Powerful and important new book, ‘Criminalized Lives’ published this week

This week sees the publication of a powerful and important new book, Criminalized Lives.

Based on 24 interviews conducted across Canada over two years with 16 people who were criminally accused of not disclosing their HIV-positive status, author Alexander McClelland, details the many complexities of disclosure, and the violence that results from being criminalised.

McClelland, who is living with HIV, works as a criminologist at Carleton University, in Ottawa, Canada. He is also a member of HJN’s Global Advisory Panel (GAP) and the Canadian Coalition to Reform HIV Criminalization.

Canada has long been a hot spot for HIV criminalisation where the act of not disclosing one’s HIV-positive status to sex partners has historically been regarded as a serious criminal offence. The book describes how this approach has disproportionately harmed Black and Indigenous people, women, gay men, and the poor.

While the book focuses on Canada, it presents lessons for those of us working around the world to end HIV criminalisation, especially in contexts where general criminal laws – like bodily harm, sexual assault and even attempted murder – are being applied to instances of alleged HIV non-disclosure.

Accompanied by a foreword by fellow HJN GAP member, US-based leading HIV criminalisation activist Robert Suttle, and portraits from queer comic artist Eric Kostiuk Williams, the book’s moving interviews illustrate that criminal legal systems are unprepared to handle the nuances and ethical dilemmas faced everyday by people living with HIV. 

By offering personal stories of people who have faced criminalisation first-hand, McClelland questions common assumptions about HIV, the role of punishment, and the violence that results from the criminal legal system’s legacy of categorising people as either victims or perpetrators, and the complicity of public health systems in processes of criminalisation.

The book is distributed internationally via Rutgers University Press where you can purchase paperback, hardback, and ebook versions.

Five things you can do to amplify Criminalized Lives:

  1. Ask your local library to carry the book.
  2. Host a conversation on the book in your community to help mobilise for change.
  3. Share your thoughts about the book on social media to generate conversations about the harms of HIV criminalisation.
  4. Review the book in a publication or online.
  5. Include the book in a course syllabus.

Civil society statement on the proposed re-criminalisation of HIV in Zimbabwe

Download this statement as a pdf

In 2022, the Government of Zimbabwe was celebrated nationally and internationally for repealing the country’s HIV-specific criminal law, Section 79 of the Criminal Code.

When announcing the repeal in Parliament, Minister Ziyambi Ziyambi, Zimbabwe’s Minister of Justice, Legal and Parliamentary Affairs noted: “…the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the intended results. What the ministry is going to do is to repeal that section of the law and ensure that we keep up to speed with modern trends in the world.”

HIV JUSTICE WORLDWIDE is shocked, saddened and extremely disappointed that only two years later, the Ministry of Justice, Legal and Parliamentary Affairs is now proposing to re-criminalise HIV by adding HIV to the list of sexually transmitted infections (STIs) currently criminalised in Section 78 of the Criminal Code.

That they are proposing to do so as part of the Criminal Laws Amendment (Protection of Children and Young Persons) Bill is both cynical and unwarranted. Amendments to the Criminal Code are meant to codify the Supreme Court decision on the age of consent to sex. Amending Section 78 of the Criminal Code to re-criminalise HIV is out-of-step with the 2021 Political Declaration on HIV/AIDS agreed on by UN Member States, including Zimbabwe. Of note, Section 80 of the Criminal Code already provides for aggravated sentencing in cases of exposure to HIV during “sexual intercourse or performing an indecent act with a young person.”

Section 78, like the repealed Section 79, criminalises anyone who “does anything or causes or permits anything to be done with the intention or realising that there is a real risk or possibility of infecting any other person with” syphilis, gonorrhoea, herpes and “all other forms of sexually transmitted diseases”. It is overly broad and extremely vague. 

Adding HIV to this already problematic provision would be a retrograde and harmful step backwards for the following reasons:

  1. Criminalisation does not prevent HIV or STI transmission. Communicable diseases – including those that are sexually transmitted – are public health issues, not criminal issues and criminalisation is not an evidence-based response to public health issues. As UNAIDS noted in its 2022 press release congratulating Zimbabwe for repealing the HIV criminalisation law: “The criminalisation of HIV transmission is ineffective, discriminatory and undermines efforts to reduce new HIV infections. Such laws actively discourage people from getting tested for HIV and from being referred to the appropriate treatment and prevention services.”
  2. The criminalisation of HIV and other STIs can violate human rights. Such laws and prosecutions threaten the rights of people living with HIV, and other STIs, to equality, freedom from discrimination, privacy, human dignity, health, liberty, and the right to a fair trial, amongst others. Based on the HIV Justice Network’s monitoring of how people living with HIV were prosecuted previously under Section 79, we believe that the criminal justice system is not well equipped to understand the science of exposure and transmission of HIV or other STIs and would therefore be unable to uphold principles of legal and judicial fairness, including the key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof. Overly broad criminalisation of HIV and STIs means people with HIV or STIs risk being prosecuted and sent to prison instead of receiving care for their medical condition.
  3. The criminalisation of HIV and other STIs can increase stigma and harm public health. This is particularly so because prosecutions are often accompanied by highly stigmatising and inaccurate media reporting. By increasing stigma and driving people away from testing and healthcare services, criminalisation may therefore also prevent or delay people from accessing testing and treatment. Effective HIV and/or STI treatment not only allows people living with HIV or other STIs to lead longer, healthier lives, but also prevents HIV and STI transmission. 
  4. Criminalisation harms women. In Zimbabwe, as in many African countries, HIV criminal laws have been disproportionately applied against women living with HIV. Women are usually the first to know of their HIV status, often due to accessing testing during antenatal care. Being the first to test positive, women may be vulnerable to being falsely blamed for bringing HIV into the relationship. Women living with HIV are also vulnerable to violence and abuse in intimate relationships and the threat of prosecution only increases that vulnerability.

Rather than adding HIV to Section 78, this provision should be repealed. This would contribute to enhancing Zimbabwe’s HIV and STI response in line with a human rights-affirming approach to health that is mandated by the Constitution and recommended by public health and human rights experts internationally and regionally.

The Health Law and Policy Consortium agrees with the HJWW coalition:

Reintroducing the punitive criminalisation of  HIV transmission is counterproductive as it undermines national health objectives and the global target of ending HIV and AIDS by 2030. It will be tantamount to reenacting state endorsed stigma that will inevitably flow from the criminalisation. This amendment not only jeopardises the progress made through the successful repeal of Section 79 of the Criminal Law Codification and Reform Act, it threatens current efforts underway to prevent the spread of HIV as it reintroduces a driver for new infections of HIV. The proposed amendment creates a formidable legal barrier that will severely undermine full access to essential healthcare services. It will deter individuals from seeking regular HIV testing, adhering to HIV treatment and medication, and disclosing their HIV status to enable their sexual partners to take preventive measures such as PrEP.

