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By Trevor Hoppe, author of Punishing Disease: HIV and the Criminalization of Sickness
Charlie Sheen and Usher were in the news again in recent weeks; but this time, it wasn’t for a penchant for “Tiger Blood” or a #1 single. Online gossip rags reported that Sheen – who made public his HIV-positive status in 2015 – was the subject of a lawsuit by a former male lover who claims Sheen failed to disclose his HIV-positive status. Days later, a California lawyer announced that she was filing a lawsuit on behalf of three women against musician Usher for allegedly failing to disclose that he had herpes.
The idea of punishing people who carry infectious diseases is not new; however, there are signs that the impulse to punish and criminalize disease is become more widespread. As I describe in my forthcoming book, Punishing Disease, over 30 U.S. states passed HIV-specific criminal laws in the 1980s and 1990s. Under such criminal laws, individuals are subject to criminal penalties for failing to disclose their HIV-positive status; they can be incarcerated for decades.
Should we punish Sheen and Usher for their alleged misdeeds? I think we ought to pause to consider the implications.
When a co-worker shows up to work with the flu, many of us probably think unkind thoughts to ourselves about their behavior. We may even wish for karmic retribution. But do we really think they ought to be sued or imprisoned?
Some may reject the comparison of the co-worker’s offense and the failure to disclose one’s HIV-positive status – perhaps because HIV is an incurable illness and because many mistakenly continue to think of it as a “death sentence.” But HIV is no longer what it was in the 1980s; once-a-day pill regimens now allow people to live healthy and full lives.
Moreover, you don’t need to infect someone with HIV to be imprisoned in the U.S. –or even risk that outcome. Simply failing to tell a sexual partner that you have the disease is a crime, even if cases where there was no risk of transmission (such as a 2009 case involving a woman who gave a man a lap dance).
Let’s think back to that co-worker. Imagine for a moment that they had exposed a pregnant woman to the flu. While the flu is not normally deadly, it can cause serious complications for pregnant women, including miscarriage. If we were to punish disease using the same logic as HIV disclosure laws in the U.S., simply showing up to work sick could be construed a crime.
People living with infectious disease are not individually responsible for controlling an epidemic. We must also consider the social factors that shape their lives. For example, American law does not require employers to provide workers with paid sick leave, a policy failure that undoubtedly causes epidemics to spread with greater ease.
Blame and shame will do little to curtail HIV or herpes outbreaks. Put simply, they are not the right tools for the job.
Trevor Hoppe is Assistant Professor of Sociology at University at Albany, State University of New York, and coeditor of The War on Sex.