Broken System: Curbing the Impact of HIV Criminalization Laws
Arneta Rogers, Policy and Advocacy Manager, Positive Women's Network USA
If you think the criminal-justice system is broken and unfair, you're not alone. Most voters—69 percent—say too many people are behind bars, according to a 2015 survey by the American Civil Liberties Union.
However, if you're Black and you have HIV, getting a fair shake can be even more problematic because of HIV criminalization laws. A Brown Bag Lunch Webinar held by the Black AIDS Institute in July 2017 looked at laws that unfairly target people living with HIV/AIDS (PLWHA) and what can be done to fight them.
HIV criminalization refers to policies and laws that promote the prosecution of PLWHA for such reasons as not disclosing their serostatus, exposing others to HIV and transmitting HIV. In some cases, PLWHA are given enhanced penalties just because of their status. For example, a person living with HIV who is charged with sexual assault might be given a stiffer penalty than someone who is HIV negative for committing the same crime.
Most of these laws surfaced in the 1980s and 1990s, when fear about HIV ran rampant, and there was limited medical understanding of HIV and no effective treatments, says Arneta Rogers, policy and advocacy manager for the Positive Women's Network USA. The impact of these laws continues to be felt.
A Prevalent Problem
Today, 32 states and two U.S. territories have laws (pdf) that provide criminal penalties for exposing someone to HIV through sex, needle sharing or bodily fluids. The risk of transmitting HIV doesn't have to be high. In fact, the majority of states also criminalize one or more behaviors that pose a low or negligible risk of HIV transmission, Rogers says.
Those most affected by HIV criminalization laws include people of color, low-income individuals, the homeless, sex workers, and transgender and gender-nonconforming people.
If someone is prosecuted because of his or her HIV status, the penalties can be harsh. He or she might be charged with a felony, experience jail time or even be labeled a sex offender.
There can also be other long-term effects. A prison sentence can disrupt the person's treatment and access to care, which are necessary to keep HIV virally suppressed. In addition, someone prosecuted for his or her HIV status could have trouble finding future employment, lose housing and public benefits, or even be denied custody of his or her children. Amid that firestorm, the person could also be subject to media sensationalism and a loss of privacy.
HIV criminalization laws also have an impact on public health. They give people a disincentive for learning their status. After all, if you don't know your status, you can't break any HIV criminalization laws. Plus, they perpetuate misconceptions about HIV and how it is transmitted, since some of the laws criminalize behaviors that have a low risk of transmitting HIV.
Some HIV criminalization laws also take away responsibility for sexual behavior from both parties, since many such laws effectively let the person without HIV off the hook when it comes to engaging in safe sexual practices. Finally, HIV criminalization laws increase stigma and the marginalization of PLWHA.
In Search of a Solution
The Positive Women's Network views HIV criminalization laws as an issue of reproductive justice because "they limit the ability of PLWHA to freely make meaningful decisions about their bodies, gender, sexuality, relationships, reproduction and communities," the organization states.
As a result, the organization advocates for change at both the institutional and societal levels and suggests a multipronged approach. Among the strategies suggested are these:
· Legal challenges to the current laws;
· Legislative reform that would change the laws so that they do not unfairly target PLWHA;
· Education initiatives designed to show people how HIV criminalization laws are harmful.
The organization also supports other efforts that would shed light on the need for reforming HIV criminalization laws, including the decriminalization of sex work, better access to health care, and securing safety for members of the LGBTQ community. "We want to engage the community and lift up the leadership of people living with HIV and those most impacted by criminalization," Rogers says.
Tamara E. Holmes is a Washington, D.C.-based journalist who writes about health, wealth and personal growth.