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Punishing disease

As a new book by Trevor Hoppe reveals, no disease in modern American history has been met with a systematic campaign to criminalise people as with HIV.

From the very beginning of the epidemic, AIDS was linked to punishment. For evangelical Americans, AIDS represented divine punishment for the moral depravity sweeping America — namely, what conservatives derisively termed the “homosexual lifestyle”. According to a 1987 Gallup poll, 61 percent of American evangelicals and 50 percent of non-evangelicals agreed with the statement “I sometimes think AIDS is a punishment for the decline in moral standards”.

Televangelists like Jimmy Swaggart and Pat Robertson took to the airways to publicly condemn homosexuality as the cause of AIDS. Their like-minded political counterparts, activists such as William F. Buckley and Lyndon LaRouche, spearheaded campaigns aimed at getting states to pass punitive laws: to criminalise homosexuality, to tattoo newly diagnosed patients, to raid gay establishments. AIDS activists fiercely resisted these policies as draconian efforts to trample on civil liberties — policies that they argued were stigmatising and thus likely to be counterproductive in the fight against AIDS.

Activists argued that freedom and privacy, not coercion and intrusive surveillance, were the keys to a successful disease control strategy. Despite their efforts, in the late 1980s state lawmakers around the country began to introduce criminal legislation targeting people living with HIV, whom they viewed as recklessly exposing their sexual partners to the disease. Echoing the sentiments of many Americans, a California newspaper editorial argued in 1987 that these laws were needed “to prevent unstable AIDS victims from passing on a death sentence to others”.

Although they are sometimes mislabelled as “HIV transmission laws”, most criminal laws enacted in the United States governing HIV exposure and/or disclosure make no mention of transmission or even the risk of that outcome. Instead, these new offenses resemble what prosecutors call a “crime of omission”: by failing to reveal their HIV status to their partners, HIV-positive people in dozens of states can now face stiff prison penalties if charged under these felony statutes.

Because HIV is sexually transmitted and was immediately linked to homosexuality, it may be tempting to view efforts to criminalise HIV as merely another example of efforts to criminalise non-normative sexuality. However, punitive policies toward people living with HIV are not driven solely by an interest in policing sexual morality. Instead, the criminalisation of HIV is but one of the more recent examples in public health history of an effort to control disease by coercion and punishment. Although the history of punitive disease control stretches back centuries, no disease in modern American history has been met with a similarly systematic campaign to criminalise people living with an infectiousness disease.

It is no mistake that authorities responded to the HIV epidemic with a new punitiveness. Three historical factors helped to shape the punitive response to AIDS. First, the coincidence of HIV’s emergence with the birth of mass incarceration as a social institution meant that lawmakers were already in the habit of proposing handcuffs and prisons as solutions to social problems.

Second, HIV was immediately linked to stigmatised social groups that were, at that historical moment, particularly hated and, in many cases, already viewed as suspected criminals. In 1981, when the first cases of AIDS were reported, consensual sex between same-sex partners was a criminal offense in 22 states and the District of Columbia. Initial news reports described the disease as a “gay cancer” that was linked to marginalised social groups collectively known as the “4-H Club”: homosexuals, Haitians, heroin users, and haemophiliacs. That the epidemic was symbolically synonymous with so many highly stigmatised and potentially criminal classes of people — rather than housewives, babies, or some other sympathy-engendering group — made criminalisation a more obvious response.

Third, during the early 1980s, there was widespread uncertainty and fear over the cause and effects of AIDS. This uncertainty created an opportunity for alternative theories to emerge, particularly the theory that AIDS was caused not by a virus but by a deviant lifestyle (namely, drug use and promiscuous homosexual sex). Early missteps by medical authorities allowed these alternative theories to thrive.

For example, by originally naming the disease gay-related immune deficiency (G.R.I.D.), authorities communicated an implicitly causal relationship between homosexuality and infection to the general public. Such lifestyle theories of AIDS were made particularly appealing by the disease’s bizarre and terrifying progression; instead of presenting with a unique set of symptoms, AIDS patients were instead disfigured and/or killed by a litany of normally rare and horrifying diseases described euphemistically as “opportunistic infections”.

These diseases included Kaposi’s sarcoma (a cancer that causes purplish splotches on the skin), cytomegalovirus (a virus that causes blindness), and toxoplasmosis (a fungal infection that can cause seizures and swelling of the brain). Taken together, these three historical factors created a perfect storm for punitive rhetoric and criminalisation on a level not seen before in the modern history of American disease control.

Excerpt from Punishing Disease: HIV and the Criminalization of Sickness by Trevor Hoppe is reprinted with permission from the University of California Press. 

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