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HIV Criminalization: Know Your Rights

January 4, 2018

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Important Considerations if You are Detained or Incarcerated

If You Are Pregnant:

If you are pregnant, the Eighth Amendment protects your access to health services while you are in custody, but accessibility and quality of services will vary depending on which state you are incarcerated in. Regardless of your HIV status:

  • You cannot be denied an abortion you want.
  • You cannot be compelled to get an abortion you do not want.
  • You cannot be denied pre-natal or pregnancy care.
  • You cannot be forced to pay before receiving medical care.21

If you are not getting or are being denied adequate care, tell your attorney immediately.

A state by state directory detailing pregnancy-related health care and abortion access in prison is available through the ACLU, (link to resource list provided at the end of this guide. )

If You Are a Parent or Caregiver:

  1. If you are a primary caregiver or have dependents, set up a system to notify alternate caregivers of their care plan. The rules about maintaining parental rights during arrest or incarceration will vary from state to state, but your parental rights cannot be terminated based on incarceration alone.
  2. The law does not require that the police give you a phone call to make childcare arrangements. If you cannot make a call, inform your attorney immediately so they can help you get authorization to contact caretakers. If a relative or friend is not available, your child will likely be taken in by a county child and family services department. It may still be possible at that point to have a relative pick up the children if they can prove their relationship to the child.
  3. If the child stays in the custody of the county, work with your attorney (another attorney may be provided for you for asserting your parental rights in child custody proceedings) to keep the county informed of your situation and to see what next steps are including whether you will have to make a court appearance, arranging visits or calls, and whether to give a relative power of attorney to care for the child in the meantime. It is also important to maintain contact with the child's social worker or case worker if they have one.22
  4. Generally, your HIV status cannot be used against you in custody proceedings. Discrimination against people living with HIV is prohibited under the Americans with Disabilities Act. The court's chief concern should be the welfare of the child(ren) and HIV status should not be used as a determining factor. However, a judge may find that your status is relevant for other reasons, for example if you are very sick and would be unable to care for a dependent. There is also the potential that a judge may have inaccurate information and or biases about people living with HIV.23

Other Important Considerations for Communities That May Be Targeted by Police

If You Inject Drugs:

Criminalization of people who use injection drugs can result from laws targeting:

  • People living with HIV who share injection equipment
  • People who have, buy, or distribute drug paraphernalia
  • People who possess, buy, use, or distribute drugs

Several states have syringe service programs (SSPs)24 which provide access to free sterile needles/other injection equipment and dispose of used syringes. These programs usually issue an ID upon registration that has a verification hotline number for police. Having the ID on your person and/or leaving copies of the ID or registration documents with a trusted person who can access them can be useful since several states have an exception to their laws prohibiting possession of paraphernalia for people registered in these programs.

If You Are a Person of Transgender Experience:

  • Criminalization can occur under laws that prohibit possession of drug paraphernalia including syringes that are used to inject nonprescribed hormones, steroids, or silicone.25
  • Always carry an ID if possible; even if your ID does not show the correct gender marker, it is better to show it to the police when they ask.26
  • With pat downs and strip searches, you may ask for an officer of your gender to conduct the search, however you have no right to have such a request fulfilled and officers might not comply.
  • You have the right not to be strip searched in front of other detainees absent an emergency.
  • You have a right to access prescription hormones and HIV medication you are currently taking.27

If You Are an Immigrant:

  • If you have it, always carry US identification and copies of your immigration documents. Leave copies of all important documents with a trusted friend who is a US citizen. Never carry false documents or provide false information.
  • In police custody or immigration detention, do not volunteer information about your immigration status, where you were born, or where you are from. Immediately ask for a lawyer and only discuss your immigration status with them.28
  • Always consult with your attorney before directly contacting your immigration officials. Immigration officials are not required to explain all your legal options or other information relevant to maintaining your immigration status.29
  • Non-citizens in police or ICE custody30 or who are in immigration detention still have the same right to access essential health services and medication. Unfortunately, immigration enforcement officials are notorious for not upholding those rights. If you cannot get access to HIV related care, immediately contact your attorney. Additionally, your attorney can connect you with immigrant rights advocacy organizations that may be able to help advocate for you.

If You Are a Survivor of or Experiencing Intimate Partner Violence:

  • Anti-violence organizations and service providers for survivors may not always understand HIV-related stigma and the ways HIV criminalization laws can be used as tools of coercion and control in abusive relationships.31
  • Organizing or having someone you trust organize a community support effort or campaign that centers your needs and wishes32 can be helpful when it comes to navigating the criminal justice system. This support can take many forms including having people:
    • Help facilitate communication between you and your loved ones
    • Create fundraisers and awareness campaigns to cover your legal expenses, living expenses while incarcerated, and cost of care for dependents, etc.
    • Write you letters of support
    • Create a reentry safety net for you after release including resources for safe housing, employment, medical care, and emotional support
    • Work with your legal team to uphold your rights and dignity33
  • Specialized legal support is available for both you and your defense attorneys through organizations like the National Clearinghouse for Battered Women.34

If You Do Sex Work:

  • Several states impose enhanced penalties for prostitution and solicitation offenses when a sex worker is living with HIV.35
  • Some states require mandatory HIV testing where someone is suspected of being involved in sex work.36
  • In states that require an HIV test be given upon arrest for solicitation, testing and subsequent disclosure of the results can still happen even if you are ultimately found not guilty.
  • If you are not sure about your state's laws on mandatory testing and are being pressured, you can say that you do not give consent while the test is being administered. This way if the test was not required, you can say that you objected. To find more information on mandatory testing laws in your state consult the Center for HIV Law & Policy Sourcebook listed at the end of this guide.
  • The confidentiality and use of the results of these tests vary across jurisdictions but they can be used to increase sentences as well as to support prosecution under non-disclosure laws.37 Consult with your attorney about how to protect your privacy.
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This article was provided by Positive Women's Network of the United States of America. Visit PWN-USA's website to find out more about their activities and publications.

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