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Our vision: a world where our communities are no longer subject to over-policing, surveillance, and brutality at the hands of law enforcement, and where those with a history of interaction with the criminal justice system have full rights and dignity.
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What Is HIV Criminalization?

HIV criminalization refers to the use of laws and policies to target and punish people based on their HIV positive status. As of January 2019, 34 states and 2 territories have specific laws that criminalize the alleged potential exposure, non-disclosure, or potential transmission of HIV. Most of these misinformed laws were enacted in the 1980s but are still used regularly against people living with HIV. They create criminal penalties for oral, anal, or vaginal sex, exposure to saliva or blood, sharing needles, donating organs, semen, blood, or breastmilk (including breastfeeding). Many of these acts are scientifically proven not to transmit HIV, including sex with an undetectable viral load or with a condom.

Other related laws include harsher sentences for people living with HIV charged under laws criminalizing sex work and drug use. See our 2019 Harm Reduction factsheet for more detail about this. People living with HIV have also been punished under laws that criminalize exposure or transmission of sexually transmitted infections (STIs). Even in states without HIV-specific criminal laws, people have been prosecuted for HIV exposure and transmission under general criminal laws including reckless endangerment, assault, bioterrorism, homicide, and attempted homicide.

These laws are stigmatizing and discriminatory, targeting people based on health status for acts that would not otherwise be illegal or so harshly penalized. Unlike other criminal laws, most HIV criminalization laws do not require transmission nor proof of an intent to harm: guilt is assumed just based on the person knowing their HIV positive status. A study by the Williams Institute of HIV criminalization in California revealed that out of 385 incidents of one or more HIV-specific charge being brought against a person living with HIV, every single incident resulted in a conviction for at least one charge.

Current State of Play: HIV Criminalization, Policing, Gender and Race

Like other parts of the criminal justice system, enforcement of HIV criminalization laws is rooted deeply in racial biases. The Williams Institute reported that Black and Latinx people made up 67% of those who encountered the California criminal justice system related to HIV laws but made up only 51% of people living with HIV in the state . Immigrants charged under HIV criminalization laws may face police harassment, detention and deportation.

Studies have shown that HIV criminalization laws disproportionately target and harm women of color, women who do sex work, and women of trans experience. HIV criminalization laws can increase vulnerability to law enforcement and from intimate partners, who may threaten prosecution to coerce them into staying in an unhealthy or unsafe relationship. Those in abusive relationships may be faced with a Sophie’s choice between violence if they disclose their HIV status or arrest if they do not disclose.

Consequences of being charged under an HIV criminalization law are severe, even if not convicted, and persist long after a person leaves the criminal justice system. The long-term harm of experiencing HIV criminalization can impact every aspect of the person’s life, including:

A criminal record with HIV-related changes and misrepresentation in the media can make a survivors’ status public, jeopardize their safety, and lead to feelings of dehumanization, isolation, and humiliation.

Felony sentences can mean losing access to public benefits, like housing, nutrition assistance, and financial aid for higher education, that are vital to preventing HIV and keeping people living with HIV in care. Moreover, many employers require applicants to report felony convictions on job applications, forcing people living with HIV to disclose their HIV status and risking employment discrimination.

People living with HIV who are convicted of felonies can lose their right to vote. Nearly half of the U.S. states prohibit people convicted of felonies from voting until they are discharged from parole or probation.

Criminalized parents living with HIV face greater barriers to regaining custody of their children.

In addition, 6 states require registration as a sex offender as part of the punishment under HIV-specific laws, creating additional concerns related to parenting, employment, privacy, and safety.

What Can Be Done?

At the federal level:

This legislation would incentivize and provide guidance to help over 30 states and U.S. territories follow in the footsteps of Iowa, Colorado and California in modernizing their discriminatory HIV- specific laws, bringing them in line with contemporary understanding of HIV transmission.

This Act would provide grants to states to help them eliminate the use of money bail as a requirement of pre-trial release in criminal cases. Currently, people can be held up to a year without ever being charged of a crime simply because they cannot afford to pay for bail. This practice unjustly punishes low-income individuals, as it prolongs separation from family, community, work, school and other life responsibilities. For people with HIV, pretrial detainment may cause a disruption in critical care and treatment.

Immigrants who come into contact with the criminal justice system are often denied essential health care access and legal services. Additionally, they can be detained indefinitely, which means people living with HIV may be completely unable to access care and medications. We oppose any expansion of ICE for the purposes of policing immigrant communities and the sharing of local law enforcement data with any immigration authorities.

At the state level:

These laws punish the alleged non-disclosure, exposure and transmission of HIV, which perpetuate HIV-related stigma and impede the goals of public health of testing, treatment and prevention. Legal reforms should stop treating HIV differently than other chronic health conditions, promote shared sexual decision-making, protect all people living with HIV regardless of viral load, and support the right to disclose when it feels safe. States should eliminate laws that impose sentence enhancements for sex workers diagnosed with HIV or people who use drugs living with HIV.

Several cities have a “condoms as evidence” policy, which allows the possession of condoms to be used as the basis for a solicitation charge or for police harassment. For example, while it’s not illegal in New York city to possess condoms, possession of “too many” can be used as evidence of sex work. Police can also confiscate and destroy condoms that they find. These policies make it impossible for sex workers to protect themselves and deprive people who do sex work agency in their decisions about contraceptive use.

Re-entry services help people who are formerly incarcerated transition back into the community and can include essential services like housing support, employment training and opportunities, education support and linkage to healthcare.

Where Can I Learn More?

Find more policy recommendations related to criminalization as it intersects with sex work and drug use here.