A Dangerous Precedent: Using Anti-Terrorism Laws to Prosecute HIV Transmission

USA Positive Women’s Network

The misuse of bio-terrorism laws to prosecute an HIV positive man is but one example of how efforts to criminalize HIV stigmatize individuals and simultaneously threaten public health.

This article is authored by Ellen Roelofs, Vanessa Johnson, Brook Kelly, and Naina Khanna, all of the Positive Women’s Network.  It is part of a series on global AIDS issues to be published by Rewire throughout December 2009.  Other articles in the series can be found by searching "global AIDS 2009" on Rewire.

Daniel Allen, age 44, is being charged as a bio-terrorist.

His crime?  Being HIV-positive.  

Last month, Daniel Allen, 44, had a dispute with his neighbor Winfred Fernandis Jr. that led to a fight in which Allen bit Fernandis.  In addition to the traditional assault charges already being brought, Macomb County Prosecutor Eric Smith has decided to charge Allen with bio-terrorism.  One might ask how a dispute between neighbors could lead to such a serious felony charge against Allen; a charge that would allow the court to sentence Allen to prison for up to 25 years?

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The answer: Allen is HIV-positive.  

In 2007, the Michigan Court of Appeals set a dangerous precedent in finding that HIV-infected blood is a “harmful biological substance” under Michigan’s post-9/11 anti-terrorism laws. What the court did not note, and Prosecutor Smith has ignored is that according to the government’s experts on HIV – the Center for Disease Control (CDC) – there is no evidence that HIV can be spread through saliva and inconclusive evidence at best that HIV can be spread through a bite.

The public officials who worked to create, pass and uphold this legislation, find the court’s interpretation and Prosecutor Smith’s use of these laws to be  “silly,” and a “stretch” that works against the true intent of the law.

The misuse of the bio-terrorism law in the Allen case begs the question: Does the state support the idea that having HIV automatically imbues you with criminal or terrorist intent when engaging in the same behavior as people who do not have HIV, or do not know their status? If so, this would be a flagrant violation of HIV-positive people’s right to non-discrimination.

Naturally, biting another person is never acceptable but assault laws do exist to punish this behavior.  But expansion of bio-terrorism laws by the state of Michigan, or other laws that seek to criminalize people living with HIV endanger the community as a whole by discouraging people to find out and disclose their HIV status. Public health experts have consistently identified HIV testing as the first step in reducing the spread of HIV, because HIV-positive people who know their status and are linked to care and treatment are much less likely to transmit HIV.

Despite the evidence, many barriers exist that undermine federal and community-led efforts to increase HIV testing. As a result, the federal government estimates that 1 in 5 people do not know their HIV status in the United States.

The use of prosecutorial tactics that lead to fear of knowing one’s HIV status only serve to create a greater public health hazard. As HIV-positive women and those working directly with the HIV community, we can say with certainty that people will be reluctant to get tested if a HIV positive diagnosis can expose them to government condoned discrimination.

Knowing we can be stigmatized and discriminated against as a result of our HIV status is enough to keep us silent; but terrorism charges?  That’s enough to keep a person from ever getting tested in the first place.

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