Is HIV Criminalization the No. 1 Barrier to Ending the Epidemic?

For many people, being told that they are HIV positive is no longer a death sentence. But for Robert Suttle, a Black gay man and social justice educator, it is a life sentence.

Unexpectedly caught up in the HIV criminalization web at the age of 30, Suttle spent 6 months in a Louisiana state prison for a consensual sexual relationship with an adult partner. The crime? Not disclosing his HIV-positive status, a charge that Suttle says is untrue.

“I did disclose my status to my partner; however, I can’t really answer how they might have received it,” he says.

Today, at the age of 42, Suttle still carries the indelible stain of a conviction and of being a registered sex offender. “After their diagnosis, criminal charge, and/or conviction, many people think they’re done — either ‘I’ve gotten out of prison’ or ‘I’m still on probation’ — whatever the case may be,” he explains. “But we’re still living out these collateral consequences, be it with housing, moving to another state, or finding a job.”

The same is true for HIV-positive people who are charged and tried but manage to dodge prison for one reason or another. Monique Howell, a straight, 42-year-old former army soldier and single mother of five children, says that she was afraid to disclose her HIV status to a sexual partner but did advise him to wear a condom. She points to her DD14 Discharge papers (ie, forms that verify that someone served in the military) that were issued when her military duty was rescinded following the dismissal of her court case.

“I was going to reenlist, but I got in trouble,” she says. She explained that although a DD14 separation helps to ensure that she can receive benefits and care, the papers were issued with a caveat that states, “serious offense,” an indelible stain that, like Suttle’s, will follow her for the rest of her life.

Laws Criminalize Myths and Misconceptions

HIV criminalization laws subject persons whose behaviors may expose others to HIV to felony or misdemeanor charges. Depending on the state, they can carry prison terms ranging from less than 10 years to life, according to the Centers for Disease Control and Prevention (CDC).

Originally enacted at the height of the AIDS epidemic in 1986, when fear was rampant and hundreds were dying, the laws were intended to reduce HIV transmission. But they’ve had unintended consequences: amplifying stigmatization and discrimination and perpetuating HIV myths and misconceptions, including how HIV is transmitted.

Decades of scientific advances challenge the most basic reasoning behind laws (for example, that transmission is possible via biting or spitting or through a single sexual act, which studies have shown poses a risk as low as 0% to 1.4%). In addition, few laws reflect one of the most important HIV research findings of the past decade: undetectable equals untransmittable, meaning that the virus cannot be sexually transmitted by people who are taking antiretroviral therapy and whose viral loads are undetectable.

In most of these cases, individuals who are positive for HIV are charged and punished for unintentional exposure, not deliberate intent to harm. Moreover, for the charge to stick, a sexual partner doesn’t need to have acquired the virus or prove the transmission source if they do become HIV positive.

Howell notes that it was the Army that brought the charges against her, not her sexual partner at that time (who, incidentally, tested negative). He even testified on her behalf at the trial. “I’ll never forget it,” she says. “He said, ‘I don’t want anything to happen to Monique; even if you put her behind bars, she’s still HIV-positive and she’s still got those children. She told me to get a condom, and I chose not to.'”

Criminal vs Clinical Fallout

In 2018, 20 scientists across the world issued a consensus statement underscoring the fact that HIV criminalization laws are based on fallacies and faulty science. The statement (which remains one of the most accessed in the Journal of the International AIDS Society) also points out that 33 countries (including the United States) use general criminal statutes such as attempted murder or reckless endangerment to lengthen sentences when people with HIV commit crimes.

When the laws were created, “many were the equivalent [to general criminal laws], because HIV was seen as a death sentence,” explains Chris Beyrer MD, MPH, a professor of public health and human rights at Johns Hopkins Bloomberg School of Public Health, in Baltimore, Maryland. “So, failure to disclose your status, to wear a condom was seen as risking someone else’s life, which is no longer the case,” he adds.

