Pa. bill would further criminalize HIV

Pennsylvania State Capitol Building. (Pennsylvania Capital-Star photo by Cassie Miller.)

A bill pending in the state legislature would create a new offense for harassing a law enforcement officer with bodily fluid containing a pathogen such as HIV. But opponents say they’re hoping to stop the bill’s enactment or reduce its harm as much as possible.

If the bill in its original form becomes law, harassment of a law enforcement officer with fluid containing HIV or another communicable pathogen would be a third-degree felony. Third-degree felonies carry a maximum penalty of seven years in prison and a $15,000 fine. If the fluid doesn’t contain a communicable pathogen, it would be a first-degree misdemeanor, with a maximum penalty of five years in prison. The maximum fine would be $10,000, according to state law.

A similar law in Pennsylvania already exists for inmates who use bodily fluid containing HIV or another communicable pathogen to assault a correctional officer. 

On March 16, HB 103 passed the state House by a vote of 146 – 56. It now goes to the state Senate for consideration. Adrian Shanker, executive director of Bradbury-Sullivan LGBT Community Center, issued this statement: “The PA House vote today for an unscientific and harmful bill that criminalizes perceived or potential exposure to HIV and Hepatitis B is evidence that some legislators ignore science in favor of their anti-LGBTQ opinions. HIV is not a crime, and HIV cannot be transmitted via saliva. House Bill 103 is dangerous and unscientific. I hope the Pennsylvania Senate is more level-headed than the House when it comes to science and civil rights.”

The language including HIV and Hepatitis B has since been removed from the bill.

The bill now proceeds to the state Senate for consideration. It was introduced by state Rep. Louis C. Schmitt Jr. [R-Blair Co.] on January 8.

Schmitt issued this statement after the state House passed the bill: “A number of police officers have told me about being spit on by people they were arresting who used their bodily fluids to assault them. These assaults have the potential to spread dangerous viruses to the men and women of law enforcement who are serving to protect the public…. Coronavirus has ushered in a terrifying new era of biological danger. Sadly, being assaulted with bodily fluids — especially spit — is nothing new for police officers. But to weaponize bodily fluids and threaten to spread a deadly, mutating virus is a threat that must be met head on by the criminal justice system. There must be a consequence, and that consequence should be prison.”

In an earlier memo to lawmakers, Schmitt said: “This bill provides that if a person intentionally or knowingly causes the officer to come into contact with saliva or other bodily fluid by throwing, tossing, or spitting the bodily fluid, the person would commit a criminal offense. If the individual knew, should have known, or believed such fluid or material had been obtained from an individual who was infected by a communicable disease [including HIV] the offense is a felony of the third degree. In any other situation [without a pathogen] the offense is graded as a misdemeanor of the first degree.”

Opponents say the bill relies on bad science, unfairly singles out law enforcement for special protections and would have a chilling effect on protesters’ rights. They also point to existing laws protecting law enforcement, thus rendering HB 103 unnecessary.

“If we truly follow the science of HIV transmission, then HB 103 is out of balance with current science regarding HIV transmission,” said Teresa Sullivan, spokesperson for an ad hoc committee opposed to HB 103. “Furthermore, if we want to achieve the [goal of ending HIV] by 2030, we must also end HIV criminalization laws that only fuel stigma and keep people from getting tested and linked to care.”

Moreover, Sullivan expressed concern HB 103 would criminalize people with other communicable diseases, including hepatitis and COVID-19. She said amendments to the bill are possible, but the committee prefers the bill not be enacted. “It would be nice to amend it to take away the felonies,” Sullivan added. “But misdemeanors could have a fundamental effect on people when it comes to housing, jobs, higher education and other issues. Misdemeanors can still impact the ability of people to move forward in their lives. I’m totally against criminalizing people with health conditions like the ones we’re talking about.”

Lyndsay Kensinger, a spokesperson for Gov. Tom Wolf, issued this statement: “The administration is monitoring the proposed legislation [HB 103]. As the bills move through the legislative process, changes could occur and would be reviewed if and when the legislation would arrive on the governor’s desk. The administration supports law enforcement and looks forward to working with the General Assembly to ensure the legislation keeps all Pennsylvanians safe.”

Harassment typically is considered a summary offense with a maximum penalty of 90 days in jail and a $300 fine. Alternately, it could be charged as a third-degree misdemeanor, with a maximum penalty of one year in jail and a maximum fine of $2,500, according to state law.

On March 12, the ACLU of Pennsylvania issued a memo to lawmakers explaining its opposition to HB 103. “Because COVID-19 can be transmitted by droplets, merely ‘expelling’ saliva could trigger the felony enhancement,” the memo states. “It’s easy to imagine any number of saliva-expelling interactions with police, all of which would heighten the risk of a felony charge, from someone yelling or speaking loudly at — or near — an officer, to protesters chanting in front of a police line, to a heated exchange while being questioned, or even maskless rioters confronting police officers inside a building. Furthermore, given the high rate of asymptomatic transmission of COVID-19, an officer could argue that s/he reasonably believed a defendant could be infected and, for the same reason, argue that the defendant should have known they could be infected. In this context, police could use the communicable disease provision and the spectre of COVID-19 broadly — and selectively — to justify use of force, arrest, or as the pretext to shut down First Amendment protected speech, protest, and/or assembly.”

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.