LGBTQ communities are celebrating a joyful Pride season as COVID restrictions ease, and an end to a different epidemic is in sight — the HIV/AIDS epidemic. Unlike COVID, there is no vaccine for HIV, a virus that has shaped queer life and activism for the past four decades. Still, drugs that treat and prevent HIV are so effective at suppressing the virus that experts and health agencies say the epidemic could come to an end by 2030 if the right policy decisions are made. To reach this goal, advocates say archaic state laws that criminalize the most marginalized people impacted by HIV must be updated or repealed altogether.
HIV criminalization may sound like a thing of the past, but 32 states across the country still have laws on the books designed to punish people who have tested positive for HIV by creating or enhancing criminal penalties for various behaviors. In multiple states, people who have tested positive for HIV could face years in prison and even be registered as a sex offender if a former sexual partner accuses them of failing to disclose their status — even if they had safe sex or take medication that suppresses the virus and fully prevents transmission to others. In most states, these laws are HIV-specific. In 2020, only 11 states had laws that attempt to criminalize or control behaviors that could expose others to sexually transmitted and communicable diseases besides HIV, such as hepatitis.
HIV laws are often based on misconceptions of how HIV is spread that were disproven years ago, according to the Centers for Disease Control. In many cases, the laws are so vague that they can apply to various consensual sex acts, even though oral sex, for example, poses little to no risk of transmission. Some laws make it a crime to expose another person to bodily fluids even if no sex or injection drug use was involved, despite the fact that it is virtually impossible to transmit HIV that way. (HIV and other pathogens can be transmitted when people share syringes for injecting drugs, so it’s crucial that clean syringes are available to anyone who needs them.) In Louisiana and other states, an HIV-positive person could be charged with a felony for spitting on or biting someone else, even though we’ve known for decades that HIV is not spread by saliva. The maximum sentence under Louisiana’s law is 10 years in prison.
Enforcement of HIV criminalization laws disproportionately targets women, gay and bisexual men, injection drug users, sex workers, LGBTQ youth, and Black and Brown people in particular, according to advocacy groups. Advocates say HIV criminalization laws do not keep anyone safe; instead, they entangle people in violent criminal legal systems and create stigma around HIV that pushes vulnerable people away from treatments and services that are necessary for saving lives and ending the epidemic. Criminalization discourages people from getting tested for HIV, accessing treatment or disclosing their HIV status in the first place, according to the American Psychological Association.
Researchers at the Williams Institute at the University of California, Los Angeles have studied the impacts of HIV criminalization laws across the country. Executive Director Brad Sears said the laws were ostensibly written to prevent the spread of HIV, but they come from an era of homophobic panic about a disease that is easily treated today. Hundreds of people across multiple states, many of them Black and Brown, have been incarcerated for years at a time as a result. Even more have been arrested and faced serious criminal charges in court, particularly in states where prosecutors are not required to prove a defendant intended to spread the virus.
“These laws weren’t really motivated on sound public health information when they were passed, and they were passed at a time when there was a lot of stigma and fear and discrimination against LGBTQ people, and especially gay men,” Sears said in an interview.
While HIV prosecutions against gay men, and especially Black men, have made headlines, HIV crime laws also disproportionately impact women, especially women of color and trans women. Many women have been arrested and sent to prison based on accusations by former partners who used HIV laws as a “tool of harassment and control,” often after the women attempted to end the relationship, according to the Positive Women’s Network. HIV crime laws put women in a terrible bind: Women are more likely to face violence from partners if they disclose their HIV status, but they can be arrested and prosecuted if they do not.
HIV crime laws are not just a tool used by abusive ex-boyfriends. Sears said researchers know the laws do not prevent the spread of HIV, but they do provide police and prosecutors with a powerful weapon against the vulnerable. After all, it’s more straightforward to prove that someone is HIV positive than whether they committed a crime. A relic of the days when an AIDS diagnosis was compared to a death sentence, HIV charges can carry hefty prison sentences or enhance sentencing for other crimes, allowing prosecutors to hang years of prison time over a defendant’s head to extract a plea deal.
In California, 95 percent of people who came in contact with the criminal legal system based on their HIV status between 1988 and 2014 were suspected of engaging in sex work, and many were entrapped or stopped by the police rather than being caught in the act, according to Sears. Black women represent only 4 percent of the HIV diagnoses in California but 21 percent of those who were arrested on charges related to their HIV status.
“One way to really address this issue is to just [end] the criminalization of sex work, and that would rapidly bring down…the enforcement of HIV criminalization laws as well,” Sears said.
In Missouri, prosecutors in St. Louis made a habit of filing HIV charges against Black men accused of resisting arrest, according to Sears. Facing an embarrassing jury trial and lengthy prison sentence for violating a state HIV law, the defendants took plea deals rather than fight charges. Like other states, Black men were targeted for HIV prosecution in Missouri more than any other group.
“You’ve got a disease that disproportionately impacts people of color and particularly Black people, layered on top of that a criminal justice system that disproportionately impacts people of color and mainly Black people, and then you make a crime out of that disease there is only one result that is going to happen,” Sears said.
Eight states have repealed or updated parts of their laws to reflect the current science on HIV, but LGBTQ advocates and public health experts say the government should not cast people with a health condition as potential criminals in the first place. Sears said HIV criminalization runs counter to efforts currently rolling out in every state to end the HIV epidemic by 2030, because the people most often targeted by prosecutors for HIV crimes come from the same marginalized communities that public health workers are trying to reach with HIV testing, treatment and prevention.
“These laws run counter to fighting the AIDS epidemic by targeting the very communities that you most need to engage right now to really bring an end to HIV: people of color, LGBT people, transgender people and people who are sex workers,” Sears said.