Golden State Reform
California May Be the Next State to Change Its HIV Criminalization Laws
by Chip Alfred
It’s the largest state in the nation, with an alarmingly high number of HIV-related prosecutions. Now, thanks to a broad-based coalition of organizations and advocates, things may be about to change. “People are being criminalized just because of their HIV status, which is grossly unjust,” says Craig Pulsipher, strategist for Californians for HIV Criminalization Reform (CHCR). The state affairs specialist for APLA Health (formerly AIDS Project of Los Angeles), Pulsipher represents one of fifteen nonprofits leading CHCR, which also includes ACLU of California, Black AIDS Institute, Equality California, Lambda Legal, Los Angeles HIV Law and Policy Project, Los Angeles LGBT Center, Positive Women’s Network-USA, Sex Workers Outreach Project, and Transgender Law Center, among others.
CHCR was inspired by the first HIV Is Not a Crime conference in 2014, and had its first planning meeting soon after that. Over the last few years, the coalition has been working on a comprehensive plan to modernize California’s outdated HIV criminal codes. “These laws, which were put on the books in the eighties, aren’t based in science or any harm that’s being committed,” Pulsipher claims. In California, ninety-five percent of HIV criminalization cases involve solicitation. That statute states that “any person who is charged with soliciting or engaging in prostitution” will be charged with a misdemeanor and required to take an HIV test. For a second offense, if the individual previously tested positive for HIV, the penalty is enhanced to a felony, and no risk of transmission or actual sexual contact is required. Pulsipher tells A&U that the coalition’s top priority is to eliminate the sentencing enhancement for sex workers. Unlike HIV criminalization laws in other states, specific provisions in California’s current non-disclosure statute for consensual sex make it tough for district attorneys to make a case.
For a person to be convicted of a felony under this code, the prosecution must prove that the individual is guilty of all of the following: 1. Knew their HIV status; 2. Engaged in sexual intercourse without a condom; 3. Did not disclose their status to a sexual partner; 4. Acted with specific intent to infect a sexual partner with HIV.
According to a recent study conducted by the Williams Institute, from 1988 to June 2014 there were 385 incidents in which one or more HIV-specific charges were brought in the Golden State, and all of them resulted in a conviction. In all, at least 800 people have come into contact with the California criminal justice system during this time period under an HIV-related law or under the state’s misdemeanor exposure law. While the number of prosecutions has declined after a peak in 2000, the coalition wants to eliminate HIV-specific criminal laws altogether. These laws stigmatize people living with HIV and those at risk, disproportionately affecting communities that are already marginalized—including women, people of color, and sex workers. “Stigma is the number-one driver of the epidemic. We know it keeps people from getting tested and seeking treatment,” Pulsipher explains. “The chance that we have to address HIV-related stigma is a really important piece of this movement.”
On February 6, 2017, Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego) introduced a bill to modernize California’s HIV criminalization laws. SB 239 updates California criminal law to approach transmission of HIV in the same way as transmission of other serious communicable diseases. It brings California statutes up to date based on current science, and eliminates several HIV-specific criminal laws that impose harsh penalties, including for activities that do not risk exposure or transmission of HIV.
“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Sen. Wiener. “They need to be repealed. During the 1980s—the same period when some proposed quarantining people with HIV—California passed these discriminatory criminal laws and singled out people with HIV for harsher punishment than people with other communicable diseases. It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV.”
CHCR will continue to focus on raising awareness across the state, and expanding the reach of the coalition. “HIV criminalization can be a very complex topic to understand if people don’t have the basics. We need to educate folks about how HIV is and isn’t transmitted and about how harmful these laws can be,” says Pulsipher, adding that it’s crucial to have meaningful involvement from people who are directly impacted by HIV criminalization laws. “People living with or affected by HIV need to have a seat at the table.”
For more information, visit www.eqca.org/chcr.
A&U welcomes your HIV criminalization story ideas or suggestions. Please contact Chip Alfred, Editor at Large, at [email protected].