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Spitting at Science: The Unjustified Criminalization of Spitting While HIV-Positive

Saliva doesn’t transmit HIV. And no one has ever become HIV-positive because an HIV-positive person spit on them.

Yet a number of states, including Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, Pennsylvania, and Texas, either have laws that explicitly criminalize the act of spitting specifically if one is HIV-positive or in recent years have used the criminal law to prosecute and convict the act of spitting by an HIV-positive person.

For example, in 2014 an HIV-positive man in Mississippi was charged with “exposing another to HIV” for spitting on a police officer during an arrest. Similarly, in 2008 an HIV-positive woman in Georgia was found guilty of “aggravated assault” and sentenced to three years in prison for spitting on a neighbor. In Maryland in 2010 an HIV-positive man was given five years in prison for second-degree assault because he spit on a police officer. And in 2016 in Texas an HIV-positive woman was jailed with bond set at $10,000 after she spit at a paramedic who was seeking to give her treatment.

Why is the spit of an HIV-positive person criminalized so often when you can’t contract HIV by being spit on? The answer to that is complex. A significant part of this issue no doubt stems from the ignorance much of the general population has about HIV, including how it can be transmitted and how it can be treated. In turn, this ignorance both contributes to and is caused by the severe stigma around HIV.

Part of the answer is also historical.

Most HIV criminalization laws were passed in the 1990s when federal funding through the Ryan Comprehensive AIDS Resources Emergency (CARE) Act required that states certify that their criminal laws could adequately provide for prosecution of any individual with HIV who knowingly exposed another person to the virus.

Given all that we didn’t yet know about HIV/AIDS in the early 1990s, the choice to include behaviors like biting and spitting among those criminalized becomes more understandable. But in 2019, such laws are no longer understandable. Like many other forms of HIV criminalization, laws criminalizing spitting while HIV-positive are grossly out of step with our current medical and social understanding of HIV.

State laws that single out HIV-positive people and criminalize the act of spitting for them alone ought not to be enforced by judges and ought to be repealed as quickly as possible by legislators. And that is just one piece of a much broader need for comprehensive HIV criminalization reform.

 

Mark Satta is a 2018-2019 Petrie-Flom Center Student Fellow.

Mark Satta

Mark Satta

Mark Satta is an associate at Harter Secrest & Emery. He holds a JD from Harvard Law School and a PhD in Philosophy from Purdue University. His research interests include First Amendment law, health law, bioethics, and epistemology. He was a 2018-2019 Student Fellow at the Petrie Flom Center, where he completed a project entitled, "Spitting at Science: HIV Criminalization Laws and the Duty to Legislate in Accordance with Current Scientific Knowledge."

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