HIV infection in the Michigan is serious matter especially in the Metro Detroit area where the city of Detroit makes up 9% of Michigan's population, but 39% of the State's reported cases of HIV/AIDS (CHAG Detroit 2010). Included in prevention efforts is making sexual penetration a felony if someone who is HIV positive does not inform their partner and other statutes that help support and provide more definition as to what course of action can be taken against the infected person who fails to not responsibly inform another person of their status before engaging in behavior where there is risk of transmission. The policy that I chose to look at, Recalcitrant Behaviors Among HIV/AIDS Infected Populations: Guidance for Local Health Department Response, addresses what happens when an individual is considered to be a health threat to others.
Public Health Code Act 368 of 1978 Section 333.5210 link Recalcitrant Behaviors Among HIV/AIDS Infected Populations: Guidance for Local Health Department Response link
Policy Summary
Michigan law states that it is a felony for people who are aware of their HIV positive status to engage in sexual penetration without first informing the other person of their infection. “Sexual penetration”
is defined as sexual intercourse, cunnilingus, fellatio, anal intercourse, or
any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of another person’s body, but emission
of semen is not required. Other Michigan statutes provide that those who are considered to be a "health threat to others" may be arrested and placed in custody to prevent HIV transmission or any other infectious diseases. This law applies to anyone who is known to be infected or is reasonably believed to be a carrier of infection and by the person's conduct, has either displayed an unwillingness or inability to behave in a way so as not to place others at risk for transmission, display a disregard of whether another person is infected of not, or lying about their status before and engaging in behavior where another person can be infected. A report should be made to the local health department if someone is considered to be a "health threat to others." A determination will be made if the person is a health threat and if they are, a warning is issued requiring that the person 1) cease activity; 2) cooperate with the health department; and 3) take part in testing, education or counseling. Failure to comply with this warning could result in a court hearing and possibly supervised detention for up to six months.
Policy Analysis and Criteria
The four criteria that I used to examine this policy are:
Applicability
Adequacy
Clarity of Language
Fairness
Applicability This policy is in place for the prevention of reducing HIV infection. Because sexual transmission is one of the major ways to contract the HIV virus, it applies to people are living with HIV and also those who are not HIV positive.
Adequacy This law appears to have a different approach in addressing HIV prevention in that the actions are punitive with failure to comply to health department warnings with detention for up to six months. But according to Heywood (2010), local health departments do not necessarily take the actions as far as state law will allow them to go and interviewed two local health departments asking how they implement the state policy. One stated that when someone has been determined a health threat, the health department looks at it as an opportunity educate rather than punish and after a thorough investigation has been done will any names be submitted to the state. I think that this policy covers a small aspect of HIV infection. I think that that there are other preventative measures, like education, that would be more effective but I believe that this policy does have its place in HIV prevention. Just as health departments can easily not take this law to the full action as can be allowed, the law can be viewed as overly broad and open to abuse which will be discussed in the clarity of its language.
Clarity of Language The language of policy appears to be clear and easily understood but according to Heywood (2011) "HIV advocates and legal experts say the state’s local health departments and the Michigan Department of Community Health are using documents which exaggerate the risks of HIV transmission and misstate what Michigan law requires." This to me implies that local health departments are seeing ambiguity in the language in which the policy is written and are trying to bend and use the law to further other agendas or are simply interpreting the law as they see fit. The issue with this is that it can create inconsistencies between local health departments and interpretations of state law may infringe upon civil rights. For example, engaging in any other sex other than protected sex is a crime (Heywood 2011). Michigan law states that only a disclosure of HIV status to another person is required prior to sexual penetration regardless if there is use of a barrier. Barrier use is not mentioned at all in the law. The law also only defines what constitutes as sexual penetration
Fairness How fair is this policy? Advocates could argue that this policy criminalizes sexual behavior and stigmatizes those with HIV. No other sexually transmitted disease has these legal consequences and there is no legal requirement for those who share needles to reveal their status to another person before engaging in high risk behavior (although the likelihood of this is because needle sharing is a practice typically associated with illegal drug use and therefore no legal action can mandate actions in an illegal activity). I do think that if people who find out that they are HIV positive are informed of the legalities and informed of them accurately, this policy does have a place in reducing HIV transmission. The punitive aspect of placing someone in supervised detention may not effectively address the issues that are at hand when trying to prevent the spread of HIV especially because there are other issues that the individual maybe concurrently having, for example substance abuse and mental health problems, that may be interfering with the issue of disclosure.
Recommendations
The law should be reviewed and revised with the current realities of HIV/AIDS in mind. It would be helpful if the law were more specific, specifically address not just sexual behavior but other behavior that could potentially spread HIV. Currently the law only defines that disclosure before sexual penetration is required and then defines what is sexual penetration. Disclosure laws could also include education and safer sex behavior rather than have punitive repercussions which can further stigma associated with HIV. The law on it's own is quite broad and its definition of penetration can still include safer sex practices, for example mutual masturbation.