In the early years of the HIV tragedy, laws were passed in many states pertaining to exposure to the virus, disclosure of viral status, and transmission of the virus to others. In many of these cases, the laws were based on inadequate or incomplete science, lack of understanding about the routes of transmission of the virus and the risk factors, and public fears.
While all states have general criminal laws that address offenses such as reckless endangerment, assault and battery, or attempted murder, some of these HIV-specific laws carried criminal penalties more severe than those for non-HIV related crimes of a more severe nature.
Thirty-four states and two U.S territories have laws concerning potential exposure to HIV or non-disclosure of HIV status. Even in the absence of transmission of the diseases, sentences can range between 10-30 years for these offenses.
In some states, a conviction under these laws requires the convicted person to register as a “sex offender,” even in instances of consensual sexual activity between adults.
The National HIV/AIDS Strategy, released by the White House in July 2010, provides some guidance regarding the issue of criminalization, noting that in some instances, existing HIV exposure laws may need to be re-examined.
Flash forward 7 years to today where the science is clear that those who have an undetectable viral load cannot transmit HIV to their partner.
Now I know what I just said will upset some as being irresponsible but science is providing proof to my assertion.
BuzzFeed reports the following . . . that a groundbreaking new study found zero transmissions occurred between HIV-positive men with an “undetectable viral load” due to treatment, and their HIV-negative partners, across thousands of instances of anal sex without a condom.
The study, led by professor Andrew Grulich from the Kirby Institute, followed a group of 358 gay male couples – one partner HIV-positive, the other HIV-negative – in Australia, Thailand and Brazil.
The HIV-positive partners in the study had an “undetectable viral load”, meaning they are on treatment to suppress the virus so it is undetectable in the blood.
Not a single HIV transmission occurred across the almost 17,000 times participants reported having anal sex without a condom.
Twelve-thousand of those sexual encounters were protected solely by the HIV-positive partner’s undetectable viral load, and in the other 5,000, the HIV-negative partner was also taking PrEP (Pre-exposure prophylaxis), a drug to protect against contracting HIV.
Grulich described the discovery as “transformative” for gay male couples with differing HIV status.
“This tells us that if an HIV-positive person gets on treatment, achieves undetectable viral load – and that can take three-to-six months, it’s not immediate – they will not transmit, provided they continue to take their pills daily and see their doctor to have their viral loads monitored.”
Grulich said previous data had been “very, very firm” in showing that an undetectable viral load prevents transmission in heterosexual couples, but more limited when it came to the same effect in gay male couples.
“There was a real concern because anal transmission is a much higher risk behavior than vaginal transmission, that the results may not apply to gay men, or to anal sex in particular. This is great news, that it is in fact as protective for anal sex as it is for vaginal sex.”
This study, called Opposites Attract, is the largest study into HIV transmission between gay couples of differing HIV status ever undertaken, and the first to consider data from both high-income and middle-income countries.
It ran for four years between 2012 and 2016, following each couple for about one and a half years.
This study, and the many proceeding it, should serve to destigmatize HIV and the criminalization of it. People living with HIV should neither be shamed nor made a criminal for living the sexual lives. It is time for all HIV criminalization laws to change and reflect the science that zero viral load = zero transmission.
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