Sonke Gender Justice also agrees with the above and adds the following:

It is Sonke’s considered view that the reintroduction of the impugned provisions providing for the criminalisation of HIV in Zimbabwe will harm rights of women. The amendment of Section 78 of the Criminal Code on sexually transmitted diseases to include HIV will bring back the narrative of unjust arrests and prosecutions. Under this new provision, women tested as HIV-positive will face prosecution and eventual violence. Criminalisation of HIV reinforces gender barriers to accessing treatment, care and support for women who test HIV-positive, driving them underground, unable to disclose their status to the detriment of family health resulting in infant HIV acquisition, ART non-adherence for both the mother and infant. Criminalisation of HIV impairs public health goals that seek to promote health rights of women leading to poor health outcomes and HIV related health disparities.

HJWW, HLPC and Sonke conclude that re-criminalising HIV, as well the existing criminalisation of STIs, is a threat to Zimbabwe’s HIV and SRHR response and to the rights, security and dignity of people living with HIV, particularly women living with HIV.

Section 78 is vague and overly broad and risks being applied in a way that is unjust and discriminatory. It will not prevent HIV or STI transmission, instead perpetuating stigma and misinformation, risking driving people away from HIV and STI testing and treatment and filling prisons.

 


About the authors of this statement

HIV JUSTICE WORLDWIDE is a coalition of 16 global and regional civil society networks and human rights defenders working to end HIV criminalisation.

Health Law and Policy Consortium (HLPC) is a health policy advocacy organisation leveraging a network of experts across various disciplines. HLPC aims to facilitate rights-based policy formulation, implementation, and monitoring within Zimbabwe’s public health system.

Sonke Gender Justice is a South African-based non-profit organisation working throughout Africa. Sonke believes women and men, girls and boys can work together to resist patriarchy, advocate for gender justice and achieve gender transformation.

Download this statement as a pdf

Navigating injustice: the struggle for fair treatment of HIV non-disclosure in Canada

Resetting the code on HIV and crime

AIDS is not the death sentence it once was, but Canada still has strict punishments for people who don’t disclose their HIV status to sexual partners. Critics say that’s unfair and out of step with the rest of the world. What could be done differently?

Before Michelle was diagnosed with HIV, her life was marred in ways unfathomable to most.

In the home where she grew up, drugs were dealt and intoxicated men came and went. As a young child, Michelle was sexually abused by a family member.

In the years that followed, she used alcohol, cocaine and heroin to cope. She believes she was infected with HIV in 2000 through a contaminated needle.

Struggling with addiction, Michelle turned to sex work in Vancouver’s Downtown Eastside. In 2006, a man accused Michelle of having unprotected sex with him without disclosing her HIV-positive status. Michelle alleges she was in an abusive, coercive relationship with the man, a former client, and that he sexually assaulted her without a condom. (The Globe and Mail does not typically name victims of sexual assault, but Michelle consented to use her first name.)

After the man brought his story to police, Michelle was charged with aggravated sexual assault. In cases involving alleged “HIV non-disclosure,” it is the charge most often laid in Canada, and the most serious sexual offence in the Criminal Code. Fearing a lengthy prison term, Michelle pleaded guilty and was sentenced to 2½ years. Only after pleading did she learn that her name had been put on the National Sex Offender Registry, something no one discussed with her in court, she said.

“I have a life sentence tied to my name,” said Michelle, now 45. “I have a label but I’m not that person. The whole label of a sex offender – I was raped at the age of 5. I know what sexual abuse is. I’m a victim of sexual abuse.”

An estimated 62,790 people were living with HIV in Canada in late 2020. Michelle is one of hundreds who’ve been prosecuted for alleged HIV non-disclosure.

Between 1989 and 2020, approximately 206 people were prosecuted in 224 criminal cases, according to a 2022 report from the HIV Legal Network. Of 187 cases where the outcome is known, 130 cases – 70 per cent – ended in conviction, the vast majority with prison time. A significant number of those convicted prior to 2023 were also registered as sex offenders, before courts ended the practice of making this mandatory for all sex offences.

In Canada, the law focuses not on actual transmission of the virus, but on “non-disclosure” – the act of not telling a sexual partner that one is HIV-positive prior to sex that poses a “realistic possibility” of transmission. This means that people who did not pass HIV to anyone have been charged, convicted and imprisoned. Of 163 cases where complainants’ HIV status was known, 64 per cent didn’t involve actual transmission of HIV. Courts have convicted HIV-positive people who took precautions before sex, as well as those who were sexually assaulted.

It is a sweeping, punitive approach that sets Canada apart from many other jurisdictions internationally.

Now, a push to limit HIV criminalization is intensifying. For years, critics have argued the laws are discriminatory and unscientific – driven by fear, misconceptions about people living with HIV and a lack of knowledge about the basic scientific realities of this virus. Thanks to significant medical advances, HIV can be managed effectively with antiretroviral medication that makes the virus undetectable and untransmittable to others.

The Canadian Coalition to Reform HIV Criminalization – a group that includes people living with HIV, community organizations, lawyers and researchers – is pushing for amendments to the Criminal Code that would limit criminal prosecution to a measure of last resort, reserved for rare cases of intentional transmission. Among other changes, the group also wants to see an end to charging these cases under sexual assault law.

“People have been prosecuted, many of whom are still living with the consequences of that prosecution, including in cases where there never should have been a charge in the first place,” said Richard Elliott, a Halifax lawyer and former executive director of the HIV Legal Network.

While the federal government has published reports, engaged in public consultations and issued some directives on limiting HIV prosecution, some advocates fear the push for broader legal reform is stalling: to date, there remains no legislation to amend this country’s HIV non-disclosure law. In the absence of legal reform, Canadians living with HIV face a lingering threat of criminal liability as they navigate their intimate lives.

Alison Symington heard about the life-altering impact of this from HIV-positive women for two documentaries she co-produced on HIV criminalization. For many of these women, the legal perils were too high to chance relationships with partners who might later turn out to be misinformed or vindictive and take them to court.

“It’s sad,” said Ms. Symington, a senior policy analyst at the HIV Justice Network. “People used to be fearful that they might pass the virus on. But now that they know they won’t pass the virus on – and that they could have a happy, healthy relationship – there’s still this outdated criminal law hanging over their heads.”

At the height of the HIV/AIDS crisis in the early nineties in Canada, thousands were dying of AIDS-related illnesses, many not long after a diagnosis. In 1995 alone, more than 1,700 people died, according to Statistics Canada. It was a period that would usher in some of Canada’s earliest prosecutions for HIV non-disclosure.

With the virus shrouded in panic, misinformation and stigma, some grew fearful of disclosing. But as HIV prevention campaigns took hold and AIDS activism movements began educating people on safer sex, those failing to use condoms became a minority.

The advent of effective antiretroviral treatments in 1996 transformed the landscape, with deaths dropping dramatically a year later. The drugs suppress an HIV-positive person’s viral load, making the virus undetectable and untransmittable to others. By 2020, 87 per cent of those diagnosed with HIV in Canada were on treatment, with 95 per cent of them achieving viral suppression, according to the Public Health Agency of Canada.

Though the science progressed, both the law and public understanding of HIV failed to advance alongside.

Advocates argue the overreach in Canada’s HIV law stems partly from a 2012 Supreme Court of Canada decision, R. v. Mabior. The court ruled that HIV-positive people have a legal duty to disclose their status before having sex that poses a “realistic possibility” of HIV transmission – and decided that only a combination of condom use and a low viral load at the time of sex negate that possibility.

