November 7, 2017

HIV Criminalization Laws Disproportionately Affect Marginalized Communities

READ TIME: 4 MIN.

New research from the Williams Institute found that HIV criminalization laws in California were enforced inequitably and lacked consideration for modern medical advances related to HIV.

Women and people of color bear the heaviest burden of HIV criminal laws in California. Also, the state's HIV-specific criminal laws do not take into account modern medicine, such as pre-exposure prophylaxis (PrEP) and the use of antiretroviral therapy treatment as prevention (TasP), which may inadvertently work against best public health practices.

The Williams Institute reports are the first to analyze California Criminal Offender Record Information (CORI) data on the criminal history of all individuals who have had contact with the criminal justice system under the state's four HIV-specific criminal laws.

The vast majority of HIV-specific criminal incidents involve sex work. Until recently, if a person with a known HIV-positive status was arrested for solicitation, an act of agreeing to engage in sex acts in exchange for something of value, he or she could be charged with a felony under California's HIV criminal laws. With the passage of SB 239, the felony charge has been repealed.

"Our studies show that certain marginalized communities are bearing more weight of the penal code than others. What's more, these HIV criminal laws, which were originally intended to control the spread of HIV by prosecuting individuals who expose others, don't require proof of transmission, or even exposure in most cases. So they're not doing what they set out to do," said Amira Hasenbush, lead author and Jim Kepner Law and Policy Fellow at the Williams Institute. "With SB 239, California's criminal law treats HIV like any other communicable disease."

Key findings from each study include:

HIV Criminalization in California: Penal Implications for People Living with HIV/AIDS

  • The vast majority of HIV-specific criminal incidents (95 percent) involved sex work.
  • Women made up 43 percent of those who came into contact with the criminal justice system based on their HIV-positive status but were only 13 percent of the people living with HIV during the time period reviewed.
  • Black people and Latino/as made up two-thirds (67 percent) of those who came into contact with the system related to these offenses but made up only half (51 percent) of the people living with HIV.
  • Across all HIV-related crimes, white men were significantly more likely to be released and not charged (60 percent) than expected. Black men (36 percent), Black women (43 percent) and white women (39 percent) were significantly less likely to be released and not charged.

    HIV Criminalization against Immigrants in California

  • From 1988 to June 2014, 800 people have come into contact with the California criminal system related to their HIV-positive status. Among those individuals, 121 (15 percent) were foreign-born.
  • Thirty-six people, or 30 percent, of these foreign-born individuals, had some form of a criminal immigration proceeding in their histories. Of those individuals, nine (25 percent) had those proceedings initiated immediately after an HIV-specific incident.
  • While U.S. born people who came in contact with the California criminal system were divided fairly evenly between men and women, immigrants were overwhelmingly men: 88% of foreign-born individuals in the group were men. Criminal records do not record gender identity separately from the sex assigned at birth, so the number of transgender individuals is unknown.

    HIV Criminalization in California: Evaluation of Transmission Risk

  • From 1988 to June 2014, 379 criminal incidents resulted in HIV-specific felony convictions or sentence enhancements.
    Of those incidents, 100 percent required no proof of actual transmission of HIV and 98 percent did not require intent to transmit HIV.
  • 93 percent involved no specific allegation of conduct that is likely to have transmitted the virus.
    Current HIV criminal laws in California do not address the medical advances that antiretroviral medications and pre-exposure prophylaxis have made in reducing the risk of HIV transmission and extending the quantity and quality of life for people living with HIV.

    HIV Criminalization and Sex Work in California

  • Between 2005 and 2013, women made up half of the population of California but accounted for two-thirds of prostitution arrests.
  • Over that period, women made up 12 percent of the people in California living with HIV but accounted for 37 percent of those arrested for felony solicitation while HIV-positive.
  • Between 2005 and 2013, Black women made up 4 percent of all HIV-positive women in California but accounted for an average 22 percent of the arrests for felony solicitation while HIV-positive. Of all the HIV-positive people living in California, Black women were the most overrepresented group for felony solicitation while HIV-positive.

    These reports were made possible by funding from the Elton John AIDS Foundation, the David Bohnett Foundation, the Ford Foundation, the California HIV/AIDS Research Program, California HIV/AIDS Policy Research Center, the Elizabeth Taylor AIDS Foundation, and the support of the California Women's Law Center.

    The Williams Institute, a think tank on sexual orientation and gender identity law and public policy, is dedicated to conducting rigorous, independent research with real-world relevance.

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