When law and science part ways: the criminalization of breastfeeding by women living with HIV

The HIV Justice Network (HJN) has been monitoring a disturbing phenomenon — at least 12 women living with HIV have faced criminal prosecution in relation to breastfeeding or comfort nursing.  

In addition, women living with HIV have been threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries.

To bring this important issue to the attention of women’s health experts and advocates, HJN worked with our HIV JUSTICE WORLDWIDE partners to write a paper for a Special Collection on Women’s Health and HIV for the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases.     

In “When law and science part ways: the criminalization of breastfeeding by women living with HIV,” published last week, Alison Symington (HJN’s Senior Policy Analyst), Nyasha Chingore-Munazvo (Programmes Lead, AIDS and Rights Alliance of Southern Africa) and Svitlana Moroz (Chair of the Eurasian Women’s Network on AIDS) place the criminalisation of women with HIV for breastfeeding within the context of current medical recommendations and cultural views of breastfeeding. They review the criminal cases against women living with HIV for breastfeeding around the globe, examine the injustice of these prosecutions, and provide recommendations for decriminalisation.

This Special Collection includes papers addressing a wide range of health issues impacting women with HIV. According to lead author Alison Symington, “We felt it was important to submit a paper on breastfeeding and HIV criminalisation because so few people are aware of these horrible cases. Healthcare providers have an important role to play in protecting women from punitive actions and providing them with information and support so that they can make the best decisions for themselves and their children.”

To make the paper even more widely accessible, HJN has provided translations into French, Russian and Spanish.

It is HJN’s aim to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are therefore grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work.

Further resources

Mwayi’s Story is a short film about courage, and about women standing up for their rights. The film is based on a real case in Malawi and the subsequent successful advocacy to prevent an HIV criminalisation statute being passed. The full story of the woman who was prosecuted for briefly breastfeeding another woman’s baby is told in an HJN feature, It Takes More Than A Village to End HIV Criminalisation, by Sally Cameron, based on a report by Peter Gwazayani, Edna Tembo and Charity Mkona.

 

 

Why people living with HIV should not be criminalised for donating blood

Preventing the transmission of blood-borne infection by imposing limitations on the donation of blood is an important and legitimate public health objective.

Since the beginning of the HIV epidemic, certain groups – including, but not limited to, gay men and other men who have sex with men – have been subjected to restrictions on their ability to give blood.

Sustained advocacy by gay rights organisations in many high-income countries has focused on the discriminatory nature of these so-called ‘gay blood bans’, highlighting significant advances in blood screening capabilities. This has led to a general softening of restrictions on blood donations for gay men in many of these countries – allowing donations with ‘deferral periods’, or allowing donations based on individual risk assessments.

However, this advocacy has generally not translated into the removal of HIV-specific criminal laws for donating blood, nor has there been a call for a moratorium on singling out people living with HIV for donating blood using non-HIV-specific general criminal laws – even though many of the same public health and human rights arguments apply to both the so-called ‘gay blood bans’ and to HIV criminalisation more generally.

That is why today, the HIV Justice Network has published Bad Blood: Criminalisation of Blood Donations by People Living with HIV. The report was written by Elliot Hatt and edited by Edwin J Bernard, based on research undertaken by Sylvie Beaumont, with additional input provided by Sarai Chisala-Tempelhoff and Paul Kidd (HIV Justice Network’s Supervisory Board); Sean Strub (Sero Project) and Robert James (University of Sussex).

We found that 37 jurisdictions in 22 countries maintain laws that criminalise people with HIV for donating blood. Notably, 15 jurisdictions in the United States (US) have laws which specifically criminalise blood donations by people living with HIV, while four US states – California, Illinois, Iowa, and Virginia – have repealed laws which previously criminalised this conduct.

Although prosecutions are relatively rare, we are aware of at least 20 cases relating to blood donation since 1987. Half of these cases have been reported in Singapore, including two as recently as 2021.

We argue that the criminalisation of blood donations by people with HIV is a disproportionate measure – even if the aim of protecting public health through the prevention of transfusion-transmitted infection is legitimate – and is the result of both HIV-related stigma and homophobia. It is not supported by science.

