Why lawmakers need to reconsider HIV criminalization

Since the onset of HIV (Human immunodeficiency virus), there has been a vast concern for public health that later provoked the institution of HIV criminal laws in the U.S that was essentially fueled by fear, panic, and oftentimes, homophobia.


Sex has always been a risk when it comes to unwanted pregnancies and contracting any STIs. But it became more of a danger, especially in the 80’s when people were afraid of even kissing each other on the cheek. People were dying rapidly, and as a response, Congress created the Ryan White CARE Act. This new law required states to prosecute intentional transmission of HIV. To many, this made sense. HIV positive people who purposefully infect others ought to face consequences, but this is not a black and white issue. It’s extremely messy.




Is there a shared responsibility for HIV disclosure? Should everyone just assume that everyone they engage with has some type of STI so that they can protect themselves accordingly?


What about in the case of a monogamous relationship? If one partner gives the other HIV, what should be the next course of action?


If someone is raped, and their rapist gives them HIV, should the rapist get extra jail time?


What if an HIV positive person uses condoms faithfully, is on antiretrovirals, and has an undetectable viral load (meaning that the risk transmission is nonexistent or extremely low), should he be prosecuted if he fails to disclose?


The answers to these questions are certainly subjective, but it’s a fact that HIV criminal laws are extremely flawed. They are dated, discriminatory, and they actually dissuade people from getting tested to learn their status.


Currently, 32 U.S states criminalize HIV transmission. According to the LA Times, “13 states have laws that make it a crime for an infected person to spit at, bite or throw their blood on others.” These laws have clearly not caught up with science. The fact that a person who is HIV positive can be prosecuted when there is no possibility of infection is insane. HIV is not transmitted through saliva.


A popular case, Rhoades V Iowa, put a spotlight on how awful the criminal justice system is to HIV positive people. Nick Rhoades didn’t disclose his status to a man he met online in 2008, but he practiced safe sex and his viral load was extremely low. He was prosecuted and was sentenced to 25 years in prison. What’s more, the man Rhoades had consensual sex with did not contract the virus.


According to The Center for HIV Law and Policy,


“Punishing people for behavior that is either consensual or poses no risk of HIV transmission only serves to further stigmatize already marginalized communities while missing opportunities for prevention education.”


HIV criminalization laws also disproportionately affect already marginalized people, like transgender people. Writer Preston Mitchum wrote on Think Progress: “The clear goal should be for lawmakers to prevent HIV, and this is not accomplished by enforcing HIV criminalization laws against individuals.”


In some cases, people can be prosecuted even if they didn’t know their status at the time. 


What do you think about HIV criminalization laws? Do you think any of them are necessary?


SERO Project has information on how to protect yourself against criminal prosecution.

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