“HIV Criminalization” is a term used to describe the effect of statutes that either (1) criminalize otherwise legal conduct or (2) increase penalties for criminal conduct based on a person’s HIV-positive status. In California, 95% of HIV-related criminal incidents fall under California’s PENAL CODE §647F, a felony statute that applies to individuals living with HIV purported to be engaging in solicitation while HIV-positive (also referred to as simply “felony solicitation”). This collaborative study between the Williams Institute, the California Women’s Law Center, and the California HIV/AIDS Policy Research Center sought to further explore the characteristics and experiences of women in California who had contact with the criminal system related to sex work. For the purposes of this study, the terms “women” and “men” refer to those categorized as such within the criminal justice statistics data systems. This study is focused on sex work as it is defined through the Attorney General’s Criminal Justice Statistics Center.
The researchers analyzed California Department of Justice criminal history data on people who had felony solicitation while HIV-positive arrests from 2005 to 2013 and compared the demographics and frequencies with arrest data on prostitution over the same time period. The primary goal of this analysis was to answer questions about the relationship between rates of HIV criminalization arrests and rates of general solicitation arrests, including whether the rates appear related and which groups seem most impacted. It is important to note that criminal records do not record gender identity separately from sex assigned at birth, so we have no definite understandings about the experiences of transgender people in this context from these data. Key findings included:
- Arrests for both felony solicitation while HIV-positive and prostitution declined over the time period reviewed, by 68% for felony solicitation while HIV-positive arrests and by 27% for arrests for the more general category of prostitution. Interestingly, the number of people living in California and the number of people living with HIV in California both increased during the same time period (by 9%and 35%, respectively).
- Over the time period reviewed, women accounted for approximately two-thirds of prostitution arrests, but less than half of arrests for felony solicitation while HIV-positive. However, when compared to the underlying populations that could be arrested (i.e. women in California for prostitution and women living with HIV in California for felony solicitation while HIV-positive), the overrepresentation of women in felony solicitation while HIV-positive arrests was greater than the overrepresentation of women in the more general category of prostitution arrests. Women were arrested for prostitution at a rate that was about 1.4 times their proportion of the general population in California, and women were arrested for felony solicitation while HIV-positive at a rate that was about 3.1 times their proportion of the statewide population of people living with HIV.
- Even while the overall number of arrests related to sex work decreased across the state from 2005 to 2013, Black women over this time period made up an increasing proportion of those being arrested for prostitution. In 2005, Black women were arrested at a rate about 11 times their general rate in the California population. By 2013, that rate was closer to 14 times their rate in the population.
- While not as striking as the overrepresentation in the more general category of prostitution arrests, Black women were still the most overrepresented group for felony solicitation while HIV-positive arrests when compared to the underlying population of people living with HIV in California. White women and Black men were also consistently overrepresented when compared with their proportion of the population living with HIV.
These findings indicate a clear disproportionate representation of Black women among those being arrested for sex work, in the context of HIV and in general. Given others’ work on the topic, this overrepresentation of Black women in sex work arrests in California is likely related to a host of factors, including policing practices and racial/ethnic stratification of sex workers according to venue (e.g. street-based sex work as opposed to indoor or online venues). However, more research is needed on the wellbeing and experiences of sex workers to further understand this phenomenon.