Critics say this legal stance diverges from well-established guidance from the World Health Organization and the Public Health Agency of Canada that a suppressed viral load or correct condom usage are each, on their own, highly effective methods of preventing transmission.

There is serious disconnect between science, public health and the law in Canada, said André Capretti, a Montreal policy analyst at the HIV Legal Network.

“Scientists have been saying undetectable equals untransmittable for many years now,” Mr. Capretti said. “But it takes a lot of time for that to permeate into the public consciousness, including at the prosecutorial level, police level and individual level. If a complainant isn’t aware that there wasn’t a risk in having sex with a partner who was undetectable, they’re still going to go to the police and want to press charges.”

Since being enacted, the laws have been used to prosecute HIV-positive people who used condoms properly and didn’t infect anyone, who engaged in oral sex – where the risk of spreading HIV is exceedingly low – and who unwittingly transmitted while being sexually assaulted. The net has caught people who are vulnerable, or who applied due diligence to not infecting others, and treated them the same as a smaller minority who transmitted recklessly.

While some court rulings are beginning to reflect the modern science on HIV transmission, other decisions have not kept up.

In 2009, an HIV-positive man in Hamilton was charged with aggravated sexual assault after his ex-partner alleged they had oral sex without the man disclosing his status. The ex-partner did not test positive; the charge was stayed in 2010.

Four years later, a Barrie, Ont., a woman was convicted of aggravated sexual assault, sentenced to more than three years in prison and registered as a sex offender for not disclosing her HIV-positive status before having vaginal sex without a condom. The woman was on antiretroviral medication, her viral load undetectable and untransmittable; her partner did not test positive. Nine years passed before her conviction was overturned, the Ontario Court of Appeal ruling that given the woman’s effective medical treatment, she was not legally obliged to disclose her status.

In 2020, the Ontario Appeals Court upheld three convictions of aggravated sexual assault for an Ontario man accused of having vaginal sex with three women without disclosing his status. There was no finding that the man infected any of the women; he wore condoms during each incident but didn’t have a low viral load during a number of those acts. The man was sentenced to 3½ years in prison.

For HIV-positive people, the prosecutions can be catastrophic.

Alexander McClelland, an assistant professor at the Institute of Criminology and Criminal Justice at Carleton University, spent time with people prosecuted for his forthcoming book, Criminalized Lives: HIV and Legal Violence.

The stories are disturbing: One man recalled being interrogated and beaten by police; another woman spoke of being locked in solitary confinement, naked. Others were vilified as HIV-positive “rapists” by prison guards, then brutalized by inmates. Some were denied HIV medication while incarcerated, growing seriously ill.

“The criminalization haunts every aspect of their lives,” said Prof. McClelland, chair of the coalition’s steering committee.

With their names broadcast through news stories and public safety warnings issued by police, many become alienated from family and friends. Others encounter employers unwilling to hire them and landlords refusing to rent to them, Prof. McClelland found.

“It isolates them in their community, where they face daily forms of harassment and violence,” he said. “These conditions ruin people’s lives.”

While prosecutions target Canadians of all genders and sexual orientations, 89 per cent of those charged were men, 63 per cent in relation to encounters they had with women. Black and Indigenous people have been disproportionately charged, convicted and incarcerated compared with white defendants. Numerous newcomers have also been deported following prosecution.

A significant proportion of those charged are heterosexual men from African, Caribbean and Black communities, according to Toronto’s Colin Johnson, who consults with Black Coalition for AIDS Prevention and the Prisoners with HIV/AIDS Support Action Network.

Some are newcomers or migrants who find themselves advised by duty counsel to plead guilty for the sake of a lesser sentence, not grasping the full scope of consequences – including the sex offender label that can follow them for the rest of their lives.

“Because in African, Caribbean and Black communities, homophobia, transphobia and HIV phobia are rampant, a lot of these people get ostracized by the very communities they would normally go to for help,” Mr. Johnson said, adding that the same stigmas keep people from getting tested and seeking treatment.

With little hope of reintegrating into society, many of these men follow a pattern from unemployment and halfway homes to isolation and depression, he said: “It’s not a pretty picture.”

Globally, Canada remains an outlier in criminalizing HIV non-disclosure. Most other countries focus instead on prosecuting people who knowingly, intentionally transmit the virus.

To lay a charge in California, for instance, prosecutors need to prove a person had specific intent to transmit HIV, and then actually transmitted the virus. In England and Wales, there is no legal obligation to disclose one’s HIV-positive status to a partner, although “reckless transmission” is illegal.

“In the case of a person who has no intent to transmit, it goes back to this notion of moral blameworthiness,” said Mr. Capretti, a human-rights lawyer. “Is this the kind of person we think is worthy of condemnation and punishment because they have this diagnosis – because they have an illness?”

Canada further deviates from other jurisdictions by charging these cases as sexual assaults.

A 1998 Supreme Court of Canada decision, R. v. Cuerrier, ruled that failing to disclose an HIV-positive status can amount to a fraud that invalidates consent – the idea being that a person can’t give consent if that consent isn’t informed. In this way, Canadian courts decided that the act of not telling is a deception on par with the violence and coercion that more often marks sexual assault.

By contrast, other countries apply general criminal law – including laws related to bodily harm – or have HIV-specific laws, according to the HIV Justice Network.

Canada has seen some movement in how these cases are handled. After former justice minister Jody Wilson-Raybould raised concerns about the overcriminalization of HIV non-disclosure, the Justice Department published a 2017 report that examined curbing such prosecutions.

Following that, in 2018, Ms. Wilson-Raybould directed federal prosecutors working in three territories to limit HIV criminalization. The directive stated officials should not prosecute HIV-positive people when they maintain a suppressed viral load because there is no realistic possibility of transmission, and that they should “generally” not prosecute when people use condoms or engage in oral sex only, because there is likely no risk of transmission. The directive also asked prosecutors to consider whether criminal charges are in the public interest.

Quebec, Ontario, Alberta and British Columbia have also issued instructions not to prosecute HIV-positive people who maintained a suppressed viral load at the time of sex, though there remains no clarity on condom use.

Beyond this patchwork of directives, advocates are pushing for greater uniformity in courtrooms across Canada. They argue that the Criminal Code must be reformed – and that only this avenue will prevent courts from relying on a tangle of inconsistent and unscientific past rulings.

In 2022, the government engaged in online consultations with experts, people living with HIV and others on reviewing the law.

In March, Justice Minister Arif Virani told The Globe and Mail editorial board that his office was working on a policy response.

“What we’re trying to do is ensure that current, modern science is reflected in terms of the way the Criminal Code is applied in cases of transmission of HIV/AIDS,” Mr. Virani said, though he would not provide a timeline for legal reform.

On May 15, Mr. Virani met with the coalition to discuss law reform efforts, saying the policy work was still continuing.

Paradoxically, the blunt instrument of the law makes HIV disclosure more fraught, critics say.

