Self-Incrimination, Partner Notification, and the Criminal Law: Negatives for the CDC’s “Prevention for Positives” Initiative

*David W. Webber, JD, is Editor in Chief of APPJ and currently is of counsel to the AIDS Law Project of Pennsylvania, a nonprofit, public interest law firm he founded in 1988.

Abstract

On 18 April 2003, the Centers for Disease Control and Prevention (CDC) announced a new HIV prevention initiative, “Prevention for Positives,” which emphasizes partner-notification activities for individuals who have already been diagnosed with HIV. The CDC failed, however, to address significant criminal law issues that are presented by this initiative. The proposed partner notification activities involve patients’ voluntary identification of contacts at risk for HIV transmission. But because all states have laws that make it a crime to knowingly expose another person to HIV, information provided by patients for partner-notification purposes is in most cases evidence of a crime. Little if any confidentiality protections prevent law enforcement officials from obtaining test results, records of counseling sessions, or similar information from the records of health or social service providers. Prevention for Positives thus exposes patients to an unacknowledged risk of criminal prosecution, which may severely inhibit future cooperation among those infected. This problem should be addressed by law and policy reforms, including enhanced confidentiality of partner-notification records and the availability of “use and derivative use” immunity that bars prosecution of patients based on the information they provide in partner-notification programs.

Self-Incrimination, Partner Notification, and the Criminal Law: Negatives for the CDC’s “Prevention for Positives” Initiative

In a major policy shift announced on 18 April 2003, the Centers for Disease Control and Prevention (CDC) initiated a “new strategy” in HIV prevention efforts: Prevention for Positives, that focuses on changing the sexual and syringe-sharing behavior of persons already identified as being infected with HIV.¹ The CDC’s new strategy is intended to reduce the infection rate that has remained at 40,000 annually for more than the past decade in the United States. Partner notification is an integral part of this initiative. Although partner notification programs are already in place in some states such as New York,² the CDC’s initiative, which includes increased funding for such programs on the state and local levels, promises to extend this approach to a national level. This article assesses the CDC’s failure to address significant criminal law issues in implementing its initiative.

As the CDC acknowledges, not all of the new HIV infections are the result of transmission from those who are not aware of their infection. For example, studies of treatment-resistant infection among the newly infected indicate that a small percentage of individuals diagnosed and being treated for HIV infection with retroviral medications are infecting others.³ A recent survey of HIV-infected individuals shows a similar result.⁴ But the extent to which new HIV infections are actually the result of nondisclosure of HIV status by those aware of their infection is apparently not known.

The Prevention for Positives strategy involves first identifying patients to be “at greatest risk for transmitting HIV.”⁵ These patients are then provided with “behavioral risk-reduction interventions”—referrals for counseling, education, and provision of condoms. Perhaps the most important element, however, is partner notification, which is to be facilitated through partner counseling and referral services (PCRS). As described by the CDC, patients’ identification of their partners is voluntary and is to include both current and former partners. Partner notification can be done by the patient, but more often notification is done by health department personnel. When clinic staff or health department personnel make the disclosure, the patient’s identity is not disclosed to the partner. Re-notification is recommended, particularly in cases when the partner has concluded that someone else was the infected partner. The program also seeks to identify infections among persons at risk for HIV, primarily by increasing HIV testing and then through partner notification activities.

Whether Prevention for Positives is an effective policy choice is a discussion well beyond the scope of this article, although the CDC itself concedes that “No studies have directly shown that PCRS prevents disease in a community.”⁶ One recent partner notification study reports a high rate of relationship dissolution and acquisition of new partners among those participating in partner notification, which could result in new infections.⁷ But that study also questions causality, suggesting that dissolution rates in general are high, and that, therefore, partner notification “may not have much influence on the breakup of partnerships.”⁸ Partner notification programs have been criticized in the past for both their confidentiality risks and lack of practical value,⁹ but those criticisms have not extended to the criminal law implications of partner notification.

