HIV Criminalization in Florida

Executive Summary

Introduction

HIV criminalization is a term used to describe statutes that either criminalizes 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 the transmission of HIV, and in some states, these laws criminalize conduct that poses a negligible risk of transmission, such as spitting or biting.

Florida criminalizes people living with HIV and other sexually transmitted diseases (STDs) in the contexts of sex work, nonconsensual sex offenses, donation of blood and other bodily products, and consensual sex without disclosure.

The purpose of this study is to provide an overall understanding of the enforcement of HIV criminalization laws in Florida and assess any preliminary findings indicating disparities between subpopulations. Given the movement across the United States, including in Florida, to modernize HIV-specific criminal laws to bring them in line with current medical science, analysis of the enforcement of the laws helps to inform policy and legislative decision-making with data and a deeper understanding of how the laws have been used in the real world. This is the third state in which the Williams Institute has provided comprehensive data analysis on the enforcement of HIV criminalization laws.

In Florida, “criminal transmission of HIV” does not require any actual transmission to trigger criminal penalties. Additionally, the laws have not been updated to take into account use of preventive methods of reducing transmission risk, such as use of barrier protections or reducing viral load to an untransmittable level.

Criminal History Record Information Data

Given the lack of comprehensive data on the use of HIV criminal laws in Florida, Williams Institute researchers contacted Criminal Justice Information Services at the Florida Department of Law Enforcement and requested access to criminal history record information (CHRI) data from 1986 through the end of 2017. CHRI data document all interactions an individual may have with the criminal justice system, from every event beginning at arrest through conviction and sentencing, so these data provide a full chronological record of how these laws are being utilized.

Key Findings

• There is evidence of disparities in enforcement of HIV criminalization laws related to geography, race/ethnicity, sex at birth, or sex worker (or suspected sex worker) status.
• When considering the demographics of people living with HIV in Florida, White women were more likely to be arrested for an HIV-criminal offense than other groups.
• In HIV and STD offenses involving sex work, Black women were significantly more likely to be convicted for the disease-specific offense and significantly less likely to be released without a conviction than all other groups.
• Black men were more likely to be convicted of an HIV-related offense than White men and White women.
• Convictions for HIV arrests were twice as likely when there was a concurrent sex work arrest than when the HIV offense occurred outside of the context of sex work.

Highlighted Data

• Overall, there were 874 HIV-related arrests in Florida from 1986 to 2017.
• There appeared to be almost no enforcement before 1993, after which, on average, there were 36 HIV-related arrests annually. In 2003, arrests reached a record high, with 52 arrests occurring that year.
• Individuals were arrested under HIV-related statutes in 47 out of the 67 counties in Florida.
  • Miami-Dade and Broward Counties have the highest prevalence of HIV in the state, yet the proportion of HIV-related arrests was lower than expected. Miami-Dade and Broward Counties represented 24% and 18%, respectively, of the people living with HIV in the state, but only 4% and 3%, respectively, of the HIV-related arrests throughout the state.
  • On the other hand, Duval County is home to only 6% of the people living with HIV in Florida, but 23% of all HIV-related arrests in the state.

Demographics

• More than four in ten people arrested under an HIV-related offense were Black (43%), and none of the people arrested were recorded as Latino/a.
• Over half (56%) of all individuals arrested under an HIV-related offense were women. As a point of comparison, 27% of people living with HIV in Florida in 2017 were women.1
• Black men were more likely to be arrested for HIV-related offenses than their White counterparts: 17% of HIV-related arrests were of White males, while 22% of HIV-related arrests were of Black males.
  • However, when comparing the numbers directly to the underlying population of people living with HIV, White women appeared to be the group most disproportionately arrested under HIV-related laws: they made up only 4% of the population of people diagnosed with HIV in Florida, but they were 39% of HIV-related arrests in the state.
  • Black women were also overrepresented among HIV-related arrests when compared to the underlying population of people living with HIV: Black women were 18% of the people living with HIV in Florida, but made up 23% of the HIV-specific arrests.
• The disproportionalities in arrest rates across the state appeared differently for some groups when viewed at the county level. The extreme overrepresentation of White women occurred in each of the eight counties with the highest number of arrests. On the other hand, Black women were overrepresented among arrests in Duval and Orange Counties. Black men were overrepresented among arrests in Miami-Dade and Broward Counties. White men were underrepresented among arrests in every large county except for Miami-Dade.

Outcomes

• Overall, 35% of HIV-related arrests resulted in a conviction for an HIV-related crime. (Forty-four percent of incidents did not result in any conviction, and 20% had convictions for non-HIV-related offenses.)
• Sentence lengths varied by the underlying offense. People convicted of HIV exposure were sentenced to a median of three years. People convicted of HIV sex work incidents were sentenced to a median of a year. Those convicted of other STD exposures were sentenced to a median of 10 months, and those convicted of STD sex work offenses were sentenced to a median of three months.
• When analyzing case outcomes by race/ethnicity and sex, clear disparities emerged in the context of sex work. White men were the least likely to be convicted of an HIV offense in the context of sex work (in 18% of cases), followed by White women (36%) and Black men (42%). Black women (60%) were the most likely to be convicted of an HIV-specific offense in sex work offenses. This same pattern held true in sex work offenses related to STDs other than HIV.
• In HIV exposure incidents that did not involve sex work, Black women were the least likely to be convicted of an HIV offense (in only 3% of all cases), and Black men were the most likely to be convicted (in 30% of all cases).
• Overall, conviction rates for HIV and other STD-related offenses were fairly similar.
• Large differences were observed between sex work incidents and exposure incidents unrelated to sex work. Sex work incidents were twice as likely as other exposure incidents to result in a conviction for an HIV or STD offense and half as likely to result in individuals being released without a conviction.

Future Research

• Data points to some race-, sex-, and geographic-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 differences.
  • At the structural level, this includes assessing whether the disparities are a function of direct law enforcement targeting of White women, disparate prosecution of Black men and women, or higher HIV stigma in counties with disproportionately high arrest rates, like Duval. Future research could also explore whether awareness of HIV criminalization laws has an impact on individual or community level norms regarding disclosure and risk behaviors.
• 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 with the criminal system 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.

Conclusion

This report provides an overview of the use and enforcement of HIV-related laws in Florida. Preliminary analyses show some disparities based on race, sex, geography, and underlying related offenses.

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