There is no good reason for any country or jurisdiction to have HIV-specific criminal laws – whether they focus on blood donation or on sexual exposure or transmission. HIV-specific criminal laws are discriminatory and stigmatising, especially since people with other serious blood borne infections – including hepatitis B and C and syphilis – are not singled out with specific laws, nor for prosecution under general criminal laws.

Blood donation criminal laws focused on HIV should be repealed, prosecutions based on general laws should end, and instead science-informed measures – such as individual donor risk assessments and universal blood screening – should be relied on to protect the public against transfusion-transmitted infection.

Read the report at: https://www.hivjustice.net/publication/badblood

US: Enforcement of HIV crimes in Tennessee disproportionately affects women and Black people

150 people on Tennessee’s sex offender registry for HIV-related conviction

Nearly one-half of HIV registrants on the SOR were women and over three-quarters of HIV registrants were Black.

LOS ANGELES – At least 154 people have been placed on Tennessee’s sex offender registry (SOR) for an HIV-related conviction since 1993, according to a new report by the Williams Institute at UCLA School of Law.

Enforcement of HIV crimes in Tennessee disproportionately affects women and Black people. Nearly one-half of HIV registrants on the SOR were women and over three-quarters of HIV registrants were Black.

Tennessee’s two primary HIV criminalization laws—aggravated prostitution and criminal exposure—make it a felony for people living with HIV to engage in sex work or other activities, such as intimate contact, blood donation, or needle exchange, without disclosing their status. Both are considered a “violent sexual offense” and require a person convicted to register as a sex offender for life.

Examining Tennessee’s sex offender registry, researchers found that Shelby County, home to Memphis, accounts for most of the state’s HIV convictions. Shelby County makes up only 13% of Tennessee’s population and 37% of the population of people living with HIV in the state, but 64% of HIV registrants on the SOR. Moreover, while Black Tennesseans were only 17% of the state’s population and 56% of people living with HIV in the state, 75% of all HIV registrants were Black.

In Shelby County, 91% of aggravated prostitution convictions resulted from police sting operations in which no physical contact ever occurred. In addition, the case files showed that 75% of those convicted were Black women. When it came to criminal exposure case files, all of those convicted except one person were Black men.

“Tennessee’s HIV criminal laws were enacted at a time when little was known about HIV and before modern medical advances were available to treat and prevent HIV,” said lead author Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute. “Tennessee’s outdated laws do not require actual transmission or the intent to transmit HIV. Moreover, the laws ignore whether the person living with HIV is in treatment and virally suppressed and therefore cannot transmit HIV.”

KEY FINDINGS

  • Incarcerating people for HIV-related offenses has cost Tennessee at least $3.8 million.
  • Of the 154 people who have been placed on Tennessee’s SOR for an HIV-related conviction, 51% were convicted of aggravated prostitution, 46% were convicted of criminal exposure, and 3% were convicted of both.
  • Women account for 26% of people living with HIV in Tennessee and 4% of people on the SOR, but 46% of the SOR’s HIV registrants.
  • Black people account for 17% of people living in Tennessee, 56% of those living with HIV, 27% of people on the SOR, but 75% of the SOR’s HIV registrants.
  • Black women were the majority of aggravated prostitution registrants (57%), while Black men were the majority of criminal exposure registrants (64%).
  • People with an HIV-related offense are more economically vulnerable when compared to others on the state’s SOR.
    • One in five (19%) HIV registrants were homeless compared to 9% of all SOR registrants.
    • 28% of HIV registrants reported an employer address compared to about half (49%) of all SOR registrants.
  • Shelby County has one aggravated prostitution conviction for every 115 people living with HIV in the county, and Black people were 90% of all people convicted for aggravated prostitution.
    • Over 90% of aggravated prostitution convictions in Shelby County were the result of police sting operations.
    • Only 3% of aggravated prostitution convictions in Shelby County alleged any intimate contact.
    • Nearly all (95%) people arrested in Shelby County for criminal exposure were Black men, compared to 64% of people statewide.

The Williams Institute has conducted research on HIV criminalization in numerous U.S. states.

