Criminalization of HIV & AIDS

THE CRIMINALIZATION OF HIV/AIDS AN ANALYSIS BY SAVANNAH BRIZENDINE

HIVAWARENESSPROJECT.ORG

CJC 345 002

This is a Social Justice Awareness Campaign project for CJC 345 002, Social Justice and Crime, taught by Dr. Michael Schumacher in the spring of 2025. The purpose of the project is to research a specific current social justice issue and creatively present it.

sbrizendine@luc.edu

2

hivawarenessproject.org

Loyola University Chicago

Loyola University Chicago is a Jesuit university whose mission statement emphasizes care for others through learning, justice, and faith.

TABLE OF CONTENTS HISTORY OF HIV

01

02

What is HIV/AIDS? Defining the disease, its symptoms, and its transmission

History of HIV Exploring HIV over the decades in the U.S

CRIMINALIZATION OF HIV General Criminalization

03

04

05

Investigating the purpose behind criminalizing this disease

Case Studies Comparing criminalization laws in nine states

Effects Researching the consequences of criminalization laws

CAUSES & CORRECTIONS Moving Forward

06

Considering new ways to combat a public health crisis

3

WHAT IS “a virus that attacks cells that help the body fight infection,

SYMPTOMS1 STAGE 1 fever, chills, rash, night sweats, muscle ache, sore throat, fatigue STAGE 2 continued symptoms from Stage 1 or become asymptomatic STAGE 3- AIDS neurologic disorders, pneumonia, swollen lymph glands, extreme tiredness, rapid weight loss

4

HIV/AIDS?

making a person more vulnerable to other infections and diseases” 1

MODES OF TRANSMISSION1

Likely vaginal or anal sex with a person living with HIV, sharing needles with a person living with HIV Unlikely being exposed through needle injury, exposure through pregnancy or breastfeeding Rare oral sex, blood transfusions or organ donations, being bitten by someone living with HIV, saliva

5

*key points only, for a full timeline visit www.hiv.gov

HIV/AIDS IN THE UNITED STATES* 1981

Two immunosuppressive diseases appeared in New York and Los Angeles: PCP and Kaposi’s Sarcoma2 Discovery of transmission through blood2

1982

Once it spreads beyond solitary cases, the public panics2

1985

Testing for AIDS becomes available2

CDC forms America Responds to AIDS (ARTA)2

1987

Testing potential vaccine on human subjects begins 3

1990

1994

1997

...

2025 6

FDA approves AZT as a treatment for pediatric AIDS3

AIDS is recognized as the leading cause of death in Americans who are 25-44 years old 3

Use of HAART (highly active antiretroviral therapy) leads to a 49% decrease in AIDSrelated deaths3 There are about 1.1 million people living with AIDS, with 38,000 new cases diagnosed each year2

Ryan White was barred from his school after testing positive for HIV as a result of a blood transfusion2

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ENACTMENT OF STATE LAWS THAT CRIMINALIZE POTENTIAL HIV EXPOSURE IN 33 STATES—1986–2011***4

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TURNING TO LAWS HIV criminalization laws served to assuage fears about contraction of HIV from the general public. 4 24 states require a person with HIV to disclose their status to their sexual partner(s) 14 states require disclosure to needle-sharing partners 25 states criminalize acts that pose little to no threat of transmission

SENTENCING The United States is a worldwide leader in the number of citizens who are sentenced under HIV criminalization laws.5 18 states impose sentences up to 10 years, 7 states impose 11-20 years, 5 impose 20+ years.4

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STATES WITH HIV CRIMIN MAY REQUIRE SEX

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ALIZATION LAWS THAT OFFENDER REGISTRY

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STATES WITH HIV CRIMINALIZATION LAWS THAT MAY REQUIRE SEX OFFENDER REGISTRY

(2024). [Ohio state flag]. [Photograph]. Wikipedia. https://commons.wikimedia.org/wiki/File:Ohio_state_flag.png

OHIO

QUICK FACTS*

Requirement to disclose HIV status to sexual partner(s) before engaging in any sexual activity

8.8 cases per 100,000 residents 880 cases total in the state 81.8% of people with new diagnoses received medical treatment *as of 2022 survey results7

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POLICIES

6

falls under felonious assault statute can result in up to 8 years of imprisonment requirement to register as a sex offender

Enhanced penalties for some actions: solicitation or intention to solicit with a positive HIV status exposing others to bodily fluids

Spit can be considered a deadly weapon felonious assault statute can be used to prosecute people with HIV who spit at others

STATES WITH HIV CRIMINALIZATION LAWS THAT MAY REQUIRE SEX OFFENDER REGISTRY

LOUISIANA

(2010). [Louisiana state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Louisiana.svg

