HIV criminalization is a term used to describe statutes that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. While only one HIV criminalization law can be found in federal law,more than two-thirds of states and territories across the United States have enacted their own HIV criminal laws. Some HIV criminal laws do not require transmission of HIV, and in some states, these laws criminalize conduct that poses a negligible risk of transmission, such as spitting or biting. California has four HIV-specific criminal laws, and one non-HIV-specific criminal law that criminalizes exposure to any communicable disease.
Criminal Offender Record Information Data
Given the lack of comprehensive data on the use of HIV criminal laws in California, Williams Institute researchers contacted the California Department of Justice and requested access to criminal offender record information (CORI) data. CORI data record any contacts an individual may have with the criminal justice system, from every event beginning at arrest through sentencing, so these data provide a full chronological record of how these laws are being utilized. After obtaining necessary security clearances, Williams Institute researchers were able to access the de-identified criminal history of all individuals who had had contact with the criminal justice system under Cal. Penal Code § 647f (solicitation while HIV-positive), Cal. Health & Safety Code § 120291 (exposure to HIV with intent to transmit), Cal. Penal Code § 12022.85 (sex offense sentence enhancement for HIV-positive status in nonconsensual sex crimes) and Cal. Health & Safety Code § 120290 (misdemeanor exposure to any communicable disease) from the time of their enactment to June 2014.
- Overall, 800 people have come into contact with the California criminal justice system from 1988 to June 2014 either under an HIV-related law or under the misdemeanor exposure law as it related to a person’s HIV-positive status.
- The vast majority (95%) of all HIV-specific criminal incidents impacted people engaged in sex work or individuals suspected of engaging in sex work.
- An overall high period of enforcement occurred between 1995 and 2004, with interactions peaking in the year 2000, when 70 people had HIV-related criminal contact. In 2013, the most recent full year for which data were analyzed, 17 people had HIV-related criminal contact, the lowest number since 1991.
- More than half (57%) of all enforcement of HIV criminalization laws occurred in Los Angeles County (643 incidents), among incidents with known county. Nine percent of the HIV-specific criminal incidents (107 incidents) took place in Sacramento County. By contrast, 37% of people living with HIV/AIDS in California have lived in Los Angeles County, and 3% lived in Sacramento County.
- Black people and Latino/as make up two-thirds (67%) of the people who came into contact with the criminal justice system based on their HIV, although just half (51%) of people living with HIV/AIDS in California are Black and Latino/a.
- Women made up 43% of those who came into contact with the criminal justice system based on their HIV-positive status, but women are less than 13% of the HIV-positive population in California.
- Black women and White women make up 4% and 3% respectively of the population of people diagnosed with HIV in California, but 21% and 15% respectively of the population of people who had contact with the criminal justice system related to their HIV status.
- By comparison, White men make up 40% of the population of people diagnosed with HIV in California, but only 16% of those who had contact with the criminal justice system related to their HIV status.
- Overall, 33% of HIV-specific criminal incidents resulted in charges for an HIV-related crime.(Forty-five percent of incidents did not result in any charges, and 23% were charged with non-HIV-specific offenses.)
- Every incident in which one or more HIV-specific charges were brought resulted in a conviction (385 out of 385 incidents) for at least one of the HIV-specific charges and 90% of convictions were sentenced to immediate confinement.
- The length of sentences varied with the different HIV-related crimes. Those convicted of solicitation while HIV-positive were sentenced to an average of approximately two years, people convicted of exposure to HIV with intent to transmit were sentenced to about four and a half years, and those convicted of the sentence enhancement for being HIV-positive while engaging in a non-consensual sex act received sentences closer to five and a half years, including the underlying sex offense crime. People living with HIV who were convicted of the misdemeanor exposure law were incarcerated for 45 to 90 days.
- Across all HIV-related crimes, White men were significantly more likely to be released and not charged (in 61% of their HIV-specific criminal incidents) than expected, and Black men (38%), Black women (44%) and White women (39%) were significantly less likely to be released and not charged.
- These charging differentials were even starker among individuals assumed to be engaged in sex work under the solicitation while HIV-positive statute. White men were not charged in 70% of cases, while all others were not charged in 43% of cases. Conversely, in those same incidents, White men were charged with an HIV-related crime 13% of the time, while all others were charged for an HIV-related crime 33% of the time.
- While the average age at the time of arrest for the first HIV-related incident was 36, the range of arrestees was from 14 to 71 years of age.
- All of the incidents involving people at the youngest end (ages 14-17) and the oldest end (ages 57 to 71) of the continuum had contact based on the solicitation while HIV-positive statute.
- Looking more broadly at the ages at which individuals with HIV-related contact first came into contact with the criminal justice system, over half (51%) had their first contact with the criminal justice system before the age of 21.
- Like criminal law enforcement in general, HIV criminal laws appear to disproportionately impact specific communities.
Research, Law and Policy Implications
- Existing estimates of national HIV criminalization rates may be highly underestimated.
- Data point to some race- and sex-based disparities in the application of these laws. However, they do not provide an explanation of the root causes of these disparities. Future research is needed to pinpoint factors leading to these race- and sex-based differences.
- At the structural level, this includes assessing whether the disparities are a function of direct law enforcement targeting of people of color and women or an unintended consequence of the heightened scrutiny and targeting of sex workers who are disproportionately women and people of color. Future research could also explore whether there are individual or community level norms that play a role in the process of disclosure and behavior in the context of HIV criminalization laws.
- Future research should explore HIV-related criminalization in the context of an individual’s broader criminal history and whether a charge of an HIV crime impacts pleas, convictions, or sentences for other crimes.
- Future research could move beyond enforcement data to more accurately capture the impact and consequences of HIV criminalization from the perspective of affected individuals. For example -Are there differences in how HIV status is discussed or treated between law enforcement officers and various subgroups of people in contact under these statutes? How did contact under these laws affect future HIV status disclosure behavior? Utilizing additional methods to study this population may have the added benefit of gaining representation of the distinct experiences of gender and sexual minorities living with HIV.