The Impact of HIV Criminalization

Law Review
What’s the impact of HIV criminalization on attitudes, behavior & public health?
by Chip Alfred

It’s the first comprehensive look at scientific research on HIV criminalization conducted over a span of twenty-five years. “Criminalization of HIV Exposure: A Review of Empirical Studies in the United States,” conducted by The Center for Interdisciplinary Research on AIDS (CIRA) at Yale University, was published in AIDS and Behavior in January, 2017. Dini Harsono, assistant director for Clinical Health Services Research at CIRA, is the lead author of the article.

The literature review examines the results of twenty-five studies published between 1990 and 2014. It offers an in-depth analysis of the public perception of laws that criminalize HIV exposure; how these laws have impacted HIV testing and sexual practices; and what further research is needed to explain the effects of HIV criminal laws on public health policies and people living with HIV.

According to the review’s authors, the study results suggest the following:

• Most people support the criminalization of undisclosed exposure to HIV, although PLHIV may be more circumspect in their support than those who do not have HIV.

• Records of arrests and prosecutions reveal that many cases involve non-sexual behaviors or sexual activities that pose little to no risk of HIV transmission.

• The laws do not deter HIV testing among people at risk for acquiring HIV.

• For people living with HIV, the laws do not decrease or increase HIV disclosure to their sex partners.

• The laws do not appear to reduce sexual risk behaviors among HIV-positive or negative people.

The study also concludes that more research is needed regarding the following issues:

• How HIV-related prosecutions are informed by current scientific knowledge about HIV transmission.

• The cost of the enforcement of these laws, and how prosecutions are impacted by racial/ethnic disparities in the criminal justice system.

• The potential effect of HIV exposure laws on patient-provider relationships and on public health personnel who must sometimes play a role in enforcing the laws.

Catherine Hanssens, executive director of The Center for HIV Law & Policy, acknowledges the value of the review as well as some concerns about it. “I am not convinced that all the right questions are being asked,” she remarks. “I believe that serious misunderstanding about the actual routes, relative risks, and realities of life after HIV transmission are at the heart of these laws and people’s attitudes. I think that as a consequence there are many people who believe that people living with HIV shouldn’t have sex at all,” she explains. “We need to do a better job at education and messaging,” making current science about treatment and prevention options central to the discussion.

The report brings to light the knowledge gaps about HIV criminalization and its influence. What’s lacking is detailed information about how much the latest medical advancements are being utilized in the courtroom, and to what extent attorneys, prosecutors, and judges understand the science relating to risk and transmission. Another advancement, phylogenetic testing, which can identify the genetic makeup of the virus infecting each person, brings with it questions about how much it’s being used or misused in court. (Scientists can determine if two individuals’ HIV strains are similar, but the source or direction of infection can’t be determined.) What’s also sorely lacking is comprehensive data on arrests, prosecutions and sentencing in criminal HIV exposure cases in many jurisdictions. Without adequate information about the race and ethnicity of defendants and complainants in these cases, researchers have difficulty ascertaining where racial/ethnic disparities occur in enforcement of the laws. For future research studies, this review strongly recommends a theoretical framework to advance our understanding of the effect of HIV exposure laws on risk behaviors associated with the HIV continuum of care.

Most advocates agree that HIV criminalization perpetuates stigma, especially for sex workers, injection drug users, people of color, LGBT people, and other marginalized populations. “A great deal has been accomplished over the last few years in dramatically increasing the visibility of HIV criminalization and the number of advocates committed to changing the laws,” Hanssens states, stressing that we need more people and resources invested in the HIV criminalization reform movement. “We all would benefit from more thoughtful collaboration and deeper, broader conversations about where HIV criminalization fits in the larger problem of over-incarceration in this country, and how that should inform our advocacy.”

To read the review in its entirety, click here:

A&U welcomes your HIV criminalization story ideas or suggestions. Please contact Chip Alfred, Editor at Large, at [email protected].