In December 2015, we published a paper entitled HIV Criminalization in California: Penal Implications for People Living with HIV/AIDS. Thanks to funding from the California HIV/AIDS Research Program, we were able to look at how criminal laws are used to target people with HIV. We were able, for the first time, to analyze statewide data from California to see how California's laws are being used against people with HIV.
About HIV Criminalization
We commonly refer to HIV criminal laws, and the use of these laws, as HIV criminalization. More than two-thirds of U.S. states and territories have passed HIV criminal laws. The original intent of these laws was to "control the spread of AIDS". Yet some HIV criminal laws do not require exposure to or transmission of HIV. In some states, these laws criminalize conduct that poses a low or almost nonexistent risk of transmission, such as spitting, biting, or engaging in oral sex. Our study revealed the following:
- 800 people were directly affected by these laws.
- Over 40% of them were women, and two-thirds were Black or Latino.
- They ranged in age from 14 to 71 at the time of their first HIV-related criminal incident, with an average age of 37.
- 95% of 1,263 incidents involved a felony offense for solicitation (prostitution) while HIV positive.
- All but one of the 390 incidents involving a criminal charge resulted in a conviction.
- Black and white women and black men were more likely to be charged than white men.
HIV Criminalization Laws in California
In California, there are four HIV-specific criminal laws, and one non-HIV-specific criminal law (it criminalizes exposure to any communicable disease). These laws do not require transmission of HIV, and they can result in misdemeanor or felony charges, or a sentence enhancement (an additional number of years added to a specific criminal sentence).
The Data Used
The data we used for our research came from the California Department of Justice. These data include the entire criminal history of all individuals who had contact with the criminal justice system under all of the laws in the table above (except the statute on blood/organ donation while HIV positive.) The data covered a period from the time each law was passed through June 2014.
We were able to see who was arrested, who was released, who was charged, who was convicted, and, in some cases, where these events occurred and the length of the sentence for each successful prosecution. No other study has dealt with statewide data, and no other study has had access to such complete data.
Our study found that overall 800 people came into contact with the California criminal justice system under these laws. They were involved in 1,263 incidents where HIV status played some role. The vast majority (95%) of these criminal incidents affected people in sex work or those suspected of sex work.
Overall, 31% of these criminal incidents resulted in charges for an HIV-related crime, 43% did not result in charges, and 26% led to charges for non-HIV-specific offenses. All but one of the 390 incidents in which HIV-specific charges were brought resulted in a conviction. And 91% of those convictions called for immediate time in prison or jail. On average, people were sentenced to about two years. But the lengths of sentences differed between different laws, and we discovered that individuals convicted under two of these laws faced up to a life sentence.
1. Often sentences are reported for an entire case, and not divided out by each charge. Therefore, sentences for the sex offense enhancement generally include the sentence for the underlying sex crime as well.