Courts Perpetuating AIDS
Stereotypes, Study Indicates
Times - Sunday January 19, 1992
Marlene Cimons; Times Staff Writer
Despite an increasing body of scientific evidence about how AIDS
is transmitted, judges across the nation have continued to
perpetuate stereotypes and myths about the disease in both their
decisions and in their courtroom behavior, according to a major
report released today.
judges appear undereducated on the subject of AIDS, they are
permitting prosecutors to use fear and misunderstanding to
undermine the rights of persons with AIDS," said Larry Gostin,
adjunct professor of health law at the Harvard School of Public
Health, and author of the study.
which examined the cumulative total of all AIDS-related
litigation since the epidemic began in 1981, was released by the
AIDS Litigation Project, which was established three years ago
to help lawyers, health care providers and consumers understand
the evolution of laws regarding the rights of people with AIDS
or those infected with the human immunodeficiency virus. It is
funded by the AIDS program office of the Department of Health
and Human Services.
found that, with some exceptions, most decisions in
AIDS-discrimination cases have been favorable to people with
AIDS, or HIV infection, in recent years because of the clear
body of anti-discrimination law that now exists.
But in other
types of cases, "not necessarily involving discrimination, but
involving people with HIV, you're seeing the old stereotypes
emerge," Gostin said.
he said, one court had what he described as a "10-foot rule" in
which "they allowed guards to stand 10 feet away from the
defendant (who was HIV-infected)," Gostin said. "In another
case, evidence was labeled: 'Evidence from an AIDS
patient--Don't Touch,' and this was done in front of the jury.
And the appellate court said it wasn't prejudicial."
said, criminal courts "have been convicting HIV-infected persons
for attempted murder and aggravated assault and giving Draconian
sentences--life, in one instance, 30 years in another--for
biting, spitting, things like that, even though there's never
been a single case of AIDS transmitted that way."
the study showed that courts have been "reinforcing
stereotypical attitudes about AIDS and people with AIDS, and
their decisions haven't reflected scientific knowledge. And they
aren't able to distinguish clearly between irrational fears and
insufficient AIDS education for the knowledge gap.
Fineberg, dean of the Harvard School of Public Health, said, "It
appears that those of us in public health have not yet done an
adequate job in educating the judiciary and other key
seem unable to distinguish important from inconsequential risks
of AIDS transmission," he added.
The study also
found that AIDS-related discrimination cases have escalated at
an unprecedented rate in recent years, making AIDS "the most
litigated disease in American history," said Dr. James Allen,
director of the AIDS program office of the Public Health
Service. "AIDS is a disease that has deeply affected society."
discrimination nationwide is "rife" because "I can measure it by
the number of cases coming to courts and human rights
commissions--and there is still a tremendous amount. And those
coming into the courts are only the tip of the iceberg."
added, discrimination is now taking "insidious new forms."
deciding not to hire people not on the basis of hatred and
prejudice, but for economic reasons, as in 'people won't come
into my restaurant if I hire someone with AIDS, or I can't
afford health insurance for someone with AIDS.' " he said.
"There's this new economic twist. Nevertheless, judges have
still been pretty good on this because there is such a clear
called health insurance the one notable exception. "Health
insurance companies continue to discriminate against persons
with AIDS," and the courts have allowed this to happen in some
instances, the study said.
have tended to uphold many individual claims for insurance, but
have also failed to support beneficiaries under rather bizarre
circumstances," the study said. "A health insurance company's
'right' to deny coverage to a widow and her two children after
her husband died of AIDS was upheld by the court."
involve the validity of insurance policies on the basis of
misstatement, the study said.
company attempted to rescind death benefits after the insured
died and the beneficiary tested positive for HIV, when neither
knew of his infection at the time of application," the report
said. "The court ruled that the deceased had not misrepresented
his medical status. . . . The company was required to honor both