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).

California code

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.

HIV Criminal Incidents in California (1988 to June 2014)

Results

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.

Sentencing chart
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.

Differences Based on Sex and Race

These data cannot give us information about police activity and whether police target specific groups such as women or people of color when they are enforcing these laws. What they can tell us is that, for people who came into contact with the criminal justice system based on these laws, whether they were charged or not differed according to sex and race.

When arrested with HIV-specific criminal incidents, white men were significantly more likely to be released and not charged, compared to other groups (see graph on next page).

For people engaged in, or suspected of engaging in, solicitation, white men were charged with HIV-specific crimes 12% of the time, while all others were charged for HIV-specific crimes 31% of the time.

Charging Rates for 'Solicitation While HIV Positive' Incidents
Released and Not Charged

What We Still Don't Know

Because information about a person's sexual orientation and gender identity is not collected by the California DOJ, that was not a part of our analysis. Knowing that HIV infection has a disproportionate impact on LGBT people, this gap in the data is significant.

Where Do We Go From Here?

Federal government agencies, including the U.S. Department of Justice (DOJ) and the CDC have recently addressed the topic of HIV criminalization. Guidance provided by the DOJ encourages states to review their HIV criminal laws to understand whether their laws reflect current understanding of HIV. This is particularly important given that so much has changed in HIV treatment and prevention since the 1980s.

Looking at the data on how these laws have been enforced is an important part of reviewing them. By moving beyond specific facts of individual cases, data allow policy makers and legislators to see how HIV criminalization is affecting people with HIV across their state. These data point to some race- and sex-based differences in how these laws are used, but because they don't explain the root cause of these differences, more research is needed to better identify the forces that could be leading to these differences.

As researchers, we find it easy to note how novel this study is and how many future research projects we would like to do as a result of what we have learned so far. But what we cannot lose sight of is the real-life effect of these laws. Every incident, every charge, every conviction, and every sentence has had a real impact on a person's life. So given what we know, the question remains: Where do we go from here? We hope that these data put us in a better position to answer this question.

Ayako Miyashita is the HIV Law and Policy Fellow and Amira Hasenbush is the Jim Kepner Law and Policy Fellow, both at the Williams Institute of the UCLA School of Law.