QUICK FACTS*

POLICIES

6

Consensual sexual activities can be prosecuted or result in imprisonment

17.3 cases per 100,000 residents

State vs Turner: courts equated a woman engaging in sexual activities knowing about her HIV status is like “pointing a gun to [the victims’] head[s] and pulling the trigger”

430 cases total in the state

Exposure to bodily fluids can result in imprisonment

79% of people with new diagnoses received medical treatment

10 years for non-emergency personnel 11 years for emergency personnel Violation of Intentional Exposure to AIDS Virus statute results in sex offender registration Enhanced sentences with positive HIV status in cases of solicitation

*as of 2022 survey results7 13

STATES WITH NO HIV SPECIFIC COMMUNICABLE DISEASE

14

LAWS BUT THAT HAVE LAWS THAT CAN PROSECUTE

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STATES WITH NO HIV SPECIFIC LAWS BUT HAVE COMMUNICABLE DISEASE LAWS THAT CAN PROSECUTE

(2025). [New York state flag]. [Photograph]. Wikipedia. https://commons.wikimedia.org/wiki/File:Flag_of_New_York.svg

NEW YORK

QUICK FACTS* 9.8 cases per 100,000 residents 1700 cases total in the state 86.4% of people with new diagnoses received medical treatment *as of 2022 survey results7

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POLICIES

6

Engaging in sexual activities while living with a communicable disease can result in up to one year in prison

Under general laws, persons living with HIV could be indefinitely civilly committed for the protection of the public

Criminal or civil penalties can be imposed on a person who violates general public health laws

The bodily fluids of persons living with HIV are not considered to be deadly weapons

STATES WITH NO HIV SPECIFIC LAWS BUT HAVE COMMUNICABLE DISEASE LAWS THAT CAN PROSECUTE

OREGON

(2025). [Oregon state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Oregon.svg

QUICK FACTS*

POLICIES

6

Willfully transmitting a communicable disease like HIV is considered a criminal offense

Oregon provided no data to AHEAD for this HIV/AIDS survey

Persons living with HIV can be prosecuted for exposing others to the disease under the following charges: attempted murder assault reckless endangerment

If someone is suspected of having HIV but has not been tested, it is illegal for the suspected person to refuse testing and treatment

*as of 2022 survey results7 17

STATES WITH HIV CRIMINALIZATION LAWS

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STATES WITH HIV CRIMINALIZATION LAWS

MARYLAND

(2023). [Maryland state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Maryland.svg

QUICK FACTS*

POLICIES

6

Exposing someone to HIV, even in cases of consensual sex or breastfeeding, is a misdemeanor

10.6 cases per 100,000 residents 550 cases total in the state 85.3% of people with new diagnoses received medical treatment

Persons living with HIV who engage in conduct that poses a risk of transmitting the disease can be charged with reckless endangerment or attempted murder

Persons living with communicable diseases, not just HIV, are subject to misdemeanor violations for certain activities

*as of 2022 survey results7 19

STATES WITH HIV CRIMINALIZATION LAWS

OKLAHOMA

(2022). [Oklahoma state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Oklahoma.svg

QUICK FACTS* 11.4 cases per 100,000 residents 380 cases total in the state 80.7% of people with new diagnoses received medical treatment *as of 2022 survey results7 20

POLICIES

6

Before engaging in any sexual behaviors, a person living with HIV must disclose their status to their sexual partner(s)

Under the law, a person living with HIV can be prosecuted for spitting or biting

Refusing testing or treatment for STIs is illegal

Engagement or attempts to engage in sex work can result in enhanced sentencing for those acts

STATES WITH HIV CRIMINALIZATION LAWS

FLORIDA

(2022). [Florida state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Florida_state_flag.png

QUICK FACTS*

POLICIES

6

Failing to disclose HIV status to any sexual partner is a felony

16.7 cases per 100,000 residents 3200 cases total in the state 82.8% of people with new diagnoses received medical treatment

Engaging in prostitution with knowledge of one’s positive HIV status is a felony HIV, as a disease, is considered a deadly weapon

Sentencing enhancements for specific acts exist even if the person does not know their HIV status This has been used to justify the false theory that only gay men spread HIV, insinuating that because they are gay men they should assume they are HIV positive In any civil or criminal circumstance where bodily fluids are exchanged, a person must be tested for HIV

*as of 2022 survey results7 21

STATES WITH HIV SPECIFIC FOR SEX-RELATED

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SENTENCING ENHANCEMENTS CONVICTIONS

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STATES WITH HIV SPECIFIC SENTENCING ENHANCEMENTS FOR SEX-RELATED CONVICTIONS

(2022). [California state flag]. [Photograph]. Wikipedia. https://commons.wikimedia.org/wiki/File:Flag_of_California.png

