While the recent headlines that R&B crooner Usher Raymond allegedly transmitted herpes to one or more women are social media gold — celebrity, scandal and sex — it also provides the perfect foil to discuss how the legal system criminalizes HIV-positive, and its role creating stigma.
At the root of this policing is the need to have control over social conduct, especially sexual conduct. This predilection for controlling sexually related behavior through criminal and civil law is long documented in anti-sodomy laws that targeted gay men; anti-miscegenation laws that sought to control marriage choices; and sterilization laws that took reproductive and sexual health out of the hands of individuals. Women’s reproductive conduct has also been targeted through criminal laws and policies, stripping them of their reproductive rights including access to abortions.
The thing about HIV criminalization is that it's based almost entirely on stigma and plays into stereotypes, framing people who live with HIV as sexual deviates. All of that is merely a link in HIV's long history.
So, what do we mean when we say HIV criminalization?
According to AIDS United, “HIV criminalization refers to the overly broad 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.” Under these laws, people living with HIV can face unjustly long jail sentences simply for exposing a partner to HIV — regardless of transmission or ability to transmit.
The legal obligation to disclose can be traced back to the 1990 Ryan White CARE Act, which premised funding for HIV on the creation of legislation requiring states to demonstrate a willingness to prosecute “intentional” HIV exposure. At the time, it was thought that exposure to the virus, or having sex with someone who was living with HIV, meant death. The requirement was dropped in the 2000, but the criminalization statutes it created remain.
Criminalization under HIV exposure laws is a relic from an earlier time and flies in the face of the science around how HIV is transmitted today. These laws perpetuate stigma. Once you know your status, you can be jailed just for having consensual sex with someone, even if you are using condoms or are on medications that all but eliminate the chance of transmission.
As of 2014, 34 states have laws that specifically criminalize HIV exposure (not transmission) through consensual sex. The U.S. Justice Department issued guidelines suggesting elimination of HIV-specific criminal laws, except in a few specific situations. In addition to HIV-specific criminal laws, people can be prosecuted under general applicable criminal laws such as reckless endangerment, aggravated assault and attempted murder. While Usher is not being criminally prosecuted for his alleged transmission of herpes, many states do have laws that criminalize “willful” or “knowing” exposure or transmission of sexually transmitted diseases other than HIV.
Those in favor of HIV criminalization often position women as helpless pawns in need of protection, as if they are too feeble-minded to have agency over their sexual health. As feminist scholar Evelynn M. Hammonds notes, “in the HIV/AIDS discourse, African American women are constantly represented as the victims that are the ‘other’ of the ‘other,’ the deviants of the deviants, irrespective of their sexual identities or practices.”
It is important to acknowledge that the language used invokes a narrative of black men as hypersexual and predatory, and in doing so, robs them of their ability to be seen as sexually vulnerable. This framework masks the victimization of black men by assuming that only women can be victims.
The accuser in the Usher case, despite seeing a “greenish discharge” come from his penis, decided, against her better judgement, to have unprotected sex with the singer, in part because not only is it her responsibility, as you call it, to care for her own sexual actions/sexual health, but also "greenish discharge from the penis" is not a symptom of herpes. It can be a different STI, sure, but again when you're being sued or criminally charged for transmission, parsing symptoms like this becomes necessary and it feels necessary to mention that description doesn't support the health condition she alleges (another example of how murky it is for the government to legislate sex acts).
The decision to engage in sex rests in the hands of both participants in this case. As such, all of the responsibility, as well the burdens that accompany the act of having sex, also lie in the hands of the people engaging in it. Exempting one party from personal responsibility is inconsistent with the public health message that the prevention of sexually transmitted diseases is a shared obligation.
These laws are not good for public health. They force people to be afraid to disclose, and there is no evidence proving that these laws actually reduce new transmissions. They also give police, judges, and prosecutors far too much control over our sex lives. Most critically, people should not be forced to disclose their health status, and such laws try to take away one’s right to disclose their health status on their own terms.
Herpes, like HIV is a treatable. They are chronic manageable diseases. When we treat them differently, we reinforce stigma which ultimately harms prevention efforts. In many ways, Usher is fortunate. His accuser is only seeking restitution, which means that, unlike some others, the only thing he has to lose is money — not his freedom.
Eric T. Paulk is an advocate working at the intersections of law, policy, race, and sexuality. His specific areas of interest deal with the impact of HIV criminalization laws on Black queer communities, as well as the impact of the school-to-prison pipeline on Black LGBTQ youth.