Being HIV Positive Might Land You in Jail. But That Is Changing

Whenever Robert Suttle thinks about his time in jail, his eyes go soft, he lets out a long breath and his lips purse a bit. It’s noticeable that he — after almost a decade — still gets emotional about what put him behind bars.
In 2008, while working as an assistant clerk for the Louisiana Court of Appeals, Suttle went through a bitter breakup that resulted in a tit-for-tat trial, ending in Suttle being sentenced to six months in jail and registering as a sex offender for intentionally exposing a sexual partner to HIV. But there was no transmission of the virus.
And even though Suttle says he disclosed his status to his partner and that the sex was consensual, it didn’t matter much under Louisiana’s HIV exposure law, which states that anyone with HIV or AIDS who has unprotected sex can be tried and charged with a nonviolent felony. Offenders can be sentenced to up to 10 years in prison and must register as a sex offender in some cases.
But Louisiana’s intentional HIV exposure statute, enacted in 1987, revised in 1993 and again in 2011, is out of date and not backed by science. For example, spitting and biting are considered grounds to be charged for criminal exposure to AIDS, even though it’s impossible to transfer the virus through spit and exceedingly rare for HIV to be passed on through biting (and the risk is nonexistent if the skin isn’t broken).  
What’s more, Suttle, who was diagnosed with HIV in 2002, couldn’t pass the virus on anyway. Antiretroviral treatment had made his viral load undetectable, which means the level of HIV in his blood was so low that it would’ve been impossible to transmit.
“I didn’t quite understand how it could come to this,” Suttle says. “It was being gay and HIV positive that led me to … being criminally liable.”
As more people become aware of possible criminal charges — thanks in part to local reporting on alleged offenders — some of those most at-risk are unwilling to get tested. Criminalizing one’s status has created a stigma, advocates say, which in turn can endanger whole communities.

Robert Suttle speaks at the International AIDS Conference in Amsterdam, July 2018

“[People know] that if they test positive, they can get charged or arrested,” says Gina Brown, an HIV and AIDS activist in New Orleans who is HIV positive. “The laws need to change, and people in charge need to get educated.”
Across the nation, HIV transmissions have been steadily declining since the beginning of the decade. At the same time, the demographics of the disease have changed. No longer does HIV primarily affect gay men; today, those who are most at risk also include injection drug users and poor people of color, particularly in the South. Despite that shift, regulations and laws that criminalize one’s HIV status still abound, and they have roots in outdated science that has largely been debunked.
There are currently 26 states with HIV-specific criminalization laws, some of which penalize behavior regardless of whether the virus was actually transmitted. That number was higher in the 1980s and ’90s, when fear of HIV — and myths around how it spread — was rampant. Lawmakers claimed at the time that the statutes were meant to protect the general public. Instead, they have had the opposite effect: Since you can’t be prosecuted if you don’t know your status, there’s an incentive to not getting tested. Studies have also shown that HIV criminalization has little to no effect on deterring people from spreading the virus willingly, and in fact, such laws have only worsened its spread.
Nearly all of the states with the highest rates of new HIV diagnoses — in 2017, Louisiana ranked third — have HIV-specific exposure laws still on the books.
“People don’t know the collateral consequences,” says Suttle, who now works as an assistant director at Sero Project, a nonprofit that fights stigma and discrimination by focusing on HIV criminalization. “These laws hinder people from getting care.”
HIV not a crime
Sero at the HIV is Not A Crime Training Academy, June 2018

Suttle says the biggest obstacle is education, especially among people who still view HIV and AIDS as a death sentence.
“Education of the masses cannot be stressed enough. You can talk to anybody, and people honestly think that [people charged under HIV exposure laws] should be fully prosecuted and locked up,” Suttle says, adding that Sero Project has tried to humanize people living with HIV through anti-criminalization campaigns, lobbying and public outreach.
Sero Project is one of only a handful of national organizations — the Elizabeth Taylor AIDS Foundation and the Center for HIV Law and Policy are two others — that have been on the front lines of fighting against HIV criminalization.
This year, Sero Project, in partnership with the Positive Women’s Network, launched a training academy to teach advocates how to organize and repeal state HIV criminalization laws. In South Carolina, Sero Project’s training helped establish a coalition of 50 lawmakers, advocates and nonprofits to try and change the state’s HIV criminalization laws.
HIV not a crime
Robert Suttle, July 2018

“They gave us the tools to do our own work here within our community, and educate people. Now we have more and more people who are interested, because every time we get out and share with the community, we’re getting more people asking about the laws,” says Stacy Jennings, chair of the Positive Women’s Network regional chapter in South Carolina. “It’s sad that [people living with HIV] don’t know [about the laws] because they should know. Every chance we get we’re teaching them.”
As a result of Sero Project’s efforts to get communities educated on local laws, Suttle has seen a sea change in the number of people coming forward to fight the stigma around being HIV positive.
And that’s been helpful in places like Louisiana, where advocates say the need for educating and empowering people to get tested and stay healthy is dire.
“We actually have been able to get into the offices of legislators and tell them why this law is outdated and plain wrong,” says Brown, the AIDS activist. “We have some of the highest rates of HIV transmission in the country, and that won’t get better so long as there are laws that actively make people fearful of getting tested.”

