In thirty-four states here in America, simply living with HIV can land you with a criminal record and, in some of those thirty-four states, can get you a place on the sex offender registry. Oh, and even better, in most cases, actually transmitting the virus to another person is not required to face criminal action! Simply not disclosing your status to a partner, regardless of whether you are undetectable and unable to transmit the virus, makes you a criminal!
How are we ever going to eradicate HIV if we continue to vilify and stigmatize those of us who are living with the virus with the threat of being locked up? The simple answer: we won’t.
In the 1980s, states began passing HIV-specific criminal exposure laws out of fear and lack of information regarding HIV transmission. Many of the penalties were given for failing to disclose status to partners, and for exposing others to the virus, and as I mentioned above, none required proof that transmission had occurred. Ok, so that was forty years ago. Why haven’t the laws kept pace with the science then? Why is it that many of these laws show a lack of understanding and reflect false assumptions, such as criminalizing biting or spitting by a person living with HIV, even though you cannot transmit HIV through saliva?
Where is the disconnect? Why haven’t the states been able to keep up with the science? Why are people still being thrown in prison when there is absolutely ZERO risk of transmission of HIV if you are healthy and undetectable? And why does the law and society as a whole still demand that I, a healthy, undetectable person living with HIV, unable to transmit the virus to a partner sexually, MUST disclose my medical history upfront? Why don’t we demand that people with diabetes and heart disease also share their medical history with someone before they jump into bed? Is there not a risk of them having a blood sugar spike episode or a heart attack in the throes of wild, raunchy sex? Surely witnessing a partner go into full cardiac arrest while making whoopie would leave deep psychological issues for the other person, which one could argue is far more “damaging” than the nonexistent risk I pose just because I’m living with HIV?
And let’s not gloss over the fact that many of these laws disproportionately affect marginalized populations such as communities of color, transgender women, and sex workers. We already know that these populations are already more likely to be adversely affected by social determinants of health and racial inequalities. A report on Tennessee by the Williams Institute shows that as of 2022, Black women are 290 times more likely to be on the sex offender registry for an HIV conviction than white men.
Then there’s the whole burden of proof issue. Unless I’m having sexual partners sign a written statement or making a video in which they acknowledge and understand that I have disclosed my HIV status to them, it comes down to he said / he said or he said/ she said, or they said / they said. Because nothing quite gets the mood even more steamy and sexy than asking someone to scribble their name on a piece of paper saying they waive all rights to report you to authorities moving forward. By the way, have I mentioned that if you’re undetectable, there is NO risk of HIV transmission to a partner?!
Right now, there are people sitting in prisons and living as registered sex offenders because a partner decided after the fact to report them. All it takes is a messy breakup or a disgruntled ex to walk into a police station and say, “Oh yeah, they never said anything about their HIV status,” and just like that, a life is ruined. Simply having sex with someone, even if that person is a long-term committed partner at the time, even living together, can land us with years of prison time as convicted felons and sex offenders. Once you’ve been convicted, it never goes away.
Study after study and expert after expert all show that these laws do not prevent transmissions. According to the American Psychological Association, these laws can actually increase “risky” behavior when it comes to HIV and, therefore, do more harm than good. When we criminalize HIV, the evidence shows that people are afraid they will be arrested if they test positive. So, guess what, they don’t test. And if they don’t test, we can’t get them into treatment and that right there is one of the biggest barriers to ending the epidemic. Plain and simple, these laws are stopping the fight to end HIV globally by 2030.
I spend a lot of time on television, through my platform @PlusLifeMedia, and whenever and whenever else I am given the opportunity, telling people that an HIV diagnosis is just that, it’s not the end of your life like so many people believe. I do everything in my power to encourage people to get tested, to know their status, and if they find out that they’re HIV positive, to get on treatment and get back to loving life. Thanks to the science and amazing people who have dedicated their lives to fighting this virus, we can live absolutely long and healthy lives just like everyone else. Except, we can’t. Because of these laws that exist, we’re not being treated just like everyone else. We are unfairly and unscientifically targeted and expected to disclose our medical history to avoid the potential of criminal prosecution. Someone reading this right now who was recently diagnosed with HIV may be finding out for the first time that these laws exist. How are we supposed to feel comfortable about engaging in normal, healthy sexual behavior and sexual relationships knowing about stigmatizing, unscientifically backed laws? What’s “normal” about that?
As my good friend, fellow activist, and one-time registered sex offender Lashanda Salinas, who spent time locked up because her partner claimed she didn’t disclose her status, says, “Current scientific and medical evidence should inform state lawmakers and practices that criminalize actions taken by people living with HIV. States should update and repeal outdated laws and policies.” She is 100% correct. We need to do more to educate legislators on HIV and HIV criminalization.
It’s not all doom and gloom, however. There has been some progress, and I guess something is better than nothing. There are some states that have been modernizing their HIV criminalization laws. Since 2014, thirteen states have instituted changes, but it’s not enough. Until we see a complete repeal of HIV-specific laws, including eliminating sex offender registration for those convicted under revised laws, eliminating the bizarre sentence enhancements for sex workers living with HIV, and the idiotic lack of evidence or proof to show the intent of transmission, we will simply never get on top of this.
If there is a silver lining to any of this, thanks to the efforts of organizations like The Elizabeth Taylor AIDS Foundation, The Sero Project, and others, the HIV decriminalization movement now means that if someone is facing prosecution or coming out of prison, there is a network of people doing the work to end these laws. There are people who can stand up for others and are willing to be examples.
It’s 2024, not 1984. No one should be made to feel less than or worried about engaging in consensual legal sexual activity because of their HIV status. Not until we throw out these outdated laws can those of us living with HIV truly feel that we are just like everyone else. Until then, I guess having HIV is a crime.
