Challenging State Laws That Criminalize HIV

Renewed Activism Targets Outdated Laws

by Vins
Published: Last Updated on

In December 2022, the Guardian reported that 33 states in the US maintain laws that criminalize HIV exposure or transmission, “many developed long before the illness was understood.” These laws “fail to take into account,” Amelia Abraham reported, that therapeutic medications have dramatically reduced the risk of infection. Nevertheless, in many US states, “having sex with another person when you are living with HIV can land you with years of prison time even though, thanks to modern science, HIV is no longer a death sentence,” Abraham wrote.

The Guardian detailed the case of Robert Suttle. A victim of these outdated laws, Suttle was arrested in Louisiana in 2008 for allegedly failing to disclose his HIV status to his partner. Suttle claims he did disclose his status during their relationship, and believes his former partner chose to lie about their situation after their breakup. Under Louisiana law, which focuses on exposure and does not require transmission for a conviction, Suttle was found guilty of a felony offense, served six months in prison, and was required to register as a sex offender.

“Being Black, being gay, being HIV-positive, then being an incarcerated person and a ‘sex offender’ in the conservative south?” Suttle recalled via Zoom from his home in New York City. “I didn’t know how I was going to move forward.” Since then, Suttle has worked to advocate for reform of laws that criminalize HIV.

As Abrahams reported, many of these laws were enacted in the 1980s when fear of HIV was at its peak and little was understood about the transmission of the virus. (Eight states criminalize the act of exposing another person to HIV through spitting, even though saliva does not transmit HIV, as Evelyn Mangold noted in an article for The Regulatory Review.)

One group seeking legal reform of outdated HIV laws is the Elizabeth Taylor AIDS Foundation. The Foundation’s “HIV Is Not a Crime” campaign, the Guardian reported, 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. It’s clear, according to Catherine Brown, the foundation’s executive director, that enduring laws are a result of HIV stigma, because other viruses are not criminalized in the same way.

The overall number of people arrested under HIV criminalization laws in the US is not officially tracked, the Guardian noted, but the HIV Justice Network had counted 2,936 such cases (at the time of the Guardian’s report), a figure that likely underestimates the total number.

The establishment press rarely covers laws that criminalize HIV non-disclosure, exposure, or transmission—or organized campaigns to reform those laws. One partial exception has been recent coverage of the Food and Drug Administration’s decision to modify its blood donation rules to make it easier for gay and bisexual men to donate.

In November 2022, the Biden-Harris administration announced a number of initiatives intended to “advance equity and opportunity,” including a new National HIV/AIDS Strategy. According to a White House briefing, the new National HIV/AIDS Strategy—intended to “lead us toward ending the HIV epidemic in the United States by 2030”—includes encouraging “reform of state HIV criminalization laws” as one of its aims.

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

Student Researcher: Jessica Jean-Baptiste (SUNY Cortland)

Faculty Evaluator: Christina Knopf (SUNY Cortland)