A Bill to Control the Spread of HIV
in Mississippi by Redefining Sex Offenders
MHIV/AIDS is a global public health problem, but it is one having a significant impact in Mississippi as well. A bill. H.B. 1079, was introduced in the Mississippi 2009 legislative session which seeks to help control the spread of HIV in this state. H.B. 1079 proposes to amend the state law which requires the registration of of those convicted of certain sexual offenses so that anyone infected with HIV who has violated a directive of a health officer also must register as a sex offender.
According to Brandon Jones, the member of the House of Representatives who introduced H.B. 1079, the intent of the bill is to limit its application to those who deliberately infect others with this incurable and debilitating disease without their knowledge. As such, the bill has a laudable goal. I spoke with Representative Jones, and he told me he introduced the bill at the request of the Mississippi Prosecutors Association so that prosecutors would have statutory authority to pursue anyone who deliberately infects others with HIV without their knowledge. The Mississippi Prosecutors Association chose Representative Jones because he has worked on bills related to sex offenders in the past, as well as bills related to victims' rights and intimate partner violence. Representative Jones lamented that "there are a lot of people using sexuality as a weapon in Mississippi."
In addition to being a public health issue, HIV infection imposes significant financial burden on the State of Mississippi because the state's Department of Health must devote resources in the form of personnel and funds on prevention, testing, and treatment programs. Although it is true that the state receives funds from the federal government to assist the Department of Health in its mission, the Department must nevertheless devote its own resources to manage this serious public health issue which might have been spent on other public health programs. After all, HIV infection is preventable, and if people took the necessary precautions, HIV would not be the public health problem that is has become.
The approach taken by H.B. 1079 has major problems. First is the very idea of wrapping this attempt to control the spread of HIV infection within a law dealing with registration of sex offenders. Fundamental due process issues are at stake. All others required to register as sex offenders have been tried and convicted in a court of law. Evidence has been presented and a verdict has been issued. H.B. 1079's provision s would be a unique addition to the sex offender registration law in that the complete legal process just described in not required. Merely the "willful violation of a lawful order of a health officer" would invoke the requirements to register as a sex offender. This lack of due process is not only contrary to public policy, but quite possibly unconstitutional as well. I asked Representative Jones why he had linked the notion of the deliberate infection of others with HIV without their knowledge with the sex offender registration law. Why not simply add a provision to the criminal code making the deliberate infection of someone with HIV a criminal act, I asked. Representative Jones explained that one reason for linking the HIV infection issue with the sex offender registration statute was to allow law enforcement to monitor violators more easily, but he admitted that I raised a good point.
The second serious problem with H.B. 1079 is its vagueness. Mississippi law currently mandates reporting the identities of those infected with HIV to the Department of Health. After this report has been made, a representative of the Department of Health contacts the infected individual and requires that person to come to a Department of Health office. During the subsequent meeting, the infected individual is informed by a representative of the Department of Health that Mississippi law requires disclosure of one's infected status to any potential partner prior to engaging in sexual activity. Conceivably, this process could be considered a "lawful order to a health officer" and H.B. 1079 could potentially be construed as requiring anyone infected with HIV to register as a sex offender!
Representative Jones assured me this was not his intent. He is fully aware of the ignorance and stigmatization that is associated with HIV infection, especially in Mississippi. He does not want to add to the problems of someone already traumatized by learning of his or her HIV infection by requiring that person to register as a sex offender as well. He personally knows people who are affected by HIV, and he is extremely sensitive to their plight. He felt very strongly that "it would be a disservice to those who are already struggling with this disease." When Representative Jones learned of the process the Department of Health followed after being notified of a new HIV infection, he expressed his eagerness to work on revising the language of the bill to obviate this potential problem. He emphatically stated that "it is not my intent to demonize anyone with HIV infection. My concern is limited to those who intentionally infect others without their knowledge."
Third, the Department of Health is opposed to H.B. 1079. An official with the Department of Health who wished to remain anonymous declared that the Department already had all of the statutory authority it needed to deal with those who failed to disclose their HIV status and deliberately infected others after receiving the warning from a departmental employee. It was this official's opinion that H.B. 1079 was superfluous. Moreover, the official feared that if H.B. 1079 were to become law, it paradoxically would lead to the increased spread of HIV because, if enacted, the law likely would, discourage people from getting tested for HIV infection. One of four people infected with HIV are unaware of their infection, and it is estimated that this one-in-four who are unaware of their status are responsible for 60-70% of new infections. Representative Jones was unaware of the Department of Health's objections, and he said he would welcome a dialogue with the Department which would address its concerns.
