On World AIDS Day, Let’s Talk About How HIV-Criminalization Laws Won’t Lead to an AIDS-Free Generation

Such laws disproportionately affect already marginalized people, and if we are ever to achieve an AIDS-free generation in our lifetimes, then the clear goal should be for lawmakers to focus on HIV prevention.

A man participates in a World AIDS Day gathering on Dec. 5, 2015.
A man participates in a World AIDS Day gathering on Dec. 5, 2015. LAKRUWAN WANNIARACHCHI/AFP/Getty Images

On Dec. 1 of each year, the global community celebrates World AIDS Day—a day that provides an opportunity for people to unite in the fight against HIV, show support for people living with HIV and to commemorate those who have died from AIDS.

This year marks the 28th anniversary of the first-ever global-health day, which started in 1988. Although we have seen scientific and technological advancements, since the first AIDS case (pdf) was reported in the U.S. in June 1981, stigma and discrimination have kept individuals living with HIV from receiving appropriate care and treatment in health care services. Among the often-undiscussed key drivers of the HIV epidemic are HIV-criminalization laws enforced throughout the United States.

HIV-criminalization laws largely refer to the overbroad use of criminal laws to penalize perceived or potential HIV exposure; alleged nondisclosure of a person who is knowingly living with HIV prior to sexual contact; or unintentional HIV transmission. These laws disproportionately affect already marginalized people, but if we are ever to achieve an AIDS-free generation in our lifetime, then the clear goal should be for lawmakers to focus on HIV prevention, which is not accomplished by enforcing HIV-criminalization laws against individuals.

Across the country, prosecutors offices have attempted to criminalize people living with HIV. This has been particularly true in the past 10 years with fluctuating incidence rates—that is, the number of new cases per population at risk; and prevalence rates—that is, the measurement of all individuals presently affected. With the advent of science, being criminalized for HIV likely seems outdated, discriminatory even, but that has not stalled many states from passing HIV-criminalization laws, and subsequently pressing charges with minimal information.

According to the Center for HIV Law & Policy, 32 states and two U.S. territories have HIV-specific criminal statutes and 36 states have reported proceedings in which people living with HIV have been arrested and/or prosecuted for consensual sex, biting and spitting. HIV criminalization impacts the lives of adults who are consensually engaging in sexual intercourse—which the U.S. Supreme Court, in 2003, decided was constitutionally permissible in Lawrence v. Texas. In addition, the penalties for HIV-criminalization laws are severe: People are frequently imprisoned for decades and, in many instances, must register as sex offenders.

What’s worse, black gay men, black transgender women and black straight men are more likely to be prosecuted under these laws—even if they did disclose their HIV status. In 2015 Michael Johnson, a former college wrestler, was sentenced to 30 years in prison for “recklessly infecting” one male sexual partner with HIV and exposing four others to the virus—this is true even though one witness specifically acknowledged being aware of his positive diagnosis and others consistently provided conflicting testimony.

Several state laws make it a felony for someone who has had a positive HIV test to spit on or touch another person with blood or saliva. But not only is this unscientific, but it highlights how being incarcerated on this basis is cruel and unusual. For example, Nick Rhoades, a man with HIV in Iowa who had an undetectable viral load, received a 25-year sentence after a one-time sexual encounter during which he used a condom. His sentence was eventually suspended, but he still had to register as a sex offender and is not allowed unsupervised contact with his nieces, nephews or other young children. Further, a woman with HIV in Georgia received an eight-year sentence for allegedly failing to disclose her HIV status, despite the trial testimony of two witnesses that her sexual partner was aware of her HIV-positive status.

Numerically, more than 800 people have been directly affected by HIV-criminalization laws—over 40 percent of them are women, and two-thirds are black or Latino. They ranged in age from 14 to 71 at the time of their first HIV-related criminal incident, with an average age of 37. Considering the high impact of HIV-criminalization laws, we must also analyze what this means for marginalized communities, who are often on the receiving end of multiple forms of oppression.

In February 2016, the Centers for Disease Control and Prevention provided the first-ever comprehensive national estimates of the lifetime risk of an HIV diagnosis for several key populations at risk and in every state. At current rates, 50 percent of black gay, bisexual and other men who have sex with men (MSM) and 25 percent of Hispanic MSM will be diagnosed with HIV in their lifetimes, compared with 1 in 11 white gay and bisexual men and MSM.

There are several reasons: lack of comprehensive sexuality education, lack of resources, minimal access to culturally competent health care, high cost of health insurance and other negative social determinants of health. But what this also means is that if the number of people living with HIV increases, then so will the number of people being convicted by outdated HIV-criminalization laws.

These laws also greatly impact the lives of transgender people. Transgender individuals are at the highest risk of HIV in the United States. In 2013, according to the National Transgender Discrimination Survey, transgender women reportedly had more than four times the national average of HIV infection, with rates much higher among black transgender women.

For transgender individuals to feel comfortable disclosing HIV status, assuming it is known, it is important to create a system that does not stigmatize people living with HIV.  Multiple studies have shown that HIV criminalization increases discrimination and stigma, deters HIV testing, and does not serve as an effective method of HIV treatment and reduction. Simply put, HIV-criminalization laws are ineffective.

HIV-criminalization laws are unnecessary, punitive and only single out HIV because of fear and stigma. This is part of a deeper narrative around how the prison-industrial complex incarcerates black (and LGBT) people—and that instead of leading people into care and treatment, these laws push people living with HIV into prison.

The clinic-to-prison pipeline is unacceptable if we care about the lives of people living with HIV, and it is impossible to achieve an AIDS-free generation without addressing how HIV-criminalization laws affect black people, especially on World AIDS Day.

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