The Background

Under SD state law (passed in 2000), each count of intentionally spreading HIV (A.K.A. "willful transmission") is already a felony punishable by up to 15 years in prison and/or a $15,000 fine.

This would add the punishment of sex offender status, thus adding a "Scarlet Letter" to their conviction, which would add restrictions on where they could live (1000 feet of schools churches, etc.), and allow neighborhood searching and registration so that families can "protect themselves" and/or unofficially harass the offender.

It was entered into the process by seven Senators and twenty-three legislators in the statehouse. (The better, it would appear, to conceal its authorship. It can be assumed that Focus on the Family is the bill's true author.)

A little Q&A

A number of first questions come to mind, among them:

• "Why South Dakota"
• "Why AIDS?"
• "Why now?"

The not-so-easy answers:

South Dakota had the highest jump in the last collected statistics. While still regularly the 50th in the nation in terms of cases, the jump from 315 to a total of 350 in a year's time is dangerous, not just on paper. When the annual CDC data is revealed, the Right-leaning (Red-State) newspapers routinely slant the story in a manner that makes the "low" rate something to celebrate although it means we get the least amount of funding to deal with AIDS.

And in Rapid City, "the AIDS care is primarily AZT, which is pretty much the last drug someone who's HIV+ should have," notes "Jonathan," a friend who recently moved West for substantially better care. [This decision, he says, "caused great alarm" to one of the leaders of one of Rapid City's minimalist AIDS groups because it meant his group (and the state) would get less money because the figures would subsequently be lower.]

It's possibly an attempt to expand the sex offender definition (and probably some part of a Trojan horse in terms of "shame laws") and/or a step toward the Orwellian '80s and early '90s dreams of Mike Huckabee and Lyndon LaRouche to "isolate" anyone with AIDS. Not that concentration camps and/or leper colonies should be envisioned. This is the era of "compassion" after all. The additional legal status would seem to be an attempt to make living anywhere in the US (under Megan's Law) more inconvenient. The sentences in SD under the 2000 law have routinely been reduced and/or suspended by sympathetic judges who seem to feel that punishment for "someone living with a death sentence" is redundant.

And as noted, the Mt. Rushmore state is one of many that prefers to treat AIDS more as a criminal offense than a public health issue. Where better to make a case for this new sex offender status than a state that tried (unsuccessfully) in 2006 to be the first to ban abortion and banned same-sex marriage (for the second time), albeit by only a two percent margin?

How to respond

This doesn't even take into consideration the complexity of challenging a bill that is intended to be a slam dunk for its backers in a legislature willing to pass it.

The burden of proof for any legislator or group urging "NO" is to successfully argue that someone who would likely labeled a murderer under the law should be labeled a sex offender on top of judicial punishment.

How is spreading AIDS when you know you are a carrier not worse than (or even equal to) the lurid crime of child molestation/rape?

Adding another layer: it's difficult for the just-organizing and relatively green GLBT-championing Equality South Dakota to argue that the bill is "anti-gay" when all of the the leading cases which have been fought in court have been heterosexual accusations. That GLBT groups wind up as one of the few defenders of AIDS adds to the perception that it is a gay concern.

[A 19-year-old Huron, SD college basketball player was initially given a suspended five-year prison term with 120 days in jail, and 200 hours of community service, (which was restored to 4 years in prison when the dummy managed to find a substantial amount of marijuana during a 5 1/2 hour absence, during which he was supposed to be registering for college classes); and a 2003 Aberdeen, SD case resulted in 45 days in jail and five years probation for a bisexual man for infecting his ex-wife; while a Rapid City judge gave a defendant an eyebrow-raising 4 days jail time to be served in 2 day spells over a two year period (so that her infant child was not unduly punished for the drunken act which constituted her conception.)]

The unintended consequences

Meanwhile, a female client of another Rapid City AIDS group continues serving 7-10 years at a women's prison in Lusk, Wyoming for exposing her equally promiscuous lover (whom she met on the internet in 2001), who had never taken an AIDS test even though his active hetero sex life put him in (as they only seem to call it in homosexuals), a "high risk group." Thanks to the ever mutating quality of the AIDS virus, it's not just improbable to "fingerprint" a strain of the disease, but medically impossible at this point to prove with 100% certainty that an accuser might not have been previously infected.

Under willful transmission laws, the crime is the act of unprotected sex and the non-revelation of HIV status. As analogies go, the bullet (the virus itself) doesn't have to strike, much less kill, the target. The illegal act is firing the gun.

Charges in South Dakota do not have to be pressed by the "infectee" or the "infecter." Cases have been prosecuted under SD law when the HIV+ individuals' doctor alerted police to the admission of sexual activity.

The unintended consequences of this law (and the initial 2000 criminalization of willful transmission) are two pronged. One is that it discourages individuals who think they might be infected to get the medical test which could not just give them the oh my god my life is over moment, but then potentially send them to jail . Adding the additional punishment of public shaming upon completion of any court sentence and monetary damages is that it heightens the chances of community vigilantism -- just what a freed prisoner needs to complicate the life sentence of the rest of their already shortened life.

Boiling it down

That South Dakota Senate Bill 65 is unnecessary is beside the point. To quote the title of Paul Waldman's 2006 book, "Being Right Is Not Enough."

Boiling down an argument against this law to bullet points that would actually work is beyond my capabilities and I've been at AIDS work and following these issues with local interest for close to seventeen years.

Aside from finding high ranking medical AIDS experts in SD (hopefully someone in the state health department) that think the law would do more harm than good and would be willing to go on the record with a medical (not personal) opinion that it is not bad law, but unnecessary and damaging precedent/law. And likewise seeking out unbiased (no affiliation to the gay groups) psychological and psychiatric experts who have AIDS patients (that's gotta be a bit muddy doctor/patient privilege waters) that will offer the same clinical opinion as the doctors/nurses/health workers.

I know there's the whole "there was no one to speak up when they came for me" liberal guilt and all in wanting to go in guns blazing, but that's the wrong way to do this. This is a bear trap waiting to be stepped in for anyone on the "NO" side. The personal struggle is I haven't decided whether a law adding an additional consequence to this grotesquely despicable act ultimately should be fought.