Virginia’s HIV transmission penalty will remain on the books

By: - April 2, 2021 12:02 am

Virginia just launched its new Office of the Children’s Ombudsman, aimed at overseeing the state’s child welfare system. (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 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 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. 

Sen. Jennifer McClellan, D-Richmond, adresses Senate members during the floor session in the temporary Virginia Senate chamber inside the Science Museum of Virginia in Richmond, VA Friday, August 28, 2020. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

“I can’t for the life of me figure out why we would want to repeal that,” said Sen. Mark Obenshain, R-Rockingham, during a January hearing. 

To save the bill in the Senate, McClellan offered a late floor amendment that reduced the potential charge for infected sexual battery from a Class 6 felony to a Class 1 misdemeanor. It also broadly expanded the scope of the law to include all sexually transmitted infections — not just HIV, syphilis and Hepatitis B. 

Diaz said the change helped destigmatize those three specific diseases. But when the bill moved to the House, delegates accepted the broadened criteria while bumping the potential charge back up to a Class 6 felony. That change remained in the final version of the legislation, which Northam signed into law on Wednesday — even as advocates urged him to amend the bill. The governor’s office did not respond to a request for comment.

“It sends a very alarming message to people living with HIV, and now anyone with an STI, that they are such a danger to society that they should be hit with a felony,” Diaz said. 

Even without a full repeal, supporters say the legislation took a crucial first step in modernizing Virginia’s HIV criminalization laws. The final version repeals the misdemeanor penalty for non-disclosure and significantly raises the burden of proof for infected sexual battery charges. Anyone making the charge has to prove that they actually contracted an STI, and that their partner engaged in risky behavior such as unprotected sex.

The bill also repeals a section of state code that requires Virginians convicted of prostitution or intravenous drug use to be tested for HIV, instead making it an option. And it removes the state’s current ban against patients with HIV donating organs, with notice and consent, in certain circumstances — putting Virginia in line with federal guidance.

“I think overall the bill is a tremendous first step, especially because this wasn’t even an issue anyone was talking about before this year,” McClellan said. Infected sexual battery charges are relatively rare — only three Virginians were convicted of a felony in the last two years, according to data from the Virginia Criminal Sentencing Commission. Another seven were convicted of a misdemeanor for not disclosing their status. That made educating her colleagues in the General Assembly one of the biggest barriers to completely repealing the law, according to McClellan.

“These laws were passed in the ’80s and ’90s and never thought about again,” she said. “So, you still heard this, ‘Well, what about if someone is running around purposefully infecting people?’ That’s not happening. But what is happening is these laws are being used sometimes as a weapon in a relationship that’s gone bad.”

Advocates say they also disproportionately impact people of color and LGBTQ Virginians, who are much more likely to be living with an HIV diagnosis. Deirdre Johnson, one of the founders of ECHO, told the Mercury that the harsh penalties don’t reflect the reality of current HIV treatment. 

With current therapies, patients are now capable of leading long, healthy lives. Antiretroviral drugs can also reduce a patient’s viral load to the point where it’s undetectable — leaving “effectively no risk” of transmitting the virus to an HIV-negative sexual partner, according to the National Institute of Allergy and Infectious Diseases.

Virginia lawmakers aren’t alone in resisting sweeping changes. Diaz said 31 other states still have the original version of their infected sexual battery laws on the books. But advocates are hopeful they can reintroduce similar legislation next year and fight for a full repeal — or at least a lower penalty for the charge.

“It’s a mix of emotions,” Lamneck said. “We’re excited for the progress we made. But we’re also determined to come back and get the reforms we wanted.”

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.