Decades Later, Lawmakers Still Don’t Grasp How HIV Is Transmitted

A staff member at an AIDS Service Center holds an OraQuick Advance Rapid HIV-1/2 Antibody Test kit. (Photo: Mike Segar/Reuters)

Advocates say laws criminalizing HIV and AIDS is outdated and ineffective in eliminating the diseases.

Sean Eckhardt is TakePart's editorial fellow. 

 Nov 18, 2016

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WEST HOLLYWOOD, Calif.—Living with HIV has its own challenges, but advocates say outdated laws mean the illness’ stigma is putting people living with HIV behind bars.

Thirty-three states have laws that criminalize knowingly exposing or transmitting HIV, according to the Centers for Disease Control and Prevention. Most of these laws took effect in the early years of the HIV and AIDS epidemic; advocates say they do not take modern advances in treatment into consideration and that many statutes criminalize actions—such as spitting, biting, or external exposure to bodily fluids—that pose almost zero risk of transmitting the disease. For example, in 2008, an HIV-positive homeless man in Texas was sentenced to 35 years in prison after a court ruled that spitting at a police officer meant he used a deadly weapon when harassing a public servant.


“We have had these awful laws on the books for almost 30 years. They made no sense then, and they make absolutely no sense in 2017,” said John Duran, a West Hollywood city councilmember who is HIV-positive. “We have case-by-case conversations where advocates and attorneys have to get in there and work to prevent unjust results from occurring.”

RELATED: Here’s Why HIV Rates Aren’t Going Down for People of Color

Duran spoke at a panel discussion Wednesday that featured members of Californians for HIV Criminalization Reform, a coalition of advocacy groups including the American Civil Liberties Union and Equality California. West Hollywood is a Los Angeles enclave beloved by the LGBT community, one where rainbow flags fly over many shops and the annual Pride Parade attracts thousands.

The Ryan White Comprehensive AIDS Resources Emergency Act, or the CARE Act, was signed into law in 1990. It provided states with money to fund treatments for the disease if they certified that their criminal laws supported prosecuting HIV-positive people who knowingly exposed another person. Such laws were often proposed with the intent of helping to prevent HIV transmission, but advocates point to research that shows the opposite may be true. Criminal laws have not been effective in reducing rates of HIV infection, according to a 2013 national study published in the American Journal of Public Health. The study also found that these laws may provide a disincentive for people to get tested, as most HIV-positive people are subject to prosecution only if they know they have the disease.

The National HIV/AIDS Strategy for the United States, released by the Obama administration in 2010, recommends state legislatures review their criminal statutes to ensure that they are consistent with promoting public health and current information on the disease.

“In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment,” the report says.


From 1988, when the laws were enacted, to 2014, ninety-five percent of all HIV-related criminal incidents in the state of California affected people engaged in or suspected of sex work. California is the only state to have comprehensive state-level data on who is affected by these laws, according to Ayako Miyashita, director of the Los Angeles HIV Law and Policy Project. She says trans women are particularly vulnerable because of the phenomenon known as “walking while trans,” in which trans women are suspected of prostitution by law enforcement when they are just going about their day.


“She may be engaged in everyday activities, meeting a friend, going out to dinner,” Miyashita said. “These are scenarios I’ve heard from women I’ve spoken to, and they’re still being picked up by law enforcement on suspected solicitation.”

A client places an oral swab into a solution to complete an HIV test. (Photo: Brendan Smialowski/Getty Images)

Women and minorities are disproportionately affected by these laws in California, according to a 2015 study by UCLA and the California HIV/AIDS Research Program. Black women and white women make up 4 percent and 3 percent, respectively, of the population of people diagnosed with HIV in California, but 21 percent and 15 percent of the population of people who had contact with the criminal justice system related to the disease. In comparison, white men make up 40 percent of the HIV-positive population in California, but only 16 percent had contact with the criminal justice system because of the disease.


“As a person who was born HIV-positive, any crimes I commit are that of any other person, not as a person with HIV,” Nestor Rogel, a member of Californians for HIV Criminalization Reform, said during the panel. “I don’t think anyone should be punished further than having the virus.”


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