“You’re starting a relationship with a new partner – you might like to know if they’re living with HIV or any other sexually transmitted diseases. But that doesn’t mean an aggravated sexual assault charge is the appropriate response,” Ms. Symington said.

In her documentaries on HIV criminalization, Ms. Symington illuminated the challenges involved in disclosing a positive status. She’s seen numerous women charged after abusive ex-partners who knew the women had HIV reported them to police for non-disclosure.

“People can make those allegations whether they’re true or not,” Ms. Symington said. “People live in fear that any relationship that goes wrong, this could be a tool of revenge by a bitter ex-partner.”

Some abusive partners exploit the law while in relationships with HIV-positive people: “Sexual partners threaten to go to the police and claim that disclosure did not take place, as a way to control the relationship,” said Eric Mykhalovskiy, a York University professor who led early research on the public-health implications of HIV non-disclosure in Ontario.

Since judges and juries tasked with deciding whether disclosure occurred have little to work with beyond complainants’ and defendants’ competing accounts, Prof. Mykhalovskiy described HIV-positive people going to great lengths to document that a disclosure had taken place, getting their partners to sign documents, disclosing with a witness present, or alongside counsellors at HIV organizations.

Inserting criminal law into nuanced discussions about negotiating consent and HIV disclosure has undermined public-health efforts, experts say: It can deter some people from getting tested or seeking out treatment, fearful that information shared with social workers, nurses and doctors could be used against them.

“We’ve seen this in so many cases of criminalization where those medical notes end up as part of the evidence used to criminally convict a person,” Mr. Capretti said.

“There is no evidence that this assists public health,” he added. “Criminal law and public-health policy are not natural partners.”

Years of criminalization has left some living with HIV fearful and frequently second guessing their intimate relationships.

It’s a calculus Toronto’s Mr. Johnson navigated in his personal life, after being diagnosed with HIV in 1984.

“I remember for years, I did not have sex with anybody unless they were HIV positive,” he said.

While he came to accept these limitations, he watched others who were just coming out struggle. News of HIV-positive people being charged in the late 80s and early 90s heightened fear, he said: “It had a negative impact on our psyche in so many ways.”

Mr. Johnson said it took him close to 20 years to accept that he would not die of AIDS-related illness. The arrival of effective antiretroviral treatments greatly improved quality of life for HIV-positive people. On the prevention front, the advent of PrEP (pre-exposure prophylaxis) significantly decreased the risk of infection among the HIV-negative.

Mr. Johnson continues antiretroviral treatment, as he has for decades. The people he dates are typically on PrEP; everyone in his circles is well aware of the modern medical realities of the virus. On his positive status, he’s transparent: “I’m very open and upfront.”

It’s a contemporary experience of living with HIV that stands in stark contrast to the public’s understanding of the virus, which remains limited.

“The average person doesn’t know about undetectable equals untransmissable, and unfortunately, with sex education these days, people aren’t going to know about that,” Ms. Symington said. “People still have Philadelphia, they still have Rock Hudson in their heads. These are the images. It causes a panic.”

These erroneous, outdated ideas should be purged from Canadian law, she said.

“This is a relic from the past. We need to stop the injustice in HIV non-disclosure and start thinking about how to educate people on healthy relationships and healthy sexual lives.”

Health and the law in Canada: More reading

B.C.’s experiment in decriminalized drug use hit a big setback last month after complaints about consumption in public. Reporter Justine Hunter spoke with The Decibel about what that means for harm-reduction policies across Canada. Subscribe for more episodes.

 

US: NYCLU strongly supports the REPEAL STI Discrimination Act and encourages its expedient passage

Repeal STI Discrimination Act

While New York has made considerable progress in reducing the prevalence of HIV over the last decade, the COVID-19 pandemic exacerbated hurdles to HIV prevention, testing, and treatment. Moreover, New York continues to see stark disparities in HIV’s impact with Black, Indigenous, and other New Yorkers of color, as well as transgender New Yorkers and young men who have sex with men, bearing the brunt of the epidemic. Repealing New York’s HIV and sexually-transmitted infection (STI) criminalization law, Public Health Law § 2307, is a critical step toward ending the epidemic.

The NYCLU strongly supports the REPEAL STI Discrimination Act and encourages its expedient passage.

2023 – 2024 Legislative Memorandum

REPEAL STI Discrimination Act
S.4603-A (Hoylman-Sigal) / A.3347-A (Gonzalez-Rojas)

Position: SUPPORT

While New York has made considerable progress in reducing the prevalence of HIV over the last decade 1, the COVID-19 pandemic exacerbated hurdles to HIV prevention, testing, and treatment. Moreover, New York continues to see stark disparities in HIV’s impact with Black, Indigenous, and other New Yorkers of color, as well as transgender New Yorkers and young men who have sex with men, bearing the brunt of the epidemic.2

Repealing New York’s HIV and sexually-transmitted infection (STI) criminalization law, Public Health Law § 2307, is a critical step toward ending the epidemic.

Laws that criminalize people living with HIV/AIDS and STIs discourage people from learning and disclosing their status, ignore science, harm patient relationships with counselors and doctors, and perpetuate stigma. Recognizing these realities, 12 states have amended or repealed their laws criminalizing HIV/AIDS since 2014. New York must join them by passing the REPEAL STI Discrimination Act, S.4603-A (Hoylman-Sigal) / A.3347-A (Gonzalez-Rojas), which would repeal Public Health Law § 2307 and expunge past convictions under the law. The NYCLU strongly supports this bill and urges its immediate passage.

At present, New York criminalizes people for having sex if they have an STI. This crime carries no intent requirement and no transmission requirement, and open disclosure to one’s partners is no defense. Defense attorneys report that New York prosecutors have weaponized this statute to prosecute people living with HIV who have sex.

This is bad public policy. STI criminalization undermines public health and disproportionately impacts communities of color, particularly LGBTQ+ communities of color. For these reasons, the NYCLU strongly supports the REPEAL STI Discrimination Act and encourages its expedient passage.

1 New York State Budget and Policy Priorities NYS Fiscal Year 2025, Ending the Epidemic 2 (Nov. 2023).
2 Id.

Turkmenistan: UNAIDS launches campaign “Decriminalize” aiming to reduce punitive legal environments affecting key populations

Turkmenistan’s HIV/AIDS Challenges: Silence, Stigma, and Criminalization

UNAIDS launched a campaign “Decriminalize” aimed at raising awareness on issues surrounding HIV/AIDs on institutionalized levels across the world.

UNAIDS is the Joint United Nations Programme on HIV/AIDS. It aims at achieving zero new HIV infections, zero discrimination and zero AIDS-related deaths, working alongside its global and national partners to end the AIDS epidemic by 2030 as part of the SDGs.

The campaign highlights  2021-2026 Global AIDS Strategy, directed towards reforming laws that hinder the HIV response, aiming to reduce punitive legal environments affecting key populations. By 2025, the goal is for less than 10% of countries to criminalize activities such as sex work, drug possession, same-sex activity, and HIV-related behaviors.

The UNAIDS campaign underlines that criminal laws target key populations, among them are people who inject drugs, sex workers, gay men and other men who have sex with men, transgender people, and people living with HIV. Such restrictive laws violate people’s human rights. In addition, criminalizing certain activities pushes people away from the support and services they need, exposing them to harm.

