HIV criminalization arose in an atmosphere of fearful ignorance, disproportionately harming Black men. But activists are fighting back.

Today, 32 states have laws that criminalize people living with HIV (PLWH). These laws expose PLWH to the risk of prosecution and incarceration for engaging in consensual sexual activity while not disclosing their status. Of those states, 28 enhance criminal penalties based on an individual’s knowledge of their HIV status. In many of these states, arrests and convictions due to HIV criminalization disproportionately impact Black populations, because HIV disproportionately impacts Black populations.

A new study of 16 states by the Williams Institute shows Black Americans are more likely than any other race to be arrested and convicted for HIV-related allegations, and were arrested for HIV-related crimes at higher rates than their overall share of the population. In 64% of the states analyzed, Black Americans faced higher rates of arrest than their share of PLWH in the state. In 75% of the states, Black Americans were convicted at higher rates than their share of PLWH in the state.

Legislation criminalizing the transmission of HIV started in the 1980s, in response to events largely fueled by fear that the AIDS epidemic — which at the time was perceived as gay men’s disease, and was originally called Gay Related Immunodeficiency Syndrome (GRID) — would spread to heterosexuals. In 1987, Ronald Reagan’s Presidential Commission on the HIV Epidemic recommended that states adopt HIV-specific laws in response to rising infection rates among gay men, based on the belief that existing assault laws were too lenient to serve as a deterrent.

In 1990, the Ryan White Comprehensive AIDS Resource Emergency (CARE) Act was enacted, providing funding to states on the condition that their criminal laws addressed intentional HIV exposure and transmission.

Subsequently, flurries of punitive legislation arose amid highly publicized, sensationalized cases involving young Black men, such as that of Nushawn Williams in the late 1990s. Accused of having sex with younger women while HIV-positive, Williams pleaded guilty to reckless endangerment and statutory rape and was sentenced to 12 years in prison. He remains imprisoned after serving his sentence because the New York attorney general initiated involuntary civil commitment proceedings against him just days before his release.

“Available research confirms what we knew back then — criminal laws do not reduce HIV transmission or the behavior that causes it,” says Catherine Hanssens, the founding executive director of The Center for HIV Law and Policy.

Robert Suttle, an HIV criminalization policy expert, tells LGBTQ Nation that these laws became more about control than prevention. “HIV criminalization became a proxy to control certain populations — queer people, sex workers — especially to stop people diagnosed with HIV from having sex,” says Sutter. “It’s never worked.”

Indeed, recent studies have found that HIV criminalization laws have “no detectable prevention effect.”

Not only do HIV criminalization laws, conceived at a time when an HIV diagnosis was essentially considered a death sentence, fail as preventative measures, but they also eliminate burdens of proof and intent to do harm, which are required under criminal law.

Most of these laws only require simple exposure with the failure to disclose HIV status. Most state laws don’t require evidence of transmission or intent to harm. Several target interactions in which spit and other bodily fluids come into contact with law enforcement, correctional employees, and first responders, criminalizing behavior that has no chance of transmitting HIV.

Again, these laws — which have stood for decades — reflect a time when little was known about how HIV was spread, and a diagnosis was considered fatal.

Black bodies on trial: The case of “Tiger Mandingo”

The case of Michael Johnson, also known by his screen name “Tiger Mandingo,” illustrates many of the problems with HIV-criminalization laws and how they intersect with the historic policing of Black Americans.

Johnson, a Black gay wrestler at Linwood University in St. Charles, Missouri, was arrested in 2013 for not disclosing his HIV-positive status to six former male sex partners, four of whom were white. At the time, Missouri’s law required PLWH to inform their partners of their status, regardless of safe-sex practices. The law did not require intent to transmit or actual transmission of HIV, but only that a person was aware of their status and unable to prove that they informed their partners before engaging in sex.

Johnson faced a stacked deck before his trial even started. Of the 51 potential jurors, only one was non-white. Half said they believed being gay was a choice, and two-thirds believed it was a sin. All were straight, HIV-negative, and believed that PLWH who do not disclose to their partners deserved to be prosecuted. The final jury consisted of four white men, seven white women, and one retired Black nurse. Most of the jurors appeared to be in their 50s or 60s.

Several discrepancies arose during Johnson’s trial. Johnson maintained that he disclosed his status and that all of his partners engaged in consensual sex without condoms. Each of his partners testified that they’d asked if he was “clean” or STD-free, and that he’d assured them that he was. This contradicted what they initially told police. But the jury never heard of these discrepancies, either because his defense attorney failed to raise them or because she was overruled when she did.

One partner testified that Johnson had actually infected him, but told the police he’d told Johnson he was HIV-positive when he met him. No genetic evidence linked Johnson’s strain of HIV to the virus in the other men, suggesting that they may have contracted it from someone else.

The prosecution employed stereotypical tropes. Images of Johnson’s penis — from a sex video made with one of his partners — were shown to the nearly all-white, all heterosexual, HIV-negative jury, literally criminalizing his “contagious” Black body, and reducing him to his sex organ, described in graphic, lurid detail in police reports and on the witness stand as “very large” and “too tight” for condoms.

