HIV Should Not Be a Crime
We’ve come a long way from the worst years of the HIV/AIDS epidemic. So why do more than two dozen states make it a potential crime for an HIV-positive person to have sex?
That’s right. Some states could put a person in jail for having consensual sex even if HIV was not transmitted.
If you’re Black, you’re already nearly six times more likely to be incarcerated than if you’re White. HIV criminalization laws give us yet another thing to worry about.
Hundreds have been prosecuted in states that make it a crime for people with HIV to have sex without first sharing their status. That’s even if a condom is used, or if their viral load is too low to transmit HIV.
There are even state laws that criminalize biting and spitting by people with HIV, even though experts have known for a long time that you can’t get HIV that way.
Why would a state treat someone with HIV like a criminal—and reinforce non-truths, shame, secrecy and stigma?
Many of these laws were passed in the 1980s and 1990s, when there was less understanding of how HIV is transmitted, and plenty of panic and ignorance.
But these laws are still around. As of 2018:
Some states impose harsher sentences just because the perpetrator of a crime had HIV.
Even in states with no HIV criminalization laws, people with HIV can be unfairly targeted with general criminal statutes such as reckless endangerment.
Now we know that people on effective treatments not only live normal lifespans, but also cannot transmit the virus. Unfortunately, the criminal justice system simply hasn’t caught up.
Why HIV criminalization laws are wrong
A criminal legal response to any health condition should be the last resort, not the first option.
They ignore the effectiveness of treatment. If you take your medication as prescribed and you have less than 200 copies of HIV per milliliter of blood, you can’t give anyone HIV through sex.
They don’t factor in prevention. Wearing a condom cuts down on the risk of HIV transmission. There are also other tools today for preventing HIV, such as pre-exposure prophylaxis (PrEP) and post-exposure prophylaxis (PEP).
They violate privacy. There are many benefits to talking about HIV with your partner. Doing so can build trust and increase intimacy. But there can also be downsides to sharing this information, and who and when you tell is your business and should be on your own terms.
Obama got it right
There are signs that these laws won’t be around forever. The Obama Administration specifically campaigned against HIV criminalization laws, pointing out that it’s rare for someone to intentionally give another person HIV and that the laws ignore everything we know scientifically about how HIV is transmitted.
They also noted that such laws often make people less likely to share their status because they are afraid of the discrimination they may face.
Though the Obama Administration got it, we still have a long way to go.
Lambda Legal and the Black AIDS Institute are just two of many organizations working to end HIV criminalization laws. But until that day comes:
- If you’re HIV-negative, take responsibility for your own sexual health and don’t look to the police or prosecutors to “fix” the choices you made. If the sex was consensual, the responsibility for safer sex is a shared one.
- If HIV-positive, share your status when appropriate. Only you can decide when it is safe and advisable to disclose this private medical information, but doing so should make it more difficult for a sexual partner to sustain a criminal charge against you. Be candid when possible; keep yourself safe always.
- Consider collecting proof that you shared your status. When things are good in a relationship, we don’t think about the possibility of it taking a downturn in the future, but you want to be prepared if it does.
For more information, visit blackaids.org.
For more about HIV and your legal rights, or if you’ve been discriminated against because of HIV status, visit lambdalegal.org/help.