Below are the highlights from the campaign focusing on Turkmenistan and its neighboring countries’ data and laws, as well as major global statistics from 2021-2022 years.

As of today, there is no data on Turkmenistan on UNAIDS website (or other sources) on such aspects as:

  • Rates of HIV among adults and children;
  • New HIV-infections and AIDS-related deaths;
  • Number of AIDS-related orphans;
  • Phases of the HIV epidemic;
  • Rates of testing, Antiretroviral Therapy (ART) coverage, and viral load suppression;
  • Coverage and numbers receiving ART;
  • Elimination of vertical transmission.

Data on combination prevention, such as condom use at last high-risk sex is only available for 2000. The only recent data available is on stigma and discrimination and only based on women’s responses from 2019 MICS.

Laws across countries in Eastern Europe and Central Asia

Source: UNAIDS Laws and Policies Analytics, 2021-2022

  • 94 countries in the world criminalized HIV: Turkmenistan and other Central Asian countries are in this list. In the meantime, the migration crisis in Eastern Europe and Central Asia, spurred by conflicts like the war in Ukraine, has led to an urgent need for HIV services among displaced populations. Central Asian nations have experienced its largest influx since independence. Simultaneously, the HIV epidemic is worsening, with Russia, Ukraine, Uzbekistan, and Kazakhstan collectively responsible for 93% of new infections in the area.
  • The Criminal Code of Turkmenistan, Article 116 on HIV Infection, punishes for knowingly putting someone at risk of HIV infection with imprisonment for up to three years. Deliberately infecting another person with HIV, knowing one has the disease, carries a penalty of up to five years’ imprisonment. These penalties escalate if the acts involve multiple individuals or minors, punishable by up to eight years’ imprisonment. Additionally, medical or pharmaceutical workers who infect someone due to negligence in their duties face imprisonment for up to five years, possibly with the loss of professional privileges for up to three years.
  • 125 countries criminalize drug use or possession for personal use. There is no data for Turkmenistan, and with exception to Tajikistan where drug possession is not an offense, in other Central Asia countries, possession of any or all drugs is a criminal offense. According to the campaign, ​​decriminalizing drug use and possession for personal use leads to substantial reductions in HIV incidence among people who inject drugs. This is facilitated by improved access to harm reduction services, decreased violence, and reduced harassment by law enforcement. Repressive policing of drug use has been linked to increased HIV infection, needle sharing, and avoidance of harm reduction programs. Hence, law reform is essential to achieve the goal of ending AIDS as a public health threat by 2030.
  • 67 countries criminalize same-sex relations. In Turkmenistan and Uzbekistan same-sex relations are penalized with imprisonment for up to 14 years. Article 133 of the Criminal Code of Turkmenistan, defines sexual intercourse between men as sodomy, and punishes with a penalty of up to two years’ imprisonment, with or without residency restrictions. Repeat offenses or causing the victim to contract sexually transmitted diseases (STDs) can lead to imprisonment for five to ten years. Negligence resulting in death, serious harm, or HIV infection incurs a sentence of ten to twenty years in prison, possibly with residency restrictions. In Kazakhstan, Kyrgyzstan, and Tajikistan same-sex relations are decriminalized. The UNAIDS campaign notes that countries that criminalize same-sex sexual activity have a significantly higher HIV prevalence among gay and bisexual men – up to 5 times more. Moreover, recent prosecutions amplify this risk even further, with rates up to 12 times higher.
  • 167 countries criminalize some aspects of sex work and 153 criminalize sex work. In Turkmenistan and Uzbekistan, the law encompasses other punitive and/or administrative regulation of sex work. Yet repeated sex work within a year after an administrative penalty is charged with a fine ranging from twenty to forty times the basic amount, or compulsory labor up to four hundred and eighty hours, or correctional labor up to two years, or imprisonment for up to two years, according to the Article 136 of the Criminal Code, while profiting from organizing and/or managing sexual services is criminalized (in the Criminal Code of Turkmenistan, these are reflected in the articles 137, 138, 139, 140). In Kazakhstan, Tajikistan and Kyrgyzstan, both are applied, however in Kazakhstan and Tajikistan there is partial criminalization of sex work, whereas in Kyrgyzstan sex work is not subject to punitive regulations and is not criminalized.
  • The campaign highlights that criminalizing sex work increases the likelihood of sex workers contracting HIV and exposes them to violence from clients, police, and others. Targeting clients worsens sex workers’ safety and health, diminishing condom access, increasing violence, and deteriorating overall well-being.

The campaign underlines that criminalization of key populations decreases their access to HIV prevention services. Criminalization also drives discrimination and structural inequalities and robs people of the prospect of healthy and fulfilling lives.

The campaign highlights progress: Belgium and Australia decriminalized sex work; Zimbabwe decriminalized HIV exposure, non-disclosure, and transmission; Central Africa Republic revised its HIV laws; and Antigua & Barbuda, St Kitts & Nevis, Singapore, and Barbados repealed colonial laws against same-sex activity. Kuwait ended laws targeting transgender individuals, and New Zealand lifted HIV-related travel restrictions. However, challenges remain: 134 explicitly countries criminalize HIV exposure; 20 criminalize and/or prosecute transgender persons; 67 criminalize consensual same-sex activity. Additionally, 48 restrict entry for people with HIV, 53 mandate HIV testing, and 106 require parental consent for adolescent HIV testing.

The campaign also provides additional resources on the topic, such as factsheets, maps, and reports, as well as offers a thematic quiz on awareness on the criminalization of key populations with additional information on the relevant subjects.

Photo: © UN Turkmenistan / 2018 / Eyeberdiyeva
Photo caption: The UN Turkmenistan celebrated

World AIDS Day to raise awareness of
the importance of getting tested for HIV

Death penalty for unintentional HIV transmission via same-sex sex struck down by Uganda’s Constitutional Court

The recent (April 3rd) ruling by Uganda’s Constitutional Court declaring that the Anti Homosexuality Act of 2023 complies with the Constitution of Uganda – except in only four aspects – was quite rightly roundly condemned by Amnesty International, the Global Fund, Human Rights Watch, International AIDS Society, and UNAIDS, as well as the US Department of State, amongst many others.

Rather than strike down every section of this heinous, draconian anti-gay law, the Court was unanimous in ruling that most of its dangerous, overly broad, and problematic provisions remain in place. 

However, in its 200+ page ruling, the Court did find that Sections 3(2)(c), 9, 11(2d) and 14 did not “pass constitutional muster” and were struck down.

Sections 9 and 11(2d) refer to landlords allowing homosexuality to take place on their premises, and section 14 refers to a “duty to report acts of homosexuality” to the police.

But section 3(2)(c) was one of the most heinous of all of the Act’s horrendous provisions, proscribing the death penalty for someone living with HIV who engaged in same-sex sex and where HIV is allegedly passed on.

  1. Aggravated homosexuality (1) A person who commits the offence of homosexuality in any of the circumstances specified in subsection (2) commits the offence of aggravated homosexuality and is liable, on conviction, to suffer death. (2) (c) the person against whom the offence is committed contracts a terminal illness as a result of the sexual act.

