Since their development in the 1980s, HIV criminalization laws in the United States have not evolved to keep up with scientific advances that treat AIDS/HIV. Black people and women are disproportionately affected by these statutes compared to white men, according to UCLA’s Williams Institute, which studies sexual orientation, gender identity, and public policy. The think tank has published state-by-state reports on the impact of these laws, using data from local prosecutors’ offices. The Appeal and Truthout reported on key findings from the Institute’s 2022 study, explaining that while some states have updated their laws, others continue to sentence people to thirty years in prison.
According to the Center for HIV Law and Policy (CHLP), HIV criminalization laws result in the arrest and prosecution of people living with HIV for not disclosing their status to sex partners and include sentence enhancements for illegal conduct based on someone’s HIV status. As Truthout and The Appeal reported, not all convictions require transmission of the virus or intent to transmit it. As of January 2023, twenty-five states have HIV-specific criminal laws and nine states have sentence enhancements that apply to HIV+ people. Six states can require registration as a sex offender as part of a person’s punishment.
A once life-threatening virus can now have little effect on someone’s life if it is treated properly, yet many states have not changed their laws to account for this. The current scientific consensus suggests that the risk of transmission is nearly negligible if someone using proper treatment has “achieved an undetectable viral load and ha[s] maintained it for at least six months,” the Williams Institute explained. As Adam Rhodes wrote for The Appeal, HIV criminalization laws “largely fail to acknowledge [this] reality.”
Moreover, many have questioned if these laws are effective in solving the HIV epidemic. Nathan Cisneros, an HIV criminalization analyst at the Williams Institute, stated, “I wonder—if, indeed, the problem is a public health issue—whether the most appropriate government mechanism for dealing with that issue is through the criminal system.” Adam Rhodes similarly remarked that these HIV-related laws, though “originally touted as a measure to curb the virus’s spread, instead discourage testing.” If people are vulnerable to prosecution for not disclosing their status, there is a disincentive to knowing one’s status, which puts both HIV positive and negative people at risk. As Kerry Thomas, who remains in an Idaho prison on a thirty year sentence for not disclosing his HIV status to his then-partner, told Truthout’s Victoria Law, “Criminalization is not prevention. Treatment is prevention.”
Significantly, independent news source have emphasized that HIV criminal laws demonstrate the pattern of racism and over-policing in this country. According to the Williams Institute research cited in The Appeal, “Black people are more likely than their non-Black peers to be arrested and convicted for HIV crimes” in the United States. They also face longer sentences. This criminalization has disproportionately affected Black and Brown people as well as and sex workers in Louisiana, Florida, Georgia, Tennessee, Missouri, Illinois, and other states, Rhodes and Law noted. The Executive Director of the Elizabeth Taylor AIDS Foundation told The Guardian that Black transgender women and Black and Brown men who have sex with men are disproportionately impacted by these laws. The Guardian, also citing Williams Institute research, noted that Black women are 290% more likely to be on a sex offender registry for an HIV conviction in Tennessee than a White man is.
However, there are some signs of progress. As The Appeal reported, President Joe Biden’s address at the 2021 World AIDS Day urged policymakers to “follow science” concerning HIV criminalization. Although some states, such as North Carolina or Iowa, take this advancement into account, their laws still allow for someone to be prosecuted as a result of their HIV. Louisiana modified its law in 2018, Truthout reported, but it still criminalizes behavior such as biting or spitting even though the Centers For Disease Control and Prevention have stated that these “carry negligible risk of HIV transmission.” Many reformers hope to see these laws completely abolished in the future. One possible avenue toward this goal may be to argue that HIV criminalization laws violate the Americans with Disabilities Act, as a 2021Yale Law Journal article cited in The Appeal contended.
Although the Williams Institute research demonstrates that Black people and sex workers are disproportionately affected by these laws, corporate news media are hesitant to report on these disparities. An NBC article from 2021, prompted by a Williams Institute study of arrests under Kentucky’s HIV laws, revealed that since 2006, 62 percent of those arrested were women and of those, 97 percent were involved in sex work, noting that White women were disproportionately arrested (59 percent, while comprising eight percent of the state’s HIV positive people). A 2012 CNN article focused on the story of one White man. What little corporate news coverage there is on this topic includes research and testimony by health experts, activists, policy analysts, and people living with HIV who agree that such laws are outdated and further stigmatize people living with HIV.
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 Researcher: Joey Douille (Loyola Marymount University)
Faculty Evaluator: Kyra Pearson (Loyola Marymount University)