The Criminalization of HIV and Hepatitis B and C in Missouri

Executive Summary

This study examines enforcement of laws that criminalize exposing others to HIV or hepatitis B or C using data from the Missouri State Highway Patrol – Criminal Justice Information Services. Between 1990 and October of 2019, at least 593 people have been arrested in Missouri for at least one of its HIV/hepatitis crimes. This includes 318 people who have been convicted for these crimes.

For those convicted, average sentences range from 2.9 to 10 years depending on the type of crime, with the longest sentences extending up to 30 years. A conservative estimate of the cost of incarceration related to these crimes, to date, is $17.7 million. This does not include any other related costs, including those for arrests, prosecutions, parole, or probation. While there has been enforcement of these laws in 70 of Missouri’s 114 counties, enforcement is heavily concentrated in a smaller subset of counties. Further, enforcement data suggest that these crimes are disproportionately enforced on the basis of race and sex, with Black men being the most likely to be arrested and convicted.

Missouri enacted its first law criminalizing HIV in 1988, when less was commonly known about the virus and before the development of effective methods for treatment and prevention. Today, Missouri laws criminalize five (5) different types of exposures:

• HIV crimes: The first three laws apply only to those who are HIV positive. They criminalize people living with HIV (PLWH) who
  • donate blood or organs,
  • engage in commercial sex work, or
  • expose others to bodily fluids through sex, sharing needles, biting, or in other ways.
• Department of Corrections and Mental Health crimes (DOC/DMH crimes): The next two laws focus on defendants who expose employees and others involved with either
  • the Department of Corrections or
  • the Department of Mental Health to bodily fluids.

While the DOC/DMH crimes also have enhanced penalties for those who have HIV or hepatitis B or C, available data do not allow us to determine which virus defendants charged with these enhancements were alleged to have.

Violations of the laws criminalizing these five types of exposures are all felonies that do not require that the defendant actually infect anyone or have the intent to infect anyone. Each includes criminalization of behaviors that pose no risk or extremely remote risk of transmission.

HIV Crimes
Of the four states that the Williams Institute has analyzed (Missouri, Georgia, Florida, and California), Missouri has the most enforcement of its HIV-specific laws. When using the most comparable data, Missouri has one arrest for an HIV crime for every 60 PLWH currently living in the state, compared to one arrest for every 370 PLWH currently living in Florida and one arrest for every 2,000 PLWH currently living in California.

More specifically, in Missouri, 209 people have been arrested for the following three HIV crimes in 263 separate incidents. This includes 107 people who have been convicted for these crimes.

• Blood Donation: Only 10 people have been convicted of this crime since it was enacted in 1988. The last conviction was in 2009. Further, the data at least raises a question about whether half of these 10 convictions are the result of miscoding and the convictions were for the HIV Other
  Conduct crime (see below). On average, these people received unsuspended sentences of confinement of 4.2 years. The scarcity of convictions for this crime is consistent with long-standing and effective protections of the blood and organ supply that make the risk of transmission
  extremely remote. There have been no such transmissions in the U.S. for over a decade.
• Sex Work: Since this law was enacted in 2002, only 14 people have been charged with Missouri’s crime for PLWH who engage in commercial sex work; only three people have ever been convicted and all three received unsuspended sentences of confinement of 5 years. The last conviction was in 2017.
• Other Conduct: Over 90% of the people who have been arrested (191/209 people) or convicted (97/107 people) for an HIV crime in Missouri have been convicted of the crime of recklessly exposing another person to HIV through sex, sharing needles, biting, or other conduct. On
  average, they received unsuspended sentences of confinement of 7.5 years.

Since this crime covers a range of behaviors, we examined other charges in the same incidents with convictions to see if we could infer anything about the underlying conduct that created a risk of transmission: 42% did not have any such charges; 29% had charges that indicated that the underlying risk behavior was sex; 6% also had an HIV Blood Donation Charge (see above); and 23% had charges that indicated that the risk was the result of an altercation with another person, with 16% having charges clearly indicating that the altercation was with a law enforcement officer (assault or resisting arrest).

There is evidence that these HIV crimes are bringing people into the criminal justice system who otherwise would not be there. One out of six people with an HIV incident (17.2%) had no other criminal records in Missouri. For over one in four (28.7%), their HIV incident was their first contact with the Missouri criminal justice system.

