Executive Summary
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. California has four HIV-specific criminal laws and one non-HIV-specific criminal law that criminalizes exposure to any communicable disease. Having contact with the criminal system can have a particularly severe impact on immigrants in the United States, as it can be grounds for deportation. In California, more than one in four residents are foreign-born. Given the large immigrant population in California, Williams Institute researchers analyzed California Criminal Offender Record Information (CORI) data on HIV offenses in California to explore the demographics and experiences of foreign-born individuals as compared to their U.S. born counterparts.
Main Findings
- Overall, 800 people have come into contact with the California criminal system from 1988 to June 2014 related to that person’s HIV-positive status. Among those individuals, 121 (15%) were foreign-born.
- Like their U.S. born counterparts, 94% of all HIV-specific incidents in which immigrants had contact with the criminal system were under California’s felony offense against solicitation while HIV-positive.
- Eighty-three percent of the immigrants who had contact with the system based on their HIV-positive status were born in Mexico, Central or South America, or the Caribbean.
- While U.S. born people were divided fairly evenly between men and women, immigrants were overwhelmingly men: 88% of foreign-born individuals in the group were men. It is likely that transgender people’s sex was recorded based on genitalia, and this may indicate that some of the people recorded as men were actually transgender women.
- When reviewing case outcomes for solicitation while HIV-positive by place of birth, patterns emerged based on country and region of birth. Mexican born charging outcomes reflected a very similar pattern to the U.S. born charging outcomes. However, South and Central American and Asian born individuals reflected fewer charges for any crime and fewer charges for the HIV-specific felony solicitation offense. Among the foreign-born from other countries, there were fewer charges for felony solicitation while HIV-positive offense, and more charges for non-HIV-specific offenses when compared to their U.S. born counterparts. Given the small numbers, however, more research is needed to see if this pattern reflects real differences or is just due to random variation.
- Thirty-six people, or 30% of foreign-born individuals, had some form of a criminal immigration proceeding in their histories. Among those who had immigration proceedings in their records, nine people (25%) had those proceedings initiated immediately after an HIV-specific incident.
Future research beyond the enforcement data may explore whether initial patterns seen by sex and place of birth are perpetuated in other criminal systems or under other offenses. Also, future research that explores the influence of sexual orientation and gender identity as a potential driver to the system and as a potential mediating factor in experiences once in the criminal system will help provide a more nuanced and complete picture of the experiences of people who are criminalized based on their HIV-positive status.