US: New report from the Williams Institute examines the enforcement of Indiana’s HIV-related criminal donation laws

Enforcement of HIV Criminalization in Indiana: Donation Laws

The Williams Institute analyzed data from the Indiana courts regarding individuals arrested and prosecuted for an HIV-related donation crime in that state. Indiana has six laws criminalizing people living with HIV (PLWH), spanning the criminal code and public health code. This report—one in a series examining HIV criminalization in Indiana—analyzes the enforcement of two laws that criminalize the donation of blood, plasma, and semen for artificial insemination if the person knows they have HIV:

  • Indiana Criminal Code § 35-45-21-1 Transferring Contaminated Body Fluids (enacted in 1988)
  • Indiana Health Code § 16-41-14-17 Donation, Sale, or Transfer of HIV Infected Semen; penalties (enacted in 1989)

The data were obtained between January 2022 and March 2024 and cover enforcement of the laws between 2001 and 2023. We identified 18 unique individuals charged with 21 violations of the state’s criminal donation law related to HIV, resulting in 18 court cases. While other states have similar HIV-related criminal donation laws, Indiana had the greatest number of convictions under a donation law documented in a single state.

Key Findings

  • Indiana’s HIV-related donation crimes were created nearly four decades ago (1988 and 1989) before effective and easily accessible testing and treatment for HIV was available.
  • All 18 cases stemmed from an attempt to donate at a plasma center.
  • No cases (0) involved attempts to donate whole blood or semen.
  • No people (0) were charged under the provision of the code penalizing actual HIV transmission.
  • Marion County—home to Indianapolis, the state capital and largest city—was substantially overrepresented in arrests: it accounted for about 14% of the state’s population and 41% of PLWH in 2021 but nearly 80% of all donation-related arrests. Only three other counties had arrests.
  • Alleged violations of the donation laws regularly occurred between 2001 and 2018, with the most recent arrest happening in 2019 for an incident in 2018. On average, one court case was filed per year for an alleged violation of Indiana’s HIV blood donation law during this time period.
  • The demographic data reveal that:
    • The range for age at time of arrest was between 20 and 58 years old; the mean (average) age at time of arrest was 33 years old.
    • Men were 72% of people arrested while women were 28%.
    • Black people were nearly eight in ten (78%) of all people arrested. White people were the remainder (22%) of those arrested. However, Black people were only 38% of PLWH in Indiana in 2021 and just 10% of the state’s population. No other race/ethnicity group was represented among those arrested.
  • In total, 17 of the 18 people charged were found indigent and assigned a public defender.
  • More than four-fifths (89%) of people arrested were convicted of at least one HIV-related crime.
  • The Indiana Department of Health (IDOH) devoted resources to determining whether a possible crime was committed—a public health investigator (PHI) routinely referred cases to law enforcement and provided them with personal HIV information in accordance with IDOH policy at the time.
  • • The criminal law has not been enforced since the last court case was filed in 2019, suggesting a recent decline in the use of Indiana’s HIV-related donation crime laws.

To our knowledge, this report is the first comprehensive look at the enforcement of HIV criminal donation laws in a single U.S. state, and it demonstrates one of the highest levels of enforcement observed in any state to date.

This report found that people who know they have HIV can, and have, been prosecuted under Indiana’s HIV criminalization donation laws for acts that pose no HIV transmission risk. Because of universal screening for HIV antibodies, donated blood, plasma, and semen are now safe from HIV for recipients. Moreover, plasma—which represented 100% of attempted donations in this study—is heat treated, which inactivates all bloodborne pathogens, including HIV. There has not been a reported case of HIV transmission from plasma donation in nearly 40 years. Yet, as recently as 2019, Indiana arrested, prosecuted, and convicted a person for attempting to donate at a plasma center in the state.

Further, HIV criminalization laws could undermine the state’s efforts to work cooperatively with the communities most impacted by the HIV/AIDS epidemic. In recent years, there has been growing consensus among public health and medical experts that ending the HIV epidemic requires modernizing a state’s HIV criminal laws to reflect what is known about HIV science today. Indiana’s own statewide plan to end the HIV epidemic in the state by 2030, called Zero is Possible, includes criminal law modernization as one of the current approaches and priorities. The plan echoes the Centers for Disease Control and Prevention (CDC) and the White House’s Office of National AIDS Policy (ONAP) position on HIV-specific criminal laws, both of which call on states to modernize their HIV criminal laws to reflect advances in treatment and what we know today about how HIV is—and is not—transmitted.

