by Ruby Tricca
The criminalization of HIV began decades ago as a response to the emerging epidemic. HIV criminalization laws frequently target people who already experience discrimination in the medical and legal systems such as LGBTQ+ people, people of color, and sex-workers. In 1989, a court case in the state of Illinois led to the overturn of a law that mandated all women convicted of prostitution undergo HIV testing. The law was overturned on the grounds that it was both sexist and reinforced false narratives about the virus. However, despite the success of this case, many laws that criminalize people living with HIV are still on the books and continue to cause significant harm.
Transcript – HIV Criminalization and Women
Hello and welcome to the podcast, I’m your host Ruby Tricca and today I’ll be discussing the impact of HIV criminalization on women. HIV criminalization occurs when the government adopts laws that punish people with HIV for having sex and participating in activities deemed “risky”. These laws are outdated and do not reflect our current knowledge on the prevention and spread of the virus. Most were written into law at the beginning of the epidemic as a wave of panic hit the nation. I want to begin by discussing the origins of these laws and the history of overturning them.
In early August of 1989, a case was brought to the Illinois Supreme Court. The court’s job was to decide whether a law mandating women convicted of prostitution undergo HIV testing was unconstitutional1. Ultimately, the law was removed from the states constitution after judge Patrick Morse concluded it violated the privacy rights of the plaintiffs. What they didn’t throw out however, were the sexist ideas that led to the ratification and implementation of the law. Early laws dealing with prostitution in the United States made it illegal on the grounds that, according to the Supreme Court, “the lives and example of such persons are in hostility to ‘the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony…’”2. Sylvia Law, a professor of law at NYU who wrote the brief for the Illinois case, noted that laws such as the one overturned in the 1989 case suggest that “there exists a class of women who are not delicate or who are not worthy of protection”. Many laws that claim to protect women are ways of masking the state-sanctioned violence our government happily doles out to women who are already disadvantaged in our medical and legal systems. These systems are more than happy to target women who they see as a threat to traditional notions of femininity and purity. Women living with HIV fall into that category.
Stigmatization of people living with HIV began in the early 1980’s when the first cases began popping up across the country. Because HIV was originally thought to be a virus that could only impact gay men, women who got the virus were denied treatment and participation in early drug trials. Despite voluntary ignorance from medical and scientific communities, AIDS became the leading cause of death for black women between the ages of 15 and 44 by the year 1988. Just one year before, Ronald Reagan formed the Presidential Commission on the Human Immunodeficiency Virus Epidemic. Due to widespread panic surrounding the rapid spread of the epidemic as well as lack of knowledge about how the virus actually spread, the commission placed criminalization at the center of their mitigation strategy. They believed that by criminalizing sex and other activities they deemed quote unquote “risky behaviors” for people with HIV, they could discourage people living with HIV from having sex and therefore spreading the illness. The reality is that these laws are just another form of state-sanctioned violence against women, particularly women of color and queer women who already face over-policing and abuse from law enforcement and medical systems.
While HIV criminalization laws vary widely from state to state, most states still have laws on the books designed to strip people living with HIV of their basic human rights and dignity. These laws most frequently revolve around the idea that if an HIV positive person has sex and cannot provide proof that they revealed their status to their partner puts their partner at risk and should therefore be put behind bars. Many states have laws that increase the length of prison sentences for people already convicted of sex-work and drug-use that also happen to be HIV positive. After release, some states require that these people register themselves in the state sex-offender registry. These laws fail to take into consideration the wealth of knowledge we have acquired in the past 40 years, and often criminalize behavior that poses little to no risk of infection such as having sex while on medication even if you have an undetectable viral load or biting and spitting. Notably, the same standard is not applied to other treatable conditions–it only applies to HIV because of stigma. Because of this discrepancy, laws contribute to the spread of fear and misinformation around HIV. But even criminalizing behaviors that do pose a significant risk of transmission is not an effective strategy to mitigate spread, instead it leads to stigmatization and makes it harder for people living with HIV, particularly already marginalized communities, to access the prevention, testing, and treatment they need. For example, many women with HIV already face race, gender, or economic-based discrimination, forcing them to turn to sex work as a means of survival and putting them at risk of criminalization, further stigmatization, and violence.
