Report

HIV Criminalization in Florida: Evaluation of Transmission Risk

March 2020

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase penalties for illegal conduct based upon a person’s HIV-positive status. This report examines the risk of HIV transmission for each type of conduct criminalized by Florida’s HIV criminal laws.

Highlights
Florida has four HIV-specific criminal laws. None of them require actual transmission of HIV or the intent to transmit HIV.
The laws may undermine public health efforts by deterring HIV testing, disclosure, and other HIV prevention strategies.
The laws disproportionately affect people of color, women, LGBTQ people, and the formerly incarcerated.
Data Points
874
people came into contact with the criminal system under an HIV-specific law between 1986-2017
266
people were convicted under Florida's HIV criminal laws between 1986-2017
0
convictions required actual transmission of HIV
100%
of convictions did not require proof of conduct likely to transmit HIV
Report

Executive Summary

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 status. Currently, Florida has four HIV-specific criminal laws. Of those, none require actual transmission of HIV or the intent to transmit HIV. All of them are broad enough to cover conduct that cannot, in fact, lead to transmission of the virus. First enacted between 1986 and 1993, these laws predate the development of highly effective strategies for the prevention and treatment of HIV.

This report applies what we know today about the transmission and treatment of HIV to the specific types of conduct criminalized by Florida’s HIV criminal laws. It also considers some ways in which research suggests that HIV criminal laws may undermine efforts to prevent the transmission of HIV. Rather than considering all aspects of these laws, this report focuses on their public health implications, namely their impact on the prevention and treatment of HIV.

Using criminal history record information (CHRI) data from the Criminal Justice Information Services at the Florida Department of Law Enforcement, we also estimate the number of convictions under each of the state’s HIV criminal laws.

Key Findings

  • From 1986 to 2017, there were 266 convictions1 under Florida’s HIV criminal laws; approximately 8 convictions per year. Of those convictions:
    • 100% did not require actual transmission of HIV;
    • 100% did not require the intent to transmit HIV;
    • And none required conduct that could actually transmit HIV.
  • Approximately 57% of these 266 convictions (56.8%) arose in the context of sex work-related offenses. Most likely there was no physical contact at the time of arrest for these offenses, let alone contact that could transmit the virus.
  • Thirty-three percent of these 266 convictions (33.5%) involved consensual sexual conduct that could include forms of sex with very low likelihoods of transmitting the virus, including oral sex, vaginal or anal intercourse with a condom; or sex with a person with HIV (PWH) whose viral load was suppressed by effective medications and who could not, therefore, transmit the virus to a sexual partner.
  • Only nine percent (9.4%) of these convictions under a Florida statute that imposes a penalty enhancement for PWH if they are found guilty on an underlying sex offense or other crime enumerated by the statute. The most recent of these convictions was in 2013.
  • Based on the CHRI data, Florida’s HIV-specific crime related to organ, blood, and tissue donations has only led to one arrest. That one arrest resulted in a conviction over a decade ago, in 2008. This law now runs counter to the goals of a federal law passed in 2013 (the Federal HIV Organ Policy Equity (HOPE) Act), does nothing to protect the blood supply, and is likely putting PWH in Florida at risk by limiting their opportunity for a matching organ donor.

Further, the state’s HIV criminal laws may undermine the state’s public health efforts by deterring people from seeking HIV testing and treatment, stigmatizing PWH, and disproportionately affecting the communities most impacted by HIV, including people of color, women, LGBTQ people, and the formerly incarcerated.

  • Some studies suggest that laws criminalizing the conduct of PWH may create a disincentive for those most at risk for HIV from getting tested, from disclosing their HIV-status to potential partners and health care providers, and from consistently accessing medical care.
  • HIV criminal laws further stigmatize Floridians with HIV. Research has shown that when people with HIV experience stigma, they have poorer health outcomes and are less likely to consistently engage in their own medical care and in public health efforts.
  • Florida’s HIV criminal laws impact the very populations that Florida is trying to engage to combat HIV in the state, including people of color, women, youth, and LGBTQ people. Prior research has shown that HIV-related sex work prosecutions disproportionately impact women and people of color. In addition, youth, transgender people, and other LGBTQ people are disproportionately represented among sex workers. These are precisely the groups that Florida currently seeks to engage in its statewide strategic plan to combat HIV.

There have been significant medical advances related to HIV since Florida’s HIV criminal laws were first passed. Modernizing these laws would support Florida’s current efforts to prevent HIV in the state.

Download the full report

HIV Criminalization in Florida: Evaluation of Transmission Risk

For the purposes of this report, “conviction” includes those who were coded in any of the following categories in the CHRI data: guilty/convicted, adjudication withheld, and pre-trial diversion. See Fla. Stat. Ann. § 775.0877(1). While more specific breakdowns between each of these categories for each crime is included in the relevant section below, almost 90% (89%) of these were categorized as “guilty/convicted.”