HIV CRIMINALIZATION

Background:

In the first decade of the HIV epidemic, states started to pass HIV-specific criminal exposure laws. These were designed to penalize people living with HIV who knew their HIV status and exposed or potentially exposed others to HIV.

When the Ryan White CARE Act was passed in 1990 to provide states with funds for AIDS treatment and care, it included a provision requiring every state to have criminal laws with which to prosecute people living with HIV who are charged with exposed another person to the virus. Congress repealed this requirement in 2000, but by that time, such laws were entrenched in most states.

These laws were (and still are) used to arrest, prosecute and convict people for such acts as spitting, biting, vomiting or other acts that do not transmit HIV – as well as for allegedly exposing others through sex or needle sharing.

More than thirty of the fifty US states have laws in place to prosecute people living with HIV who are charged with these acts. They persist despite that their discriminatory nature and the fact that all states already have general criminal laws—such as assault and battery, reckless endangerment, and attempted murder — that can be used to prosecute any individuals deliberately seeking to transmit HIV.

These laws were also passed before studies showed that consistent use of antiretroviral therapy (ART) can virtually eliminate the risk of HIV transmission. They also ignore the effectiveness of other HIV prevention measures such as condom use, and pre- and post-prophylaxis (PrEP and PEP). In short, these laws are not aligned with current evidence regarding HIV transmission risk.

Even in cases where HIV transmission does not occur, people accused of having put someone at risk of exposure have received sentences of 10-30 years for these offenses. In some states, a conviction under these laws requires the convicted person to register as a “sex offender” even when the act in question was consensual sexual activity between adults.

Finally, the highly publicized arrests and prosecutions occurring when these laws are invoked undermine HIV prevention. One sure way to avoid being accused of knowingly exposing someone to HIV it to be ignorant of one’s own HIV status.

Learn More:

Policy is evolving in this area and efforts to remove HIV-specific laws is making progress. For more information, please see:

Sero Project: http://www.seroproject.com/resources/

Center for HIV Law and Policy: https://www.hivlawandpolicy.org/state-hiv-laws