HIV Criminalization and Ending the HIV Epidemic in the U.S.

Ending the HIV Epidemic in the U.S. requires addressing structural barriers to HIV prevention and care. Current scientific and medical evidence should inform state laws and practices that criminalize behaviors by people with HIV. States should consider updating or repealing outdated laws and practices.

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After more than 30 years of HIV research and significant biomedical advancements to treat and prevent HIV, most HIV criminalization laws do not reflect current scientific and medical evidence.

  • Many of these laws were passed at a time when very little was known about HIV, including how HIV was transmitted and should be treated.
  • These laws have not increased disclosure and may discourage HIV testing, increase stigma against people with HIV, and exacerbate disparities.

HIV criminalization laws were enacted before:

  • The availability of antiretroviral therapy (ART). A person who takes ART as prescribed, and gets and stays virally suppressed, not only can live a long and healthy life but also has effectively no risk of sexually transmitting HIV to sexual partners.
  • Pre-exposure Prophylaxis (PrEP), a pill taken by HIV-negative people to prevent HIV infection. PrEP reduces the risk of acquiring HIV sexually by 99% when taken daily.

Under existing laws in many states, the behavior of people with HIV can be criminalized for potentially exposing others to HIV. Actual transmission or intent to transmit HIV is not usually required.

  • 37 states criminalize the behavior of people with HIV through HIV- or STD-specific laws.
  • 18 states criminalize behavior that has a negligible or low risk of transmitting HIV, such as spitting, biting, and oral sex.
  • 21 states require people with HIV who are aware of their status to disclose their status to sex partners.
  • 13 states have maximum sentence lengths of more than 10 years, and some states up to life, even though people with HIV might have taken measures to prevent transmission.
  • 12 states require people with HIV who are aware of their status to disclose their status to needle-sharing partners.
  • 9 states provide defenses for taking measures to prevent the transmission of HIV, such as condom use, viral suppression, and PrEP.

Presence of Laws That Criminalize Potential HIV Exposure, 2020

States and the District of Columbia can use four categories of laws to criminalize potential HIV exposure.

States and the District of Columbia can use four categories of laws to criminalize potential HIV exposure.

States and the District of Columbia can use four categories of laws to criminalize potential HIV exposure.

Recommendations

When a law meant to protect the public is not working as intended, is unjust, and may be hurting efforts to keep communities healthy, common solutions must be found to better meet public health and public safety goals.

One step is to educate members of state and local justice systems to ensure they understand the scientific and medical data and public health goals.

HIV Criminalization Reform Options

  • Repeal outdated HIV criminalization laws, or
  • Modernize HIV criminalization laws, or
  • Deprioritize HIV criminalization through specific or general criminal statutes, or
  • If the above options are not feasible, use current scientific and medical evidence when applying existing HIV criminalization laws, or general criminal statutes used to criminalize the behavior of people with HIV.

Since 2014, at least five states have modernized their HIV criminalization laws to make them align with current scientific evidence.

California
  • HIV is now rolled into statutes about general infectious or communicable diseases.
  • Requires intent to transmit.
  • Provides defense for people with HIV who took practical measures to prevent HIV transmission (e.g., viral suppression and condom usage)
Colorado
  • Eliminated the felony penalty for people with HIV engaging in sex work who had knowledge of their HIV status
  • Requires HIV transmission in order to apply a sentence enhancement for sex offenses.
Iowa
  • HIV is now rolled into statutes about general infectious or communicable diseases.
  • Requires intent to transmit.
  • Provides defense for people with HIV who took practical measures to prevent HIV transmission (e.g., viral suppression
Michigan
  • No longer criminalizes oral sex (a low- risk behavior).
  • Provides viral suppression as a defense for people with HIV.
North Carolina
  • Provision is no longer under the criminal code. Instead, it is part of the administrative code as a measure to help control communicable diseases.
  • Promotes condom use and adherence to treatment, viral suppression, and PrEP.

To end the HIV epidemic, public health, criminal justice, and legislative systems must work together to ensure that laws protect the community, are evidence-based and just, and support public health efforts.

  1. CDC. (2020, December 21). HIV and STD criminalization laws. https://www.cdc.gov/hiv/policies/law/states/exposure.html
  2. Sweeney, P., Gray, S. C., Purcell, D. W., Sewell, J., Babu, A. S., Tarver, B. A., . . . & Mermin, J.(2017). Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States. AIDS, 31 (10), 1483-1488.
  3. UCLA School of Law, Williams Institute. (2015, December). HIV criminalization in California: Penal implications for people living with HIV/AIDS. https://williamsinstitute.law.ucla.edu/publications/hiv-criminalization-ca-penal/external icon
  4. Mermin J., Salvant Valentine S., & McCray E. (2021). HIV criminalization laws and ending the US HIV Epidemic. The Lancet HIV, 8 (1), e1-e58. https://doi.org/10.1016/S2352-3018(20)30333-7https://doi.org/10.1016/S2352-3018(20)30333-7external icon
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