• Cost: We estimate that the total cost of incarceration for sentences under Missouri’s HIV crimes laws is $10.2 million, with the Other Conduct crime alone costing $9.4 million.
• Location: HIV crimes appear to be disproportionately enforced in the Saint Louis HIV Care Region, and, in particular, in St. Louis City and St. Louis counties. This is not just because there are more people living with HIV in this area. While the St. Louis HIV Care region has 48.3% of PLWH in Missouri, it has 61.0% of all HIV criminal incidents. This in contrast to the Kansas City HIV Care region, which has 29.6% of all PLWH in the state, but only 10.8% of HIV incidents.
• Age: While the average age of those impacted by Missouri’s HIV crimes was 35.5, those impacted ranged from 17.7 to 65.5 years old. Looking more broadly at their criminal history, 37.8% had their first contact with the Missouri criminal justice system before the age of 21.
• Gender: Thirteen percent of people with an HIV criminal incident in Missouri are women, as compared to 17.6% of PLWH in the state.
• Race: While Black people comprise 11.8% of Missouri’s population, they comprise 46% of those who are living with HIV, 56.5% of those with an HIV criminal incident, and 60.8% of those who have been convicted of an HIV crime.
• Race and Gender: Black men are the most disproportionately impacted by both HIV disease and the enforcement of HIV criminal laws in Missouri. While Black men make up 5.5% of the state’s population, they are 35% of PLWH in the state. They make up over half of those with an HIV incident (50.2%) or conviction (54.2%). Put differently, there has been one arrest of a Black man for an HIV crime in Missouri for every 43 Black men currently living with HIV in the state today.

Department of Corrections/Department of Mental Health Crimes (DOC/DMH Crimes)

Although more recently enacted, today enforcement of laws criminalizing the exposure of state employees to bodily fluids significantly outpaces the enforcement of the HIV crimes laws described above. Of all people arrested for HIV or DOC/DMH crimes in Missouri, over two-thirds (66.8%) were arrested for the Department of Corrections Crime. More specifically, 396 people have been arrested for DOC crimes in 466 separate incidents. This includes 210 people who have been convicted of this crime.

• Department of Corrections: Over ninety-nine percent (99.5%) of all 398 people arrested for a DOC/ DMH crime, 396 people were arrested for exposing an employee or someone else connected with the Department of Corrections to bodily fluids. Further, 210 people have been convicted of this crime. On average, those convicted received unsuspended sentences of confinement of 2.9 years.
  • Of these, 48 people have been charged with the enhanced penalty for when the person has HIV or hepatitis B or C, but only 12 people have been convicted of this crime. On average, they have received unsuspended sentences of confinement of 5.2 years.
• Department of Mental Health: This crime has been rarely enforced since it was enacted in 2010: only three people have ever been charged with it and only one person has ever been convicted. No one has even received the enhanced penalty under this crime that applies if the defendant has HIV or hepatitis B or C.
• Cost: We estimate that, to date, the total cost of incarceration for Missouri’s DOC/DMH crimes is $7.4 million.
• Location: The enforcement of DOC/DMH crimes appears to be disproportionately concentrated in just a few counties. For example, 33.6% of these incidents are in just St. Francois, Mississippi, and Texas counties. However, these three counties have only 3.6% of the state’s incarcerated populations. This could indicate that DOC/DMH crimes are enforced differently by different law enforcement agencies, are tied more to conduct by defendants at arrest than during incarceration, or both.

• Age: While the average age of those impacted by Missouri’s DOC/DMH crimes was 31.4, those impacted ranged from 17.6 to 76.8 years old. More broadly, 68.8% had their first contact with the Missouri criminal justice system before the age of 21.
• Gender: While fifteen percent of people (15.3%) with a DOC/DMH criminal incident are women, women comprise only 10.4% of incarcerated people in Missouri.
• Race: While Black people comprise 11.8% of Missouri’s population, they comprise 33.4% of those who are incarcerated in the state, 46% of those with a DOC/DMH criminal incident, and 48.3% of those who have been convicted of such these crimes.
• Race and Gender: While Black men make up 5.5% of the state’s population, they are 32% of those who are incarcerated in the state, 41.7% of those with a DOC/DMH criminal incident, and 45% of those who have been convicted of these crimes.

This research shows that almost 600 people (593) have been directly impacted by Missouri’s HIV/ hepatitis criminal laws. While three of these laws are infrequently enforced, the other two laws continue to be enforced with frequency up through the fall of 2019. Further research is needed to explore why enforcement rates differ so greatly by county in Missouri, and why there is disproportionate enforcement on the basis of race and gender.

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