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What's New in HIV Criminalization in the United States: Congress, California, Florida, Georgia, Ohio and Utah

April 6, 2017

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Will Congress modernize HIV laws and policies? Advocates certainly hope so. Here's an update, plus a look at four states that may reform laws that criminalize HIV non-disclosure and transmission -- and one state that's increasing penalties for people living with HIV.

REPEALing Policies That Encourage and Allow HIV Discrimination

On the federal level, Congress is considering HR 1739 or the REPEAL HIV Discrimination Act of 2017. If passed, the Act directs the attorney general, the secretary of Health and Human Services and the secretary of defense to initiate a national review of federal (including military) and state laws, policies, regulations and judicial decisions regarding criminal and related civil commitment cases involving people living with HIV or AIDS. This last part means that, if it were passed, federal agencies (including all branches of the military) would review past HIV cases and decisions based on current knowledge about HIV transmission.

"We've got incredible science data. Now we've got to get policymakers to understand," Ken Pinkela, the military and federal policy director for the Sero Project, told Though the Act would not force states to follow suit, having a mandate on the federal level would influence policies on the state level. Furthermore, not only would Pinkela personally benefit if the REPEAL Act were passed, but so would every other member of the military who has been criminalized and discharged because of their HIV status.


California Looks to Reduce HIV Criminalization

In February, California state lawmakers introduced SB 239. The bill reduces HIV transmission from a felony with three, five or eight years in prison to a misdemeanor with jail time of no more than six months.

The bill also lessens penalties for people engaged in sex work. Currently, if a person is convicted of prostitution or another sexual offense, he or she is subject to an HIV test. If this person tests positive and is later arrested again for prostitution or another sexual offense, existing law makes them guilty of a felony. The bill deletes both of these provisions, meaning that people arrested for sex work are no longer required to submit to an HIV test and, if they are arrested again, they are not subject to a felony based on HIV status.

SB 239 also requires any court or agency that has records related to the deleted provisions to destroy them by June 30, 2018. Finally, the bill requires a court to vacate related convictions.

"These [existing] laws are disproportionately used against women and people of color, and fuel stigma, violence and discrimination," stated Naina Khanna, executive director of the Positive Women's Network - USA, when the bill was introduced.

The numbers prove this. Nearly half (43%) of those criminalized under California's HIV-specific criminal laws are women, though women make up only 13% of Californians living with HIV. Though blacks and Latinx people make up only half of Californians living with HIV, they are more than two-thirds of those who came into contact with the criminal justice system based on their HIV status. The intersections have hit black women particularly hard. They comprise 4% of the state's HIV population, yet make up 21% of those with criminal justice encounters because of their status. In contrast, white men, who make up 40% of people in the state diagnosed with HIV, compose 16% of those who encounter the criminal justice system because of their HIV status.

The bill passed the Senate's Public Safety Committee by a vote of 5 to 2. It is now before the Appropriations Committee.

"Florida Doesn't Want to Be First in New HIV Cases"

Under Florida law, it's a crime to not disclose HIV status prior to sex. This was how 65-year-old Gary Debaun was arrested and charged with unlawful sexual transmission of a disease. Prosecutors charge that Debaun forged medical records declaring that he was HIV-negative to show to his then-partner. Under current law, creating a false report to hide the presence of HIV or other communicable diseases is a third-degree felony]].

Debaun's attorney attempted to use another outdated law to prevent his conviction -- that since Florida law defines sex as between a man and a woman, "sexual intercourse" only applies to heterosexual sex. Though a lower court agreed and dismissed the case, the state's appellate court overturned that ruling. In March, the state's Supreme Court also rejected that argument. The district attorney's office has stated that it plans to re-introduce the charges.

However, the law may be changing. In March, the Senate Criminal Justice Committee voted unanimously in favor of SB 628, which updates existing HIV criminalization laws. If passed, a person with HIV would no longer be considered acting with intent to transmit if he or she were undergoing treatment, used a condom or other method to prevent transmission or had offered to do so (even if the offer was rejected by the other person). The bill would also reduce non-disclosure in other instances and the creation of a false report to hide HIV status from a felony to a first-degree misdemeanor.

"Florida doesn't want to be first in new HIV cases; we want to be first in the effort to end the HIV epidemic," said Senator Rene Garcia, the bill's chief sponsor. Thanking service providers and advocacy groups such as the AIDS Healthcare Foundation and the Sero Project, he stated, "Today's unanimous vote by the Senate Criminal Justice Committee is an important step." The bill is now in the Health Policy Committee.

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