Read the full text of the law here

Both the Court, several petitioners, and UNAIDS – who provided an amicus brief to the Court – correctly interpreted this section as criminalising unintentional HIV transmission when two people of the same sex had sex.

In paragraphs 510-512, the Court referred to several key documents – including the 2011 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and UNAIDS 2013 Guidance Note, Ending overly broad criminalisation of HIV non-disclosure, exposure and transmission: Critical scientific, medical and legal considerations – and were persuaded that the section did not provide for “the element of criminal intent or mens rea, which is a vital component of the concept of crime.”

The Constitutional Court ruling went on to say:

“This indeed is the approach that was adopted in section 43 of the HIV and AIDS Prevention and Control Act, 2015, which criminalizes the intentional transmission of HIV as follows: ‘a person who wilfully and intentionally transmits HIV to another person commits an offence.’

“Finding no justification for the criminalization of the unintentional transmission of HIV under section 3(2)(c) of the Anti-Homosexuality Act we take the view that it compounds the susceptibility of persons that are HIV+ to mental health issues and thus impedes their right to enjoy the highest attainable standard of mental health, with potential ramifications to their physical health as well. This is a violation of the right to health as envisaged under Article 12(1) of the ICESCR and is inconsistent with Articles 45 and 287 of the Uganda Constitution.”

 

However, people living with HIV are already over-criminalised in Uganda by various sections of the HIV and AIDS Prevention and Control Act, as summarised in our Global HIV Criminalisation Database.

What is termed as “wilful and intentional” transmission of HIV is punishable by a fine and/or up to ten years’ imprisonment. Section 43 provides a defence if the accused’s partner was aware of, and accepted, the risk of transmission, or transmission occurred during sexual intercourse and protective measures were used. Attempted transmission is punishable by a fine and/or up to five years’ imprisonment. The scope of section 41 is undefined, but cases demonstrate that the law criminalises perceived HIV ‘exposure’ broadly.

Both Section 41 and 43 are known to have been used in a broad range of circumstances, including prosecution of a man for ‘defilement’ (2013), prosecution of a teacher for alleged transmission to his student (2013), the alleged injection of a toddler/needle stick injury (2014), alleged transmission by a woman to a number of young men (2014), alleged breastfeeding of an employer’s child (2018), the arrest, conviction and acquittal of a nurse wrongfully convicted of injecting a baby with HIV-infected blood (2018), and the alleged defilement of a boy by a woman (2019). An earlier prosecution from 2008 involved a man charged with alleged transmission. In the most recent case in 2023, a woman living with HIV pled guilty to charges under section 43 after injecting her 5-year-old son with her blood and was sentenced to seven years’ imprisonment. Cases have generally not used scientific evidence to prove allegations, with convictions at lower-level courts relying only on testimony.

Nevertheless, the recognition of key legal and rights-based arguments against punishing unintentional HIV transmission with the death penalty(!) as part of an otherwise anti-rights, morality-based ruling should be seen as a small but welcome victory. Although this might be seen as similar to the 2022 Lesotho High Court decision on the unconstitutionality of the death penalty in the context of HIV transmission following rape, the difference of course is that that rape is an act of violence that should be criminalised regardless of any other circumstances, whereas consensual sex between two men or two women should never, ever be a crime.

US: Maryland lawmakers sponsor bill aiming to repeal HIV criminalisation law

Commentary: Maryland must stop criminalizing people living with HIV

State lawmakers moving to repeal law that stigmatizes people living with HIV, increases public health risk

Having a virus should not be a crime. Yet, in Maryland, people living with HIV can face prosecution and criminal penalties even when we have disclosed our status, used condoms or are virally suppressed through medication. Maryland has an outdated law from 1989 that makes it a misdemeanor for a person living with HIV who is aware of their HIV-positive status to “knowingly transfer or attempt to transfer” HIV to another person. A conviction under this law can carry a punishment of up to three years in prison, and the law has been used to charge people for behaviors that do not transmit HIV, such as spitting and biting.

As people who have lived with HIV for decades, we know firsthand that Maryland’s HIV criminalization law discourages people from knowing their status, fosters stigma and creates barriers to lifesaving health care. It’s time for lawmakers to repeal this deeply unjust law.

Legislation (HB 485/SB 1165) sponsored by Del. Kris Fair (D) and Sen. Sen. Karen Lewis Young (D), both from Frederick County, aims to repeal this law that punishes people living with HIV. It is a law enforced on deeply racist lines. A recent analysis by the Williams Institute revealed our HIV criminalization law is used disproportionately against Black Marylanders and Black men in particular, driving increased incarceration rates and fostering stigma and shame around HIV and knowing one’s status. People living with HIV need health care, not the threat of prison cells.

This law was passed 35 years ago, when little was known about the virus. If that seems long ago, it was: George H.W. Bush was president, cellphones were the size of bricks, and Janet Jackson and Paula Abdul topped the music charts. At that time, there was little hope for people living with HIV. Thankfully, much has changed since then.

Today, we are just some of the many people with HIV who are living long and fulfilling lives. Those of us living with HIV who achieve and maintain an undetectable viral load — the amount of HIV in our blood — by taking medication as prescribed cannot sexually transmit HIV to our partners. Furthermore, people who don’t have HIV have even more effective prevention tools and can take medications such as PrEP and PEP. All of these advancements were unheard of in 1989, when lawmakers responded with fear by criminalizing HIV.

If you are surprised to learn about the incredible medical advancements in the treatment and prevention of HIV, you are not alone. Stigma and racism around the virus run so deep that many people have an outdated understanding of HIV. In fact, today our goal of ending the epidemic of HIV is achievable in the coming years if we focus on expanding access to testing, prevention and treatment.

All of us should know our HIV status, but stigma, lack of access to health care and fear of criminal penalties under Maryland law are barriers to testing for many. Our state laws and policies should remove barriers to health care and encourage Marylanders to know their status. The compounding tragedy of our HIV criminalization law is it deters people from seeking testing and treatment, thus prolonging the HIV epidemic and its toll on our communities.

Repealing the HIV criminalization law would make it safer for people unknowingly living with HIV to get tested and access needed treatment. Nationally, a recent study showed that approximately 80% of new HIV transmissions were from people who do not know their HIV status or are not receiving regular care. Expanding access to testing could have a profound effect in our state. The Maryland Department of Health estimates over 34% of young people living with HIV in the state remain undiagnosed. It is clear we cannot meet our public health goals without repealing this law.

As community caretakers in the movement, we are committed to doing everything we can to reduce stigma around HIV and increase access to care for all Marylanders. For years, we have joined other people living with HIV to share our personal stories with legislators in support of updating our law. HIV is preventable and treatable, and we hope one day to end the epidemic. However, to achieve that goal, we must first end the criminalization of HIV in the state we call home. Removing harmful, stigmatizing criminal punishments for knowing your HIV status is a commonsense update that is long overdue for the great state of Maryland.

