Yesterday, the Utah Senate Health and Human Services Committee unanimously passed a bill that would amend the Utah Criminal Code to make it much easier to charge sex workers and their patrons with a felony if they knew or should have known that they were HIV positive.

The proposed amendment to the law suffers a number of important flaws, besides the now well-known problem of using the criminal law as a tool to promote public health.

The bill targets “a person who is an HIV positive individual and knew or should have known of that fact.”  Of course, it’s offensive to use the noun “an HIV positive individual” as if this is some sort of identity.

The bill amends current law by targeting not only those who in fact know that they are HIV positive, but also those who should know that they are.  Yet it does not define when or how “an HIV positive individual” “should know” of his or her HIV status.  This lack of clarity risks the indulgence of stereotypes and biases in determining when one should assume exposure to HIV and when one should not.  This is terrible for public health.  Thus, will prosecutors and juries conclude that all sex workers “should know” that they might be HIV positive?  Should anyone who pays for sex know they are at risk?  What about all gay men?

Should Tiger Woods, Eliot Spitzer and other well-known prostitute-using, no-condom-wearing, frequent-sex-having men assume that they are HIV positive, and/or assume that they are putting their sex partners (including their wives) at risk of HIV infection?  Somehow I don’t think this is whom the Utah Senators had in mind when they passed this bill out of committee unanimously.

The bill makes no effort to identify sexual practices that might actually risk transmission of HIV, but rather targets commercial sex generally.  Charging or paying for sex is not a means of transmitting HIV – the transmission of certain body fluids is or might be.  The bill targets any “HIV positive person” who is convicted of prostitution, meaning s/he:

(a)  engages in any sexual activity with another person for a fee,
(b)  is an inmate of a house of prostitution; or
(c)  loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.

or is convicted of patronizing a prostitute, meaning:

(a)  he pays or offers or agrees to pay another person a fee for the purpose of engaging in an act of sexual activity; or
(b)  he enters or remains in a house of prostitution for the purpose of engaging in sexual activity.

Note that the definition of prostitution or patronizing a prostitute includes all sorts of activity that carry no risk of transmitting HIV.  It includes “any sexual activity,” but of course there are many ways to have safe sex while HIV positive; being an “inmate [sic] of a house of prostitution” carries no specific risk of HIV transmission, and “loitering in or within view of a public place” has never been shown to pose a risk of HIV transmission!  So too, neither “offering or agreeing to pay for sex,” nor “entering or remaining in a house of prostitution” amount to unsafe sex.

Utah Senator Jerry Stevenson on the job at his garden shop

The full Utah Senate may pass this bill, and the people of Utah will be worse off for it.  The bill’s primary objective is to punish and stigmatize sex work, but what it will also do is undermine public health measures designed to educate Utahans about the risks of HIV transmission and how to protect themselves.  I’m tempted to buy a case of condoms and have them delivered to the Utah State Legislature, particularly to Jerry Stevenson, the sponsor of this horrible piece of legislation.  Stevenson sponsored the bill as one of his first acts in the Utah Senate.  He was selected to fill the seat in January after the incumbent was forced to resign following a drunk driving incident.  Stevenson no doubt came to the Senate seat with much expertise on HIV and health related issues from his work before he entered politics as co-owner with his brother of J&J Nursery and Garden Center in Layton.


  1. I’m not so convinced as the author of this post that individuals who are HIV-positive and who engage in prostitution — or who solicit prostitutes — can be expected to behave in a rational manner to protect themselves and others.

    Bear in mind that many if not most HIV-positive prostitutes are drug addicts — and their addiction will necessarily addle their minds and make them behave in an irrational manner to get their next hit. When a person is a drug addict, often their primary focus is the next high rather than the safety of themselves or others.

  2. US: This Week's Bad Idea: Amendment to Utah Criminal Law Will Frustrate HIV Prevention Efforts http://bit.ly/964xYN

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