In many states, HIV-specific laws continue to perpetuate stigma while working against modern public health policies. These laws make potential HIV exposure a felony and continue to put innocent people in prison for simply having sex while HIV-positive — even if they’re undetectable, which means they can’t transmit the virus, or if no risky sexual interactions took place.
When these state laws were first enacted, HIV fear-mongering poisoned the media pipeline and it was framed not only as a “gay disease” but also as the death sentence it once was. Such state laws began taking effect in 1986 and increased dramatically after the passage of the 1990 federal Ryan White Comprehensive AIDS Resources Emergency Act, which mandated states enact criminal laws to prosecute anyone with HIV for knowingly exposing someone else to it. Many of these laws equate HIV exposure (not necessarily transmission) with murder, demonstrating the depth of fears about the virus and poz people.
Even as antiretroviral medicines entered the market a decade later, these laws remained on the books. Today, HIV treatment can suppress the virus to such low levels in the bloodstream (that’s “undetectable”) that it becomes impossible to transmit HIV to sexual partners. Yet that hasn’t changed the language of HIV criminalization laws in dozens of states.
Now, a new generation is being punished — one that never saw the AIDS crisis up close — young gay and bi men of color especially, who have always known HIV to be a treatable chronic condition. Under this scope, it’s even harder to concede that having sex while poz can be a crime justifying decades behind bars (several poz people have been sentenced to 30 years for allegedly having sex without disclosure).
Ariel Sabillon, a queer-identified son of Honduran immigrants in Florida, has been a staunch advocate for HIV and immigration reform. During the past legislative session in his state, he helped to stall House Bill 9, an anti-immigrant law that banned “sanctuary cities.” He is also part of the Florida HIV Justice Coalition to modernize HIV crime laws.
The first in his family to go to high school and the first to go to college, Sabillon now awaits a decision that could threaten his future. At a large public university in Florida, a male student alleges that Sabillon didn’t disclose his status to him before they had oral sex (because the case is ongoing, Sabillon can’t name the school or his accuser).
Sabillon, who is poz, was already undetectable and clearly educated on sexual health before hooking up with the student last January. He even tried to educate the accuser before things escalated.
A few weeks after they met up, “he randomly texted me,” Sabillon says. “He’s like, ‘Yo, do you have HIV?’ And I said, ‘Yeah. Honestly, yeah. I’m undetectable, so you’re fine.’ He freaked out and I was like, ‘Why are you freaking out? The science is there.’ He’s like, ‘The science is wrong. There’s still a chance, even if you’re undetectable, even if it was oral sex.’”
Sabillon tried to explain there’s virtually no risk of contracting HIV through oral sex (unlike other STIs like syphilis or chlamydia), but the student turned aggressive and threatened to report Sabillon to the dean of the school. He was also going to get tested for HIV.
“He’s like, ‘If I test positive, I am going to report this to the authorities.’ I’m like, ‘Okay, but that won’t be necessary, because you’re not positive. You’re fine.’ [But] it scared me,” Sabillon admits, suddenly worried about the damage his accuser could do. “I was like, ‘Oh, shit. I could have really fucked up everything. I could just lose everything right now.’”
Under current laws, HIV is easily interpreted as a deadly weapon wielded by poz people who have sex with, spit on, or otherwise share bodily fluids with someone who believes they are HIV-negative — again, even in situations where these exchanges have virtually no chance of transmitting the virus. Twenty-four states in the country have laws that require poz people to disclose their status to sexual partners, while 14 states require disclosure to needle-sharing partners. Twenty-five in total criminalize behaviors that pose very low risk for HIV-negative partners (like oral sex), according to the Centers for Disease Control and Prevention.
Some states are leading the charge to update laws that criminalize HIV. Earlier this year, North Carolina amended its legal language so that if an HIV-positive person is virally suppressed for at least six months, they no longer need to disclose their status, nor can they be charged for having condomless sex with an HIV-negative partner. (While this language clearly does not protect those newly diagnosed — treated under six months — legislators say that it’s at least an improvement and continue to advocate more changes.)
Last fall, California governor Jerry Brown signed into law legislation reducing the penalty for “exposing” a sexual partner to HIV. It’s no longer a felony, and is instead now legally viewed the same way as other serious communicable diseases.
A couple months after Sabillon and the accuser’s exchange, Sabillon recieved a letter from the university stating he’d been accused of “allegations regarding transmission of HIV.” That’s when Sabillon says he “just fell apart. I didn’t know what was going to happen, really. [Then] a week or two later, they called me for an investigation.”
Sabillon and the accuser had to present their cases in front of the dean. The first time he went in, Sabillon was by himself and was told to present his Grindr profile to school authorities, all of whom he says lacked any education about MSM sexual health. For example, one questioner asked Sabillon what a “top” and “bottom” was.
The accuser continued “saying that I was a menace to the community, that I was putting the community at harm, and, ideally, he didn’t want me to get an easy punishment, like write an essay. He wanted me to really get punished for what I did,” Sabillon shares. “It was a lot of bullshit that he just threw in there trying to take me down.”
The second time Sabillon appeared in front of school authorities, he brought a doctor in with him who presented facts about HIV transmission to prove there was no risk. “[The accuser’s] defense was like, ‘Well, the science doesn’t say that there’s 100 percent no risk.’ And my defense was pretty much like, ‘Doctors literally cannot say that. Science cannot say with 100 percent certainty [about] most anything. This is not how science works.’”
School officials are now compiling a final report, which will ultimately determine Sabillon’s fate and future at the school. Regardless, he could risk being faced with an endangerment charge on his school record. (For now, the accuser has not attempted to file criminal charges.) While Sabillon remains optimistic that school officials will make the right decision, he hopes to use this experience to help educate the state’s lawmakers, but also society at large about the dangers of stigma.
“You shouldn’t be afraid of abating our laws, our social norms, the way we live our lives. We shouldn’t be so afraid of change, and I think that’s what’s happening in the world today, where the world is changing so rapidly, and us as humans, we don’t like change,” he says.
The added difficulty of being one of few persons of color on campus in a predominantly white institution is not missed on Sabillon, who also fears getting family members deported. His dream of graduating and succeeding to pull his family out of poverty also now feels at risk.
“If [the accuser] even decides to go to press charges, I think that [he] will be eliminating someone from the community — or will be locking them away and ruining their life — someone that could have been very beneficial, someone that could have been a tremendous asset for the community,” he adds. “That’s not making the community safer, that’s hurting the community.”
Sabillon says this isn’t just about HIV-specific laws. “I want people to think about other things [as well]: When you lock people up for minor drug charges. When you lock people up for being undocumented, even though they’ve been here for years and years and they’ve done nothing wrong. That doesn’t keep the community safe, that doesn’t keep anybody safer.”