Mwayi’s Story: a short film about courage,
women’s rights, and HIV justice

Today we are delighted to share with the world a new short film, Mwayi’s Story, produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

Mwayi’s Story is a story about courage, and about women standing up for their rights. The film is based on the story of a woman in Malawi who was prosecuted for briefly breastfeeding another woman’s baby and the subsequent successful advocacy in Malawi to prevent an HIV criminalisation statute being passed.

Ultimately, Mwayi’s Story is about HIV justice!

We wanted to produce a film that was authentic to the lived experience of an HIV criminalisation survivor but without making her go through the trauma of having to relive the experience by telling her story again.

HJN’s video, visuals and webshows consultant, Nicholas Feustel, who produced and directed the film, said: “Since this story is primarily about mothers and children, we decided to produce the film in the style of an illustrated children’s storybook. We searched for a female illustrator working in sub-Saharan Africa and found the wonderful Phathu Nembilwi of Phathu Designs.

“For our narrator, we found Upile Chisala, a storyteller from Malawi known for her short and powerful poems.”

The script by HJN’s Senior Policy Analyst, Alison Symington, was written in consultation with our Supervisory Board member, Sarai Chisala-Tempelhoff, a Malawian human rights lawyer and legal researcher with over 15 years of experience in women’s access to justice.

We also worked with our HIV JUSTICE WORLDWIDE partners, Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (ARASA), to ensure that the film was relevant to their ongoing advocacy in the region. In fact, Mwayi’s Story had its world premiere last week on Zambia’s Diamond TV, in anticipation of a verdict in a similar breastfeeding case.

The film will be shown in a number of forums over the next few months, including at AIDS 2022. It will soon be subtitled in French, Russian and Spanish, and we are also looking for partners to translate additional subtitles if they think the film can be useful in their own advocacy. If you’re interested you can get in touch with us at breastfeeding@hivjustice.net. We will send you the English subtitle file for translation. After you return the file to us, we will upload it to YouTube.

Mwayi’s Story is part of our ongoing work to end the criminalisation of women living with HIV for breastfeeding and comfort nursing, including our Breastfeeding Defence Toolkit. It is our goal to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work, and this film.

New report shows how women living with HIV are leading the response against HIV criminalisation in the EECA region

A new report produced by the Eurasian Women’s Network on AIDS with the Global Network of People Living with HIV on behalf of HIV JUSTICE WORLDWIDE, illustrates how women living with HIV, who are disproportionally impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region, have also been the leaders in research, advocacy and activism against it. The report is now available in English after being originally published in Russian in January.

The report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. By highlighting prosecution data from Belarus, Kazakhstan, Russia and Ukraine disaggregated by sex, the report shows how the burden of HIV criminalisation is falling upon women.

The report also includes some heart-breaking personal stories including that of a woman in Russia who was prosecuted for breastfeeding her baby, as well as several women in Russia blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The evidence provided in the report clearly demonstrates that HIV criminalisation not only fails to protect women from HIV, but worsens their status in society, making them even more susceptible to violence and structural inequalities due to the way their HIV-positive status is framed by the criminal law.

The report goes on to explore how women living with HIV in the region are vulnerable to a range of economic consequences including loss of property, as well as ostracism and discrimination in their communities, including being separated from their children, because:

  • Women living with HIV’s reproductive and maternal choices are controlled by, and can be abused by, the state.
  • Women living with HIV in partnerships with HIV-negative men can be threatened with prosecution, or be prosecuted, even if there has been prior disclosure and consent to the ‘risk’ and even when condoms were used or the woman had an undetectable viral load.
  • Confidential medical information can be illegally shared with law enforcement agencies.

The report also shows a direct connection between HIV criminalisation and other forms of criminalisation – notably the use and possession of drugs, and of sex work – that exacerbate the burden of discrimination, the violation of rights, and violence experienced by women living with HIV in the region.

Despite the difficult picture painted, the report provides hope, however.

It is the mobilisation of the women’s community and the meaningful participation of HIV-positive women and their allies in advocacy for law reform, rights protections – and in the preparation of alternative reports to UN Committees such as the Committee on the Elimination of Discrimination against Women (CEDAW) – that are making a real difference in the fight against HIV criminalisation in the region.

Read the report in English or Russian.

