was to reduce transmission of HIV. Unfortunately, in addition to being discriminatory and prejudicial, these laws backfired spectacularly by incentivizing ignorance of one’s HIV status (avoiding testing/diagnosis), which creates a significant public health issue. And, it is important to note that states with HIV criminalization do not have lower transmission rates. In fact, not a single study or peer-reviewed paper — nor any credentialed public health expert — asserts HIV criminalization has actually reduced HIV transmission in any jurisdiction where it exists. 

There have been incredible medical advances in treating HIV. PLHIV can take one pill a day and suppress their viral load to undetectable levels. If you have an undetectable viral load, HIV is untransmittable. Current criminal statutes do not take this into consideration and treat all PLHIV as if they are a public health risk, which increases stigma and discrimination. This is another primary reason for changing the law — HIV criminalization laws exacerbate the already overwhelming social stigma that accompanies an HIV diagnosis, which experts agree is one of the biggest obstacles to ending the HIV epidemic. Forced disclosure of HIV status carries significant risks, including potential intimate partner violence, loss of housing or custody of children, threats to employment status, and potential rejection by community members.

Medical, legal, and criminal justice experts from around the country (including the American Medical Association, American Nursing Association, National Alliance of State and Territorial AIDS Directors, HIV Medicine Association, Association of Nurses in AIDS Care, Presidential Advisory Council on HIV/AIDS, U.S. Conference of Mayors, American Psychological Association, and the U.S. Department of Justice) have all called for an end to HIV criminalization laws. We’re hopeful that this will be the year that the Missouri legislature will follow this recommendation and put an end to HIV criminalization in Missouri. 

Here’s how the proposed legislation will modernize HIV criminalization laws in Missouri:

  1. In the current law, HIV is named and singled out for particularly punitive treatment. Proposed laws replace “HIV” in the statute with “serious infectious or communicable disease,” helping to decrease the stigma associated with HIV and getting to the true intention of the law — criminalizing those who would intentionally seek to harm others by spreading a serious disease (which happens extremely rarely).

  2. Under the current law, it is illegal for someone who knows they have HIV to donate blood, organs, sperm, or tissue unless it is for medical research. Proposed laws add the exception, “or as deemed medically appropriate by a licensed physician,” which creates better opportunities for medical treatment for PLHIV (for example, if a PLHIV needs a kidney transplant)

  3. The current law has a list of activities that are considered “exposure” opportunities that can be criminally prosecuted, some of which are medically inaccurate. For example, HIV cannot be spread through saliva or urine. The proposed law would change the definition of “exposure” to “activities that create a substantial risk of disease transmission as determined by competent medical or epidemiological evidence,” which will ensure that cases have a medical/scientific basis for prosecution

  4. Under the current law, using preventative measures does not reduce your liability. In fact, the law explicitly says that use of a condom is not a defense (even though condoms are 90-95% effective at preventing the transmission of HIV). Under the proposed law, preventative measures that eliminate the risk of transmission could be used to show that there was no exposure and would remove the “condom is not a defense” provision.

  5. Perhaps the most significant and important change in the bill is related to mens rea, or the state of mind that is necessary in order for a crime to have been committed. Under current law, it is only necessary to prove that one acted “in a reckless manner” (the lowest level of mens rea) in order to be convicted. If you are convicted of “recklessly exposing” someone to HIV, even if they do not contract HIV, you can be charged with a Class B Felony carrying a sentence of 5 to 15 years in prison. The proposed bill increases the level of mens rea required to “knowingly” in order to be charged with a felony, meaning that a PLHIV would have to know that engaging in particular activity would result in transmission. Though the Missouri HIV Justice Coalition firmly believes that an intent to transmit should be necessary to convict, this is a step in the right direction. Knowingly exposing someone resulting in transmission becomes a Class C felony, knowingly exposing someone without transmission becomes a Class D felony, and recklessly exposing someone becomes a misdemeanor, punishable by up to one year in prison or a $2000 fine. This is a major and appropriate reduction in penalty from up to 30 years in prison to less than one year in prison for reckless exposure.  While the Missouri HIV Coalition ultimately intends to fight for no felony charges associated with HIV exposure, this is a huge step in the right direction. 

For more information about the work of the MO HIV Justice Coalition, visit www.mohivjustice.org. To lend your support to passing SB 65 and HB 755 out of committee on Monday, email mohivjustice@empowermissouri.org for more information.  Then, keep an eye out for an Action Alert on Monday with details on how to follow up with legislators on the health committees and encourage them to vote “do pass.” 

In Solidarity,

Mallory Rusch
Executive Director