There has been a curious congruence between the CDC’s policy change and the news media and popular culture. The day before the CDC described its Prevention for Positives initiative in its Morbidity and Mortality Weekly Report, the Indianapolis Star published an examination of the role of HIV confidentiality laws in the context of persons with HIV who knowingly expose others, contrasting the public health approach (civil proceedings, secrecy) with that of law enforcement (criminal proceedings, public notification).¹⁰ Two weeks later, an article in the New York Times Magazine described the activities of African-American men “on the down low”—seemingly heterosexual men who lead secret bisexual lives in which they eschew safe sex, or even embrace high-risk sex.¹¹ During this same time period, best-selling novelist E. Lynn Harris, whose books feature situations in which bisexual African-American men are involved with women who are not aware of the risk of being infected with HIV, was on a highly publicized national book tour to promote his new memoir.¹² In reporting on the prosecution of five people who were charged with selling their HIV-infected blood plasma, the Indianapolis Star emphasized in July 2003 that the state HIV confidentiality law delayed the identification of the individuals who were subsequently charged in the case.¹³ Then, in September 2003, news coverage of the prosecution of a former San Francisco Health Commissioner, Ron Hill, for intentionally infecting a sex partner with HIV, suggested that the fox was guarding the henhouse.¹⁴ In reporting on this case, the San Francisco Chronicle made a direct connection between the CDC’s Prevention for Positives initiative and “holding those who are already infected responsible for the health of people with whom they have consensual sex.”¹⁵ The subsequent dismissal of the intentional transmission charge in the Hill case provided further opportunity for law enforcement officials to bemoan the inadequate HIV exposure criminal laws in California.¹⁶ Finally, the New York Times ran what was ostensibly a news story with the ominous headline “HIV Secrecy Is Proving Deadly,”¹⁷ about the publication of Klitzman and Bayer’s Mortal Secrets: Truth and Lies in the Age of AIDS.¹⁸ In fact, that book discusses the criminal law response to the epidemic as a potential option, but stops short of explicitly endorsing it. Although this is not an exhaustive survey of news media coverage of HIV prevention and criminal law issues, it gives a fair indication of the way that the media frequently frame discussion of these issues.

In this broader context, the CDC’s new policy might easily be viewed as abandoning the long-accepted precept that the prevention of HIV transmission is the responsibility of both the infected and uninfected. The focus on the already diagnosed suggests that the epidemic is fueled by individuals who know their infected status and fail to disclose it or take measures to prevent infection to others, a suggestion that opens the door to holding such individuals legally accountable. We do that by defining their conduct as criminal, then prosecuting, convicting, and punishing them for those crimes.

The history of the epidemic thus far indicates that the use of the criminal law to address HIV transmission has had limited use, even if the occasional case results in banner headlines. As Lazzarini and her colleagues show in a survey of print news media coverage and case reports of HIV exposure criminal prosecutions nationwide from 1986 to 2001, the number of reports of prosecutions has remained extremely low in comparison to the estimated number of individuals with HIV and the number of new infections each year.¹⁹ The years 1986-1988 and 2000-2001 had the lowest numbers of reported prosecutions, with 10 or fewer in each of those years, while there were no more than 20 prosecutions in most other years. The highest level of reported prosecutions occurred in 1998 (more than 50) and 1993 (30). The authors suggest that their total is probably an underestimate of the true number of cases; indeed, whether judicial case and media reports are a reliable measure of the actual number of cases prosecuted is very likely a question that cannot be answered. In terms of the trends in numbers of cases prosecuted, whether there are fewer prosecutions or merely less media coverage of the prosecutions, perhaps as a result of declining sensational impact of such stories, also is not known. But what this study indicates is that, in a significant portion of the criminal prosecutions (at least 24 percent), defendants receive significant jail time (in 135 cases with minimum sentences of less than life, the median sentence was six years) for having engaged in conduct that did not involve any risk of HIV transmission.

The Lazzarini study and its valuable web site counterpart, the HIV Criminal Law Project,²⁰ document that every state has criminal laws adequate to prosecute any HIV-infected person who, aware of his or her infection, engages in sexual activity, shares hypodermic needles, or otherwise puts others at risk for infection. This should come as no surprise, because Congress required states to certify as much in order to receive funding under the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act as enacted in 1990.²¹ Significantly, however, the Lazzarini study found “no systematic enforcement of HIV exposure laws” and concluded that a criminal prosecution is the result of “the accident of being caught and brought to the attention of a willing prosecutor.” The study, however, does not take account of race or class as factors that influence the “accidental” nature of law enforcement in this area. The study also concludes that, at this point, criminal prosecutions have not been shown to reduce HIV transmission. Of course, advocates of a criminal law response to the epidemic might respond by pointing out that deterrence would increase with more effective and systematic enforcement, and that the rate of HIV transmission would be even higher if there were no prosecutions.

