The Criminalization of HIV

Last month, I jumped at the opportunity to attend a panel discussion at the UN on the criminalization of HIV. I love learning about issues that disproportionately affect the LGBTIQ+ community and pride myself in my knowledge of those issues. At the panel discussion, I expected to listen to experts tell me that positive HIV status was illegal in some countries. This seemed ridiculous and I was already outraged at the injustice of it all! I was right to be outraged, but I was completely wrong about what HIV criminalization is. Through the panel discussion, I learned that HIV criminalization is not the straightforward criminalization of HIV status, but it does stigmatize and discriminate against people living with HIV (PLHIV).

HIV criminalization laws use someone's positive HIV status as justification for criminalizing otherwise legal behaviors or for applying greater punishment for illegal behavior to PLHIV. For example, laws in The United States, Singapore, Bermuda, and parts of Australia require PLWHIV to disclose their HIV status to a sexual partner prior to sex. At first glance these laws can seem innocuous or like a good idea - don’t we want to stop the spread of HIV? -  but in practice they are stigmatizing, discriminatory, and ignore scientific research.

In 2009, Nick Rhoades was sentenced to 25 years in jail because he did not disclose his positive HIV status to a sexual partner. Rhoades states that he had an undetectable viral load and wore a condom during the encounter, but he was prosecuted in Iowa, which at the time did not consider preventive measures when prosecuting. Disclosure laws, such as the one that Rhoades was sentenced under, ignore the scientific evidence around the transmission of HIV. Condoms, low viral loads, and treatment and prevention medication, such as Pre-exposure Prophylaxis (PrEP) and Post-exposure Prophylaxis (PEP), can reduce or eliminate the risk of transmitting HIV. Ignoring the effectiveness of these protective measures stigmatizes PLHIV by unduly painting them as inherently dangerous or dirty. 

Laws which give PLHIV an extra penalty for an already illegal behavior also ignore scientific evidence.  In May 2008, Willie Campbell, spit in the mouth and eyes of a Dallas police officer. For this act, he was sentenced to 35 years in prison for harassing a public servant with a deadly weapon. The deadly weapon in question was his saliva. This sentencing ignores that the current medical consensus places the risk of contracting HIV from biting, spitting, and scratching at zero. In his trial, Campbell was discriminated against by being prosecuted under a law that did not apply to him, due to his HIV status. 

Willie Campbell’s case is an example of how criminal laws can be broadly applied to PLHIV in an attempt to curb HIV exposure and transmission. These laws are not merely a product of the United States. A 2011 Report from The Joint United Nations Programme on HIV/AIDS (UNAIDS) noted that Finland, Italy, and the UK, along with at least 12 countries applied general criminal laws to PLHIV under the auspices of public health. Although many of these laws require intent to expose or transmit HIV in order to prosecute, they frequently do not define intent, which can lead to prosecution in cases where the defendant did not have intent to spread HIV. 

Many laws which criminalize HIV were set forward in an attempt to decrease the spread of HIV. Ironically, the Center for HIV Law and Policy found that their implementation can negatively impact efforts to prevent HIV transmission and to provide treatment, care and support services for people living with HIV/AIDS. Additionally, research from UCLA School of Law’s Williams Institute found that these laws disproportionately affect already marginalized communities, such as people of color and immigrants. Due to the negative impact of these laws, The Joint United Nations Programme on HIV/AIDS (UNAIDS), AIDS Watch, International AIDS Society,  and AIDS United have spoken out against the criminalization of HIV. 

However, laws which criminalize HIV are still all too common. The CDC found that, as of 2018, 26 states in the U.S. criminalize HIV exposure and HIV Justice Worldwide found that, as of July 2018, 112 countries have HIV-specific criminal laws or have used general criminal laws to prosecute people living with HIV for alleged HIV non-disclosure, perceived or potential HIV exposure, and/or non-intentional transmission of HIV. Additionally, since October 2015, in only the five countries with the highest know number of reported cases (i.e. United States, Belarus, Russia, Ukraine, and Canada) at least 600 people have been arrested, prosecuted, and/or incarcerated under laws HIV criminalization laws.

Unfortunately, according to a report by the Center for Health and Gender Equity, the Trump Administration's expanded Global Gag Order has exacerbated the issue. The Global Gag Order pulls U.S. funding from non-governmental agencies (NGOs) which provide legal abortion services, referrels to abortion providers, or advocates for abortion law reform - even if these actions are performed using the NGO’s own, non-U.S. funds. Under the Global Gag Order, NGO’s have to choose between providing comprehensive and accurate reproductive healthcare and receiving funding from the U.S, which can result in a significant reduction in funding for HIV/AIDS healthcare providers and educators around the world. This reduction of funds makes it harder to counteract the misinformation around HIV/AIDS which undergirds many of the laws that criminalize HIV. 

However, the news isn’t all bad. In the last year and a half, Colombia, Belarus, Malawi, and Mexico have all eliminated or weakened laws criminalizing HIV. Much of this progress is due to activists and advocates who have spent the time and energy to educate the public, government officials, and private entities about HIV criminalization. These activists remind us that, in many regions of the world, the issue of HIV/AIDS isn’t just a healthcare issue, it is also a social justice issue.