Finally, while it is possible for someone carrying HIV to transmit the virus to another in a single sexual encounter, infection is by no means certain. Is the issue here the disclosure of one's HIV status prior to engaging in sexual activity or actually infecting someone? The difference is a subtle but important one. The Department of Health is concerned with disclosure. The wording of H.B. 1079 seems to focus in infection. Perhaps this bill, too, should be more concerned with disclosure. Focusing on infection raises a host of issues of proof; proving that someone failed to disclose is a much easier task than proving that someone infected another.
For the numerous reasons set forth above -- due process issue, vagueness issues, possible superfluity, the paradoxical potential for increasing the spread of HIV infection, and the question of disclosure versus infection -- I cannot support H.R. 1079. I do, however, wholeheartedly support Representative Jones' intent: criminalize the intentional infection of another with HIV without their knowledge. I am a person living with AIDS, and I would not wish this disease on my worst enemy. I believe it is not merely irresponsible, but a heinous act of the highest degree for someone who is HIV-positive not to disclose their status before engaging in sexually activity with someone and intentionally infect that person. However, I do not believe H.B. 1079 is the right approach for accomplishing Representative Jones' worthwhile public health objective.
H.B. 1079 was submitted on 1/19/09 and referred to the House Judiciary B committee. The committee held a hearing on 2/2/09, and, according to Representative Jones, there was little debate and the bill passed smoothly through the committee. H.B. 1079 was then taken up by the full House of Representatives on 2/10/09, and, again with little debate, the bill passed with a vote of 121 to 1.
I spoke with the single member of the House of Representatives who voted against H.B. 1079. He also is a member of the House Judiciary B committee that first considered the bill. He described the debate in the committee hearing as "healthy" and he stated that the committee vote was close. Representative DuVall told me that he and other representatives were concerned about the due process problems with the bill. He expressed disappointment that those who raised objections in the committee hearing did not join him in opposing the bill when it was considered by the full House.
After H.B. 1079 passed the House, it was sent to the Senate on 2/12/09, and referred to the Senate Judiciary B committee on 2/16/09. I am inclined to believe Representative Jones' description of the bill's transit through the House because it caught many people by surprise. Public opposition to the bill began only after it reached the Senate. The reaction of the local HIV/AIDS activist community was, to put it bluntly, hysterical, primarily because the law was misinterpreting as requiring everyone infected with HIV to register as sex offenders. I must admit that I myself had this impression of the bill until Representative Jones and I began communicating with each other. The American Civil Liberties Union began lobbing against the bill, and the Department of Health registered its objections as well. These lobbying efforts apparently were successful because the Senate Judiciary B committee never held a hearing on the bill. Consequently the bill never reached the full Senate for consideration because it had died in committee.
Representative Jones was unaware of mêlée caused by H.B. 1079 until I told him about it. He expressed some dismay, stating that he would have been willing to work with those opposed to the bill in order to address their concerns. The Mississippi Prosecutors Association believes it has sufficient evidence to show that a problem exists warranting legislative action. Accordingly, Representative Jones plans to make an attempt in the next legislative session to pass a law criminalizing the intentional infection of another with HIV. However, now that he is aware of the opposition to H.B. 1079 and the reasons for that opposition, he wishes to work with the HIV/AIDS activist community and the Department of Health so that everyone's concerns are addressed. Representative Jones said that "it is important that the laws make sense." Because I have numerous contacts in the Mississippi HIV/AIDS activist community, I agreed to facilitate a meeting between that community and Representative Jones next fall prior to the beginning of the 2010 legislative session.
Completing this assignment has provided valuable insight into policy making and legislative processes. However, at the same time, it has caused me to become a participant in the process as I provided key policy makers with valuable information and insights. I will be giving a copy of this paper to Representative Jones who has expressed great interest in reading it. Moreover, I will be meeting with Representative Jones later in the year, as well as facilitating a meeting with community activists. I appreciate the time he has extended to me, especially because I am not one of his constituents. This paper has not only provided a valuable learning experience, it has led to my engagement in the policy making process, effectively achieving one of the social work program objectives of not only teaching me about policy analysis, but giving me the opportunity to participate in policy practice as well.
Written May 2009 at Jackson State University for Introduction to Social Welfare Policy and Services. Grade: 20/20.
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Last revised: May 25, 2015.