Examining HIV criminalization

AIDS United’s Mackenzie Flynn presented her research at the 2023 STD Engage conference, which was held in New Orleans, Louisiana, May 15-19. Below is the narrative of the poster she presented. 

HIV criminalization refers to laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based upon a person’s HIV-positive status — this includes nonmalicious HIV transmission, perceived or potential HIV exposure or nondisclosure of known HIV-positive status.

While the HIV landscape has shifted dramatically over the past several decades, including major breakthroughs in treatment options and accessibility (most HIV criminalization laws were enacted before antiretroviral therapies and preexposure prophylaxis), that move us toward our goal of ending the epidemic, many criminalization laws have yet to be reviewed, reformed and repealed, and they disproportionately impact those already disparately affected by HIV.

As increased attention is put toward molecular HIV surveillance, sex work, chest feeding, anti-LGBTQIA+ legislation, etc., the issue of HIV criminalization remains dire.

According to the CDC:

  • 35 states criminalize actions taken by people living with HIV through HIV-or sexually transmitted infection-specific laws.
  • 14 states criminalize actions that in fact pose no or virtually no risk of transmitting HIV, such as spitting, biting and oral sex.
  • 10 states require people living with HIV who are aware of their status to disclose their status to sex partners.
  • 12 states have maximum sentence lengths of more than 10 years, and some states are up to life, even though people living with HIV might have taken measures to prevent transmission.
  • Three states require people living with HIV who are aware of their status to disclose their status to needle-sharing partners.
  • 10 states provide defenses for taking measures to prevent the transmission of HIV, such as condom use, viral suppression and PrEP.

In some instances, the law extends to other STIs or even communicable diseases more broadly, and at a time of emerging infectious diseases, HIV criminalization sets a dangerous precedent.

Whether its sex offender status, felony convictions, long prison sentences, the threat of criminalization in other ways (e.g., molecular HIV surveillance, chest feeding, or sex work), or punishment that goes beyond the courtroom (e.g., difficulty finding employment, housing, voting or susceptibility to violence), prosecution manifests in various forms with assorted implications.

HIV criminalization laws have various gaps, though. For one, research and policy leaves out historical context and complexities, notably police brutality and the medical mistrust and mistreatment of racial minorities and Indigenous people. Additionally, criminalization is a deterrent to testing and seeking care, in fear of prosecution and stigma. The criminalization of HIV and other STIs disproportionately impacts communities that are already disparately affected, policed and surveilled, further adding to the legal and societal burden faced by those who experience discrimination based on race, class, gender, sexual orientation and immigration status, as well as criminalization of other kinds. Many of these laws and prosecutions are without a scientific basis and reflect an inaccurate understanding of HIV-related risk and harm. This application of criminal law only hinders our goal of ending the HIV epidemic.

Decriminalization is the only policy that promotes human rights and reduces violence against people living with HIV. These laws don’t work as they were designed, negatively impact public health systems and practices by impeding service accessibility and discouraging HIV testing, don’t reflect current understanding of HIV transmission, don’t make sense in our legal system, exacerbate stigma and disparities, and vary considerably amongst jurisdictions.

Criminalization, surveillance and carceral approaches to public health harm the most marginalized groups and are discriminatorily applied, in part due to the targeting of specific behaviors (including sex work and drug use). As our society continues to grapple with the implications of institutional racism, we have a duty to review, reform and repeal laws that exacerbate the harms caused by centuries of white colonialism and interactions with the criminal-legal system.

It’s important to acknowledge the political realities of a given location. Progress toward wholesale repeal may be incremental to mitigate the negative impacts of these laws, such as developing prosecutorial guidelines, reducing penalties, modernizing statutes, and modeling public health policies and protocols. This includes passing the Repeal Existing Policies that Encourages and Allow Legal (REPEAL) HIV Criminalization Act to incentivize states to modernize and repeal their respective laws; educating members of the community (via civic engagement and information dissemination); educating members of state and local justice systems; supporting community-based organizations, people, and coalitions who engage in decriminalization advocacy; strategizing tactics to remove criminal legal barriers; and having conversations with members of the community on this topic to decrease stigma, spread information/resources, and encourage reflection.