Criminal Law
From the beginning of the HIV/AIDS epidemic, fear and ignorance about HIV’s routes and relative risks of transmission have fueled a backlash against people living with HIV, most evident in the laws that punish them for engaging in consensual sex or activities that pose no risk for HIV transmission. The media coverage that accompanies these cases often demonizes people with HIV and sensationalizes the risk of transmission, helping to perpetuate stigma that results in denial of jobs and services and decreased willingness to get tested. Because there is no evidence that the existence of criminal HIV exposure laws has any effect on behavior, the argument that these laws serve a deterrent effect is unfounded. Punishing people for behavior that is either consensual or poses no risk of HIV transmission can only serve to further stigmatize already marginalized communities while missing opportunities for prevention education. Legal and advocacy tools in this category address issues such as criminal prosecution for spitting and other actions that pose no risk of HIV transmission, the status of state criminal laws across the country, the effect of criminal exposure laws on sex workers, prosecution for HIV exposure as it relates to larger public health concerns, the number and types of prosecutions, and international guidelines on rational public policy related to HIV exposure.
HIGHLIGHTED RESOURCE
Prosecutions for HIV Exposure in the United States, 2008–2009, The Center for HIV Law & Policy
This list, although not exhaustive, provides a braod snapshot of the spate of prosecutions for HIV exposure in the United States over a nearly two-year period. Every prosecution listed here involves conduct that is either consensual (sex) or poses no significant risk of HIV transmission (spitting, biting). Although the outcomes of some cases remain unknown, the outcomes that are known often involve draconian penalties, including prison sentences that reach 25 years or more, even when no transmission of HIV occurred.
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HIGHLIGHTED RESOURCE
Criminalization of HIV Transmission, Policy Brief, UNAIDS
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In response to a recent increase in HIV criminalization cases both in the United States and abroad, UNAIDS issued this policy brief to arm advocates with information and arguments against these discriminatory laws and practices. The policy brief discusses why HIV-specific criminalization laws do not achieve their intended goals, and how these laws actually cause more harm. A focus on the unique plight of women and girls living with HIV helps contextualize these criminalization laws in a way that makes their harmful effects more evident. The brief concludes with recommendations for governments and other advocates to develop more meaningful and effective responses to instances of HIV exposure. Click here to download.