Download the full report

US: Sex workers convicted of aggravated prostitution because of their HIV status to be removed from Sex Offender Registry

Tennessee agrees to remove sex workers with HIV from sex offender registry

The Tennessee government has agreed to begin scrubbing its sex offender registry of dozens of people who were convicted of prostitution while having HIV, reversing a practice that federal lawsuits have challenged as draconian and discriminatory.

For more than three decades, Tennessee’s “aggravated prostitution” laws have made prostitution a misdemeanor for most sex workers but a felony for those who are HIV-positive. Tennessee toughened penalties in 2010 by reclassifying prostitution with HIV as a “violent sexual offense” with a lifetime registration as a sex offender — even if protection is used.

At least 83 people are believed to be on Tennessee’s sex offender registry solely because of these laws, with most living in the Memphis area, where undercover police officers and prosecutors most often invoked the statute, commonly against Black and transgender women, according to a lawsuit filed last year by the American Civil Liberties Union and four women who were convicted of aggravated prostitution. The Department of Justice challenged the law in a separate suit earlier this year.

Both lawsuits argue that Tennessee law does not account for evolving science on the transmission of HIV or precautions that prevent its spread, like use of condoms. Both lawsuits also argue that labeling a person as a sex offender because of HIV unfairly limits where they can live and work and stops them from being alone with grandchildren or minor relatives.

“Tennessee’s Aggravated Prostitution statute is the only law in the nation that treats people living with HIV who engage in any sex work, even risk-free encounters, as ‘violent sex offenders’ subjected to lifetime registration,” the ACLU lawsuit states.

“That individuals living with HIV are treated so differently can only be understood as a remnant of the profoundly prejudiced early response to the AIDS epidemic.”

In a settlement agreement signed by Tennessee Gov. Bill Lee on July 15 and filed in both lawsuits on July 17, the Tennessee Bureau of Investigation said it would comb through the state’s sex offender registry to find those added solely because of aggravated prostitution convictions, then send letters alerting those people that they can make a written request to be removed. The language of the settlement suggests that people will need to request their removal from the registry, but the agency said in the agreement it will make “its best effort” to act on the requests “promptly in the order in which they are received.”

The Tennessee attorney general’s office, which represents the state in both the ACLU and DOJ lawsuits and approved the settlement agreement, said in an email statement it would “continue to defend Tennessee’s prohibition on aggravated prostitution.”

In an email statement, the ACLU celebrated the settlement as “one step toward remedying the harms by addressing the sex offender registration,” but said its work in Tennessee was not done because aggravated prostitution remained a felony charge that it would “fight to overturn.”

Molly Quinn, executive director of LGBTQ+ support organization OUTMemphis, another plaintiff in the ACLU lawsuit, said both organizations would help eligible people with the paperwork to get removed from the registry.

“We would not have agreed to settle if we did not feel like this was a process that would be extremely beneficial,” Quinn said. “But, we’re sad that the statute existed as long as it did and sad that there is any process at all that folks have to go through after living with this extraordinary burden of being on the sex offender registry for really an irrelevant reason.”

Michelle Anderson, a Memphis resident who is one of the plaintiffs in the ACLU lawsuit, said in court records that since being convicted of aggravated prostitution, the sex offender label has made it so difficult to find a home and a job that she was “unhoused for about a year” and has at times “felt she had no option but to continue to engage in sex work to survive.”

Like the other plaintiffs, Anderson said her conviction kept her minor relatives at a distance.

“Ms. Anderson has a nephew she loves, but she cannot have a close relationship with him,” the lawsuit states. “Even though Ms. Anderson’s convictions had nothing to do with children, she cannot legally be alone with her nephew.”

The Tennessee settlement comes months after state lawmakers softened the law so no one else should be added to the sex offender registry for aggravated prostitution. Lawmakers removed the registration requirement and made convictions eligible for expungement if the defendant testifies they were a victim of human trafficking.

