AIDS, Sex & Crime: Why is Darren Chiacchia facing jail time?

April 20, 2010

New York – In 1943, the National Advisory Police Committee on Social Protection released a report on its wartime efforts to combat venereal disease. Whenever a soldier or sailor was found to have venereal disease, the report explained, he was required to notify officials about “the source of his infection.” The agency would then track down and arrest the person – inevitably a woman – who had infected him.

for the Christian Science Monitor

In rare instances, the same woman would be accused by several different men. Any such female “must be stopped,” the report warned, “for she is more dangerous to the community than a mad dog.”

I recalled this history as I read about the recent arrest of Olympian equestrian Darren Chiacchia, who faces up to 30 years in prison. His crime? Having sex without informing his partner that he was HIV-positive, which is a felony in Mr. Chiacchia’s native Florida.

Florida’s not alone here. At least 32 states have HIV-related criminal statutes, most of which make it illegal to knowingly expose someone else to the virus without prior disclosure. And one day, I think, we’ll regard these laws as every bit as barbaric as the old measures to control venereal disease.

During World War I, for example, about 30,000 women were incarcerated in America on suspicion of spreading venereal disease. Some of these women were prostitutes, while others were so-called charity girls who allegedly traded sexual favors for a night on the town.

At least twice as many women were arrested during World War II, as historian Marilyn Hegarty has shown. “A much more difficult problem than the out and out professional prostitute is that of the promiscuous girl, the khaki-wacky and the girl who has become unbalanced by wartime wages and freedom,” one observer wrote. “Following them is a public-health function.” Indeed it was. Spearheaded by former FBI Prohibition agent Eliot Ness, who had helped convict the gangster Al Capone, federal and state officials launched an all-out war on suspected female carriers of the disease. Police questioned scores of young women, incarcerating anyone who seemed “loose” or promiscuous.

“Any girl seen out with a number of different soldiers in the same night is watched,” wrote an official in Boise, Idaho, “and if the appearance is in any way suspicious she is booked on a vagrancy charge and detained for a physical exam.” Women accused of vagrancy received 30-day jail sentences, whether they tested positive for VD or not.

Fast-forward to the AIDS epidemic of the late 1980s, which unleashed a wave of state laws criminalizing the transmission of HIV. Nobody knows how many people have been prosecuted under such measures. But here’s what we do know: The laws reflect hysteria and prejudice, just like the anti-VD campaigns of earlier eras.

Consider that Pennsylvania and Louisiana still make it a crime – punishable by up to 10 years in prison – for an HIV-positive person to spit at another person, even though scientists long ago confirmed that the virus cannot be spread through saliva. The most draconian law is in Missouri, where you can get life in prison – that’s right, life in prison – for knowingly spreading HIV.

Now compare such measures to drunk-driving laws, and you’ll see how hateful they really are. Like unprotected sex, operating a car under the influence of alcohol puts other people at serious risk. But maximum sentences for first-time drunk-driving offenses are usually calculated in months, not in decades. Why so much higher a penalty for transmitting HIV?

The answer, of course, is fear. Lawmakers all know people who have driven drunk, if they haven’t done so themselves. But most of them don’t know people who have HIV – or, more precisely, they don’t know who among us has the virus. And that makes them scared.

It’s a global fear, not just an American one. In 2005, 36 of 41 European countries reported that actual or potential HIV transmission can be a criminal offense. From 2004 to 2008, meanwhile, at least a dozen African nations passed laws relating to HIV transmission. Several of these countries made it a crime for women to pass HIV on to their babies, if the mothers do not seek health care while pregnant. Most notoriously, Uganda is now considering a bill that would establish the death penalty for transmitting HIV via gay sex.

And this is about sex, our most intimate human behavior. It’s sometimes impulsive, often confused, and always personal. And that’s exactly why the government should stay out of it.

The lone exception here might be the rare case where a particularly warped or troubled individual is actually attempting to spread HIV as widely as possible. Consider the case of Nushawn Williams of Jamestown, New York, who recently completed a 12-year jail sentence for trying to infect at least a dozen women with the virus. Mr. Williams was prosecuted under existing laws at the time, including reckless endangerment. There’s simply no good reason to add other measures targeting HIV.

And there’s no reason to prosecute Darren Chiacchia, who – as best we can tell – wasn’t intending to harm anyone. Whatever Chiacchia did or didn’t do, it was between him and his ex-lover. Let’s keep it that way.

Jonathan Zimmerman teaches history and education at New York University. He is the author, most recently, of “Small Wonder: The Little Red Schoolhouse in History and Memory.”