Law would allow access to medical records in criminal HIV cases

The Illinois General Assembly passed a bill late last month that if signed, will amend the state’s AIDS Confidentiality Act, allowing courts access to medical records in pursuit of criminal prosecution. The legislation significantly revises the language around the criminal transmission of HIV.

SB3673, introduced by Sen. Dale A. Righter (R-Mattoon) and sponsored in the House by Rep. Jim Sacia (R-Freeport) in early February, was met by controversy throughout its shaping in Springfield. Despite unanimous votes in both the House and the Senate last month, support is relative even among those involved in the language of the bill.

“We made a bad bill better,” said Mary Dixon of the ACLU of Illinois, one of the coalition organizations involved in the amendment along with The AIDS Foundation of Chicago and the AIDS Legal Council.

“We moved not to be a proponent of the bill, but moved to neutrality,” Dixon said.

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While there are new enforcement mechanisms, such as access to medical records, the focus was to close legal loopholes, according to Ramon Gardenhire, Director of Government affairs at the AIDS Foundation of Chicago.

Gardenhire points out three significant language changes to the existing criminal statute: The law now requires that intent be proved; sexual activity is specified and defined so as not to include any “intimate contact” such as biting or spitting; and there is an exemption for someone who is HIV positive but used a condom.

Gardenhire stressed that these changes are important, but that this does not take away from the organization’s position on HIV criminal legislation.

“We are against the criminalization of HIV,” he said. “We are against the legislation in general.”

The ability to subpoena medical records is a major point of contention for others opposing criminal HIV legislation, a crime on the books in 34 states.

Owen Daniel-McCarter, a legal advocate, is concerned that the legislation will add to an already unsafe environment for HIV-positive individuals and will adversely affect HIV prevention efforts by increasing the fear of the stigmatizing effects medical records can have.

“[These new enforcement measures] may dissuade someone from getting tested because then there is no way to prove a crime,” he said.

The existing criminal statute has already been used to intimidate defendants by adding an HIV transmission charge to a list of other charges in order to get a guilty plea, according to Daniel-McCarter.

“This charge is not a thing I see often, but when it is it is done so viciously,” said Daniel-McCarter, who added that it disproportionately impacts racial and gender minorities.

Sen. Mike Jacobs (D-Moline), a Senate co-sponsor, recognizes the concerns around this legislation but assures that the intent is not to further marginalize those with HIV.

“That’s not the intent of the bill, it’s to go after serial offenders,” he said, adding that the intent is not to discriminate and that there should also be measures against law enforcement misusing this legislation.

Jacobs hopes that this would not discourage people from getting tested and knowing their status and is only intended to be used in a small number of cases.

The case of Marcus Taylor of Rock Falls, who was charged with 13 counts of criminal exposure of HIV in 2009, drew the attention of legislators like Jacobs, he said.

“My draw to this is not an ideological position it is a public health question,” Jacobs said.

At the AIDS Foundation of Chicago, Gardenhire hopes that even while he does not support any legislation criminalizing HIV, the language changes will actually decrease its implementation with the exception of a particular set of “egregious cases.”

“With new caveats and exceptions people can feel safe, there is a very high bar,” he said.

He added that there is a national push to end this type of legislation altogether.

In July 2010, President Obama called for an end to state laws criminalizing non-disclosure.

For now this controversial legislation represents an uneasy compromise between various groups with differing ideas of what public safety means and to whom it applies.

“The use of public safety is suspect because it is an incredibly un-safe system,” said Daniel-McCarter.

Gov. Pat Quinn’s office has not yet issued plans for the bill, and stated that Quinn “is committed to public safety, and he will review the legislation when he receives [the legislation].”