Criminalizing Health Status: The Case HIV Crimes

• In Event: Poster Session: Science, Technology, and Environmental Policy 1 & Comparative Health Policy
  In Poster Session: Poster Session: Comparative Health Policy

Abstract

SUMMARY: HIV criminalization refers to laws that make otherwise legal conduct illegal because of a person's HIV status. Over half the US states have HIV criminal laws. Previous research based on press reports and court cases dramatically undercounted enforcement of HIV criminal laws. In this paper, I describe findings from a series of novel state-based analyses that depict much broader enforcement patterns: Black people, women, and sex workers are over-represented--sometimes dramatically so--in arrests, prosecutions and convictions. These results suggest problems with achieving public health goals through the criminal legal system, and point to new avenues for studying the increasing entanglement of public health and criminal law (e.g., COVID, reproductive care, and gender affirming care).

BACKGROUND: It has been forty years since the human immunodeficiency virus (HIV) was first identified. Today we have highly reliable tests to detect HIV and medications that effectively eliminate the risk of HIV transmission through sex; HIV has become a manageable health condition. Yet more than half of states across the United States criminalize people living with HIV (PLWH).

HIV's treatment in criminal law is quite particular. For example, HIV criminal laws often do not require actual transmission or even the intent to transmit (mens rea), which is normally a required component of criminal law. Some laws even criminalize behavior that cannot transmit HIV, such as spitting and biting. Indeed, even during the recent COVID pandemic state legislatures avoided criminalization.

The study of HIV criminalization provides a useful window into the mobilization of the public health system in the criminal legal system. Public health agencies are required to identify and track PLWH, and those records are used by police and prosecutors. These linkages can discourage HIV testing and treatment; HIV criminalization may directly inhibit public health goals. The study of HIV criminalization also reveals how medicine, healthcare, and the criminal legal system can become entwined in US public policy--a phenomenon likely to grow as legislators move battles over access to reproductive and gender-affirming care move from the doctor's office to the criminal docket.

Systematic study of the who and how of HIV criminal enforcement has to date not been possible in the United States because of the decentralized nature of law enforcement and crime enforcement statistics. As a result, previous studies of the enforcement of HIV criminal laws have primarily relied on media accounts and court cases. These studies dramatically under-report the frequency of arrests and prosecutions, and over-represent certain types of cases (male, often white, usually same-sex sexual contact). In consequence, even after decades of enforcement we still do not have a clear idea of who and how of HIV criminalization: How many people come into contact with the criminal system because of their HIV status? What groups are more likely to be arrested and prosecuted? What are the circumstances of arrest? A clearer picture of enforcement patterns is a prerequisite for reform efforts.

DATA AND METHODS: I rely on a series of state-level analyses of HIV-related criminal data to identify broad and state-specific patterns in the enforcement of HIV-criminal laws across the United States. The data come from state-level incident-based reporting systems, court records management systems, department of corrections records, and sex offender registries.

FINDINGS: Several patterns emerge: 1) Thousands of people have come into contact with the criminal legal system because of their HIV status. This is many orders of magnitude greater than most previous estimates of the number of people criminalized. 2) Black people, women, and sex workers are disproportionately affected. People at the intersection of these identities are much more likely to be criminalized. 3) Enforcement is not correlated with risk; states criminalize people for conduct that cannot transmit HIV. 4) Women and men are criminalized for different behaviors; gender or race alone cannot account for the patterns of enforcement. For example, when states have sex worker-specific HIV criminal laws, women are more likely to be overrepresented. Men are more likely to be criminalized for spitting or biting offenses.

IMPLICATIONS: General knowledge about HIV criminal laws remains low, even among policy makers, and tends to reflect media bias in reporting. This study shows that enforcement continues today, that certain vulnerable populations are at increased risk of criminalization, and that enforcement might run counter to stated public health goals around HIV and other communicable illnesses. This study also highlights new research opportunities to study the criminalization of other health conditions, like reproductive healthcare and gender-affirming care, that are normally hard to track because of data availability limitations.

Author

• Nathan B. Cisneros, University of California, Los Angeles