This week a Texas jury sentenced an HIV positive man to three consecutive life sentences without parole for the sexual assault of two girls.  According to the media coverage of the case:

The jury sentenced Delgado to the maximum sentences of life in prison for two counts of “Super” Aggravated Sexual Assault of a Child. He was sentenced to an additional life term for “Continuous Sexual Abuse of Young Children” and to 40 additional years for two counts of “Indecency with a Child.” The three Life sentences will be served without possibility of parole.

Officials with the Bexar County District Attorney’s Office said Delgado knew that he was HIV positive at the time of the abuse, and “the jury found the Defendant used his bodily fluids as a deadly weapon during the sexual assaults.” To date, neither child victim has tested positive for the deadly virus, which causes AIDS [sic].

Clearly this was a bad guy, a very bad guy, but this case raises a set of difficult problems about, as Sean Strub puts it, the over use of criminal law “to satisfy the public’s blood-thirst to punish people with HIV and from a belief that HIV criminalization will result in less transmission of HIV.”  Like Strub, I’m concerned about how criminal sanctions for HIV transmission, or as in this case for the unrealized threat of HIV transmission as an aggravating factor, further the stigma of HIV positive people, might discourage people to get tested, make it harder/riskier to disclose one’s HIV status, might perversely create incentives for HIV positive people to lie about their sero-status, and otherwise undermine public health interests rather than further them.  Check out the Center for HIV Law & Policy‘s Positive Justice Project (for which Strub is an advisor) for more info on this issue – they’re doing really important work on a range of issues involving HIV.

As Mark King, who hosts the “My Fabulous Disease” blog, recently wrote:

An HIV positive man is sitting in a Texas prison, serving a 35 year sentence for spitting on someone. In Michigan, an HIV positive man was charged for not disclosing his status under a bio-terrorism statute. And there’s a statute on the books in Iowa that can jail you for kissing someone without disclosing.

The level of stigma, ignorance and injustice of these examples is frightening, and caseloads are growing. Already, there have been over 400 prosecutions in the United States and more than 200 convictions.

Watch King interview  Strub on the issue here:

Next week, the American Bar Association will host, in Washington, DC, a special panel on HIV criminalization.  They are accepting comments from the public until October 31.  More info and registration to attend and/or testify is available here.


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