State Sen. Page Walley (R-Savannah), who supported the original aggravated prostitution law passed in 1991 and co-sponsored the recent bill to amend it, said on the floor of the legislature that the changes do not prevent prosecutors from charging people with a felony for aggravated prostitution. Instead, he said, the amendments undo the 2010 law that put those who are convicted on the registry “along with pedophiles and rapists for a lifetime, with no recourse for removal.”

“Having stood, as I mentioned, in 1991 and passed this,” Walley said, “it is a particular gratifying moment for me to see how we continue to evolve and seek what’s just and what’s right and what’s best.”

Malaysia: Latest attempt to amend the Prevention and Control of Infectious Diseases Act retains many of its controversial provisions

Act 342 Amendment Bill Treats Infection Like A Criminal Offence

The Act 342 Amendment Bill 2024 treats infection like a criminal offence, raising compounds on individuals to RM5,000 and granting Health DG vast powers over isolation and surveillance, among others, and CPC investigation powers for authorised officers.

The Ministry of Health (MOH) is making its latest attempt to amend the Prevention and Control of Infectious Diseases Act 1988 (Act 342), while retaining many of the controversial provisions that led to previous failures.

The latest attempt is supposedly in line with a recent decision by the World Health Organization (WHO) member countries to adopt critical amendments to the 2005 International Health Regulations (IHR).

This was supposed to include provisions for a National IHR Authority, an entity established at the national level to coordinate the implementation of the Regulations within the country’s jurisdiction. However, this provision is absent from the new bill.

Instead, the Prevention and Control of Infectious Diseases (Amendment) Bill 2024 curiously retains many of the contentious elements from the previous amendment.

These include a revised Section 25 proposing compounds of up to RM5,000 for individuals and RM50,000 for companies; a revised Section 24 imposing general penalties of up to two years’ imprisonment or fines of up to RM10,000 for individuals, and up to RM100,000 for companies; and a new Section 31 that stipulates penalties for specific breaches of regulations, including imprisonment for up to two years or fines of up to RM8,000 for individuals, and imprisonment for up to two years or fines of up to RM50,000 for companies.

The new bill varies slightly from the previous amendment in terms of penalty amounts. It appears to impose tougher penalties on individuals (increasing from a maximum RM1,000 in compounds and RM2,000 in general fines), while reducing fines for corporations (decreasing from a maximum RM500,000 in compounds and RM2 million in general fines).

The bill also retains controversial provisions, including Section 21(A), which grants the Health Director-General broad powers to issue directives for controlling infectious diseases, including lockdowns and isolation.

Non-compliance is a criminal offence, extending the DG’s authority beyond the current Act, which regulates diseases like Covid-19, HIV, dengue, and tuberculosis.

Section 14A allows an an authorised officer to order any person who is infected or who he has “reason to believe” has been infected with an infectious disease to “undergo isolation or surveillance” in a specified place and for a determined period as the authorised officer may think fit or until he may be discharged without danger to the public.

Section 15A enables an authorised officer to issue any order to be complied with by any person who is infected or whom he has reason to believe to be infected, or any contact, for the “purpose of tracking and monitoring”. Such order may include order to wear any form of tracking device provided by the authorised officer and to use any digital application in any digital device as determined by the authorised officer.

Section 21B empowers the authorised officers to carry out investigation under Act 342 in accordance with the Criminal Procedure Code [Act 593], while Section 21C empowers the authorised officers to require any person to furnish any information relating to the prevention and control of infectious diseases.

Although the new bill does not explicitly reference the IHR, the powers granted to the Health DG and authorised officers imply that the MOH will effectively act as both the IHR Focal Point and the National IHR Authority, as outlined in Article 4 of the IHR amendments.

Under Prime Minister Ismail Sabri Yaakob’s administration, the government tabled an Act 342 amendment bill in December 2021 – during the Covid pandemic – that raised compounds of offences from the current RM1,000 maximum to RM10,000 for individuals and up to RM500,000 for corporate bodies.

Individuals convicted of offences under Act 342 faced penalties of a maximum RM50,000 fine, up to three years’ jail, or both under Section 24 on the proposed amended general penalties. For corporate bodies, a maximum RM2 million fine upon conviction was proposed.

