[Moderator's note: This relatively long posting from Prof. Frerichs
has not been cut because of the many interesting issues raised by the accompanying
Who is responsible when an HIV infected person knowingly continues to
have unprotected sexual relations with others? Should the infected person
be warned another time, assuming that the educational message was not heard?
If so, how many times should warnings go forth? Are public health officials
responsible for protecting susceptible spouses or long-term lovers of those
who are infected and knowingly refuse to use of condoms? Should the police
become involved if protective advise is not followed, or should confidentiality
remain in effect while educational messages go out that untold persons
in the community are infected and all should use condoms? Such issues are
currently being debated in the United States, and likely in many regions
of Asia. An interesting article appeared in the New York Times last week
that summarizes the varied views Americans have on some of these issues
As the occurrence of HIV infection increases in countries such as India,
Myanmar, Thailand and Cambodia and becomes more common in other Asian nations,
the debate on how to address HIV will become increasingly strident, as
the article points out is occurring in the United States. Yet if Asian public
health officials, academicians, and community activists do not actively
state their views, such issues will be left to politicians and the general
public to resolve. SEA-AIDS offers an excellent platform for addressing
such policy issues, especially important if coming from respected public
health voices of those working and living in Asia.
As an aside, notice that when the author of the
NY Times article uses
the word "quarantine," she is using it in the more general sense as "enforced
isolation." The distinction made in public health circles between "quarantine"
and "isolation" is made clear in APHA's Control of Communicable Diseases
Manual (16th ed, 1995). It states "isolation represents separation, for
the period of communicability, of infected persons or animals from others
in such places and under such conditions as to prevent or limit the direct
or indirect transmission of the infectious agent from those infected to
those who are susceptible to infection or who may spread the agent to others.
In contrast, quarantine applies to restrictions on the healthy contacts
of an infectious case." Thus the more correct term for the policy described
in the article is "isolation."
"Wave of Laws Aimed at People With
New York Times, September 25, 1998.
NEW YORK -- Reflecting a growing frustration and fear about AIDS, legislators
around the country are passing an increasing number of laws intended to
protect the public.
This latest wave of legislation shifts the focus from earlier laws that
protected the civil liberties of HIV-infected people to laws that seek
to identify, notify and in some cases punish people who intentionally place
others at risk of contracting the virus. At least 29 states now make it
a crime to knowingly transmit or expose others to HIV, the virus that causes
AIDS, with a third of those states enacting laws within the last two years.
This year alone, 16 state legislatures, including New York, introduced
Increasingly, states are mandating HIV testing for specific segments
of the population, mainly prisoners and pregnant women. In Arizona, Florida,
Mississippi and West Virginia, laws were recently passed to give good Samaritans
and nonmedical personnel the right to ask the HIV status of the person
they assist in a car accident, fire or medical emergency.
More states are also strengthening programs to notify partners of infected
people. In a blow to New York's powerful AIDS advocacy groups, the New
York state Legislature in June passed a law that requires doctors to report
the names of HIV-positive people so officials can notify their partners
of potential exposure.
Experts say the new laws reflect a shift in attitudes toward people
with the virus. The laws have also been fueled by widely publicized cases
of HIV outbreaks, most prominently the case of Nushawn Williams, the teen-ager
who is accused of knowingly infecting more than a dozen girls and young
women in upstate New York and New York City.
"Clearly, there is a backlash," said Lawrence
Gostin, a director of
the Georgetown University-Johns Hopkins University Program on Law and Public
Health and a member of the Federal Centers for Disease Control and Prevention's
"Legislators believe we have been soft on the epidemic," he said, "that
we haven't treated AIDS like other infectious diseases, and the way they
interpret it is a need to get tough on people with AIDS. The legislative
trend is that we've moved from a period where civil rights and civil liberties
for a person with HIV prevailed to a compulsory and punitive approach."
Public perception has also changed because powerful new AIDS drugs have
transformed what was seen as a fatal disease into a chronic condition for
many people, making early testing and treatment more important, experts
"We have to get over the hurdle of treating AIDS as if it were a political
disease rather than a public health disease," said Rep. Gary Ackerman, D-N.Y., who is sponsoring a federal HIV-partner notification bill with
Rep. Tom Coburn, R-Okla., that mirrors the New York law. A congressional
hearing on the bill is set for Tuesday.
