What is HIV criminalization?
HIV criminalization is the use of criminal law to punish those with HIV
for any potential risk of exposure to others. This means that an HIV positive individual
accused of non-disclosure before sexual contact may be punished by law,
even if the act does not risk actual HIV transmission.
USA and Canada have the highest number of prosecutions and convi-ctions of HIV transmission, with over 300 convictions.
41 countries have HIV criminalization laws, that's over 20% of the coun-tries in the world.
In California there were 385 incidents that involved HIV-based charges from the time of their creation to June of 2014. All of the incidents resulted in convictions with 90% of those convictions leading to immediate incarceration.
Between 1988 and 2014, at least 800 people were arrested, charged, or otherwise came into contact with the criminal justice system related to their HIV status in California, dispropor-tionately affecting people of color.
The rates of HIV and AIDS diagnoses in the South are higher than any other region in the U.S. In 2015, the South accounted for 9,601 or 52% of the new HIV and AIDS diagnoses out of 18,303 diagnoses in the U.S.
HIV Is Not a Crime
2011 Film, by Sean Strub
Why is HIV Criminalization an Issue?
The Laws do not Reflect the Science: HIV Criminalization laws began in Washington State, Florida, and Tennessee in 1986 when not much was known about HIV and AIDS and the fear and hysteria about the virus was at its peak due to the lack of knowledge about it. They were created by Ryan White Comprehensive AIDS Resource Emergency Act of 1990. The act offered federal funds to states if they criminalized the act of spreading HIV and many states complied and created HIV Criminalization laws to obtain federal funding for their HIV and AIDS programs. Many of these laws are still on the books for many states and reflect the fear and lack of knowledge that the world possessed about HIV at the time.
Outcome Different than Intent: HIV Criminalization laws were created with the intention of protecting people from HIV, but they are having the opposite effect. Seeing what happens to people with HIV and the stigma they face makes people less likely to tell others that they have HIV or get tested if they believe that they have it. HIV Criminalization can only happen if you know you are HIV positive and if you don’t know that, you can’t be punished.
Stigma: Criminalization fuels stigma. "When you criminalize HIV or stigmatize people who have HIV it encourages people not to get tested, to stay in the shadows, not to be open about their status, not to seek treatment" - Scott Weiner.
Sean Strub of the Sero Project, an organization that advocates for people with HIV and AIDS said that HIV Criminalization laws single out people the same way that discriminatory laws would single out people based on things such as gender and race. He states: “it is inherently discriminatory to create different laws for different groups of people.” Strub and Scott Burris, a Law Professor from Temple University, added that criminalizing HIV discourages people from getting tested for HIV.
Violence: HIV Criminalization can give violent and abusive people a powerful tool that they can hold over people with HIV. Victims of domestic abuse can be scared away from leaving abusive relationships through the threat of HIV criminalization charge or having their HIV status revealed to the world.
Requirements to Prosecute: Philip Clark, a Public Defender in the Western Judicial Circuit of Georgia, says that HIV Criminalization convictions can still occur even without the corroboration of evidence and differing claims from the defending and prosecuting sides of a case. HIV Criminalization laws do not require that you transmit HIV to get convicted. Even acts that have a minimal and negligible chance of transmitting HIV such as biting or spitting can incriminate an individual.
Meet the victims of HIV criminalization
In 2006, an HIV-positive man in Texas was sentenced to 35 years in prison for spitting into the eye and open mouth of a police officer during an arrest for being drunk and disorderly. The jury held the man’s saliva could be considered a ‘deadly weapon’, and the man received a heavy sentence.
In Canada in 2008, a young man with a diagnosed mental illness (schizoid-affective disorder), met a 55 year old gay man in an internet chat room, and later had two unprotected sexual encounters. The young man did not inform the man he was HIV-positive. Some hours after the second sexual encounter, he realized he had had sex without disclosing his status, and phoned the man to inform him of his HIV-positive status. Despite the young man’s severe mental illness, and genuine remorse, the judge sentenced him to eight months in jail (with additional conditions). The ‘victim’ remains HIV-negative.
A woman who lived in Iowa was convicted on HIV Criminalization charges and received a 25 year sentence that was later suspended. She was forced to register as a convicted sex offender which meant she couldn’t go to pools, public parks, walk freely about in her community, or work in specific areas such as areas near schools. When Iowa eliminated its HIV Criminalization law, she was able to have her name removed from the sex offender registry.