This is the third installment in NationSwell’s multimedia series “Positive in the South,” which explores the HIV crisis in the Southern U.S., and profiles the people and organizations working to alleviate it.

Can New Tools End the AIDS Epidemic by 2020?

In 1995, Perry Halkitis watched as New York City’s AIDS crisis unfolded around him and quit his job to focus full-time on the plague killing thousands of gay men. Professionally, it probably wasn’t an advantageous move, but he never doubted that it was the right thing to do. Halkitis, who, at age 18, came out to his Greek immigrant parents in 1981, is now a professor of public health, applied psychology and medicine at New York University. Two years ago, he completed a book about HIV+ gay men who survived that era, and he’s now working on a book about the experience of coming out across generations. Speaking to NationSwell in his Greenwich Village office, Halkitis recalled the experience of witnessing two devastating decades of the AIDS epidemic and his hope of finding a cure.

What innovations in your field are you most excited about right now?
I do work in gay men’s health, part of which is HIV. I emphasize that because too often people think about gay men’s health work as being synonymous with HIV. The thing that is most exciting me is that there are biomedical interventions that have been developed over the course of the last decade that provide another way to fight the epidemic. Now what do I mean that? We have something called PrEP now, which is administering an antiviral once a day to people who are HIV- that prevents them from becoming infected. It’s miraculous. We also know very clearly that HIV+ people — now living longer, fuller lives — who adhere to their treatment have viral suppression and are un-infectious. That is remarkable to me that these biomedical advances enable people to deter both acquiring and spreading the infection. We haven’t fully realized the power of these tools, and there are some challenges with them. But in the absence of a cure, it is the best thing we have.

Are these tools powerful enough that we can talk about ending the epidemic?
There are conversations about ending the epidemic. In New York, two years ago, Gov. Andrew Cuomo put forward a mandate to end AIDS by 2020. By that, he meant making infections go from 3,000 to 750 a year by use of these tools. So, do I think these tools are, in and of themselves, enough to bring an end to AIDS? They can get us near the end. We know perfectly well that people don’t finish their antibiotics and that people don’t exercise regularly. Being dependent completely on administering medicine on a regular basis is challenging reality. So I’m going to say that we’re going to do a really good job at deterring new infections.

What motivates you to do this work?
My decision, about 25 years ago, to enter this field was purely directed by the loss I experienced in my life. I was trained as an applied statistician working at a testing company, and at night, I was an activist. I was in New York City; AIDS was all around me. I witnessed friends dying. I decided to merge the two: to take my skills as a researcher and combine them with my passion as an activist. I find my motivation in the memory of the people who I’ve lost. I find my motivation in making sure that a new generation is free of this disease. And I find my motivation in training my students who are going to continue the good work once I’ve finished. I want gay men to be healthy, and I’m going to do everything in my power to see that.

What do you wish someone had told you when you started this job?
Don’t expect it to get easier over time. It’s going to get harder and more complicated. The more I learn and the more writing and research I do, the less I think I actually know. Which is good: it opens up more questions. I would have told myself in 1995 to be prepared for any possibility that might happen in this epidemic. I would tell myself to keep hope. I don’t think I had a lot of hope in 1995 that there was going to be an end to this epidemic. I was going to fight the battle for as long as I needed. And I would have told myself to be better about writing about my day-to-day life, which I haven’t done. It would have been an interesting story.

What’s your proudest accomplishment?
My book “The AIDS Generation,” where I documented the lives of 15 men who were long-term survivors. It could be the period at the end of the sentence of my career, if I did nothing else. (Surprise, I’m doing more.) I’m incredibly proud of that book, because it got a lot of attention in the popular press, and it inspired a conversation. Sean, one of the guys in the book, reminds me all of the time: “You started all of this.” I don’t really know if that’s true, but I like to think that I contributed to the beginning of the dialogue about long-term survivors.

To learn more about the NationSwell Council, click here.
This interview has been edited and condensed.
Homepage photo by Mark Wilson/Getty Images.