"It's quite a different time and a different era," Ackerman said. "There's
progress that has been made on this disease. People are living longer with
AIDS. Things have calmed down."
From Quarantines to Prosecution
Since the start of the AIDS epidemic in 1981, there have always been
lawmakers willing to champion proposals ranging from quarantines to criminal
prosecution for infecting others. In 1989, for example, eight states approved
laws imposing criminal penalties for knowingly exposing people to HIV,
even as 30 states passed confidentiality laws to protect infected people,
according to the National Conference of State Legislatures, a nonpartisan
research organization in Denver. But many public health experts and advocates
say legislatures are now far more likely to adopt laws making it a crime
to intentionally expose someone to HIV. In fact, the fear associated with
HIV may be growing. A national telephone survey suggests that the public
has become more suspicious of people who contract the virus, and less knowledgeable
about the disease.
Fifty-five percent of Americans believed in 1997 that they could become
infected by sharing a drinking glass with an infected person, compared
with 48 percent in 1991, according to the survey by researchers at the
University of California at Davis. Forty-one percent believed that AIDS
might be contracted from a public toilet, compared with 34 percent in 1991.
Such erosion in knowledge about HIV may reflect the fact that recent public
health campaigns have not emphasized that the disease is transmitted through
sexual contact, tainted hypodermic needles or blood, said Dr. Gregory Herek,
a social psychologist. Herek, along with a colleague, Dr. John Capitanio,
conducted the survey of 1,712 people nationwide. The findings were presented
at the World AIDS Conference in Geneva this summer.
Although three-quarters of those surveyed believed that infected people
were treated unfairly, they also had harsher views about the behavior of
people with AIDS. Twenty-nine percent last year agreed that people who
contracted AIDS through sex or drug use have got what they deserved, compared
with 20 percent in 1991. More than half of those surveyed agreed that it
was the fault of infected people if they got AIDS these days, and one-quarter
said most people with AIDS did not care if they infected others.
Public attitudes also may reflect the changing contours of the epidemic.
Blacks now make up a greater percentage of new AIDS cases than whites,
and cases are dramatically increasing among women.
According to the survey, black respondents tended to judge black people
with AIDS more harshly than white infected people, and that pattern was
even more pronounced among black women respondents than black men.
Some experts see parallels with the occurrences of venereal disease
from 1930 to 1950. At that time, a feeling of repulsion and anger against
infected women, particularly prostitutes, was reflected in laws imposing
criminal penalties, mostly as misdemeanor offenses, for knowingly exposing
people to, or transmitting, venereal infection. Many of those laws remain
on the books.
"That was thought of as an unenlightened period," said Gostin of the
Georgetown-Johns Hopkins program. "We have kind of returned to that era.
We are now treating the disease as more of a problem of criminal law and
coercive state powers than one to do with health and medicine."
Many public health officials are troubled by the new criminalization
laws, saying they could make it less likely for people to seek help for
their disease. "It's very striking," said Helen Fox Fields, associate director
for infectious disease policy for the Association of State and Territorial
Health Officials, whose members are state health commissioners. "We've
gone from feeling compassion around people with HIV and AIDS to looking
at this in a very punitive way."
"Someone who purposely sleeps with a number of partners because they
are angry about being HIV-infected and want to infect others is a very
serious and horrible act," Ms. Fields said. "But you have any number of
circumstances where it could be difficult to prove that it is intentional.
People engage in sexual relations for any number of reasons, which rarely
relate to hurting someone."
Criminalization Laws Across the Country
HIV criminalization laws are playing out in different ways across the
country. In Arkansas, the state Supreme Court recently upheld the conviction
of a 24-year-old man who was sentenced to the maximum of 30 years in prison
for knowingly transmitting the virus to a woman through unprotected sex.
The man, Pierre L. Weaver, who had committed no prior offense, was found
guilty after a two-day trial.