In 2015, the jury sentenced him to 30 years for transmitting HIV without disclosure to six former sexual partners, and 30.5 years for exposing four others without disclosure, for a total of 60.5 years — a longer sentence than many convicted of involuntary manslaughter. The judge ultimately reduced the sentence to 30 years.

However, Johnson served only a fraction of his sentence. His conviction was overturned in December 2016 due to egregious prosecutorial misconduct. Johnson accepted a plea deal and was released from prison on July 7, 2019.

In 2021, Missouri reformed its HIV-criminalization law, downgrading “reckless exposure” of someone to HIV from a Class B felony to a Class D felony. Moving away from the AIDS panic of the 1980s, the law applies to all “serious infections and communicable diseases,” instead of singling out HIV. Prosecutors must now prove someone “knowingly” exposed someone to HIV.

Policing Black bodies in a culture of fear

While HIV criminalization laws were originally targeted at gay men, they represent a small number of actual arrests.

“Based on the best data available, women of color who are sex workers and Black men targeted by police or those currently incarcerated make up most of the arrests and convictions,” Hanssen says.

Hanssen also describes how HIV criminalization laws don’t necessarily impact transmission, but may discourage vulnerable communities from accessing essential resources. “As I’ve suggested, laws based on myths and misconceptions surrounding HIV will perpetuate HIV stigma,” Hanssen said.

HIV-related stigma creates real obstacles for PLWH. The behaviors often associated with acquiring HIV — such as being gay or using intravenous drugs — are still stigmatized, and confirming or disclosing one’s HIV status is still widely perceived as socially dangerous. HIV-related stigma can discourage testing and prevention practices. Individuals may fear confirming their HIV status, let alone accessing education about transmission and prevention. HIV criminalization laws increase those fears.

“Telling a newly diagnosed person they will be prosecuted as a felon if they expose another person to HIV may not discourage them from having sex,” she said, “but it might discourage them from entering and staying in health care, particularly when medical mistrust is already so high among the vulnerable populations targeted by these laws.”

This is especially true for Black Americans, among whom medical mistrust may be a deeply rooted reaction to historical exploitation by incidents like the Tuskegee experiment and ongoing systemic racism.

Suttle explains how these laws cause particular harm to Black LGBTQ+ people by creating a culture of fear. “Is the public health system or legal system helping the people they claim to protect?” he asks, “The evidence shows they’re doing more harm than good.”

“For Black people — especially Black LGBTQ+ people — HIV isn’t just a medical condition,” he says. “It’s shaped by laws, policies, and institutions that operate from a culture of fear rather than science, and from control rather than care.”

Hanssen echoes Suttle, saying, “Telling people that they are a potential criminal based only on a diagnosed health condition is harmful, particularly to people who have been told for centuries that they are not worthy of equal treatment under the law based on race, sexual orientation, or gender identity.”

“There is now plenty of evidence demonstrating how HIV criminal laws increase stigma,” says Catherine Hanssens. “These laws create a uniquely harmful, un-American legal standard and produce felony penalties rooted in lack of knowledge about HIV transmission – that alone is enough to demand their repeal.”

Reforms vs. real change

Thanks to the work of state-based organizations like Free State Justice in Maryland, Equality California, and Washington State’s HIV Justice Network, so far, eight states have taken steps to reform their HIV criminalization laws, though not all have repealed them.

California and Washington State have made the biggest changes. Now, both states require proof that someone intended to transmit HIV or actually did so before they can be convicted. They have also removed most laws that made exposure to HIV or other diseases a crime, except in some cases involving sex offenders. Intentional transmission is now a misdemeanor in California, with a maximum sentence of six months, or in Washington State, 30 days.

By comparison:

• North Carolina still connects criminal liability to viral load and engagement in care.
• Iowa eliminated its sex offender registry requirement and tightened up intent requirements, but added “recklessness” as a standard for liability.
• Virginia reformed its bill, but retains felony-level offenses.

Beyond reforms to state laws, Suttle suggests a paradigm shift away from focusing on individuals and toward the legal and justice systems is necessary for effective change.

“In an individualistic society, if HIV is happening, it’s treated like we [PLWH] caused it,” he says. “But no single individual can cause an epidemic. Instead of addressing external factors — poverty, lack of education, lack of access to healthcare — systems punish individuals. Those conditions are by design, not because people ‘created’ HIV.”

“But look at who’s in political control — and who controls public health and the legal system. Those systems get off the hook by shifting blame to individuals. Instead of investing money into prevention, education, and awareness, they criminalize people.”

“For Black LGBTQ communities, this is a matter of survival,” Suttle says. “HIV in America today isn’t simply defined by medicine. It’s defined by whether laws and institutions will catch up with science, provide equity, and understand the reality we’re living in.”

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Terrance Heath is a longtime LGBT equality activist, writer, and award winning blogger. He lives in Chevy Chase, Maryland, with his two sons.