December 1 is World AIDS Day, a time to reflect on the pandemic that’s been ongoing for as long as many of us have been alive. It’s an opportunity to recall those lost, to note the progress of the last few decades, and to look to the discoveries and reforms still desperately needed. While there’s been encouraging progress reaching UN goals for testing and treatment, there’s still a desperate need for change when it comes to the criminalization of HIV.
That’s right, criminalization. In many states, you can be thrown in jail for transmitting HIV to another person. And while it may seem like discouraging transmission is a worthwhile goal, these laws don’t work. They date back to the early days of the epidemic, they don’t reflect current science (in some states it’s illegal for someone with HIV to spit on another person, for example), they discourage testing, and you will be absolutely shocked to hear that penalties often show signs of racial bias.
A handful of states, including Washington state, have partially decriminalized HIV transmission. The progress made in those states can provide a roadmap to others—and also highlight the loopholes that remain, even here.
Before this year, if you exposed someone to HIV in the state of Washington—even unknowingly, and even if you used protection—you could be sent to jail for the rest of your life, forced to pay $50,000 in fines, and register as a sex offender. Exposure wasn’t defined in the law, so it could be interpreted to apply to a broad range of activities unlikely to actually result in transmission; and it was considered a class A felony, with HIV classified with the same level of hazard as poison.
That changed after Governor Inslee signed HB 1551 this year, reducing transmission from a felony to a misdemeanor. The bill also implemented a definition of “exposure” to reflect scientific reality and narrowed the requirements for registering as a sex offender.
And while that’s more than most states have done, it still leaves some people at risk, according to The Center for HIV Law and Policy. Now, to convict someone, prosecutors must prove that the defendant intended to transmit HIV; but they don’t need to prove that transmission occurred. What’s more, the law still allows judges to impose longer sentences on people with HIV when they’re convicted of other offenses.
Washington’s not alone in reforming laws that criminalize HIV; we join California, Colorado, Illinois, Iowa, Michigan, North Carolina, and Texas in passing recent updates to HIV-related laws. But in each state, work remains to be done. Illinois still allows felony convictions in cases where no transmission occurred and criminalizes organ donation by people with HIV. In North Carolina, prosecutors charged an assailant with attempted murder due to their HIV status. Texas courts still consider the bodily fluids of people with HIV to be a “deadly weapon.”
This Thursday, December 3, attorneys with the Center for HIV Law and Policy as well as the Foundation for AIDS Research will hold a Zoom webinar on efforts to decriminalize HIV. Passing laws that criminalize HIV was a mistake in the '80s, a mistake that’s taken far too long to correct. But forty years on from the earliest days, America’s finally in sight of what could be called the end of the epidemic, thanks in part to the dismantling of the stigma and mistakes of the past.