The bill underwent two revisions before being shelved in March 2022 due to intense public backlash. The punitive approach faced criticism from ordinary citizens, businesses, lawyers, and doctors.

Current Health Minister Dzulkefly Ahmad, among other lawmakers, opposed the bill, calling the proposed amendments a “cataclysmic failure”.

US: New HIV criminalisation law goes into effect in Tennessee

CHLP denounces new law in Tennessee that further criminalizes people living with HIV

Expansion of aggravated rape offense now includes people living with HIV regardless of whether they are able to transmit, intended to transmit, or actually transmitted HIV

(NEW YORK) – On July 1, 2024, a new law went into effect in Tennessee that further criminalizes people living with HIV. Governor Bill Lee signed HB 2572/SB2043 into law in May, which expands the offense of aggravated rape to include individuals who commit rape knowing that they are living with HIV . Neither the intent to transmit nor transmission is required for a conviction.

“This law is a step backward in our fight against HIV stigma and discrimination. It criminalizes people based on their health status, singling out individuals due to their HIV status,” said CHLP Staff Attorney Jada Hicks.

The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities, including those living with HIV. In December, after an investigation prompted by a CHLP complaint, the Department of Justice (DOJ) found that Tennessee’s aggravated prostitution offense violates the ADA because it subjects people living with HIV to harsher criminal penalties solely because of their positive HIV status, regardless of any actual risk of harm. The DOJ is now suing the state.

Much like the aggravated prostitution statute, HB 2572 specifically targets individuals who are living with HIV by considering their HIV status as an aggravating factor in sexual offense cases, raising significant concerns regarding its potential violation of the ADA.

“Laws that criminalize a person based on their HIV status perpetuate the cycle of fear and misinformation surrounding HIV,” said CHLP Staff Attorney Sean McCormick. “This law could deter people from getting tested for HIV out of fear that their HIV status will be used to criminalize them.”

Advocates in Tennessee sought to educate legislators on the harm HB2572/SB2043 would cause by criminalizing a person’s HIV status. CHLP collaborated with Memphis-based Sister Reach on an advocacy letter highlighting how the bill would disproportionately impact those living on the margins and how criminalization increases the stigma against people living with HIV who are already experiencing alarming rates of discrimination, homo and transphobia, misogyny and misogynoir, as well as socioeconomic and health disparities.

When the legislation advanced, CHLP worked with the Tennessee HIV Modernization Coalition to push for an amendment to require transmission to have occurred in order for the charge to be elevated to aggravated rape. Despite these efforts, the Senate consented to the House version of the bill, which did not include requiring transmission and the bill passed without it.

US: CHLP and Oklahoma advocates successfully oppose sweeping STI criminalisation Bill

STI Criminalization Bill stopped in Oklahoma

CHLP collaborates with advocates in Oklahoma to oppose a bill that would have criminalized thousands of Oklahomans living with sexually transmitted infections.

The recent adjournment of the legislative session for the 59th Oklahoma Legislature marked the end of House Bill 3098 (HB 3098), which would have dramatically increased the number of health conditions criminalized under Oklahoma law.

The existing statute, Oklahoma Statutes Title 21 Section 1192 (Section 1192), imposes felony punishment, including a two-to-five-year prison sentence, on people living with smallpox, syphilis, or gonorrhea who intentionally or recklessly “spread or cause to be spread to any other persons . . . such infectious disease.” HB3098 would have added Hepatitis B virus, genital herpes, Human Papillomavirus (HPV), and Trichomoniasis to the list of criminalized conditions, potentially opening up more than 85% of the population to criminalization.

CHLP’s Positive Justice Project, including Staff Attorneys Jada Hicks and Sean McCormick and National Community Outreach Coordinator Kytara Epps, worked collaboratively with local and national advocates to oppose the legislation. Local efforts were led by Nicole McAfee, Executive Director of Freedom Oklahoma.

In testimony with the House Judiciary – Criminal Committee, CHLP emphasized that the bill would criminalize nearly all Oklahomans and worsen criminal legal system disparities for Black, Latine, Indigenous, and 2SLGBTQ+ Oklahomans.