CALIFORNIA

QUICK FACTS*

Prosecution can occur for intent to transmit HIV/AIDS to another person

12.5 cases per 100,000 residents 4100 cases total in the state 82.1% of people with new diagnoses received medical treatment *as of 2022 survey results7

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POLICIES

6

Persons with HIV who are convicted of sex crimes may receive enhanced sentencing or aggravated assault charges

In cases where the life or health of others are endangered, persons living with HIV can be convicted under general laws

When convicted of certain sex crimes, convicted persons are required to be tested for HIV/AIDS

STATES WITH HIV SPECIFIC SENTENCING ENHANCEMENTS FOR SEX-RELATED CONVICTIONS

WISCONSIN

(2022). [Wisconsin state flag]. [Photograph]. Wikipedia. https://en.m.wikipedia.org/wiki/File:Flag_of_Wisconsin.svg

QUICK FACTS*

POLICIES

6

Prosecution of persons living with HIV has occurred under general law

4.6 cases per 100,000 residents 230 cases total in the state

Maximum sentencing will be pursued in cases of potential transmission of HIV even if the sex worker(s) involved are HIV negative

Willful disobedience of a health workers’ recommendation can result in legal punishment

90.4% of people with new diagnoses received medical treatment *as of 2022 survey results7 25

WHO DO CRIMINALIZATION LAWS AFFECT?

MARGINALIZED COMMUNITIES5 Criminalization is likely to increase the stigma surrounding HIV and inequalities in the most affected communities which are often marginalized.

African American communities make up 44% of people living with HIV but 14% of U.S. population.

Latino communities are 3 times as likely as white communities to live with HIV. Men who have sex with men (MSM) constitute 2% of U.S. population but 61% of new infections.

Transgender communities have an HIV rate 4 times the national average.

More than 1 in 4 transgender women of color live with HIV.

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OVERREPRESENTATION OF BLACK FEMALE SEX WORKERS IN HIV ARREST DATA

OVERREPRESENTATION OF BLACK AMERICANS IN HIV ARREST DATA

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CONSEQUENCES OF CRIMINALIZATION WHAT DOES IT ACCOMPLISH? Behavioral Influence: 8 Findings suggest that criminal law did not influence the behaviors considered risky for people living with HIV. Two important points of fact include that once a person knows about their HIV they reduce risk behaviors, and a majority of people who transmit HIV do not know about their status.

Studies found that people who had correct or incorrect knowledge about the law’s provisions surrounding safe sex practices had about the same rate of risk behaviors.

No supporting evidence was found that the law was harming public health.

Most respondents to this survey followed safe sex practices because they felt it was moral.

Mitigation Tactics: 4 Many laws do not take into account prevention or mitigation techniques like PrEP, ART, or condom use.

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DOMESTIC VIOLENCE CONCERNS Unbalanced power dynamics in a relationship may prevent the disclosure of HIV status.

Having an abusive partner may make it difficult to have a conversation about HIV status, meaning a person living with HIV who is in an abusive relationship is susceptible to being charged under criminal laws since disclosure may pose a safety risk. Trans women are at a significant risk of this.4,5

FUTURE DIRECTIONS FOR CHANGE4 There is a lack of evidence that shows that specific HIV criminalization laws work Limit the current laws to only severe sex crimes (rape, child SA) with intent to harm and high transmission risk Reliance on only general criminal laws for cases of intentional transmission

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CONTENT REFERENCES

(IN ORDER OF APPEARANCE)

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[1]

(2023, July 26). What Are HIV and AIDS? HIV.gov. https://www.hiv.gov/hiv-basics/overview/about-hiv-andaids/what-are-hiv-and-aids

[2]

Centers for Disease Control and Prevention (2024, July 8). AIDS Epidemic in the United States, 1981-early 1990s.

Centers for Disease Control and Prevention. https://www.cdc.gov/museum/online/story-ofcdc/aids/index.html

[3]

(2024). A Timeline of HIV and AIDS. HIV.gov. https://www.hiv.gov/hiv-basics/overview/history/hiv-andaids-timeline#year-1982

[4]

Stan Lehman, J., Carr, M., Nichol, A., Ruisanchez, A., Knight, D., Langford, A., Gray, S., & Mermin, J. (2014).

Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States. AIDS and Behavior, 18(1), 997-1006. https://doi.org/10.1007/s10461-014-0724-0

[5]

Perone, A. (2013). From Punitive to Proactive: An Alternative Approach for Responding to HIV Criminalization that Departs from Penalizing Marginalized Communities. Hastings Women’s Law Journal, 24(2), 363406.https://heinonline.org/HOL/Page? handle=hein.journals/haswo24&id=399&collection=journa ls&index=

[6]

Center for HIV Law and Policy (2024). HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice (3rd ed.). Center for HIV Law and Policy. https://www.hivlawandpolicy.org/sites/default/files/2024 07/HIV%20Criminalization%20in%20the%20U.S.%20A%20S ourcebook%20on%20State%20Fed%20HIV%20Criminal%2 0Law%20and%20Practice%20Jan24.pdf

[7]

U.S. Department of Health & Human Services (2022).

