HIV Criminalization

A. Watanabe
SisterLove, Inc Intern

As a summer intern for SisterLove, I’m helping with policy research on HIV criminalization in Georgia and the South – criminal laws that specifically target HIV transmission, or actions that pose the risk of transmission, without disclosure of one’s HIV status. The specifics of the laws vary from state to state; some of them don’t even require the intent to transmit, or for actual transmission of HIV to happen. Many states consider these “crimes” to be felonies, with prison sentences as long as twenty or thirty years. At first, for many people, the policy seems just: most would agree that intentional or reckless transmission of HIV is wrong.

But when you look at how these laws actually play out on the ground, you’ll find that HIV-specific criminal statues violate the human rights of HIV-positive people, are ineffective public health policy, and promote unscientific, stigma-based ideas about how HIV is transmitted. The Positive Justice Project found that 25% of HIV-related prosecutions between 1986 and 2001 involved biting, spitting or scratching, which carry virtually no risk of HIV transmission. Even so, Georgia and many other states continue to include these acts in their criminal statutes. These laws undermine efforts to promote accurate information about HIV, which is crucial to prevention.


Anti-criminalization advocates also argue that these laws, by placing the responsibility of prevention solely with people who know that they are HIV-positive, undermine the important message that everyone is responsible for protecting themselves from STDs. And these laws can discourage people from getting tested because not knowing your status can protect you from being prosecuted. This is especially dangerous when research has shown that HIV is generally transmitted by people who are unaware of their own status, not by people who knowingly or intentionally transmit it. In cases of sexual assault, or other exceptional situations in which transmission was clearly intentional, general criminal laws are sufficient to prosecute individuals, and HIV-specific laws are unnecessary.


The issue goes deeper than ineffective policy, though – it is well known that the United States leads the world in incarceration, having just 5% of the world’s population but 25% of the world’s prisoners, the vast majority for non-violent offenses. And the rates of incarceration are grossly disproportionate for people of color, especially African-Americans and Latinos. Though many racial justice advocates have called for alternatives to mass incarceration, the prison population has continued to grow for the last few decades. And so it’s not surprising that the United States would again turn to criminalization as a “solution” to HIV, instead of pursuing desperately needed public health and human rights-centered policies. A health issue is quickly turned into a moral issue through these dramatic and harsh criminal laws – reminiscent of the way that abstinence-only education rather than comprehensive sex education was used to respond to the spread of HIV, despite its proven ineffectiveness.


The laws especially target communities that are already stigmatized– for example, clause 3 and 4 of Georgia’s law specifically mentions sex work and “sodomy”, even though these acts would already be covered in clause 1, which specifies “any sexual act involving the sex organs of one person and the mouth or anus of another” and “sexual intercourse.” These laws are sending a clear message: that HIV is spread by “criminal” and marginalized communities – sex workers, intravenous drug users, and men who have sex with men – rather than placing the responsibility where it really lies. The United States has such a high HIV rate (the highest in the industrialized world) because policymakers continue to ignore the real causes of HIV: poor sex education, poverty, stigma, homelessness, lack of rehabilitative services for substance users, lack of adequate healthcare, gender inequity, sexual assault, and so on. Turning to criminal law as a “preventative” measure ignores the bigger issues that are actually at the root of HIV.


The fact that women of color are among the hardest hit by HIV/AIDS is not accidental: HIV/AIDS is deeply tied to social inequality. And because many of the communities at the greatest risk of HIV are also at the greatest risk of being criminalized in general, we can easily imagine who will pay the price. For women of color, who disproportionately face risks of gender violence, poverty, and lack of access to medical care – these women, even if they are not personally prosecuted by HIV transmission laws, will undoubtedly be impacted by the stigma and fear that these laws promote. Every time someone chooses not to get tested for fear of being prosecuted; every time someone is misinformed about how HIV is spread; every time the stigma and discrimination that HIV-positive people already face is made worse by these criminal laws; every time policymakers vote in favor of criminalization while ignoring the real issues that cause the spread of HIV– women of color, who are already vulnerable to so many of the social issues connected to HIV/AIDS, will be affected in some way, as will their families and communities.



I think that when the topic of criminalization of HIV comes up, people often struggle with the most notorious examples of intentional or reckless HIV transmission and how these cases should be handled. But I think that the questions we ask have to be deeper than, “is punishing people in this worst-case scenario the right thing to do?” The bigger picture questions we need to ask are: What does criminalization accomplish? How and when are the laws applied? What message do these laws send? Do these policies actually help stop the spread of HIV? And, who do these laws hurt?



