But Clinton’s mistake highlights a significant challenge the HIV community faces in engaging lawmakers on HIV and AIDS issues. Many members of Congress and state legislatures, for example, know very little about the historical struggles on these issues. This is especially true for Congress where both the Senate and the House of Representatives have had significant turnover since 2008.
To move the policy dialogue forward, it is important for us to know the history of HIV and AIDS and educate lawmakers about lessons learned. While the idea that Ronald and Nancy Reagan were HIV advocates is a fiction, we can draw important lessons from the Reagan Era. On June 24, 1987, Ronald Reagan issued an executive order to create the President’s Commission on the HIV Epidemic, whose members mostly comprised public health professionals as opposed to politicians responding to AIDS hysteria. This commission came too late for tens of thousands of people with AIDS who had died by that time, and its report was largely ignored by the Reagan administration.
Even so, the commission recommended a more sensible approach to certain issues than the approach adopted in later congressional enactments. HIV criminalization is a good case in point. HIV criminalization refers to the use of criminal laws to penalize alleged, perceived, or potential HIV exposure, alleged non-disclosure of a known HIV infection prior to sexual conduct, or actual HIV transmission. In its final report, the commission cautioned against using criminal laws in this way. The commission concluded that criminal laws should be used only when all other public health and civil actions fail and that criminal laws should not be a substitute for the use of public health measures. Based on these findings, the commission recommended that prior to initiating any criminal charges prosecutors engage public health officials to determine whether public health interventions would be more appropriate.
This recommendation is still relevant today. I see a great deal of value in requiring law enforcement to engage with public health officials and evaluate the appropriateness of public health interventions rather than bringing criminal charges. Such medical-legal partnerships are critical to crafting effective approaches to fighting HIV and AIDS. One promising approach is the creation of programs designed to avoid criminal charges. These programs would keep people out of prison and instead provide education about how HIV is transmitted, risk reduction counseling, triage to mental health and substance abuse services, and an emphasis on social healing.
Unfortunately, Congress encouraged states to criminalize HIV exposure without the nuance of the commission’s recommendations. The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which created the Ryan White HIV/AIDS Program in 1990, initially required every state to certify that its criminal laws were adequate to prosecute any person living with HIV who knowingly exposes another person to HIV. The requirement was removed in 2000 after all states had certified that they had such laws. These ineffective and needless HIV criminal laws are legacies of the past that have real consequences today. From 2008 to 2013 alone, at least 180 prosecutions have occurred on the basis of these laws.
Knowing this history leading to the enactment of HIV criminal laws can help us to identify potential points of advocacy. Citing the recommendations of President Reagan’s Commission on the HIV Epidemic may also be a useful starting point for conversations with Republican lawmakers. The history of HIV and AIDS is as important today as ever before.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.