 

UK Parliament Commemorates HIV Is Not A Crime Day

On Tuesday 5th March the HIV Justice Network hosted a reception with the All Party Parliamentary Group for HIV, AIDS and Sexual Health (APPGA) to mark the first global HIV Is Not A Crime Awareness Day.

Baroness Barker, co-chair of the APPGA, Lisa Power former Policy Director at the Terrence Higgins Trust and the first chair of the HIV Justice Network’s Supervisory Board, spoke alongside our Executive Director, Edwin J Bernard. The SERO Project’s, Kerry Thomas, an HIV criminalisation survivor and activist, appeared via video.

The event was attended by MPs and members of the House of Lords, as well as representatives of the UK and US governments, the Global Fund, UNAIDS, HIV philanthropic funders, and UK and international HIV policy organisations.

Edwin presented global and Commonwealth data, based on a briefing paper especially undertaken for the event by our policy analyst, Elliot Hatt, which demonstrated that the Commonwealth is far behind global HIV criminalisation law reform trends.

In the past five years, there were more adoptions of HIV criminalisation laws than there were repeals or reforms in the Commonwealth, whilst globally this was reversed.  Notably, the United States – formerly a world leader and exporter of HIV criminalisation – was now a world leader in ending it.

“It’s time for the UK to do the same, domestically, and throughout the Commonwealth,” he said.

UPDATE 22nd March: The Parliamentary event and our Commonwealth analysis led to questions being asked in Parliament by APPGA co-chair, Florence Eshalomi MP. 

To ask the Minister of State, Foreign, Commonwealth and Development Office:

What steps he is taking to help encourage the repeal of HIV specific laws in the 20 jurisdictions in the Commonwealth that still have them.

Whether his Department is providing support to (a) the HIV Justice Network and (b) other organisations working to repeal HIV-specific laws globally.

 

These questions were answered by Andrew Mitchell MP Minister of State for Development and Africa with the same answer for both questions:

Addressing stigma, discrimination and criminalisation is critical to ensuring equality of access to HIV prevention, testing and treatment services and to achieving progress in the global HIV response.

The UK is a champion of human rights around the world and we are committed to the principle of non-discrimination on any grounds, including on the basis of sexual orientation or gender identity. The UK’s network of over 280 Diplomatic Missions monitor human rights in host countries.

At the UN High Level Meeting on HIV in June 2021, the UK worked hard to secure the highest level of commitment from our global partners and garner support for the ambitious, rights-based Global AIDS Strategy 2021-2026, so the world has the best chance of meeting the 2030 goal to end AIDS. We also endorse the Global Fund’s 2023-2028 Strategy, with a focus on addressing inequities and structural drivers of HIV infection and AIDS-related deaths including barriers to services due to stigma, discrimination and criminalisation.

Our funding to the Robert Carr Fund and to UNAIDS helps to support legal and policy reform to combat stigma, discrimination and criminalisation, and to improve access to HIV services for those most at risk, as well as supporting civil society and grassroots organisations to challenge harmful policies and attitudes that exclude minorities and put them at greater risk of HIV infection and increase access to services for these groups.

 

We are grateful to the UK’s leadership, and its support of the Robert Carr Fund – which funds much of our work, and that of the HIV JUSTICE WORLDWIDE coalition – which is currently seeking replenishment for the next funding round, 2025-7, and we hope that the UK will be the first to commit to supporting the Fund once again.

Mexico: Activists call for congress to repeal HIV Criminalisation statute in Tlaxcala

Activists urge the decriminalisation of “danger of contagion” for HIV and other diseases in Tlaxcala

Translated from Spanish with Deepl.com – Scroll down for original article

Activists and defenders of the human rights of people living with HIV have urged the Congress of Tlaxcala to pass an initiative to eliminate the crime of “danger of contagion” from the local Penal Code as soon as possible.

Antonio Escobar Muñoz, director of the HIV and Human Rights programme of the LGBTTTQI+ collective, argued that it is essential to eliminate any discriminatory treatment based on health status.

According to the activist, cases of discrimination and stigmatisation based on health status persist in Tlaxcala, especially in school, work and governmental environments, mainly in the health sector.

Escobar Muñoz pointed out that people with HIV face criminalisation based on their HIV status, but often choose not to report it for fear of stigma and re-victimisation.

She emphasised that in Tlaxcala more work is needed on awareness raising, sensitisation and education, although the decriminalisation initiative represents an important step towards ensuring safe and discrimination-free environments.

This day, the initiative was presented in the plenary of the Local Congress with a draft decree proposing to repeal the denomination of Chapter I of the Eleventh Title with its respective article 302; section V of article 434, both of the Penal Code for the Free and Sovereign State of Tlaxcala.

This initiative seeks to recognise the need to promote public policies that encourage prevention, education and support for people living with HIV, thus contributing to the fight against stigmatisation and discrimination, as well as highlighting the need to update legislation in Tlaxcala.


Urgen activistas despenalización de “peligro de contagio” por VIH y otras enfermedades en Tlaxcala

Activistas y defensores de los derechos humanos de personas que viven con VIH han urgido al Congreso de Tlaxcala a dictaminar cuanto antes la iniciativa para eliminar del Código Penal local el delito de “peligro de contagio”.

Antonio Escobar Muñoz, director del programa de VIH y Derechos Humanos del colectivo LGBTTTQI+, argumentó que es indispensable eliminar cualquier trato discriminatorio por condición de salud.

Según el activista, en Tlaxcala persisten casos de discriminación y estigmatización por condición de salud, especialmente en entornos escolares, laborales y gubernamentales, principalmente en el sector salud.

Escobar Muñoz señaló que las personas con VIH enfrentan situaciones de criminalización basadas en su estatus serológico, pero muchas veces optan por no denunciar por miedo al estigma y la revictimización.

Enfatizó que en Tlaxcala se necesita más trabajo en concientización, sensibilización y educación, aunque la iniciativa de despenalización representa un paso importante para garantizar entornos seguros y libres de discriminación.

Este día, se presentó en el pleno del Congreso Local la iniciativa con proyecto de decreto por el cual se propone derogar la denominación del Capítulo I del Título Décimo Primero con su respectivo artículo 302; la fracción V del artículo 434, ambos del Código Penal para el Estado Libre y Soberano de Tlaxcala.

En esta iniciativa, se busca reconocer la necesidad de promover políticas públicas que fomenten la prevención, la educación y el apoyo a las personas que viven con VIH, contribuyendo así a la lucha contra la estigmatización y la discriminación, además de destacar la necesidad de actualizar la legislación en Tlaxcala.

US: New report published on the enforcement of HIV criminalisation in Ohio

‘Antiquated’ and unscientific laws enforced against Ohioans living with HIV: Report

Across the country, a growing coalition of advocates is pushing to repeal or update state laws that criminalize people living with HIV or AIDS.

In Ohio, six laws on the books either criminalize certain acts – including sex – for people living with HIV or substantially increase sentences for them compared to people who do not have the virus.

Most of the laws were passed decades ago, fueled by fear, absent scientific understanding about how HIV is transmitted and before advancements in HIV-related treatment were widely introduced. Laws still remain in place in 34 states.

