Fox News host Tucker Carlson and guest Jason Rantz fearmongered and lied about a Washington state HIV prevention bill that would lower the criminal penalty for knowingly or intentionally exposing someone to HIV, a position supported by major medical associations. Carlson claimed that the bill is “insane” and would permit people living with HIV to partake in behavior comparable to “bio-warfare.”
The two discussed a Washington state bill that would update the state’s HIV law to reflect modern HIV and AIDS treatment and prevention standards. The existing law was enacted in 1988 at the height of the HIV/AIDS epidemic, when there was considerably less information about transmission, prevention, and treatment of the virus.
This bill is part of a broader movement to end the criminalization of HIV. Currently, outdated laws are used to unfairly punish people living with HIV by making it a felony for them to engage in behaviors (such as sex with a condom) that have nearly zero or zero chance of HIV transmission. The bill’s modernization efforts would include lowering the punishment for knowingly exposing someone to HIV from a felony, punishable by up to life in prison, to a misdemeanor.
As the bill’s original sponsor, Rep. Laurie Jinkins (D), has noted, HIV is “the only disease in the history of the state” for which its transmission is treated as a criminal act. According to the Center for HIV Law and Policy (citations removed):
Washington’s criminal assault provision makes it a Class A felony to administer, transmit or expose another person to HIV with the intent to inflict great bodily harm, punishable by up to life imprisonment and/or a fine of up to $50,000. Transmission is not required and the statute fails to define what kinds of activities constitute “administering” or “exposing.” This may allow prosecutors to interpret the law to include activities that pose little to no risk of HIV transmission, such as spitting, biting, oral sex, sexual activity with the use of a condom, and performing or submitting to medical procedures. The law also fails to account explicitly for a defendant’s viral load, making prosecution possible even when a person’s low viral load makes transmission extremely unlikely.
The Center for HIV Law & Policy says that 29 states, including Washington, currently have HIV criminalization laws, and a report by AIDS United noted, “In more than 1,000 instances, people living with HIV have faced charges under HIV-specific statutes in the U.S.” These laws are disproportionately wielded against marginalized communities, such as LGBTQ people of color, sex workers, and drug users.
In one instance, a gay man living with HIV in Iowa was sentenced to 25 years in prison for having sex without first disclosing his status, even though he did not transmit the virus and there was “likely zero or near zero” chance of transmission because he used a condom and had an undetectable viral load. An undetectable viral load means that the amount of HIV in a sample of a person's blood is at an undetectable level and cannot be transmitted to others.
True cases of intentional transmission of HIV are extremely rare and can be handled under existing criminal laws. A study by the Williams Institute found that 98 percent of the 379 “HIV-specific felony convictions or sentence enhancements” in California “did not require intent to transmit HIV.” The National Alliance of State and Territorial AIDS Directors has also written that “the vast majority of prosecutions ... have been predicated on little evidence of intent.” In fact, in California, 90% of convictions were for sex worker “solicitation cases where it was unknown whether any physical contact had occurred.”
Even though it is extraordinarily uncommon for anyone to “intentionally” transmit HIV to someone else, Carlson framed his segment around it, comparing it to “bio-warfare” and claiming that decriminalizing HIV is “lunacy.” Rantz called it “a morally reprehensible position,” and he similarly and misleadingly described those charged under existing law as “a monster who chooses to give someone HIV.”
The push to end draconian HIV criminalization laws has broad support among medical and HIV prevention organizations, including the American Psychological Association, American Medical Association, and the United Nations Development Programme. Research shows that these laws do not lower rates of transmission, and there has been no documented evidence that it encourages disclosure of HIV status. Moreover, criminalization laws undermine efforts to prevent the virus, including by dissuading people from being tested and therefore knowing their status, and are based on an outdated understanding of the mechanisms of HIV transmission.
There are an estimated 1.1 million people living with HIV in the U.S. Despite groundbreaking advancements in the treatment and prevention of HIV in recent years, there are still major barriers to prevention and treatment for people of color, people experiencing poverty, and injection drug users.
Since the beginning of the epidemic, right-wing media have perpetuated HIV stigma to malign LGBTQ people. As the movement to end HIV criminalization gains momentum across the country, right-wing outlets have continued to spread misinformation about and politicize the issue in order to portray LGBTQ people and progressives as radical.