HIV Criminalization: Know Your Rights
January 4, 2018
Table of Contents
This guide was created as a resource to provide people living with HIV with knowledge and information to protect themselves from being prosecuted and/or criminalized under discriminatory HIV-specific laws. It includes sections with specific information for communities most likely to be impacted by HIV criminalization as well as general information about understanding your rights as a person living with HIV if arrest, prosecution and/or incarceration should occur. The contents herein are not intended as legal advice.
- HIV is not a death sentence. There are treatments available that enable people living with HIV to live long, healthy lives.1
- HIV can only be transmitted to others through sex, blood, or blood products coming into contact with a mucous membrane, broken skin, directly entering the bloodstream of another person, and through breastmilk. It can't be passed to others through spitting, biting, urine or feces.2
- Being on treatment significantly lowers the chance of transmitting HIV to others. People living with HIV who have a sustained undetectable viral load can't pass HIV onto others.3
- Condoms and pre-exposure medication (PrEP) greatly reduce the risk of transmitting HIV to others.4
What Is HIV Criminalization?
- In the United States, more than 30 states and several territories have at least one law that applies only to people living with HIV, including HIV-specific criminal laws that punish alleged exposure, non-disclosure, and transmission of HIV, and laws that increase penalties for people living with HIV who are convicted of prostitution or solicitation offenses. Many states have also used other criminal laws to prosecute people living with HIV (PLHIV), such as reckless endangerment.
- Activities that can lead to you being charged under HIV criminalization laws include:
- Having sex with someone without telling them you are living with HIV, including oral sex and sex with a condom. This also applies even if you are on medication that makes your viral load undetectable.
- Sharing syringes
- Donating blood, organs, tissues
- Engaging in sex work
- Spitting, biting, or otherwise exposing others to your bodily fluids
- To find out about the specific laws in your state, visit: https://www.hivlawandpolicy.org/state-hiv-laws or call the HIV Law & Policy Center, the phone number is listed at the end of the guide.
- Under most of these laws, PLHIV can face criminal charges for activities that would normally be legal, such as spitting on someone or having consensual sex. Unfortunately, most of these laws don't reflect the reality of what it means to live with HIV today and can punish PLHIV whether or not HIV transmission happened or was even possible. That is why is it important to be aware of the laws in your state and know your rights.5
Related: Undetectable = Uninfectious. So Why Are People With HIV Still Being Criminalized for Having Sex?
Protecting Yourself From Prosecution for Non-Disclosure, HIV Exposure, or Transmission
Documenting disclosure of HIV status is not a guaranteed way of protecting yourself from being criminalized, but if it is an option, it can help your case. Since it may not be safe for everyone to disclose their status in every situation, please take personal risks into account before taking any of these steps and consult disclosure support resources if needed. Note: Many states require that you disclose before engaging in sex.6
This list is organized in order of strategies most likely to help in court to those that are least likely. Being able to implement one or more of these strategies may also help your case. When documenting disclosure, acknowledgment from your partner in writing and/or witnessed by a third party is more likely to work in your favor in court.
Some ways you can document that you disclosed include the following:7
- Having a partner sign a disclosure agreement.8
- Going with your partner to a doctor or caseworker and have them record in your file that your partner knows of your status and/or is taking PrEP if that is applicable.
- Verbally disclosing to your partner in front of friends and family that can serve as witnesses.
- Saving social media, email, text communications (save on multiple platforms in case personal computer/phone is seized by police).
- Note: When posting or sending communications that can be shared, widely disseminated, saved without your knowledge -- be careful not to include any intention to keep your status secret, concern about disclosing to a partner, or anything similar.9
- Keeping personal notes on the date, time, and circumstances of disclosure.
Documenting Engagement in Medical Care
Most states have not yet updated their HIV criminalization laws to reflect the current science on viral suppression as a prevention strategy or other prevention methods that reduce transmission risk like using condoms and PrEP.10 However, in some states and some cases, being on HIV treatment, in care, and/or virally suppressed may be an affirmative defense to non-disclosure charges.11
Interacting With Law Enforcement
- When people living with HIV interact with police, they may be at risk for use of HIV-specific criminal laws, especially if there is an altercation.12 For example, some states have specific laws that criminalize exposing a law enforcement or corrections officer to bodily fluids if you are living with HIV.13
- In any situation involving law enforcement, use your best judgment in deciding how to proceed. It may not always be possible or safe for you to exercise or assert your rights as outlined in this guide.
- Some states may allow mandatory HIV testing against your will under particular circumstances (detailed below), however you are not required to and should not tell police your HIV status.14
If You Think You Might Be Arrested:
- Arrests are always stressful events but formulating an arrest plan as early as possible can be helpful. Examples are available online15 to help you make your own.
- Always password protect your phones. Although police should have a warrant before they can search your phone, there is no guarantee that they will follow the rules. Your phone may have communications that prove you disclosed, but that should only be shared with your lawyer. Password protecting your phone does not guarantee that the information is safe but preventing easy access is important.
- Keep a list of medications and specialized care you require on your person. Designate someone who has access to those medications that can bring them to you. If you are currently taking prescription medications, you have a right to keep taking them. If you do not bring prescriptions or a supply of medications with you, tell police medical personnel what medications you need and when. You may be taken to a hospital to get them.16
If You Are Arrested/Detained:
The arresting officer(s) should read you your rights. You have the right to remain silent, the right to an attorney, and the right to have an attorney provided for you if you cannot afford one. You have these rights even if the police do not read them to you. Immediately ask for an attorney, say you will remain silent until your attorney arrives, and then do so. Document any mistreatment by the police including names, badge numbers, or other identifying information of the officers. It may not always be safe to ask, but you do have a right to this information.17
Be polite, but unless your lawyer is present do not volunteer any information, as it could be used against you. This includes:
- Answering questions
- Signing documents
- Disclosing your HIV status
- Submitting to or giving permission for medical testing (be aware some states do require mandatory testing for people engaged in sex work).18 If forced say, "I do not consent".19
- Even if you know you did nothing wrong, volunteering statements to the police without your attorney present is not advised. The safest option is always to remain silent.20
If You Have Been Charged:
- Regardless of the charges, if you have been assigned a public defender for your case, it is likely that they might have inaccurate and outdated information about HIV. You can advocate for yourself by sharing relevant information about HIV that will help them with your defense, including details of disclosure (if that happened), information about how HIV is and is not transmitted, and whether you are on treatment.
- If you are being charged for not disclosing your HIV status:
- Do NOT contact the person who is accusing you. Even though it's natural to want to reach out and try to resolve the situation, your communication with the person could be used against you in court.
- If you have any records that show you are on treatment or disclosed to the person accusing you, provide them to your attorney.
- Do NOT talk about the person accusing you to your friends, family, or on social media platforms.
- Do NOT discuss details about your case or your HIV status to cellmates, friends, or family while on the phone, or on social media platforms.
- If you were held in custody, once released and if you can do so safely, continue to go to doctor's appointments and do things to help you stay healthy and maintain a sense of normalcy.
- Reach out and get support from people and organizations you trust. See our list below for some recommendations.
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