CHLP also met with the National Coalition of STD Directors (NCSD) to broaden national awareness of the issue. In a state policy notice, NCSD noted the bill would potentially worsen barriers to STI testing and treatment and undermine efforts to expand expedited partner therapy. Oklahoma already has some of the highest diagnosis rates for sexually transmitted infections, including the fourth-highest rate of primary and secondary syphilis and the fifth-highest rate of congenital syphilis.

Hicks and McCormick also provided a virtual briefing to the members of the Oklahoma Senate Minority Caucus, offering talking points and countering the argument made by the bill’s sponsor Rep. Toni Hasenbeck that the legislation would reduce intimate partner violence.

“Laws that criminalize people living with STIs likely worsen the threat of intimate partner violence by providing another tool for abusers to force people to stay in abusive relationships,” observed McCormick. “We continue to hear stories from people living with STIs whose partners threaten to file a police report alleging a violation of an STI criminalization statute. The possibility of criminal prosecution and public disclosure of their status causes many survivors to stay in abusive relationships.”

Hicks addressed misinformation about the statute criminalizing only intentional transmission. “Under Section 1192 people who ‘recklessly [are] responsible’ for transmitting these conditions could face prosecution, but the term ‘recklessness’ is not defined in the statute, which poses significant risks of broad and subjective interpretations,” she explained. “Rather than promoting public health, it instills fear and discourages people from getting tested or disclosing their health status. We believe in education and support, not punishment, as the path to managing communicable diseases effectively.”

In addition to opposing HB 3098, the Oklahoma coalition worked with Rep. Mauree Turner to introduce House Bill 4139, which would have repealed four statutes that criminalize people living with certain medical conditions, including Section 1192. The bill would have also allowed individuals convicted of these offenses to apply for resentencing and records expungement.

“While the repeal legislation was unsuccessful, the defeat of HB 3098 prevented a more hostile environment for people living with or affected by stigmatized conditions,” said Epps. “The collaborative HB 3098 efforts are also a shining example of how local and national advocates come together to disrupt criminalization. We look forward to continuing to work with Oklahoma advocates and fighting against the ongoing criminalization of people living with stigmatized conditions.”

Mexico: Activists push to repeal Morelos outdated HIV Criminalisation law

Activists seek to repeal the crime of “danger of contagion” in Morelos

Translated with – Scroll down for original article in Spanish

Five people with HIV are in prison because of this article in the Morelos Penal Code, according to a civil association; in Mexico City this article has already been repealed.

Article 136 of the Penal Code of the State of Morelos reads: “Anyone who, knowing that he or she suffers from a serious illness during the infectious period, puts another person at risk of contagion, by any means of transmission of the disease, will be sentenced to six months to one year in prison and will be treated for up to one year”, a sanction that, according to the civil association Positivos Morelos, which works in favour of the rights of people with HIV in the state, should no longer exist.

This was stated by Carlos Batalla, founder of the association, who recalled that these sanctions were created during the 1980s, at the peak of HIV infections, thus contributing to a stigma that has been difficult to erase afterwards, in defence of the human rights of people infected by the virus.

What does the law say?

“According to this article, any person who can transmit any disease can be subject to a fine in the judicial system, and in this case it can go as far as imprisonment. It has already been repealed in Mexico City, because it is a very old law, created to mitigate the risk of contagion at the time, but people’s rights are more important,” said the activist.

“If the illness suffered by the agent is incurable, the prison sentence established in the previous paragraph shall be doubled,” the article continues.

According to Batalla, there are at least five people in the state of Morelos who are currently deprived of their liberty because of this article, citizens who were accused of having intentionally transmitted HIV:

“These cases have not been followed up, but we are looking to attend to them and see how we can help them,” he said.

He recalled that two years ago an initiative to repeal article 136 of the Penal Code was presented to the state Congress, but was unsuccessful.

Activistas buscan derogar delito de “peligro de contagio” en Morelos

Cinco personas con VIH están en prisión por la vigencia de este artículo en el Código Penal de Morelos, señala asociación civil; en la Ciudad de México este artículo ya fue derogado.

“A quien sabiendo que padece una enfermedad grave en periodo infectante, ponga en peligro de contagio a otro, mediante cualquier medio de transmisión del mal, se le aplicará de seis meses a un año de prisión y tratamiento en libertad hasta por un año”, se lee en el artículo 136 del Código Penal del Estado de Morelos, una sanción que, de acuerdo con la asociación civil Positivos Morelos, que trabaja en favor de los derechos de las personas con VIH en el estado, ya no debería existir.

