Acting Attorney General issued guidance regarding NJ’s 90’s-era law governing sex lives of people w/ HIV

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In March of next year, I’ll commemorate a remarkable milestone: 30 years living with HIV. Thirty years is a mighty long time and my longevity feels miraculous in many way, especially recalling the old day when AIDS was a death sentence. 

It was a very scary, paranoid time back the late 1980s and early 1990s before the lifesaving antiretroviral HIV meds finally became available. When I started taking the “cocktail” in 1997, the pills came packaged in three giant bottles, one the size of a quart of milk, totaling nearly 30 pills a day.

Around this time, laws started popping up around the county to regulate the sexual behavior of HIV+ persons. But these laws forcing HIV+ persons to disclose their status didn’t have the intended effect of protecting the public from HIV+ people. Instead, these laws exacerbated AIDS-related stigma that led to fewer people getting tested and treated.

And so they became sicker and more contagious.

According to the American Academy of HIV Medicine, “currently, 34 states (including NJ) and two U.S. territories have laws which criminalize behavior of HIV positive people. The laws are varied in detail, but many are harsh in nature with some having penalties, including incarceration, that are usually reserved for the most serious of crimes. Many of these laws are applicable whether or not actual harm has been demonstrated or caused. This seems to be disproportionate punishment that arises from hysteria and/or homophobia.”

Forcing HIV+ people to disclose their status under threat of jail time was unprecedentedly punitive. We’ve never had similar laws for any other disease. And this approach actually led to less disclosure and ultimately to catastrophic healthcare outcomes for tens of thousands who got sick and died.

Back in the mid-90s, an AIDS nurse once shared a tidbit that left me gobsmacked: she said that over 80% of the HIV tests at her clinic came back HIV+ for people who never returned for their results.

That revelation still haunts me and not just because I was one of those 80%.

Nowadays, two tiny pills per day is enough for my immune system to thrive and keep my HIV, for all practical purposes, in total remission. For at least a dozen years, my HIV has been so well-managed, I’m considered “undetectable” meaning there’s no trace of the virus in my bloodstream.

People who are undetectable are no longer contagious which still kinda blows my mind whenever I really think about it.

So culturally, medically, and socially we’ve come a long way  since the bad old days. But many of these outdated laws are still on the books including here New Jersey, something our supposedly progressive state legislature could address but have not.

2021

Today, New Jersey’s Acting Attorney General Andrew Bruck issued guidance regarding NJ’s 1990’s-era law governing the sex lives of people with HIV.

“New Jersey’s 24-year-old law criminalizing sexual activity by those living with HIV fails to recognize current realities and further stigmatizes the disease,” said Acting Attorney General Bruck in a statement. “This guidance is designed to ensure that people are not prosecuted unjustly and that we do not undermine public-health strategies aimed at encouraging testing, treatment, and prevention.”

Esther  Suarez is Hudson County  Prosecutor and President of the County Prosecutors Association of New Jersey.

“Outdated laws such as this have remained on the books and are highly discriminatory, have not proven  to reduce HIV transmission, and discourage individuals from learning their HIV status,” Prosecutor Suarez said. “Acting Attorney General Bruck’s guidance issued today will ensure that individuals  living with HIV in New Jersey are not unjustly stigmatized or prosecuted and will reinforce public  health protocols that are critical to sustaining the progress made in treatment of this disease.” 

The sentiment was echoed by the state’s first and largest AIDS service provider. Axel Torres Marrero is Senior Director of Public Policy and  Prevention for the Hyacinth Foundation.

“We welcome Acting Attorney General Bruck’s leadership  and guidance.”said Mr. Torres Marrero.“We are proud and grateful to support all leaders who  today recognize that New Jersey needs to re-examine our state laws, assess the laws’ alignment with  current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle  by which to achieve their intended purposes.”

According to a statement from the Office of Attorney General,

In deciding whether to charge  a violation of N.J.S.A. 2C:34-5(b), prosecutors should consider the following factors: 

  • Whether the individual forced or coerced their partner to engage in sexual activity; 
  • Whether the individual engaged in sexual activity for the purpose of transmitting HIV  to their partner;6 and/or 
  • Whether the individual was adhering to a medically appropriate HIV treatment plan at  the time of the sexual activity. 

It is virtually impossible to imagine a scenario where it would be appropriate for a  prosecutor to charge an individual with N.J.S.A. 2C:34-5(b) when that person’s HIV viral load  was undetectable at the time of the sexual activity and no aggravating factors existed. Prosecutors  who are considering criminal charges in such circumstances must consult with the Director of the  Division of Criminal Justice before proceeding.”

Jay Lassiter is an award-winning writer and podcaster based in Cherry Hill.

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