As citizens and community members, we have to keep educating ourselves and others about what real solutions to HIV look like. We can support prevention strategies instead of criminalization – by spreading accurate information about HIV, encouraging people to get tested, and promoting safer sex practices such as condom use, among many others. We can support HIV-positive people in our communities facing stigma and fear of criminalization, and when organizations like SisterLove or the Center for HIV Law & Policy advocate for policy changes, they will need people to stand behind them.


More resources about HIV criminalization policies, who they impact, and how to advocate against them:

Positive Justice Project: A New Strategy to End Civil and Criminal Punishment and Discrimination on the Basis of HIV Status (2010). http://www.hivlawandpolicy.org/resources/view/563

Positive Justice Project: HIV Criminalization Fact Sheet (2010). http://www.hivlawandpolicy.org/resources/view/560

Open Society Institute: 10 Reasons To Oppose the Criminalization of HIV Exposure or Transmission (2008). http://www.hivlawandpolicy.org/resources/view/318

Positive Justice Project: What HIV Criminalization Means to Women in the U.S. (2011). http://www.hivlawandpolicy.org/resources/view/584

Positive Justice Project: Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions, A Manual for Advocates (2010). http://www.hivlawandpolicy.org/resources/view/564

Positive Justice Project: Guidance for People Living with HIV Who Are At Risk of, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure (2011). http://www.hivlawandpolicy.org/resources/view/580

Domestic Violence: A Risk Factor for HIV/AIDS?

T.Kimbrough
SisterLove, Inc Intern


It is quite alarming to note that black women are 15 times more likely to be diagnosed with HIV than our white counterparts (CDC, 2011). The question is why? With the amount of knowledge and free HIV testing available today, you would expect for our numbers to decrease. But for some strange reason, our numbers are increasing.

It is estimated that nearly half (45%) of new HIV infections are in the black population (CDC,2011). Researchers attributed this rise to specific sexual risk factors that seem to be prevalent within our community. Risk patterns such as unprotected sex, injection drug use, multiple sex partners and even domestic violence? Domestic violence is now being associated as a risk factor for HIV (Wingood et al, 1997; Raiford et al, 2009).

Women, who are in physically abusive relationships, are less likely to negotiate for the use of condoms with their partner (Wingood et al, 1997; Raiford et al, 2009). They are also more likely to reason that their chance of acquiring HIV is not as likely as their fear of being physically abused for refusing sexual advances. Even though they are knowledgeable about HIV/STD transmission, they would rather take a chance with acquiring HIV by engaging in unprotected sex than to advocate for condom use and risk the threat of their partner leaving them or even abusing them.

Where do you draw the line? Ask yourself which is more important to you; your sex life or your health? The choice is yours. Choose health. Ask yourself what can I do to protect my health? Seek solutions to commonly asked questions like: How can I better negotiate with my partner for condom use?; What proactive measures I can take to prevent the transmission of HIV/STDs?; How can I build better communication between my partner and I so that I can openly and freely discuss issues that I am concerned about?; Where can I go to get advice and counseling that can help me advocate for the things I feel are best for?

SisterLove, Inc is an organization that can help you with many of these concerns. SisterLove, Inc offers a free “Healthy Love session” that discusses HIV/STD transmission and prevention. The Healthy Love parties offer information about safe sex practices with emphasis upon condom negotiation and proper condom use. Once you learn how to feel comfortable discussing your sexual health needs and gain confidence in proper condom use, you will be more confident in your sexual health practices.

Contact SisterLove, Inc and find out when and where the next Healthy Love party. Come and have fun! Learn how to have better sex and safer sex. Visit us online: www.sisterlove.org.



References

Centers of Disease Control and Prevention (CDC,2011), HIV/AIDS and African Americans, Retrieved July 11, 2011 from http://www.cdc.gov/hiv/topics/aa/index.htm

Raiford, J., DiClemente, R., & Wingood, G. (2009). Effects of fear of abuse and possible STI acquisition on the sexual behavior of young African American women. American Journal of Public Health, 99(6), 1067-1071. doi:10.2105/AJPH.2007.131482

Wingood, G., & DiClemente, R. (1997). The effects of an abusive primary partner on the condom use and sexual negotiation practices of African-American women. American Journal Of Public Health, 87(6), 1016-1018. Retrieved from EBSCOhost