The idea of retribution is what fuels the implementation and support of criminalization. Basically, retribution stipulates that punishment is okay if the person receiving that punishment is deemed a criminal and therefore deserving. But living with HIV shouldn’t and doesn’t make someone a criminal. Despite this fact, many states are willing to lock people behind bars for years simply because of their diagnosis and therefore perceived intent to cause harm. In Louisiana, the penalty for HIV crimes is up to 11 years with or without hard labor. Ironically, the punishment for negligent homicide is only up to five years, which is surprising because negligent homicide results in a death while HIV is rarely a death sentence anymore with access to adequate health care. HIV only becomes a death sentence when people are jailed for their diagnosis, because jails offer some of the worst healthcare for people with HIV–often providing inconsistent or no treatment and allowing their condition to progress.3
Because most HIV-related crimes are only considered to be crimes if the person living with HIV knew of their status, these laws de-incentivize people from seeking a diagnosis, which leads to the opposite effect of what they were intended. If you are unaware of your status you may not take as many precautions which actually increases spread of the virus. The law ends up punishing people who choose to get tested and seek treatment. It also ends up punishing people who don’t have access to post-diagnosis support and treatment.
For example, trans people in general are 3 times more likely to be diagnosed with HIV than the general population. The risk is even higher for black trans women with the CDC estimating that around 50% live with HIV. Transphobia makes it harder for trans women to find employment and frequently forces them into the quote unquote “underground economy”, which can include sex work. This puts them at a higher risk for HIV and can also make them less likely to seek testing and treatment for fear of criminalization. In addition to fear of policing, many trans women deliberately avoid medical facilities due to past negative interactions with doctors and medical professionals. Black women are also at a higher risk of contracting the virus. Although black people account for just 13% of the US population, they make up 43% of all HIV diagnoses. This number is even greater when we single out women living with HIV. 59% of all women who receive an HIV diagnosis are Black. 4
It is a common misconception that higher rates of transmission among black women and trans women are somehow their fault. But that couldn’t be farther from the truth. Black and trans women face a number of social and structural barriers that shutter them from sexual health care and HIV treatment. A perfect storm of racism, transphobia, classism, sexism, and homophobia puts these women at higher risk of contracting the virus, makes it harder for them to access treatment when they are diagnosed, and then criminalizes them for their illness, permanently tying them to the prison industrial complex and making it near impossible to find work and treatment after their release.
Women diagnosed often face more stigma than any other group. Toxic notions of “womanhood” and purity culture cause women living with HIV to be ostracized by their families and communities for perceived promiscuity, social deviance, and immorality. Some women are told that they are unfit to care for their own children, or that they have somehow failed as mothers and caretakers because of their diagnosis. Criminalization writes this stigmatization into law, and doesn’t end upon release. In states where registering as a sex offender is required, women are forced to give up extensive amounts of personal information to law enforcement, which leads to further policing and governmental control of their bodies. Being registered also requires you to inform neighbors, landlords, schools, and businesses of your sex-offender status and conviction. Essentially, you are required to make your personal health information publicly available. This comprises their privacy and right to sexual autonomy. Staying on the registry also means paying dues and complying with strict rules that determine how close you can be to children, where you can live, and what jobs you can hold. If any of these rules are broken or you can no longer pay your fines, you face further prosecution and jailing. As if that wasn’t enough, being a registered sex-offender makes finding employment near impossible for women who already face discrimination such as women of color and trans women. Without employment, these women have no way to keep paying for treatment, supporting their families if they have them, and paying to stay on the sex offender registry. This leaves them in dangerous situations where they choose to feed their children over treating their illness. Untreated HIV progresses to AIDS, which is far more contagious and leads to higher likelihood of transmission. 5
HIV criminalization also inflicts harm on public health initiatives. Vulnerable populations such as sex-workers may be less likely to utilize protection because it raises suspicion from law enforcement. The New Orleans Police Department uses condoms as evidence of sex-work which can discourage sex-workers from carrying them. Laws that prohibit sex work also restrict access to free condoms and HIV testing from clinics such as Planned Parenthood and some states, such as Louisiana, ban schools from distributing contraceptives. All of these policies stigmatize sex and make spreading information a challenge. Even without laws, stigma reduces the likelihood that people will use resources made available to them for fear of judgment.
