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Frerichs, R.R. Wave of Laws Aimed at People With HIV

SEA-AIDS Network, October 5, 1998.

R.R. Frerichs Posting

[Moderator's note: This relatively long posting from Prof. Frerichs has not been cut because of the many interesting issues raised by the accompanying news article.]

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 (see below).

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 H.I.V."

Richardson, Lynda. 

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 such bills.

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 advisory committee.

"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 say.

"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 made.

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 the bill.

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 names.

"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 H.I.V. Status

However, 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."