Ten years ago, the Supreme Court ruled in Lawrence v. Texas that a state could not criminalize consensual adult sexual conduct because of a belief that the conduct was immoral. It carefully limited the decision, however, noting that sex work, for example, did not fall within the scope of the liberty right being protected. Thus the Court established what should be the floor for constitutional protection of sexual liberty. So far, however, it has been the ceiling.
A panel of professors and advocates at a Williams Institute conference tackled the complications and unfairness that arise from the hyper-criminalization of sexual conduct by persons with HIV. The majority of states treat sex without disclosure of HIV status as a felony — regardless of whether the conduct engaged in carries any risk of transmission. Although one can argue that non-disclosure vitiates consent, Professor Kim Buchanan of USC pointed out that non-disclosure of other, even possibly fatal diseases (hepatitis C), as well as various other forms of deception related to sex, do not negate consent under the law. Sexual dishonesty is certainly not a virtue, but it is also never a crime and seldom a tort, unless HIV is involved.
What stands out most about HIV criminalization laws is the gross disparity between culpability and punishment. As Catherine Hanssens of the Center on HIV Policy and Law noted, the punishment for a drunk driver committing vehicular manslaughter is less in most states than the penalty for an HIV positive person engaging in sex with a zero or near zero risk of transmission, or even spitting at a law enforcement officer. How many such prosecutions occur is unknown, but they number at least in the hundreds.
The result can be punishment that is wildly disproportionate to the underlying conduct, like the individual who is convicted of a felony for non-risky sex and then, because of that, ends up for life on a sex offender registry, or the asylee who loses his status and right to stay in the U.S. because he offered to perform oral sex on an undercover police officer.
Lawrence was an enormous victory, but the irrational criminalization or degree of criminalization of stigmatized sex goes on.