Fighting HIV Criminalization in Colorado (and Winning)

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Denver Principles
Activists drive sweeping reform of Colorado’s HIV criminalization laws
by Chip Alfred

A four-year campaign to modernize HIV criminalization legislation in Colorado has been successful, thanks to a coalition of activists led by Positive Women’s Network (PWN-USA) Colorado co-chairs Barb Cardell and Kari Hartel. The HIV Decriminalization Task Force, later renamed the Colorado Mod Squad, was instrumental in repealing two HIV criminalization statutes and reforming the third. Senate Bill 146 was sponsored by Senator Pat Steadman (D-Denver), a longtime advocate for HIV and public health issues, and Representative Daneya Esgar (D-Pueblo). The bill, which was supported by Colorado Organizations Responding to AIDS (CORA) and the Colorado Department of Public Health, passed on May 11, 2016. The legislation was signed into law by Governor John Hickenlooper on June 6.

Essentially, the bill repeals the statute on mandated HIV testing for sex workers and eliminates felony charges for prostitution with knowledge of HIV infection. It also removes HIV criminalization language in current statutes, and modernizes much of the statutory language concerning STIs in the health code. Colorado’s statute that included sentencing enhancement for sexual assault with knowledge of HIV (up to three times the maximum sentence) remains. However, this law was amended to make HIV transmission a necessary trigger, and the maximum sentencing enhancement has been reduced to the maximum sentence.

Cardell and Hartel agree that the impetus for this campaign came at the first HIV is Not a Crime conference in Grinnell, Iowa in 2014. Iowa had just become the first state to repeal its HIV criminalization law and conference organizers challenged the audience, “Who’s next?” With that, Kari Hartel’s hand shot up. What followed was the formation of a coalition of grassroots activists, community leaders, lobbyists, medical experts, and most importantly, people living with HIV. “If we weren’t at the table, it wasn’t getting done,” Cardell tells A&U. She adds that the HIV criminalization laws in Colorado felt incredibly unjust, but they also seemed immovable.

“When we were asked to give up protecting sex workers in our modernizing language, we refused,” Hartel explains. “We would be sacrificing our integrity if we let people say that sex workers and those accused of sex work didn’t deserve the same protection, or that modernizing our current statutes was just too challenging to pass right now.” Sex workers are particularly vulnerable under HIV criminalization laws, which are often used to enhance sentencing for lesser charges.

Thirty-five people living with HIV helped to write and/or draft the bill, some of them driving for hours in snowstorms from rural Colorado to Denver to work on it. Cardell notes that at least one member of the Mod Squad was at the state legislature every single day of the session. “When it passed, we were a little stunned,” she recalls. “Today we changed the world,” she posted that day on social media. “We were able to do something many thought we couldn’t and we had only dreamed of until now.”

The two women are hopeful that the overhaul of Colorado’s criminalization laws will motivate other states to follow suit. According to the Center for HIV Law and Policy, thirty-two states and two U.S. territories have HIV-specific criminal statutes. Most of these laws, passed during the 1990s AIDS panic, include non-disclosure of HIV status as a criminal offense. Thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. (Many of the statutes don’t take HIV infection risk or actual transmission into account).

Once Colorado’s bill was passed, activists from across the country started reaching out to the Mod Squad for their “road map.” Although Cardell says she’s happy to share the details of Colorado’s victory, she emphasizes that the laws are different everywhere. “There is no road map, but most people just want to hear it’s possible.”

The Colorado Mod Squad will now shift its focus to ensuring the new law is properly implemented throughout the state. Now, with some perspective on the Mod Squad’s accomplishments, Cardell has to remind herself that this group didn’t just modernize the statutes, it got the laws taken off the books altogether. “Every once in a while I have to stop and think….Holy shit! We did that!”


For more information about PWN-USA, visit https://pwnusa.wordpress.com.


A&U welcomes your HIV criminalization story ideas or suggestions. Please contact Chip Alfred, Editor at Large, at chip.alfred@gmail.com.

Chip Alfred, A&U’s Editor at Large, is the Director of Development & Communications at Philadelphia FIGHT.