Virginia’s HIV transmission penalty will remain on the books

Virginia’s HIV transmission penalty will remain on the books
Ned Oliver/ Virginia Mercury

Many Virginians living with HIV were hoping for a total repeal of the state’s “infected sexual battery” law — a section of code that makes it a felony for someone living with HIV, syphilis or Hepatitis B to engage in sexual activity “with the intent to transmit the infection to another person.”

But advocates said they were disappointed when the Virginia General Assembly stopped short of total decriminalization this year, a decision upheld by Gov. Ralph Northam when he signed the bill into law earlier this week.

“The language around the infected sexual battery was modernized in really important ways,” said Vee Lamneck, the executive director of Equality Virginia, an advocacy group for LGBTQ rights. “But keeping the penalty at a class 6 felony is simply not good enough.”

Understanding the reasoning behind the original law — and modern opposition — requires going back more than 30 years. In 1990, near the height of the AIDS crisis, national lawmakers passed an omnibus spending bill that set aside federal funding for HIV treatment and services. But to access the money, states were required to create laws that penalized people who knowingly exposed others to the virus.

Virginia joined dozens of other states in passing so-called infected sexual battery laws over the next several years. Breanna Diaz, policy director for the Positive Women’s Network — a national advocacy group for women and transgender people living with HIV — said the legislation was a misguided attempt to quell the spread of a then little-understood disease. But from a public health perspective, it doesn’t work.

“How does one prove intent to transmit?” she said. Under the original version of the state’s law, no one pressing charges of the infected sexual battery had to prove they actually contracted the disease. It also made it a misdemeanor for anyone with HIV, syphilis or Hepatitis C to have sex without disclosing their status.

ECHO Virginia, a decriminalization advocacy group, told the Mercury that at least one of their members chose to plead guilty after a partner accused him of nondisclosure after an argument. The burden of proof is low, but the potential penalties are high, which can deter people from seeking out testing or treatment.

“It becomes very complicated and problematic,” Diaz said. “So, it just deters anyone from wanting to know their status, because they can’t intend to do anything if they don’t know.”

A bill sponsored this year by Sen. Jennifer McClellan, D-Richmond, and Sen. Mamie Locke, D-Hampton, aimed to repeal the law. But even as the state’s Democrat-controlled legislature has passed sweeping criminal justice reforms — from abolishing the death penalty to legalizing marijuana — lawmakers on both sides of the aisle balked at completely removing criminal penalties.

The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.