There are no national reporting requirements that track arrests or prosecutions under the laws. Until now, it was unclear how frequently Ohio prosecutors have charged people under the laws, which also apply to people living with hepatitis or tuberculosis.

A report released today by Equality Ohio and the Ohio Health Modernization Movement (OHMM), two groups pushing for legal reform, reveals that more than half of the prosecutions over a six-year period were for acts – such as spitting or throwing bodily fluids – that were unlikely to transmit HIV. It also found a disproportionate number of people charged were Black compared to Ohio’s overall population of Black residents.

“Ohio is unique in that these antiquated laws are actually being utilized and enforced against everyday Ohioans who are living with HIV,” Kate Mozynski, an attorney with Equality Ohio and one of the co-authors of the report told the Buckeye Flame.

In 2022, about 25,000 people in Ohio had an HIV diagnosis. The rate of Black residents diagnosed with HIV was more than six times the rate of white residents.

The groups spent three years gathering information from prosecutors and courts in all 88 Ohio counties and identified 214 cases charged under the six laws. Often, the records lacked or had conflicting information on race or ethnicity, and the gender captured in law enforcement records didn’t always reflect a person’s gender identity.

That prevents researchers from fully understanding the impact that these laws are having on some of the most vulnerable populations in Ohio, including LQBTQ+ people, people experiencing incarceration and people of color, according to the report. The federal Centers for Disease Control and Prevention has warned that laws criminalizing HIV exposure are outdated and may discourage testing, increase stigma and exacerbate disparities in Black and Latino communities.

Cuyahoga County had the highest number of charges

 The report found that:

  • Prosecutions are concentrated in Ohio’s more populous counties, including Cuyahoga, Hamilton, Franklin and Lucas counties.
  • Cuyahoga County charged four times the number of people under the six laws than Franklin County, which has a higher population and more people living with HIV and AIDS. Cuyahoga County accounted for 26% of the cases identified.
  • The largest share of prosecutions involved Black men, based on recorded race and gender included in records.

A separate Marshall Project review of prosecutions under the six laws in Cuyahoga County from 2016 through 2022 examined 36 charges involving 35 defendants. That doesn’t didn’t include charges for solicitation, prostitution or loitering, which are generally misdemeanor crimes.

The cases involved 18 law enforcement agencies, including three hospital police departments and public transit police.

The Cuyahoga County Prosecutor’s office, which decides whether to prosecute felony cases under Ohio’s laws, said these charges are determined on a “case-by-case basis” after considering input from victims, according to Lexi Bauer, communications manager. Bauer noted that the majority of the “harassment by bodily fluid” charges in recent years were related to hepatitis and not HIV.

Ohio penalties among the harshest

Ohio’s laws remain among the harshest when it comes to HIV criminalization, not just based on the conduct that is criminalized but also the penalties, said Jada Hicks, staff attorney for The Center for HIV Law and Policy.

In Ohio, people living with HIV (or viral hepatitis or tuberculosis) can be charged whether or not they:

  • Engaged in sex practices or other acts that could transmit the virus.
  • Transmitted HIV.
  • Used protection, such as condoms and/or dental dams.
  • Had an undetectable level of virus in their blood and were unable to transmit HIV.

Most of the charges examined in the report fall under two Ohio laws.

One law makes it a crime for a person living with HIV (or hepatitis or tuberculosis) to “harass” someone with their bodily fluids. That would include spitting or throwing urine, feces or blood at another person.

Under the other law, a person can be charged with felonious assault if they have sex with another person without telling them that they are living with HIV.

The penalties for failing to disclose HIV status in Ohio are stiff regardless of whether the virus was actually transmitted or whether it was even possible for a person to transmit the virus. Possible sentences for individuals living with HIV can be anywhere from two to 29 times longer than those for Ohioans who are HIV-negative.

Ohio is also one of six states that require individuals convicted under one of these statutes to register as a sex offender.

“Ohio’s HIV laws don’t require actual transmission or even the intent to transmit,” said Nathan Cisneros, a researcher with the Williams Institute, which does legal and public policy research on sexual orientation and gender identity. “Conduct that couldn’t transmit HIV – like spitting and biting, loitering while having a conversation about sex work – can land you in prison.”

The Williams Institute also published a report today that looked at arrests under Ohio’s six laws over two decades and felony prosecutions in Cuyahoga County from 2009 to 2022. Researchers identified at least 530 separate allegations under the six laws since 2000. Having consensual sex without disclosing an HIV-positive status made up nearly half of the total cases. Incidents related to sex work and bodily fluid exposure each accounted for nearly one-fifth of the total.

Changing legal landscape

Thirteen states have either repealed or modernized their HIV laws, according to the Center for HIV Law and Policy, including Illinois in 2021 and New Jersey in 2022.

Ohio advocates have been at the forefront of efforts to challenge the laws as discriminatory. In 2022, the Center for HIV Law and Policy filed a complaint with the Department of Justice on behalf of people living with HIV in Ohio and Tennessee.

In December, the DOJ notified Tennessee it was violating the Americans with Disabilities Act (ADA) by enforcing the state law that increases penalties for people convicted of prostitution if they also have HIV. On Feb. 15, the Justice Department filed charges against the state in federal court..

Combing state records for HIV-related charges

OHMM researchers gathered information from county-level online court records and local county clerk and prosecutors’ offices in Ohio’s 88 counties for a six-year period ending in 2020. The project identified 214 cases prosecuted under the six laws.

Behind each one of the cases, there is a “real, everyday Ohioan who happens to have a medical condition,” Mozynski said.

Where in Ohio are people being charged?

The highest concentration of charges are in the state’s larger metropolitan areas.

  • 26% in Cuyahoga County (Cleveland)
  • 12% in Hamilton County (Cincinnati)
  • 7% in Lucas County (Toledo)
  • 7% in Franklin County (Columbus)
  • Montgomery (Dayton) and Warren (Lebanon) counties, about 5% each.

What charges are most common?

More than half of the cases identified were for the charge of “harassment with a bodily substance,” which carries with it a penalty of up to 5 years in prison and a $10,000 fine. Cases with this charge are often related to acts against law enforcement or corrections officers or healthcare workers.

Charges don’t distinguish between bodily fluids that can transmit HIV, such as blood, and those that do not, such as saliva, urine or feces. People can also be charged if they are living with hepatitis, regardless of whether it is transmitted.

Prosecutors also don’t have to prove whether a person is capable of transmitting the virus or determine whether it is scientifically impossible to transmit the virusdue to prescription-drug treatments that have reduced the presence of the virus in a person’s blood – called a viral load – to undetectable levels.

A third of the cases were for “felonious assault,” which carries the most severe penalty of any HIV-related charge – up to eight years of incarceration and a $15,000 fine. Each sexual act can be charged separately. It also doesn’t require that the virus be transmitted.

OHMM found no cases where people were charged with “selling or donating contaminated blood.” The Williams Institute found six arrests over a 20 year period related to blood donation.

Read the OHMM (“Enforcement of HIV Criminalization in Ohio: Analysis of Court Cases from 2014 to 2020”) report here.

Read the Williams report (“Enforcement of HIV Criminalization in Ohio HIV-related criminal incidents from 2000 to 2022”) here.

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