US: Disability Rights Education & Defense Fund (DREDF) publishes statement opposing HIV criminalisation

DREDF HIV Criminalization Statement

Disability Rights Education & Defense Fund (DREDF) opposes the criminalization of people based on their HIV-positive status. In addition to being harmful to public health, laws and prosecution targeting HIV-positive people constitute discrimination on the basis of disability. The Americans with Disabilities Act (ADA)[1] prohibits disability discrimination by state and local governments.[2] State laws and prosecutions that criminalize people living with HIV without a basis in current objective medical and scientific knowledge violate the ADA and other antidiscrimination mandates. We urge lawmakers across the country to modernize their HIV laws and policies, and to discard outdated and harmful punitive approaches.

Background

During the outset of the HIV epidemic, many states enacted laws that criminalized or enhanced the criminal penalties for certain acts by people living with HIV that were thought to create the risk of exposure to HIV.[3] These laws were passed at a time when fear and misinformation about HIV was widespread, particularly about how HIV is transmitted. Today, with the benefit of more than 30 years of research and considerable advances in medical treatments, the scientific and medical communities have learned much more about how HIV is transmitted and how to prevent transmission. We now know that HIV is not spread through saliva, tears, or sweat.[4] We also know that the use of condoms, PrEP (pre-exposure prophylaxis), and antiviral medication, by themselves or in combination, can dramatically reduce the risk of HIV transmission, in some cases to zero.[5] HIV has also become a medical condition that is managed with medications and other treatments, with people with HIV now having a life expectancy that matches that of the general public.[6] Yet most HIV criminal laws do not reflect current scientific and medical knowledge.[7] In addition, HIV criminalization laws undermine public health by discouraging people from seeking testing and treatment options, such as antiviral medication, that can protect their health and reduce transmission.[8]

Outdated HIV criminalization laws constitute disability discrimination because they treat people living with HIV more harshly without an objective scientific basis. Several states, such as California, Missouri, and North Carolina, have taken steps in recent years to modernize their state HIV laws.[9] Unfortunately, many state laws have still not been updated to reflect current scientific and medical knowledge. Laws in several states criminalize acts that cannot transmit HIV, such as spitting,[10] or that pose no material risk of transmission.[11] These laws do not account for actions that reduce risk, such as condom usage or PrEP or whether transmission has actually occurred.[12]
People with disabilities, including people living with HIV, deserve to live lives free from discrimination and irrational prejudice. DREDF opposes outdated laws that single out people for criminal penalties or enhanced criminal penalties based on their HIV-positive status. These laws violate the ADA and undermine public health.  They should be repealed.


[1] 42 U.S.C. § 12131 et seq.

[2] 42 U.S.C. § 12132.

[3] See J. Kelly Strader, Criminalization as a Policy Response to a Public Health Crisis, 27 J. Marshall L. Rev. 435 (1994); Wendy E. Permet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53 (1985-1986).

[4] Centers for Disease Control and Prevention, Ways HIV is Not Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/not-transmitted.html (“[HIV] is not transmitted […] Through saliva, tears, or sweat”).

[5] Robert W. Eisinger, Carl W. Dieffenbach, Anthony S. Fauci, HIV Viral Load and Transmissibility of HIV Infection: Undetectable Equals Untransmittable, Journal of the American Medical Association (2019), available at https://jamanetwork.com/journals/jama/article-abstract/2720997; National Institute of Allergy and Infectious Disease, The Science Is Clear—With HIV, Undetectable Equals Untransmittable: NIH Officials Discuss Scientific Evidence and Principles Underlying the U=U Concept, (Jan. 10 2019), available at https://www.niaid.nih.gov/news-events/science-clear-hiv-undetectable-equals-untransmittable (“In recent years, an overwhelming body of clinical evidence has firmly established the HIV Undetectable = Untransmittable (U=U) concept as scientifically sound, say officials from the National Institutes of Health. U=U means that people living with HIV who achieve and maintain an undetectable viral load—the amount of HIV in the blood—by taking and adhering to antiretroviral therapy (ART) as prescribed cannot sexually transmit the virus to others.”); Alison J. Rodger, Valentina Cambiano, Tina Bruun, et al., Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy, JAMA. 2016;316(2):171-181. doi:10.1001/jama.2016.5148 (2016), available at https://jamanetwork.com/journals/jama/fullarticle/2533066;  Roger Chou, Christopher Evans, Adam Hoverman, et al., Preexposure Prophylaxis for the Prevention of HIV Infection: Evidence Report and Systematic Review for the US Preventive Services Task Force, JAMA (2019), available at https://jamanetwork.com/journals/jama/fullarticle/2735508; Centers for Disease Control and Prevention, PrEP Effectiveness (May 13, 2021), available at  https://www.cdc.gov/hiv/basics/prep/prep-effectiveness.html (“PrEP reduces the risk of getting HIV from sex by about 99% when taken as prescribed.”).

