#25 – Activism Targets Outdated State Laws That Criminalize HIV

by Shealeigh
Published: Last Updated on

Laws that criminalize HIV transmission—many enacted in the 1980s, when HIV was poorly understood—have not been changed to reflect scientific advances in the treatment of HIV/AIDS. In January 2023, Truthout reported that twenty-five states have HIV-specific laws, and nine states have sentence enhancements that apply to HIV+ people. Black men and women and White women are disproportionately affected by these outdated statutes, according to UCLA’s Williams Institute, which studies sexual orientation, gender identity, and public policy.

The overall number of people arrested under HIV criminalization laws in the United States is not officially tracked, according to the Guardian, but the HIV Justice Network had counted 2,936 such cases at the time of the Guardian’s report, a figure that likely underestimated the actual number of arrests. As Truthout and The Appeal reported, not all states require transmission of the virus or intent to transmit it for convictions.

Existing HIV laws are at odds with current scientific understanding and medical treatment of HIV. For example, eight states criminalize the act of exposing another person to HIV through spitting, even though saliva does not transmit HIV. One group seeking legal reform of outdated HIV laws is the Elizabeth Taylor AIDS Foundation. The Foundation’s “HIV Is Not a Crime” campaign aims to bring laws “up to date with contemporary science,” including what is known as “U=U,” meaning that HIV that is undetectable due to therapeutic medication is untransmittable. According to Catherine Brown, the foundation’s executive director, the laws that remain on the books are a result of HIV stigma, because other viruses are not criminalized in the same way.

Kerry Thomas, who is serving a thirty-year sentence in an Idaho prison for not disclosing his HIV status to his then-partner, told Truthout, “Criminalization is not prevention. Treatment is prevention.” Many activists hope to see HIV criminalization laws completely abolished. One possible avenue toward this goal was proposed in a 2021 Yale Law Journal article by Joshua Blecher-Cohen, who argued that HIV criminalization laws violate the Americans with Disabilities Act, which “explicitly applies to people living with HIV or AIDs,” The Appeal reported.

The establishment press rarely covers laws that criminalize HIV non-disclosure, exposure, or transmission—or organized campaigns to reform those laws. In a December 2021 article on HIV-related arrests in Kentucky, NBC News did so, citing a report from the Williams Institute, but NBC’s report selectively focused on the impacts of Kentucky’s HIV laws on women and sex workers, even though the Williams Institute’s report also highlighted significant differences in the rates at which Black men and women were arrested, compared to White men and women. In November 2022, the Biden-Harris administration announced several initiatives intended to “advance equity and opportunity,” including a “National HIV/AIDS Strategy” that, according to a White House briefing, will encourage “reform of state HIV criminalization laws” as one step toward “ending the HIV epidemic in the United States by 2030.”

Adam M. Rhodes, “Pressure Mounts against HIV Criminalization as Prosecutions Continue,” The Appeal, September 15, 2022.

Amelia Abraham, “‘I Lost My Retirement, My Career, My Home’: The Americans Imprisoned for Being HIV-Positive,” The Guardian, December 1, 2022.

Victoria Law, ”People with HIV Are Still Being Criminalized in 25 States,” Truthout, January 25, 2023.

Student Researchers: Jessica Jean-Baptiste (SUNY Cortland) and Joey Douille (Loyola Marymount University)

Faculty Evaluators: Christina Knopf (SUNY Cortland) and Kyra Pearson (Loyola Marymount University)