One way that what Lazzarini called “the accident of being caught” can take place is when the possessor of confidential HIV information is authorized by law to disclose that information to a third party who is at risk for infection. Unlike the Prevention for Positives initiative, which relies on patients’ cooperation, partner notification in a number of states can take place without a patient’s consent. In fact, it can take place over the explicit objection of the patient. The law of confidentiality, which usually applies to health information, has been modified to allow such disclosure in many circumstances. On the federal level, the Health Insurance Portability and Access Act (HIPAA) regulations include a broad general exception to confidentiality in the partner notification context by authorizing the disclosure of so-called protected health information to a “person who may have been exposed to a communicable disease or may otherwise be at risk of contracting or spreading a disease or condition, if the covered entity or public health authority is authorized by law to notify such person.”²² In particular, spouses of the HIV infected, presumed to be unaware of the risk of HIV infection and thus particularly vulnerable, have been the subjects of protective legislation on both the federal and state levels. The 1996 amendments to the CARE Act, for example, included a spousal notification requirement.²³ To be eligible for CARE Act funding, states must take “administrative or legislative action to require that a good faith effort” is made to notify the spouse of a known HIV-infected patient of the spouse’s potential exposure to HIV. Illinois, New York, and Texas, for example, authorize non-consensual disclosure of HIV status to the patient’s spouse.²⁴ For veterans who receive healthcare services from the Veterans Administration, spousal notification of HIV infection is permitted, although it is not mandatory.²⁵ Some legislatures are more careful than others to make the concept of “spouse” equivalent with “at actual (past or future) risk.” In contrast, Congress took an expansive view of the “spouse at risk” by defining that term to include any “marriage partner” of the HIV-infected patient at any time within the 10-year period prior to diagnosis. Many states, however, authorize the disclosure of HIV information that would otherwise be confidential not just to spouses, but to non-spousal sex or needle-sharing partners.²⁶

Case law on third-party notification does not exist in all jurisdictions, but the outcome in the few reported cases is dependent on the statutory and common law standards that vary from state to state. In N.O.L. v. District of Columbia, for example, a husband’s emotional distress claim against the hospital that failed to disclose his wife’s HIV status was held to be barred by a confidentiality statute prohibiting disclosure of reportable diseases.²⁷ But in Chizmar v. Mackie, disclosure of an HIV test result that turned out to be a false positive to the patient’s husband was held to be proper and not a basis for suit.²⁸ Often, in the absence of a statutory standard, general tort law principles favor disclosure of information in circumstances in which the disclosure is intended to prevent the commission of a future crime. Because knowing exposure to HIV is criminal in all jurisdictions, this principle would serve as a defense against a claim of invasion of privacy.²⁹ But despite the laws that authorize disclosure to third parties at risk, without authorization from the patient, the extent to which partner notification actually takes place may vary significantly from jurisdiction to jurisdiction.

Although it is reasonable to suppose that clinicians will encounter situations in which a patient withholds consent for partner notification yet admits behavior that has placed or will place a known partner at risk for HIV infection, the CDC offers no specific guidance on how that situation might be handled. While acknowledging that some health departments require the reporting of any partner at risk, the CDC simply advises that clinicians should “know and comply with” any state law or health department partner notification laws.³⁰ But this is not much guidance for clinicians in jurisdictions where the disclosure is discretionary, not mandatory. Furthermore, disclosure of a patient’s HIV status to a partner without the patient’s consent, even without disclosure of the patient’s identity, risks undermining the therapeutic relationship. It may also damage the individual or institutional careprovider’s reputation for commitment to patients’ confidentiality more widely in the community, thus making patients’ cooperation with partner notification efforts in the future less likely.