[6] Hasina Samji, et al., Closing the Gap: Increases in Life Expectancy among Treated HIV-Positive Individuals in the United States and Canada (December 18, 2013), PLOS ONE, available at https://doi.org/10.1371/journal.pone.0081355.

[7] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“After more than 30 years of HIV research and significant biomedical advancements to treat and prevent HIV, most HIV criminalization laws do not reflect current scientific and medical evidence.”).

[8] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV Criminalization and Ending the HIV Epidemic in the U.S., available at https://www.cdc.gov/hiv/policies/law/criminalization-ehe.html (“[HIV criminalization] laws have not increased disclosure and may discourage HIV testing, increase stigma against people with HIV, and exacerbate disparities.”); J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.

[9] Division of HIV Prevention, National Center for HIV, Viral Hepatitis, STD, and TB Prevention – Centers for Disease Control and Prevention, HIV and STD Criminalization Laws, available at https://www.cdc.gov/hiv/policies/law/states/exposure.html.

[10] See, e.g., MISS. CODE ANN. § 97-27-14(2); Ind. Code §§ 35-42-2-1, 35-45-16-2(c), 35-50-3-3; OHIO REV. CODE ANN. §§ 2921.38, 2929.14.; 18 PA. CONS. STAT. ANN. § 2703.

[11] See ALA. CODE § 22-11A-21; ARK. CODE ANN. § 5-14-123; Centers for Disease Control and Prevention, Ways HIV Can Be Transmitted, (April 21, 2021) available at https://www.cdc.gov/hiv/basics/hiv-transmission/ways-people-get-hiv.html (“[t]here is little to no risk of getting HIV” from oral sex); Julie Fox, Peter J. White, Jonathan Weber, et al., Quantifying Sexual Exposure to HIV Within an HIV-Serodiscordant Relationship: Development of an Algorithm, AIDS 2011, 25:1065–1082 at 1077 (2011).

[12] J. Stan Lehman et al., Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States, AIDS Behav. 2014; 18(6): 997–1006., available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/.

Belarus: Eurasian Women’s AIDS Network submits list of issues on the implementation of CEDAW as it relates to women living with HIV

List of Issues on the implementation of the CEDAW by the Republic of Belarus  as it relates to women living with HIV submitted for the consideration at the 83rd Pre-Sessional Working Group of the UN Committee on the Elimination of Discrimination against Women – Geneva, Switzerland, 28 February – 4 March 2022

Prepared by the Eurasian Women’s Network on AIDS

  1. The Eurasian Women’s Network on AIDS brings together activists and women-led organizations from 12 countries of Eastern Europe and Central Asia to improve access to healthcare services for women living with HIV and vulnerable to HIV, to protect them from violence, and provide inclusive involvement of them in public debate, on which their lives and health depend.
  2. This submission focuses on the following issues – harmful effects of the legally enshrined criminal prosecution of women living with HIV (criminalization of HIV exposure, non-disclosure and transmission), ministerial and inter-agency practices that exacerbate the situation of women living with HIV, women who use drugs, diagnosis disclosure, violence against women.

The full submission is available for download in English and in Russian from the UN Treaty Body Database.

 

 

[Update]US: New Jersey Governor signs new law repealing old HIV criminalisation statute

New Jersey Repeals Outdated HIV Crime Laws and Fights Stigma

The new law “is a step in the right direction toward reforming the system” regarding HIV and STI prosecutions in New Jersey.