In Tennessee, an HIV-positive mother was recently jailed and charged
with two counts of criminal exposure of people to HIV after telling the
authorities that she slept with 50 men to get revenge. The police chief
of Lewisburg, Tenn., Michael Hunter, said the 1994 law was initially intended
for a different population. "The purpose of the law," he said "was to protect
law enforcement officers from persons with HIV spitting on them."
The shifting attitudes have blindsided many advocates for AIDS patients.
In the early years of the epidemic, most states refrained from aggressive
efforts to track and test HIV-positive people, agreeing with advocates
that it would drive the disease further underground. Nationally, advocates
and officials now generally agree that early testing and tracking can do
a great deal to slow the epidemic, although how the reporting of HIV cases
should be conducted remains a contentious issue.
Many public health officials favor the use of actual names to track
such cases while most advocates for AIDS patients want to use coded identification
to safeguard privacy. And while many advocates are not opposed to voluntary
programs of partner notification, they object to mandatory programs such
as the one recently passed in New York.
AIDS advocates in New York, who have historically been the most effective
in the nation in shaping confidentiality legislation and securing funds
for treatment, have vigorously opposed laws that they view as coercive.
But those advocates say the HIV reporting and partner-notification law
passed this summer by a wide margin by the New York Legislature is more
intrusive than they could have imagined. Under the law, which takes effect
on Jan. 1, doctors must report the names of HIV-positive people to the
state. Then, local health departments will be required to interview all
people reported as testing HIV-positive, ask them to name their sexual
partners and warn those partners that they are at risk.
Proponents of the new law say the current voluntary system of partner
notification has been ineffective because few notifications were actually
In 1993, for example, out of about 10,000 HIV positive tests in New
York City, only 350 partners were contacted, according to the legislation's
supporters. "There's no question there has been a lack of responsibility,"
said Nettie Mayersohn, the Democratic assemblywoman from Queens who sponsored
AIDS advocates say the law is so broadly worded that it is unclear how
health officials will determine whether an HIV case merits contact tracing,
and how that notification will be done, particularly in cases of potential
domestic violence. The law does not penalize people who refuse to divulge
"Large parts of it look like someone just Xeroxed 45-year-old statutes
dealing with syphilis and changed syphilis to HIV," said state Assemblyman
Richard Gottfried, who heads the Health Committee and opposed the bill.
"There were people in the advocacy community who could have contributed
a lot to developing sensible middle-ground legislation but who felt their
hands were tied because of concern about being attacked from their own
colleagues. That also applies in the Legislature."
Many advocates blame the Nushawn Williams case and Assembly Speaker
Sheldon Silver for the new law, accusing the Democratic lawmaker of caving
to political pressures in an election year. The bill had been kept from
a vote for years by the Assembly's Democratic leadership, but opposition
to the measure was dropped in the final hours of the session.
Deep Feelings Are Held on Hiding
Gottfried, an ally of AIDS advocates, said he did not believe
that the actions of Silver or Williams were the overriding factors. He
said many advocates failed to recognize how deeply the public feels about
infected people who do not disclose their status to partners.
"I think what makes the average person incensed is stories about a spouse
or a long-term partner who they are shocked to learn, after the fact, is
infected," Gottfried said.
Michael Isbell, former associate executive director of the Gay Men's
Health Crisis and a member of the Presidential Advisory Council on HIV/AIDS,
contends that advocates have no one to blame but themselves. "Rather than
recognizing this was a bill that had legs, most advocates decided the bill
was beyond hope and anyone who tried to address it was evil," he said.
"The advocates needed to get in there and make the bill as good as possible."
Ms. Mayersohn, the law's sponsor, said many questions about the new law
would be answered when the State Health Department completes a draft report
later this year on how the law will be put into effect.
Ms. Mayersohn also sponsored a law that made New York the first state
in the nation last year to require doctors to test newborns for HIV and
to notify the mothers of the results.
The rationale behind both laws is simple, she said. "We were ignoring
basic prevention strategies and for reasons that made no sense."
Ackerman, who wants federal legislation to protect the partners of HIV-infected
people, said advocates had put aside public health concerns for too long.
He said it was in their interest to come to the negotiating table. "I don't
want to embarrass them and have them get caught short like they did in
New York," he said.
"This is not a surprise attack. If they don't participate in the formulation
of the legislation, they will get legislation formulated by others."