America’s HIV Epidemic Analysis Dashboard (AHEAD).

U.S. Department of Health & Human Services. https://ahead.hiv.gov/

[8]

Burris, S., Beletsky, L., Burleson, J., Case, P., & Lazzarini, Z. (2007). Do Criminal Laws Influence HIV Risk Behavior?

An Empirical Trial. Arizona State Law Journal 39(2), 467520. https://heinonline.org/HOL/Page? handle=hein.journals/arzjl39&id=3&collection=journals&i ndex=

“IT’S BAD ENOUGH PEOPLE ARE DYING OF AIDS, BUT NO ONE SHOULD DIE OF IGNORANCE” -ELIZABETH TAYLOR 31

PHOTOGRAPHIC & FIGURE REFERENCES

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FRONT COVER

McGann, C. (1988). [Protestors in front of the FDA] [Photograph]. The New Yorker. https://www.newyorker.com/magazine/2021/06/14/how-actup-changed-america

PAGE 2

Vlamis, S. (1983). [Protestors at pride in New York] [Photograph]. National Geographic. https://www.nationalgeographic.com/premium/article/thedenver-principles-lgbtq-rights-hiv-aids

PAGE 3

Krulwich, S. [Larry Kramer standing in front of books] [Photograph]. NBC. https://www.nbcnews.com/feature/nbcout/aids-activist-larry-kramer-stigma-patient-zero-mythn676841

PAGES 4-5

National Institute of Allergy and Infectious Diseases, NIH. [HIV virus depiction] [Photograph]. HHMI. https://www.hhmi.org/beautifulbiology/scroll-and-tell/humanimmunodeficiency-virus-hiv

PAGE 7

Indiana State Board of Health (1985). [Ryan White HIV educational poster] [Photograph]. CDC. https://www.cdc.gov/museum/online/story-ofcdc/aids/index.html

PAGE 8

Stan Lehman, J., Carr, M., Nichol, A., Ruisanchez, A., Knight, D., Langford, A., Gray, S., & Mermin, J. (2014). Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States. AIDS and Behavior, 18(1), 997-1006. https://doi.org/10.1007/s10461-0140724-0

PAGE 9

Alper, B. (1983). [Protestors with banner] [Photograph]. PBS. https://www.pbs.org/newshour/science/america-hiv-outbreakorigins-nyc-gaetan-dugas

PAGES 10-11

Bordowitz, G. (1988). [Greg Bordowitz addressing crowd at ACT UP rally] [Photograph]. artnet. https://news.artnet.com/art-world/gregg-bordowitz-interviewps1-1978625

STATE FLAGS

CITATIONS FOUND ON SPECIFIC PAGES

PAGES 14-15

Larson, F. (1990). [Protestors on Market Street] [Photograph].

San Francisco Chronicle. https://www.sfchronicle.com/bayarea/article/world-aids-dayphotos-17622114.php

PAGE 18

Novak, G. (1990). [Protestor in doctor’s coat] [Photograph].

Chicago Magazine. https://www.chicagomag.com/chicagomagazine/may-2020/oral-history-act-up-chicago-aids/

PAGES 22-23

Scott Applewhite, J. (1988). [Demonstrators in front of the FDA] [Photograph]. NPR. https://www.npr.org/sections/healthshots/2019/02/09/689924838/how-to-demand-a-medicalbreakthrough-lessons-from-the-aids-fight

PAGE 26

NY Historical Society (1988). [ACT UP members at Pride] [Photograph]. The Guardian. https://www.theguardian.com/society/2023/oct/11/act-up-hivaids-1988-fda-protest

PAGE 27

The Williams Institute (2022). [Race and Criminalization; Sex Work and Criminalization] [Figures]. Williams Institute. https://williamsinstitute.law.ucla.edu/visualization/hivcriminalization/

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Tannenbaum, A. (1994). [ACT UP protest] [Photograph]. CNN. https://www.cnn.com/2020/04/05/politics/coronavirus-aidshiv-sarah-schulman/index.html

BACK COVER

Greer, P. (1988). [Members of ACT UP L.A. in front of the AMA] [Photograph]. Chicago Tribune. https://www.chicagomag.com/chicago-magazine/may2020/oral-history-act-up-chicago-aids/

“HIV DOES NOT MAKE PEOPLE DANGEROUS TO KNOW. YOU CAN SHAKE THEIR HANDS AND GIVE THEM A HUG. HEAVEN KNOWS THEY NEED IT.” -PRINCESS DIANA

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