STD legislation that criminalizes exposure runs afoul of latest research, critics say

Opponents say House Bill 238 will have inverse effect

By: - April 1, 2021 5:40 pm
House passes qualified immunity bill

Louisiana legislators convene in the House of Representatives chambers at the State Capitol during the 2020 special session. (Wes Muller/LA Illuminator. Wednesday Sept. 30, 2020)

A state legislator has introduced a bill that would make it a crime for someone to intentionally expose another with a sexually transmitted disease (STD). But some in the health care industry and LGBTQ community fear the bill will do the opposite of what is intended.

House Bill 238, sponsored by Rep. Patricia Moore, D-Monroe, would expand an existing criminal statute that covers only the intentional exposure of another to HIV.

The bill states, “No person shall intentionally expose another human to a sexually transmitted disease without the knowing and lawful consent of the victim, if at the time of exposure the infected person knew he had an incurable sexually transmitted disease, through any of the following: 

  1. Sexual intercourse or sodomy with another individual. 
  2. Selling or donating one’s own blood, blood products, semen, tissue, organs, or other body fluids.
  3. Sharing with another individual a hypodermic needle, syringe or both.”

A felony conviction under the proposed law would hold a prison sentence of up to 10 or, in some cases, 25 years depending on the victim’s age or vulnerability. Also, it would mandate electronic monitoring of the offender upon release from prison “for the remainder of his natural life.”

In a phone interview Thursday, Moore, who sits on the House Health & Welfare Committee, said she wrote the bill after becoming aware of the high rates of sexually transmitted infections across Louisiana.

“This is for those intentional types of exposure,” Moore said. “I know for the four incurable ones, the State of Louisiana has a big problem with those.”

According to the Centers for Disease Control’s most recent available data, in 2018 Louisiana had the nation’s second highest infection rate for chlamydia, the fourth highest for HIV, the fifth highest for gonorrhea, and the seventh highest for syphilis. 

Although those rankings might seem high, they actually show the state improved from the 2017 rankings for syphilis and gonorrhea, which prompted Louisiana Department of Health officials to set up STD task forces to provide local communities with testing and prevention resources. Those programs appeared to have had a positive effect in bringing the numbers down, according to a LDH press release.

STD legislation
Rates of HIV infection are highest in the South. (Image courtesy of CDC).

Some in the health care industry and LGBTQ community argue that such efforts by the Health Department that provide resources and greater access to care to particular communities — rather than legislation such as House Bill 238  — are much better ways to prevent the spread of infections.

“My first reaction to this bill was complete confusion,” said Anthony Basco, a clinical social worker in Baton Rouge. “Because everyone in the public health sector knows this doesn’t work. In fact, the inverse is what happens.”

Basco explained that such laws only end up discouraging people from getting screened or tested for STIs – sexually transmitted infections – because they, just as Moore’s bill does, rely on the offender knowing they have tested positive or been diagnosed.

“These laws are associated with decreased testing and increased HIV prevalence because you’ll be less likely to seek care when you are diagnosed,” Basco said. “And that’s because the 100 percent foolproof best defense to this law is to not know you have an STD.”

Many public health organizations say the same thing. Yet as of 2020, 37 states had laws that criminalized HIV exposure to some extent. According to the CDC, “those laws were passed at a time when very little was known about HIV” and after more than 30 years of research and significant leaps in medicine, “many state laws are now outdated and do not reflect our current understanding of HIV.” Furthermore, the CDC states, “these laws have been shown to discourage HIV testing, increase stigma, and exacerbate disparities.”

Likewise, both the Infectious Diseases Society of America and the HIV Medicine Association released a joint statement in 2015 opposing such state laws: “Studies have documented that these laws discourage individuals from being screened and treated” … “Criminalization is not an effective strategy for reducing transmission of infectious diseases and in fact may paradoxically increase infectious disease transmission.”

By broadly covering all STDs, House Bill 238 could have an impact on all communities — not just those at higher risk of HIV. It could be applied to exposures of herpes or HPV (human papillomavirus), which is so common that most sexually-active American adults have already been exposed to it at least once in their lifetime, according to the CDC. It has no cure, but a vaccine is available for teenagers. Its prevalence doesn’t mean it is harmless, as HPV infections can lead to genital warts and cancer. 

Moore, however, said her intent was to focus the bill on HIV, chlamydia, gonorrhea and syphilis. 

“And exposure is not the same as transmission,” Dorian-Gray Alexander said. “The bar to criminalize someone is exposure. What does that mean? Making out?”

Dorian-Gray Alexander, a New Orleans activist living with HIV, said he fears the bill could be abused because it requires people to disclose their diagnoses. Alexander said he knows people who have been prosecuted under such laws and oftentimes the cases arise during a breakup or dispute between a couple. One might accuse the other simply out of revenge or jealousy.

“And exposure is not the same as transmission,” Alexander said. “The bar to criminalize someone is exposure. What does that mean? Making out? Any action might be construed as exposing someone. You can be exposed and still not get infected.” 

Moreover, HIV treatments have advanced to such a degree that the virus can be suppressed to a point that it is undetectable in a patient and has virtually zero risk of transmission, according to the National Institutes of Health. Despite this, under House Bill 238, such patients would be required to disclose their status or risk a 10-year prison sentence, Alexander said.

“These cases often don’t give you a chance to present an affirmative defense,” Alexander said. “They will end with a plea bargain because often when these charges occur, folks’ pictures are in the newspaper and it’s embarrassing, so it ruins their life.”

Basco said he plans to reach out to Moore to discuss the bill because he knows her to be a reasonable legislator and hopes she will amend or pull it entirely. And Moore said she is open to changes and suggestions.

“My intent was to put something in place to help address the high rates of infection,” Moore said. “I promised people I’m going to be open-minded with this. We’re going to bring in medical professionals to talk about it. If we have to change some of the language we will. Maybe more clarity needs to be in there.”

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Wesley Muller
Wesley Muller

Wes Muller traces his journalism roots back to 1997 when, at age 13, he built and launched a hyper-local news website for his New Orleans neighborhood. In the following 22 years since then, he has worked as a journalist for the Times-Picayune in New Orleans, the Sun Herald in Biloxi, WAFB-9News CBS in Baton Rouge, and the Enterprise-Journal in McComb, Mississippi. Much of his work has involved reporting on First Amendment issues and watchdog coverage of municipal and state government. He has received several honors and recognitions, including McClatchy's National President's Award, the Associated Press Freedom of Information Award, and the Daniel M. Phillips Freedom of Information Award from the Mississippi Press Association, among others. Muller is a New Orleans native, a Jesuit High School alumnus, a University of New Orleans alumnus, a veteran U.S. Army paratrooper, and an adjunct English teacher at Baton Rouge Community College. He lives in Ponchatoula, Louisiana, with his teenage son and his wife, who is also a journalist.

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