In fact, “from the perspective of the kinds of impact that these laws have had on transmission, or risk, or behavior, what you find is that they really have no public health benefit and they have real public harms,” says Beyrer.

Clare Farel, MD, assistant professor and medical director of the UNC Infectious Diseases Clinic at the University of North Carolina at Chapel Hill, concurs. “Because of the criminalization undercurrent, there are people who don’t get tested, meaning that they are at risk for worse health outcomes, such as cancer, vascular disease, and of course HIV-related poor outcomes, including progression to AIDS.”

Farel also points to the residual stigma associated with HIV. “Much of this is inextricable from that surrounding homophobia, especially among young men of color who have sex with men. It opens up a larger conversation that a lot of people don’t want to engage in,” she says.

Laws Broaden Existing Disparities Even Further

This month, the CDC released a study showing substantial declines in the overall incidence of HIV in the United States, with an important caveat: there’s been a worsening disparity in cases. Access to care and engagement with care remain poor among certain populations. For example, Black individuals accounted for 41% of new HIV infections in 2019, but they represent only 12% of the US population; Hispanic/Latinx persons accounted for 29% of new infections, although they only represent 17% of the entire population.

The same is true for HIV criminalization: in 2020, more than 50% of defendants were people of color, according to US case data collated by the HIV Justice Network.

Still, the momentum to change these antiquated laws is gaining speed. In May, the Illinois State Senate passed a bill repealing HIV criminalization, and this past March, Virginia’s Governor Ralph Northrup signed a bill lowering HIV-related criminalization charges from a felony to a misdemeanor and changing the wording of its law to include both intent and transmission. California, Colorado, Iowa, Michigan, Nevada, and North Carolina have also modernized or repealed their laws.

Ending the US HIV Epidemic: Patients First

Without true HIV criminalization reform, efforts to change the public and clinical mindset regarding HIV from its being a highly stigmatized disease to a preventable, treatable infection are likely to fall short. Beyrer emphasizes that the onus lies with the scientific and activist communities working together. “I don’t know how you can end the epidemic if you are still stigmatizing the people who are actually acquiring these infections,” he says.

There are steps that patients can take while these forces push for change.

“As people first process their diagnosis, they need to learn as much about HIV and the science behind it as possible,” advises Suttle. He also says that to protect oneself, it’s essential to learn about HIV criminalization and the laws in one’s state.

“Find someone you can trust, starting with your medical provider if possible, and if you have a significant other, bring that person to your appointments so they can see that you are in care and doing all that you can do to lower viral loads and protect others,” he adds.

Howell says that although people should be in treatment and care, attitudes also need to change on the clinician side. “We’re just given these meds, told to take them, and are sent on our merry ways, but they don’t tell us how to live our lives properly; nobody grabs us and says, hey, these are the laws and you need to know this or that.”

When a person who is HIV positive does get caught up in the system, if possible, they should consult an attorney who understands these laws. Suttle also says they should reach out to organizations in the HIV Criminalization Movement (eg, the Sero Project, the Center for HIV Law and Policy, or the Positive Women’s Network) for further support, help with the cases (including providing experts to testify), social services, and other resources. Suttle also encourages people who need help and direction to reach out to him directly ([email protected]).

Forty years ago this month, the CDC published its first report of an illness in five healthy gay men living in Los Angeles. The first cases in women were reported shortly thereafter. Over the years, there have been many exciting scientific advances in prevention and treatment. But as Beyrer aptly notes in an editorial published this past January The Lancet HIV, “time has not lessened the sting of the early decades of AIDS.”

“We should not have to be afraid of who we are because we are HIV positive,” says Howell.

Feral, Suttle, and Howell report no relevant financial relationships. Beyrer has a consulting agreement with Merck.

Liz Scherer is an independent journalist specializing in infectious and emerging diseases, cannabinoid therapeutics, neurology, oncology, and women’s health.

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