In contrast to laws and regulations that authorize partner notification without the patient’s consent, the CDC’s approach to partner notification relies explicitly on patients’ cooperation. The HIV-infected patient identifies the contact who was or is at risk for infection. When the patient identifies the contact, at a time when the patient was aware of his or her HIV infection, however, the patient is admitting a criminal offense. In many jurisdictions that offense is a felony, for which consequences may be severe. The Lazzarini study reports that the average minimum sentence the patient would receive upon conviction, assuming it is less than a life sentence, is 14.3 years. Unless covered by an applicable evidentiary privilege or statutory protection, any record of the information provided by the patient about the contact might later be used in a criminal prosecution as evidence. Thus, patients’ cooperation in the CDC’s PCRS context poses an entirely different criminal prosecution risk than does partner notification activities undertaken at the point when a patient first tests positive. In the latter circumstance, the patient’s identification of past contacts would not pose the risk of criminal prosecution, because, at the time of the contact, the patient was not aware or his or her HIV infection.

Although the CDC’s reliance on patients’ cooperation makes the disclosure of partners to clinic staff consensual, provision of information regarding the criminal law implications of identifying the partner at past or future risk is not required in obtaining the patient’s cooperation. On that account, the consent of the patient may be invalid. If an informed consent were required prior to the patient’s disclosure of a partner in a clinical setting, there would be little question that the patient should be informed about and understand the potential criminal law implications of the disclosure.

Perhaps the authors of the CDC’s Prevention for Positives guidelines were unaware of this issue. Perhaps it is an issue that the CDC would rather not introduce into the discussion. After all, who would cooperate with the partner notification process with awareness of the criminal law implications? In its blueprint for Prevention for Positives, the CDC simply fails to mention, yet alone discuss, this significant difficulty with its latest initiative for HIV-infected patients.

While it can be said that partner notification is a way that an individual with HIV “gets caught” for having committed the offense of knowing (or intentional) transmission, perhaps primarily by their own doing, what remains in Lazzarini’s formulation is for that person to be “brought to the attention” of law enforcement authorities. In regard to the Prevention for Positives initiative, the patient’s HIV information is disclosed to a third party (the past or current partner) over whom neither the clinical staff, public health officials, nor the patient himself or herself has any control. Even without being told who the source patient was, the notified partner may be able to infer with ease that individual’s identity. Although the notified contact might appreciate the patient’s act of solicitude, the contact may as likely respond angrily and have powerful motives to invoke the criminal law against the patient. The partner may, for example, seek retribution, particularly in the case where the partner learns of his or her own HIV infection as a result of the notification and believes that the patient was the reckless or even intentional source of his or her infection. Or the partner may feel an altruistic desire to deter or prevent the patient, or others, from engaging in risk behaviors involving another partner in the future. Pursuing the criminal option may entail nothing more than telephoning local police or prosecutors. In jurisdictions that allow the filing of private criminal complaints, the process can be initiated directly by the notified contact (even then, many jurisdictions allow the prosecutor’s office to veto private complaints). Ironically, in situations in which the patient’s identity is known to the notified contact, as is the case under many laws that authorize disclosure of the HIV status of sexual assault defendants to complainants, the law often requires that the complainant not further disclose that information. Of course, the complainant may have his or her own self-interest in not disclosing, but in reality such confidentiality provisions may be largely unenforceable. In terms of partner notification, in contrast, the identity of the contact is not directly disclosed, and thus the laws do not impose any confidentiality duty on the notified contact. Even if they did, it is not clear how such confidentiality standards could be enforced. Moreover, once one criminal complaint is made and publicized, including the fact of the defendant’s HIV infection, other contacts of the defendant may come forward, resulting in additional charges against the defendant. In early 2003, for example, Adam Musser was charged in the first of four separate cases involving knowingly transmitting HIV in the Iowa City, Iowa, area. He was subsequently convicted in all four cases and sentenced to 25 years in each.³¹ Three of the cases involved former sexual partners who apparently came forward after learning of Musser’s HIV status from publicity resulting from his initial arrest. One of the complainants, who tested HIV positive after having sexual contact with Musser, appeared on local television to encourage additional complainants to contact prosecutors.³²

Part 2