Criminalization of HIV in Oklahoma
The Oklahoma State Legislature, just like many other states, has created two statutes criminalizing HIV.
The first is O.S. 21§ 1192.1, which states that anyone who knowingly engages in an act that is likely to transfer the HIV virus is guilty of a felony punishable up to five years in prison.
The only affirmative defense to this crime is disclosure. Of course, proving such disclosure can be very difficult to do in court and the idea of someone having their partner sign and notarize an acknowledgment of HIV status is laughable. Also, it should be noted that using a condom or having a very low viral load, is not a defense to this crime. Further, the way this law is written, actual infection is not required.
The other statute is O.S. 21§ 1031, which states that anyone who knowingly engages in prostitution while infected with HIV is guilty of a felony punishable up to five years in prison. This statute also does not require actual infection for the person to be convicted.
Because these statutes specifically single out HIV, they unnecessarily violate the accused person's right to privacy. And while there are many other life threatening diseases, doing this with HIV only adds to the stigma.
A person’s HIV status is protected by federal law, but once he is charged with either of these crimes, their HIV status becomes public record. In Oklahoma, court records are readily available on the internet on www.oscn.net and the media reports these cases with no regard to the privacy of the defendant. If charged with either of these crimes, their HIV status becomes a headline. Even if the defendant is acquitted, and even if the charges are eventually expunged, the media publication of their HIV status in the news and on the internet cannot be undone.
We all know that if a person's HIV status is publicized, it could potentially cause them to lose employment, subject them to violence, and have many other negative consequences.
If the above mentioned statues were repealed, these crimes could easily fall under the already existing O.S. 21 § 1192, which states that anyone who intentionally or recklessly spreads infectious diseases is guilty of a felony punishable up to five years in prison. This is the same punishment of O.S. 21§ 1192.1 and O.S. 21§ 1031. It should be noted that this law requires actual infection of the disease for a conviction. Further, the Oklahoma State Legislature could easily add a provision that made the actual disease that was spread, regardless of what it is, eliminated from the public record, thus protecting the accused person's right to privacy.
Having HIV treated differently from other diseases is unfair and discriminatory. Please contact your local representative and ask them to repeal O.S. 21§ 1192.1 and O.S. 21§ 1031 and have HIV cases fall under O.S. 21 § 1192. And please, notify your partner... it's the law.
by Jose Blanco, HIV/AIDS Legal Columnist
The Gayly – June 14, 2014 @ 9:30am