Robert Suttle, the Assistant Director of the Sero Project was convicted on HIV Criminalization charges in Louisiana and was branded as a sex offender for 15 years. He was forbidden from serving in the Air Force as a result of his HIV status and lost his career in the Louisiana Second Circuit Court of Appeals as a result of his HIV Criminalization conviction.
A Thai woman came to Canada from Hong Kong on a work visa to perform at a strip club. While there, she began a relationship with a man and later married him. The woman had tested positive for HIV in Hong Kong, but she testified that she believed she was HIV negative because she had mistakenly thought she had been HIV tested in Canada for immigration purposes, and her results had been negative. However, those tests did not screen for HIV, since the woman had entered Canada seven years before HIV testing for immigrants was implemented (in 2002). The woman received no HIV treatment until she learned she had AIDS in 2004, when she told her husband of her diagnoses. The woman was convicted of aggravated assault and criminal negligence causing bodily harm for failing to disclose her HIV-positive status to her husband and was sentenced to two years in jail.
In 2008, a 34 year old man with HIV in Iowa had a one time sexual encounter with a 22 year old man and did not disclose his HIV status. Despite wearing a condom and the 22 year old man’s HIV tests coming back negative, the man was sentenced to 25 years in prison. Despite being freed after 5 months due to a successful letter writing campaign, the man was forced to register as a convicted sex offender, is subject to unannounced search and seizure at the discretion of his parole officer, and cannot be alone with any of his nephews or nieces.
In 2009, a man was found guilty of four counts of aggravated sexual assault for having unprotected sex with four women between 2001 and 2005. Throughout his trial, the accused vigorously denied knowing he was HIV-positive until late 2004. He testified that he had done six tests for HIV in Zimbabwe (all negative), and also had medical tests to facilitate his migration to Canada, believing they included a test for HIV (they did not).
What does HIV Stigma look like around the world?
Since 2014, at least five states have modernized their HIV criminal laws. Changes include removing HIV prevention issues from the criminal code and including them under disease control regulations, requiring intent to transmit, actual HIV transmission, or providing defenses for taking measures to prevent transmission such as viral suppression or being noninfectious, condom use, and partner PrEP use.
(California, Colorado, Iowa, Michigan, North Carolina)
Most people living with HIV are nonviolent, law-abiding citizens who do not want to transmit the virus to anyone. But these laws typically do not require criminal intent, nor does it matter whether or not HIV was transmitted, or even if there was any chance of HIV transmission. Use of safe sex practices or having an undetectable viral load is not a defense. Even disclosing to one’s partner may not protect you from prosecution.
HIV Criminalization Continues:
A global review has found that HIV-related arrests, investigations, prosecutions and convictions have ever occurred in at least 72 countries, with recent cases occurring in 49 countries, including 14 in which the law appeared to be applied for the first time.
The HIV Justice Network’s review concerns cases in which either the criminal or similar law is applied to people living with HIV based on HIV-positive status, either via HIV-specific criminal statutes (29 countries), general criminal or similar laws (37 countries), or both (6 countries). Such laws typically criminalize non-disclosure of HIV status to a sexual partner, potential or perceived exposure to HIV, or transmission of HIV.
HIV criminalization “is a pervasive illustration of how state-sponsored stigma and discrimination works against a marginalized group of people with immutable characteristics,” says HIV Justice Network. “As well as being a human rights issue of global concern, HIV criminalization is a barrier to universal access to HIV prevention, testing, treatment and care.
Between October 2015 and December 2018, at least 913 people living with HIV were arrested, prosecuted, convicted or acquitted in 49 countries (158 in the U.S.)
Things have now changed. On January 1, 2018, Senate Bill (SB) 239 came into law, scoring a huge win for HIV activists. Prior to 2018, HIV was the only disease you could be prosecuted for transmitting. California Governor Jerry Brown signed the law which repealed the old HIV laws regarding partner notification.
This Change in CA was necessary:
Prior to 2018, HIV was the only communicable disease you could face criminal prosecution for by transmitting. This led many to believe that the repealed HIV laws in California were not just an attack on those with HIV, but rather an attack on the LGBTQ community.