Así lo expuso Carlos Batalla, fundador de la asociación, quien recordó que estas sanciones fueron creadas durante la década de 1980, en el auge de los contagios de VIH, contribuyendo así a un estigma que después ha costado trabajo borrar, en defensa de los derechos humanos de las personas contagiadas por el virus.

¿Qué dice la ley?

“De acuerdo con este artículo, cualquier persona que pueda transmitir alguna enfermedad puede ser acreedora a una multa en el tema judicial, y en este caso puede llegar hasta prisión. Ya se derogó en la Ciudad de México, porque es una ley muy antigua, creada para mitigar el riesgo de contagio en aquel entonces, pero son más importantes los derechos de las personas”, dijo el activista.

“Si fuese incurable la enfermedad que padece el agente, se duplicará la sanción privativa de libertad establecida en el párrafo anterior”, continúa el texto del artículo.

De acuerdo con Batalla, en el estado de Morelos hay por lo menos cinco personas que están actualmente privados de su libertad debido a este artículo, ciudadanos que fueron acusados de haber contagiado el VIH de manera intencional:

“A estos casos no se les ha dado seguimiento, pero estamos buscando atenderlos y ver de qué manera los podemos ayudar”, dijo.

Recordó que hace dos años se presentó una iniciativa para derogar el artículo 136 del Código Penal ante el Congreso del estado, la cual no tuvo éxito.

Zimbabwe: Retrogressive bill listing wilful HIV transmission as a criminal offence set to be withdrawn

Government withdraws wilful HIV transmission from Bill

The Bill sought to re-criminalise deliberate HIV/AIDS transmission despite the fact that the Marriages Act had decriminalised wilful HIV/AIDS transmission. Contributing to debate on the Bill in the National Assembly last week, Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said prosecution under the Criminal Laws Amendment (Protection of Children and Young Persons) Bill should only apply when deliberate transmission of HIV/AIDS is done in aggravating circumstances such as rape and other sexual offences involving young persons

A CLAUSE in the Criminal Laws Amendment (Protection of Children and Young Persons) Bill that lists wilful HIV/AIDS transmission to a partner as a criminal offence, is set to be withdrawn by the Government as the Second Republic seeks to align with international trends.

The Bill, presently before Parliament, listed HIV/AIDS as one of the sexually-transmitted infections (STIs), whose deliberate transmission to a partner is a criminal offence. Others include syphilis, gonorrhoea and herpes.

The Criminal Laws Amendment Bill also sets out to raise the age of sexual consent from 16 to 18.

The Bill sought to re-criminalise deliberate HIV/AIDS transmission despite the fact that the Marriages Act had decriminalised wilful HIV/AIDS transmission. Contributing to debate on the Bill in the National Assembly last week, Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said prosecution under the Criminal Laws Amendment (Protection of Children and Young Persons) Bill should only apply when deliberate transmission of HIV/AIDS is done in aggravating circumstances such as rape and other sexual offences involving young persons.

Earlier on, some legislators, including those in the Justice, Legal and Parliamentary Affairs Portfolio Committee chaired by Bikita South MP, Dr Energy Mutodi, had expressed reservations on the reintroduction of the clause that had been taken away by the Marriages Act.

Said Minister Ziyambi: “The way it is couched in the Bill is not correct. The policy direction from the Executive was, where you sleep with a young person and you have been convicted, it becomes an aggravating factor if you have wilfully transmitted an STI to that particular young person.

“The assumption that we are coming from is, young persons are not sexually active and it is not very difficult to prove once you have been convicted. Medical reports are there to prove that the young person contracted HIV and STIs and it should be an aggravating factor on sentencing.

“We are going to change this so that it does not appear like we have generally reintroduced the clause that we repealed the last time when we brought the Marriages Act. It is very difficult to prove and worldwide studies have shown that criminalising does not reduce transmission levels.”

Minister Ziyambi added that there were several discordant couples that can stay for years, “the other one not seroconverting”.

