Published in Rapid City Journal
In January, South Dakota's state Senate voted unanimously in favor of SB65, a bill mandating that people who intentionally expose others to HIV be registered as sex offenders. While the senators may have had noble intentions, SB65 is precisely the type of "quick fix" legislation that could actually impair efforts to fight HIV - while doing little to punish those who maliciously spread the disease. The House Judiciary Committee, currently considering the bill, should therefore reject it.
Given the recent increase in HIV infections in South Dakota, it's understandable that legislators would want to take forceful action to protect the public against HIV, but this bill won't do that. If South Dakota's legislature really wants to combat HIV, it should repeal the law criminalizing HIV exposure, and limit prosecutions to those cases where people acted with malicious intent to transmit HIV.
There is no evidence that criminalizing HIV exposure is effective in reducing HIV transmission. In fact, it may impede HIV prevention efforts. Criminalizing exposure may deter people from getting tested, since ignorance of HIV status is a defense under South Dakota law. This, in turn, deters people from getting tested, and if they don't know their HIV status, they can't take steps to obtain treatment, care, and support, and keep from infecting others. In addition, criminalizing HIV exposure may also may keep people from disclosing their HIV status to health care providers and other health professionals for fear it may be used against them in the criminal justice system.
Women account for 35 percent of HIV cases in South Dakota. Many women cannot refuse sex or insist on condom use and risk being beaten or abandoned if they reveal they are HIV-positive to their husbands or boyfriends. They may face punishment under SB65 even if they never transmit the virus, and may drop out of the public health system altogether as a result.
South Dakota already prosecutes those who expose others to HIV - with penalties of up to 15 years in jail. SB65 would extend this penalty to require registration as a sex offender. But, there is no evidence that sex offender registries actually prevent sex crimes. To make matters worse, our recent research on sex offender registries shows that they make it nearly impossible for registrants to safely re-integrate into the community. People included on sex offender registries endure shattered privacy, social ostracism, diminished employment and housing opportunities, harassment, and even vigilante violence. Their families suffer as well.
The HIV status of people registered under SB65 will be broadcast to all South Dakotans, and indeed, throughout the world. This means that these registrants will face the double stigma of being publicly branded as HIV-positive sex offenders. What better way to deter someone from getting tested for HIV in the first place?
There is a place for criminal justice approaches and a place for public health leadership. If legislators really want to protect South Dakotans from HIV, they should support policies to ensure that all South Dakotans have access to affordable, safe, and confidential HIV testing and treatment, and to complete, accurate information about HIV prevention. That would make South Dakota a real leader in the fight against HIV.
Rebecca Schleifer is an advocate with the HIV/AIDS and Human Rights Program and Sarah Tofte a researcher with the US Program at Human Rights Watch and author of "No Easy Answers: Sex Offender Laws in the US."