From 1988 to 2014, 800 HIV confidentiality criminalization cases were prosecuted in California. Out of the 800 cases, none of them required prosecutors to prove that transmission of HIV occurred prior to the defendant being charged. Moreover, all 800 cases ended in a conviction.
Furthermore, the old laws that criminalized HIV victims did more damage than good. They placed an immense stigma and burden upon HIV victims and the LGBTQ community.
Quotes on HIV Criminalization
"These laws typically do not require criminal intent, nor does it matter whether or not HIV was transmitted, or even if there was any chance of HIV transmission. Use of safe sex practices or having an undetectable viral load is not a defense. Even disclosing to one's partner may not protect you from prosecution."
- Robert Suttle
"Every person living with HIV in a state of laws that criminalize HIV is just one misunderstanding or disgruntled partner away from finding him or herself in a courtroom. A minor infraction of the law or negative encounter with law enforcement while HIV-positive could lead to a felony conviction, a lengthy prison sentence, public shaming, and/or registration as a sex offender. My situation is not rare; there are hundreds of reported and unreported prosecutions in the South and all over the U.S. similar to mine or worse."
- Robert Suttle
http://www.hivandthelaw.com/basic-information/fast-facts http://www.gnpplus.net/assets/wbb_file_updown/2045/Global%20Criminalisation%20Scan%20Report.pdf Canadian HIV/AIDS Legal Network, 2009 R v Handy (Unreported 27 March 2008) See Bernard, E. J. (2008) at http://criminalhivtransmission.blogspot.com/search?q=handy (accessed on 12th July 2010) and Canadian HIV/AIDS Legal Network (2008a) http://www.timescolonist.com/Health/Mzite+gets+year+sentence+sexual+assault/1450941/story.html https://www.youtube.com/watch?v=iB-6blJjbjc
https://www.facebook.com/TheSeroProject/ http://www.hivandthelaw.com/campaign/campaign-tool-kit American Psychological Association - The Dehumanizing Effect of HIV Criminalization
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http://www.cnn.com/2012/08/02/health/criminalizing-hiv/index.html CNN - Save lives: End the HIV stigma http://www.cnn.com/2012/07/19/opinion/johnson-hiv-stigma/index.html
Elton John AIDS Foundation - Spotlight on HIV Criminalization http://newyork.ejaf.org/the-elton-john-aids-foundation-on-hiv-criminalization/ Georgia Health News: HIV transmission laws: Georgia legislators to look at changes http://www.georgiahealthnews.com/2017/04/hiv-transmission-laws-hat-valuable-safeguard/ The Hill.com - To prevent new infections, stop criminalizing people living with HIV http://thehill.com/blogs/pundits-blog/healthcare/330286-to-prevent-new-infections-stop-criminalizing-people-living-with HIV Criminalization is Bad Public Policy and Terrible Science http://www.slate.com/blogs/outward/2013/10/04/hiv_criminalization_bad_public_policy_terrible_science.html Los Angeles Times - Having Unprotected Sex Without Telling Partner about HIV-Positive Status no Longer Would be a Felony Under New bill http://www.latimes.com/politics/la-pol-sac-aids-felony-20170315-story.html NBC News - Iowa Scraps Harsh HIV Criminalization Law in Historic Vote http://www.nbcnews.com/news/us-news/iowa-scraps-harsh-hiv-criminalization-law-historic-vote-n94946 Philly Tribune - Flood of HIV cases hasn’t receded in the South http://www.phillytrib.com/news/flood-of-hiv-cases-hasn-t-receded-in-the-south/article_ad96f9fe-ff12-5d99-8cdc-89f7176a1545.html UCLA Williams Institute - HIV Criminalization in California: Penal Implications for People Living with HIV/AIDS http://williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-California-Updated-June-2016.pdf Washington Post - Maryland man faces rarely used HIV transmission charges https://www.washingtonpost.com/local/maryland-man-faces-rarely-used-hiv-transmission-charges/2012/09/10/0db02f58-fb59-11e1-b2af-1f7d12fe907a_story.html https://www.cdc.gov/hiv/policies/law/states/exposure.html https://www.apa.org/pi/aids/resources/exchange/2017/03/hiv-criminalization https://www.aidsmap.com/news/jun-2019/hiv-criminalisation-cases-recorded-72-countries-including-49-last-four-years https://pridelegal.com/california-hiv-laws/