“So, if we say we are criminalising, we are saying, per chance, if you manage to contract, you are a criminal, but that one who has not contracted and nothing has happened, we say ‘they are okay’; there is discrimination, scientifically it does not mean that if people sleep together, automatically they will have HIV,” he said.

Minister Ziyambi said it would be difficult to implement, if the law was to be allowed in the country’s statutes.

“So I want to take it to agree that it is a law that is very difficult to implement, hence the reason why the Executive, the last time when we had the Marriages Act, agreed with the submissions from those within the Ministry of Health and Child Care that we need to repeal it.

“We now have an assumption that we have a case where somebody has been arrested for sleeping with a young person and medical reports are there that there has been an infection. Those reports will indicate whether that particular young person was sexually active or not, and there we are saying it becomes an aggravating factor if you have infected that particular young person with STIs and HIV. Therefore, that particular clause will be amended accordingly and hence we will be bringing those amendments,” he said.

Earlier on, presenting the Portfolio Committee’s report, Dr Mutodi said during their public hearings on the Bill, while some supported the clause, others expressed reservations.

He said some members of the public were against the clause, arguing that during the crafting of the Marriages Act in 2022, Government agreed to the lobbying of people with HIV and other support groups and civil society organisations to decriminalise wilful transmission of HIV.

“It was further submitted that there is no method of establishing the period one may have been infected with HIV and who would have transmitted the virus between the two, when the statuses of both were unknown before sexual intercourse happened,” said Dr Mutodi.

Dzivarasekwa MP, Mr Edwin Mushoriwa, said it was difficult to prove wilful transmission of HIV.

Hwange Central MP, Mr Daniel Molokele, said the removal of the clause had been celebrated last time, and reinstating it would be retrogressive.

“This bad law was repealed because it is not possible socially and legally to prove who, in a particular relationship, was infected first with HIV. Over the years, many countries have repealed this bad law and Zimbabwe was one of the last countries to repeal this law,” he said.

“Women are the ones who have been prosecuted under this law and it has been difficult to prove that they committed a criminal offence because we all know that in this country, women are the ones who have health-seeking behaviour; they are the ones who are willing to do HIV tests.

“Most men in this country are scared to do an HIV test. They are less scared of lions and other wild animals than having an HIV test. I can dare a man in this Parliament to have an HIV test in public and you see the reaction. Most of them will look for the nearest exit door.”


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: Shelby County, Tennessee, will no longer prosecute people living with HIV under Tennessee’s aggravated prostitution law

Justice Department Secures Agreement with Shelby County, Tennessee, District Attorney General to Cease Enforcement of State Law that Discriminates Against People with HIV

The Justice Department announced today that the Shelby County, Tennessee, District Attorney General (DA) has agreed to cease prosecution of individuals living with human immunodeficiency virus (HIV) under Tennessee’s aggravated prostitution law. The DA will also adopt reforms to correct discrimination against people living with HIV who were subjected to discriminatory and harsher penalties under the law.

This agreement resolves the Justice Department’s finding that the Shelby County DA violated the Americans with Disabilities Act (ADA) by enforcing Tennessee’s aggravated prostitution law that imposed enhanced criminal penalties based on a person’s HIV status. The prosecutions were carried out without consideration of risk of transmitting HIV, and the harsher penalties included being charged with a felony (as opposed to a misdemeanor) and being required to register for life as a sex offender.

“Living with HIV is not a crime and the continued enforcement of laws that criminalize a person based on their HIV status, regardless of risk, perpetuate bias, stereotypes and ignorance about HIV,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.  “We are pleased that Shelby County District Attorney has agreed to cease enforcement of this discriminatory law, and that future prosecution decisions will reflect the significant advances made in HIV prevention and treatment, consistent with the ADA.”

Under this agreement, the DA will not prosecute individuals under the aggravated prostitution law or for violations of the sex offender registry requirements that have resulted from prior convictions under that law. The DA will also notify anyone eligible of their ability to petition for vacatur of their convictions, termination of the remainder of their sentences and elimination of fees owed.

This agreement also requires the Shelby County DA to adopt policies and train prosecuting attorneys on the ADA’s anti-discrimination requirements relating to HIV, a disability under the ADA. Under the agreement, the DA will also report its compliance with the agreement to the department.