HIV Criminalization is a term used to describe laws that criminalize otherwise legal conduct or increase penalties for criminal conduct based on a person’s HIV-positive status. Currently, California has four HIV-specific criminal laws. Of those, none require actual transmission of HIV. This report analyzed the law, science and implementation of these statutes to determine the risk of transmission of the criminalized acts and the extent to which they are prosecuted. Key findings included:
- From 1988 until June 2014, 379 incidents resulted in convictions for an HIV-specific felony or sentence enhancement. Of those:
- 100% required no actual transmission of HIV.
- 98% percent did not require intent to transmit HIV.
- Only seven incidents – less than two percent – had intent to transmit HIV as an element of the crime.
- 93% involved no specific allegation of conduct that is likely to have transmitted the virus:
- Ninety percent of convictions were in solicitation incidents in which it is unknown whether any contact beyond a conversation or an exchange of money was initiated, thus possibly not having any exposure to HIV.
- Three percent of incidents involved oral sex, a sex act whose transmission risk is estimated as “low” by the CDC. • Only seven percent of incidents involved vaginal or anal sex by definition of the crime.
- Laws related to donation of blood, tissue, semen or breast milk do not appear to have ever been enforced. They also do not provide any protection against exposure to or transmission of HIV that is not already provided through standard medical screening and testing procedures.
- Sex work prosecutions disproportionately impact women and people of color in California. Since solicitation by definition includes survival and subsistence sex work, these laws are also likely to disproportionately impact LGBT youth and transgender women of color.
- Among the arrests related to the felony exposure law, for those that resulted in convictions under any offense, 43% had final convictions only under sex work laws and not under the felony exposure law. Though none of the sex workers in this context were ultimately convicted under the exposure felony, it is possible that the exposure felony was used to pressure the workers into plea deals with longer sentences.
- Among the sentence enhancements for nonconsensual sex offenses while living with HIV, 6% were applied in solicitation incidents, and 38% were applied where the predicate offense involved only oral sex.
- Laws that criminalize the conduct of a person who knows that they are HIV-positive may disincentivize testing and work against best public health practices.
- Current HIV criminal laws in California do not address the medical advances that antiretroviral medications and pre-exposure prophylaxis have made in reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV. While the laws may have been driven by fear and lack of knowledge when they were first passed, modern medicine and technology have shown that these laws are now outdated and may, in fact, work against best public health practices.