In January, New Jersey Governor Phil Murphy signed legislation that decriminalizes sexual activity by people living with HIV or a sexually transmitted infection (STI) in specific instances. What’s more, the law tackles HIV stigma because it requires that whenever a person is prosecuted under appropriate circumstances, the names of both the accused and the accuser be kept confidential.

The summary of the legislation—S3707/A5673—reads: “Repeals statute criminalizing sexual penetration while infected with venereal disease or HIV under certain circumstances; requires that in prosecutions for endangering another by creating substantial risk of transmitting infectious disease, name of defendant and other person be kept confidential.”

The legislation’s primary sponsors included Senators Joe Vitale (D–Middlesex) and M. Teresa Ruiz (D–Essex) and Assembly Members Valerie Vainieri Huttle and Joann Downey, according to a press release from Governor Murphy.

“Unfortunately, over the years, there has been a culture of criminally targeting HIV-positive individuals in general, rather than targeting those who intentionally expose others. The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition,” Senator Ruiz said in the press release. “Signing this piece of legislation into law is a step in the right direction toward reforming the system.”

HIV criminalization refers to the use of laws to target people who have HIV—notably African-AmericanLatino and LGBTQ populations—and punishing them because of their HIV status, not because of their actions. Under outdated laws, people with HIV can be sentenced to prison in cases where HIV was not transmitted, simply for allegedly not disclosing their status.

Of note, repealing HIV laws does not mean that people can’t be held accountable for intentionally transmitting HIV. Other laws may apply to the situation.

“Hyacinth AIDS Foundation applauds Governor Murphy signing S3707/A-5673, which would repeal New Jersey specific HIV criminalization statute. New Jersey’s HIV criminal law was based on stigma and fear, rather than modern science,” Axel Torres Marrero, Hyacinth’s senior director of public policy and prevention, said in the press release. “In 2022 it no longer reflects the current science of treatment and transmission of HIV. Today we recognize that no one should be singled out and punished solely on the basis of their HIV status. Taken together with the attorney general’s recent guidance that only a clear, successful intent to do harm should be punished, today New Jersey acknowledges that health care policy and the fight to end the AIDS epidemic must be anchored in the updated science of treatment and transmission of HIV.”

Marrero was referring to HIV-related guidance issued in October by Andrew Buck, who was the acting attorney general at the time. When deciding whether to charge someone under the state’s HIV crime laws, Buck directed prosecutors to consider three factors:

  • Whether the individual forced or coerced their partner to engage in sexual activity;
  • Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or
  • Whether the individual was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity.

“It is virtually impossible,” the guidance states, “to imagine a scenario where it would be appropriate for a prosecutor to charge an individual…when that person’s HIV viral load was undetectable at the time of the sexual activity and no aggravating factors existed.”

One of the goals of the new HIV law and the guidance is to base possible prosecutions on updated science, notably that people with HIV who take meds and maintain an undetectable viral load do not transmit HIV sexually, a fact referred to as Undetectable Equals Untransmittable, or U=U.

Another goal is to fight HIV stigma and encourage testing and treatment. “For decades, the HIV epidemic has had devastating effects on New Jersey, particularly in our LGBTQ+ communities and communities of color,” the governor said in the press release“Repealing the outdated law will eliminate the stigma and fear associated with testing for HIV and other sexually transmitted infections, encouraging more individuals to be proactive in learning about their health. This new law, coupled with advances in modern science and medicine, will bolster our efforts to end the HIV/AIDS epidemic in New Jersey.”

In related news, New Jersey also passed a series of harm reduction laws. One allows more syringe exchanges to open; another makes it legal to possess a syringe; and a third creates a review panel to study overdoses.

New Jersey isn’t the only state to decriminalize HIV. Last year, Illinois became the second state to repeal its discriminatory HIV laws (California did so in 2017). And lawmakers in Missouri, Nevada and Virginia have reformed similar laws. For more, see “Breaking HIV Laws: A Roundup of Efforts to Decriminalize HIV.”


