Muted progress: 40 years after the start of the AIDS epidemic, HIV remains criminalized

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In 1981, when UCLA physicians reported the first cases of what was described as "newly acquired immunodeficiency" — the disease now known as AIDS — contracting the virus was a virtual death sentence. Over the next four decades, research into the disease has made major advances that have thankfully made it possible to live a healthy life with HIV.

However, as much as the medical treatment has progressed, laws that criminalize a person based on their HIV-positive status remain on the books across the United States and continue to be enforced in ways that discriminate, said Nathan Cisneros, the primary HIV criminalization analyst at the Williams Institute at UCLA School of Law.

Cisneros defines HIV criminalization as laws that categorize otherwise legal conduct as crimes, or that increase punishments based solely on a person’s HIV-positive status. In his research, Cisneros applies the lens of quantitative social science to the impact of HIV criminalization laws on people living with HIV, or PLWH.

For example, in Tennessee prostitution is a misdemeanor offense if a person is HIV-negative, but a felony if the person knows that they are positive. Moreover, Tennessee’s HIV criminal law requires mandatory sex offender registry following a conviction, and since 2010 has been classified as a "violent sex offense", so registration is for life.

Cisneros said these outdated laws that don’t reflect medical advances available today that dramatically reduce and often eliminate the likelihood of HIV transmission, are still enforced at a steady rate in more than 30 states, and not surprisingly disproportionately affect people of color.

This is dangerous, he said, because HIV criminalization can discourage people from getting tested, and getting tested and entering treatment are the most important steps in combating the HIV epidemic in the United States.

This Worlds AIDS Day, during a year that has seen both the 40th anniversary of the AIDS epidemic and a racial justice reckoning, UCLA Newsroom spoke with Cisneros about the state of HIV criminalization and where we go from here.

Why do you think there is little public awareness around HIV criminalization?

Many people are not aware that these laws still exist. Others assume, based on press reports, that the laws are seldom enforced. Our work shows that enforcement continues today, and that there has not been a decline in the past two decades. There is also resistance from people who think about "What if" scenarios. What if someone intentionally tries to harm someone else? But we already have laws that punish people who cause intentional harm to others. We don’t need disease-specific laws for that. And HIV criminal laws are often written in such a way that no harm needs to occur for a person living with HIV to be convicted and sentenced to prison for years. Indeed, some laws criminalize conduct that could never result in transmission, let alone situations in which a person is in treatment and therefore cannot transmit.

What are some of the ways that HIV criminalization discriminates?

If a person’s HIV status is negative and that person engages in consenting sexual contact with another person in Ohio, that is perfectly legal. However, if a person knows that their status is positive, they can be prosecuted for a felony offense. Ohio’s HIV criminal law does not require that actual transmission take place, nor the intent to transmit, or even the possibility of transmission.

The burden of the America’s HIV epidemic falls unequally on different segments of society. Sexual and gender minorities are especially vulnerable. So are persons of color, regardless of sexual orientation or gender identity. For example, Black Americans were 13% of the U.S. population in 2019, but 40% of the population of people living with HIV, or PLWH. In contrast, non-Hispanic white Americans were 60% of the U.S. population, but 29% of the population of PLWH. Black men are 5.5 times more likely to be living with HIV than their non-Hispanic white counterparts; Black women are 15.9 times more likely to be living with HIV than their non-Hispanic white counterparts.

Is there an intersection between HIV criminalization and the criminalization of Black Americans? What does that look like?

Black men are 5.5% of Missouri’s population, but over 50% of HIV-related arrests and convictions in that state. In Ohio, Black men are 6.1% of the state’s population, but 61.5% of the state’s arrests for "felonious assault." In Tennessee, Black women are 8.8% of the state’s population, but 56.8% of the people in the state’s sex offender registry for HIV-related prostitution convictions where they are classified as a "violent sex offender." In Virginia, which just this year reformed its HIV-related criminal law, Black men are 9.1% of the state’s population, but 59% of people arrested for HIV-related offenses.

Likewise, the burden of police enforcement falls disproportionately on Black Americans. The Williams Institute has analyzed data from 10 states with HIV criminal laws. Over and over we see that Black Americans are more likely to be arrested, and more likely to be convicted of HIV-related offenses.

Recent research from the Williams Institute on HIV-specific criminal laws reveal their widespread enforcement and disparate impact on women and sex workers. What elements do you think are at the root of this disparity?

Many states have HIV-related prostitution laws. The result is that women in general, and Black women in particular, are overrepresented in HIV criminal enforcement. This form of HIV criminalization can result in a vicious cycle: criminalization makes it harder to find stable work and housing, and can result in sex offender registration. Each of these alone makes it hard to find a job, and combined can make it nearly impossible. Even without a conviction, contact with the criminal system can have long-term effects.

I think the disparities we see in HIV criminalization are a reflection of this broader pattern in America. The added wrinkle with HIV criminalization is that the criminal system compounds stigmatization by targeting people living with HIV for special sanctions.

How is work at the Williams Institute shedding light on the disparities and misconceptions of those laws?

We are in a unique position — a nonpartisan research institute embedded in a first-class law school with a longtime commitment to issues of racial justice and gender and sexuality — to analyze HIV criminalization so that policy makers, advocates and other stakeholders can make informed decisions about whether and how to update their HIV criminal laws.

Most of these laws were passed at the height of the AIDS crisis in the late 1980s and early 1990s, before we had safe and effective treatments for HIV. Many of these laws were motivated by fear and homophobia. We know now that HIV criminalization does not reduce transmission, but that it does stigmatize already stigmatized groups in American society. In 2021 alone, four states modernized or repealed their HIV criminal laws, and several more state legislatures are expected to introduce bills in the coming year. We hope our research will be part of the conversation in statehouses now and in the future.

Nathan Cisneros will be participating in a panel discussion on Wednesday, Dec. 1, about HIV criminalization and race. The Williams Institute at UCLA School of Law and the African American Policy Forum will gather other leading thinkers and advocates from the international HIV/AIDS community to discuss 40 years of the HIV/AIDS pandemic and strategies to approach HIV as a public health issue rather than a crime.

Learn more and RSVP for the event.

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