What most HIV criminalization laws fail to recognize is that many women avoid disclosing their HIV status to their partners because it can result in violence, rejection, and abandonment by partners who they may rely on for financial support. Many abusers use their victim’s HIV status as a means of control. This can look like damaging their meds, making their HIV status public, or increasing violence towards their partner after they learn about the diagnosis. Abusers can also threaten to report non-disclosure if women press domestic violence charges, and it can be hard to prove you provided disclosure in court since no one is putting these things into writing. If they are convicted, they may permanently lose their homes, custody of their children, and access to social services. Essentially, non-disclosure laws force women into dangerous situations and are just another form of violence and oppression from the state. Advocates of HIV criminalization laws argue that these laws are supposed to “protect” women, when in reality they actually increase the prevalence of gender-based violence.6
Women are also more likely to find out their status before men because of increased contact with healthcare providers for reproductive healthcare and may get in trouble despite not being the transmitter
The good news is that these laws are by no means permanent. We can lobby to overturn them and provide support to people who may be struggling as a result of them. Resources such as the center for hiv law and policy join organizations and individuals in the fight to end HIV criminalization through education efforts and legal advocacy. Educating yourself about HIV, how it is spread, and prevention and treatment methods can help you empower yourself and people around you to identify and speak up against misinformation. Please also take the time to check out the resources in the description of this podcast. Thank you for listening.
Footnotes
- The women convicted were Henrietta Adams (21) and Peggy Madison (28). They brought this case before the courts after they were jailed for prostitution and refused the state’s mandatory HIV testing. A copy of the brief for this case is located in the Smith College Archives in the box containing records from The National Women’s Health Network. ↩︎
- United States v. Bitty ↩︎
- Brown, Rachel. 2020. “When the Body Is a Weapon: An Intersectional Feminist Analysis of HIV Criminalization in Louisiana.” Berkeley Journal of Gender, Law & Justice 35 (January): 91–136. doi:10.15779/Z38NS0KZ4H. ↩︎
- Brown, Rachel. 2020. “When the Body Is a Weapon: An Intersectional Feminist Analysis of HIV Criminalization in Louisiana.” Berkeley Journal of Gender, Law & Justice 35 (January): 91–136. doi:10.15779/Z38NS0KZ4H. ↩︎
- WHO. 2024. “HIV and AIDS.” World Health Organization. July 22, 2024. https://www.who.int/news-room/fact-sheets/detail/hiv-aids. ↩︎
- The Well Project. 2018. “HIV Criminalization and Women.” The Well Project. October 11, 2018. https://www.thewellproject.org/hiv-information/hiv-criminalization-and-women. ↩︎
References
Brown, Rachel. 2020. “When the Body Is a Weapon: An Intersectional Feminist Analysis of HIV Criminalization in Louisiana.” Berkeley Journal of Gender, Law & Justice 35 (January): 91–136. doi:10.15779/Z38NS0KZ4H.
Center for HIV Law & Policy. 2022. “HIV Criminalization in the United States.” Center for HIV Law & Policy. https://www.hivlawandpolicy.org/sites/default/files/HIV%20Criminalization%20in%20the%20US%2C%20CHLP%20062822.pdf.
Centers for Disease Control and Prevention. 2019. “HIV-Specific Criminal Laws.” Centers for Disease Control and Prevention. 2019. https://www.cdc.gov/hiv/policies/law/states/exposure.html.
Chicago Tribune. 1989. “AIDS TESTS on PROSTITUTES OVERRULED.” Chicago Tribune. August 4, 1989. https://www.chicagotribune.com/1989/08/04/aids-tests-on-prostitutes-overruled/.
Law, Sylvia A. 1989. Illinois V. Madison. Illinois Supreme Court.
“National Women’s Health Network Records, Sophia Smith Collection, Smith College, Northampton, Mass.” https://findingaids.smith.edu/repositories/2/archival_objects/121486 Accessed November 26, 2024.
The Well Project. 2018. “HIV Criminalization and Women.” The Well Project. October 11, 2018. https://www.thewellproject.org/hiv-information/hiv-criminalization-and-women.
WHO. 2024. “HIV and AIDS.” World Health Organization. July 22, 2024. https://www.who.int/news-room/fact-sheets/detail/hiv-aids.
