HIV Criminalization and Ending the HIV Epidemic in the U.S.

After more than 40 years of HIV research and significant biomedical advancements to treat and prevent HIV, most HIV criminalization laws do not reflect current scientific and medical evidence.

• Many of these laws were passed at a time when very little was known about HIV, including how HIV was transmitted and should be treated.
• These laws have not increased disclosure and may discourage HIV testing, increase stigma against people with HIV, and exacerbate disparities.

HIV criminalization laws were enacted before:

• The availability of antiretroviral therapy (ART). A person who takes ART as prescribed, and gets and stays virally suppressed, not only can live a long and healthy life but also will not transmit HIV to sexual partners.
• Pre-exposure Prophylaxis (PrEP), a pill taken by people who are HIV negative to prevent HIV infection. PrEP reduces the chance of getting HIV from sex by 99% when taken as prescribed.

Under existing laws in most states, the action taken by people with HIV can be criminalized for potentially exposing others to HIV. Actual transmission or intent to transmit HIV is not usually required.

• 34 states criminalize actions taken by people with HIV through HIV-or STD-specific laws.
• 14 states criminalize actions that have a negligible or low risk of transmitting HIV, such as spitting, biting, and oral sex.
• 13 states require people with HIV who are aware of their status to disclose their status to sex partners.
• 14 states have maximum sentence lengths of more than 10 years, and some states up to life, even though people with HIV might have taken measures to prevent transmission.
• 4 states require people with HIV who are aware of their status to disclose their status to needle-sharing partners.
• 10 states provide defenses for taking measures to prevent the transmission of HIV, such as condom use, viral suppression, and PrEP.

Presence of laws that criminalize potential HIV exposure • 2023

50 States, the District of Columbia, and Puerto Rico can use four categories of laws to criminalize potential HIV exposure.

Recommendations

When a law meant to protect the public is not working as intended, is unjust, and may be hurting efforts to keep communities healthy, common solutions must be found to better meet public health and public safety goals.

One step is to educate members of state and local justice systems to ensure they understand the scientific and medical data and public health goals.

HIV Criminalization Reform Options

• Repeal outdated HIV criminalization laws, or
• Modernize HIV criminalization laws, or
• Deprioritize HIV criminalization through specific or general criminal statutes, or
• If the former options are not feasible, use current scientific and medical evidence when applying existing HIV criminalization laws, or general criminal statutes used to criminalize the action taken by people with HIV.

Since 2014, at least 12 states have either modernized or repealed their HIV criminalization laws to make them align with current scientific evidence. California, Colorado, Georgia, Iowa, Michigan, Missouri, Nevada, North Carolina, Virginia, and Washington have modernized their laws. Illinois and New Jersey repealed their laws.

Modernization Examples

• Rolled HIV into statutes about general infectious or communicable diseases
• Required intent to transmit
• Provided defenses for people with HIV who took practical measures to prevent HIV transmission (e.g., viral suppression and condom use)
• Eliminated the felony penalty for people withHIV engaging in sex work who had knowledgeof their HIV status

• Required HIV transmission to apply a sentenceenhancement for sex offenses
• Decriminalized oral sex (a low-risk behavior)
• Removed provision from criminal code. Instead, provision is now part of the administrative code as a measure to help control communicable diseases
• Repealed provision that criminalized failing to disclose HIV status before sexual intercourse
• Reduced the penalty from a felony to a misdemeanor