For wrestler Andre Davis, being known as “the Gangsta of Love” turned out to be more than just a stage name. Last week, in a Hamilton County, Ohio courtroom, Davis was convicted on 14 of 15 felonious assault charges for knowingly exposing his sexual partners to HIV without first telling his partners he was HIV-positive. He also faces similar charges in two other counties in Ohio.
Davis currently awaits sentencing scheduled for December 21. He faces a minimum of 28 years in prison and a maximum of 112 years in prison.
Davis is the most recent high-profile case for criminalizing HIV, but not the only of this type.
In 2010, Nadja Benaissa, a German pop singer and actress, was found guilty on one count of causing grievous bodily harm and two counts of attempted bodily harm as she had unprotected sex with three people without informing her lovers that she was HIV-positive.
She was sentenced to a 2-year suspended sentence and was required to perform 300 hours of community service and attend regular counseling sessions.
Dr. Monica O’Neal, a licensed clinical psychologist and clinical instructor at Harvard Medical School, explains why people might willfully endanger the lives of others.
“The human psyche marshals up all types of ways of protecting oneself from having to acknowledge painful information or facts, but more importantly, emotions,” said O’Neal. “Shame is one of the most powerful emotions which people’s psyche will try to manage.”
A 2010 study at the University of Nevada, Las Vegas revealed that the most common reported reason for not telling their STD status to their partner was because they were “too embarrassed” to do so.
From state to state, however, prosecutors question how to adequately prosecute people who commit these crimes. There are three levels of crime concerning the criminalization of HIV: Intentional, Reckless, and Accidental.
Intentional describes sexual intercourse where the person intentionally wanted to pass HIV to others through sex, needles and other means.
Reckless implies that the transmission of sex occurred during the pursuit of sexual gratification and not because they wanted to give their partner HIV.
Accidental is the most common way HIV is transferred. This occurs when the person was unaware they had the virus or if they were aware of their HIV positive status, used a condom during sex but the condom failed.
However, O’Neal says it is hard to discern the motives behind these behaviors.
“Denial can be a powerful way of protecting oneself from having to accept a diagnosis like HIV and huge amount of shame it creates,” O’Neal said. “Trying to keep the same sexual behaviors [like unprotected sex] is a clear way of denying any danger.”
O’Neal explains that since HIV transmission does not happen 100 percent of the time, it may add to the person’s denial of the illness.
Last year, Sierra Launer, of Bloomington, Indiana, was also found guilty of having unprotected sex while being HIV-positive. She was born with HIV and had spent years telling school age kids her story. Her adoptive mother stated in an article that Launer was diagnosed with bipolar disorder, and at times is in denial that she has HIV which led to her sexual behavior.
O’Neal says that the most important factor is for people, whether in a casual or committed relationship, to ask about HIV and other sexually transmitted diseases and not wait for the other person to introduce the idea.
Dr. O’Neal notes the type of relationships surrounding the sexual intercourse plays a large role in disclosure.
“Most of these reported sexual transactions are casual, indicating that there was likely very little emotional investment in the other person,” O’ Neal said. “Truthfully, if the sexual partner isn’t asking about someone’s sexual history, it is unlikely that HIV would even be in the carrier’s conscious awareness in that moment.”
Different states view these types of encounters differently. Currently, 36 states and 5 U.S. territories that have criminal law statutes.
The penalty in those states range from a misdemeanor in Montana, to 25 years in prison, 2nd degree murder in Pennsylvania. Other states, such as Missouri, have laws that include other diseases such as Hepatitis B, Syphilis, Gonorrhea, and Chlamydia.
Criminalization of HIV due to sexual intercourse is not just limited to sexual intercourse. A study done by the Yale University Center for interdisciplinary Research on AIDS had found 24 instances of prosecution for spitting. Of those cases, eight defendants were convicted and their sentences ranged from 90 days to 25 years in prison, despite the fact that HIV is not spread through saliva.
Because each state has such different laws, earlier this year, Representative Barbara Lee introduced the Repeal Existing Policies that Encourage and Allow Legal HIV — or REPEAL — Discrimination Act.
This bill is the first to take on the laws of the criminalization of HIV directly. The bill calls for standardization of these different laws and less persecution of U.S. citizens with HIV.
Calls to Congresswoman Lee’s office were not returned.
Even though there is a bill in the works, O’Neal suggests that education is still needed.