Published in Insider NJ on 11/01/2022

Legislation to modernise criminalisation law passed by New Jersey Senate

Senate Passes Vitale-Ruiz Bill to Modernize NJ Statutes Related to HIV/AIDS Transmission

Trenton – In an effort to modernize New Jersey’s statutes related to the transmission of HIV/AIDS and reduce the stigma suffered by individuals living with HIV/AIDS and other sexually transmitted infections (STI), legislation sponsored by Senators Joe Vitale and M. Teresa Ruiz that would eliminate crimes that are solely applicable to individuals living with HIV/AIDS and STIs was passed by the Senate.

The bill, S-3707, would repeal current statutes that make it a crime for a person to commit an act of sexual penetration under certain circumstances while knowing that he or she is infected with a venereal disease, HIV, or AIDS. The bill maintains and updates the provisions of the statute that criminalizes endangering another person, therefore maintaining an avenue for prosecution in appropriate cases involving the transmission of non-airborne infectious or communicable diseases, without specifically targeting individuals living with HIV/AIDs and sexually transmitted infections.

“While working with advocates to identify areas to improve our harm reduction system of care, they identified updating these statutes to reflect what we now know about the transmission of certain diseases, especially in light in the advances in treatment, as a huge priority,” said Senator Joe Vitale (D- Middlesex). “The current law serves only to criminalize some of our most vulnerable populations, primarily those with HIV, dismissing what we know about the treatment of HIV and how it is and can be transmitted. I am thankful to the advocates who brought this issue to our attention, not only for leading the way on solid public health policy, but also in serving those in need in New Jersey.”

The current laws in place target individuals based on their HIV/AIDS status, rather than their actions. They disproportionately impact certain communities that are more likely to be living with the virus including members of the LGBTQ+ community, Black and Latinx people and transgender women. The new legislation will work to remove the negative stigma and criminalization that these communities and others currently face.

“This legislation is a step in the right direction of inclusivity and removing the stigmatization that surrounds individuals living with HIV. Over the years, there has been criminalization targeting HIV-positive individuals, rather than those who are intentionally harming others,” said Senator Ruiz (D-Essex). “The criminal code is meant to punish actions that harm others, not discriminate against people living with a chronic health condition.”

The bill passed the Senate by a vote of (25-11).

US: Women account for 62 percent of HIV-related arrests despite making up just 17 percent of Kentucky’s HIV-positive population

Two-thirds of HIV-related arrests in Kentucky are women, study finds

Women account for 62 percent of HIV-related arrests despite making up just 17 percent of the state’s HIV-positive population, according to a report by the Williams Institute.

Story at a glance

  • At least 32 people have been arrested since 2006 under Kentucky laws that criminalize people living with HIV.
  • All but one of those arrests were related to sex work, and, in 44 percent of arrests, the HIV-related offense was the only reason for contact with law enforcement.
  • People living with HIV in Kentucky may face felony charges which carry a prison sentence of up to five years for engaging in sex work or donating blood, tissues, or organs.

Women account for nearly two-thirds of HIV-related arrests in Kentucky, new research has found, even though less than a quarter of the state’s population of people living with HIV are women.

At least 32 people have been arrested since 2006 under Kentucky laws that criminalize people living with HIV, according to a report by the Williams Institute, a public policy think tank studying issues related to sexual orientation and gender identity.

Women account for 62 percent of those arrests despite making up just 17 percent of the state’s HIV positive population, according to the report, which uses Uniform Crime Reporting data collected by Kentucky State Police.

All but one of the arrests were related to sex work, and, in 44 percent of HIV-related arrests, the HIV-related offense was the sole reason for contact with law enforcement.In Kentucky, people living with HIV, which lives in the blood and other bodily fluids, who engage in sex work or donate blood, tissues, or organs may face Class D felony charges, which carry a prison sentence of one to five years.

More than 15 percent of HIV-related arrests were “almost certainly for conduct that did not involve sex acts,” according to the report, which noted that arrests for allegations of sex work do not need to include actual sex acts.

“A person can be arrested for sex work in the state without engaging in actual sex acts,” the study’s lead author, Nathan Cisneros, said in a statement. “That means Kentucky law can apply a felony charge — which carries a prison term of up to five years — to people living with HIV without requiring actual transmission or even the possibility of transmission.”

More than two-thirds of U.S. states and territories have enacted HIV criminal laws, according to the Centers for Disease Control and Prevention.