Ending the Criminalization of People with HIV: New Department of Justice Guidelines

In the wake of the AIDS epidemic in the 1980s and 1990s, ignorance and anti-LGBTQ bias led to state legislatures across America passing a myriad of laws criminalizing people living with HIV/AIDS. These laws were based on and furthered misconceptions about HIV transmission. In the decades since these laws were passed, they’ve caused untold amounts of harm by legalizing discrimination and bias against LGBTQ people and people with HIV. While our scientific understanding of the cause and treatment of HIV has changed substantially since the height of the AIDS epidemic, currently nearly two-thirds of states have HIV criminalization laws in place.

Last week, the Department of Justice (DOJ) released new guidelines urging states to reform their criminal codes to reflect current scientific understanding about the transmission of HIV. In its memo to state attorney generals, the DOJ explains the current scientific understanding of transmission risk, tying current science to HIV-specific criminal laws, and urges reforming these laws.

Rather than help people living with HIV find treatment that would help them and at the same time prevent HIV transmission, HIV-specific criminal laws stigmatize HIV positive individuals and forced them to live in fear, and cause others to be afraid of getting tested for HIV. This stigma is compounded for  LGBTQ people already facing discrimination, especially trans people and people of color. State laws often criminalize the failure to disclose HIV-positive status to a partner well as behavior which poses almost no risk of HIV transmission, such as spitting or biting. What’s worse is that people charged under these laws are prosecuted regardless of whether HIV was actually transmitted. Additionally, they face lengthy sentences and in several states are required to register as sex offenders.

A groundbreaking report published in May 2014 by the Center for Gender & Sexuality Law at Columbia Law School, “A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV,” which included policy suggestions from the Task Force, offers additional insight into the problems with HIV-specific criminal laws. It also includes this personal story by David Plunkett:

On September 18, 2006 I was jailed and eventually sentenced to a ten-year state prison term for aggravated assault on a police officer with a deadly weapon or dangerous instrument. According to the county Supreme Court the deadly weapon was my “HIV infected saliva.”… After my arrest I lost many things I had worked hard for: I lost my business, my home, and most importantly my reputation. I have had to start my life all over, and finding employment has been impossible with the nature of the alleged crime…

Simply put, these laws are wrong. Lack of understanding and baseless opinion should never be the leading motivation to criminalize a group of people. As the work continues to repeal these hurtful and ill-conceived laws, the DOJ’s guidelines are a valuable tool for advocates and a step in the right direction.

We at the Task Force welcome DOJ’s new guidelines but know that they are imperfect. For example, many states that don’t have HIV-specific laws do use someone’s HIV status to charge them with crimes such as reckless endangerment or assault for the same behavior (spitting, biting, etc.), yet the DOJ guidance fails to address this issue. Also, the DOJ’s guidance could go further by calling for an end to all HIV-related felony prosecutions.

This week AIDS and HIV researchers and activists from around the globe are gathering in Melbourne, Australia to convene at the annual International AIDS Conference. As we look forward to the conference, and mourn the tragic loss of key scientists responsible for cutting edge HIV research in the Malaysia Airlines Flight 7, it is important to reflect on the unfinished work on HIV that lies ahead.