HIV Criminalization: Know Your Rights
Table of Contents
- About HIV
- What Is HIV Criminalization?
- Protecting Yourself From Prosecution for Non-Disclosure, HIV Exposure, or Transmission
- Interacting With Law Enforcement
- Important Considerations if You are Detained or Incarcerated
- Other Important Considerations for Communities That May Be Targeted by Police
- Works Cited
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.
<a name="about" "="">About HIV
- 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
- 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
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
- 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.
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:
- 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.
- 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.
- 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
- 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
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.
Legal Support and Resources
Contact your local public defender's office, HIV legal clinic or service provider
Lambda Legal Defense: lambdalegal.org, Lambda has regional help desks and can refer you to local attorneys as well
Western Regional office (CA): 213-382-7600
National Headquarters (NY): 212-809-8585
Midwest Regional Office (IL): 312-663-4413
Southern Regional Office (GA): 404-897-1880
South Central Regional Office (TX): 214-219-8585
ACLU (to find your local ACLU chapter)
- org, 212-549-2500
**Center for HIV Law & Policy: **hivlawandpolicy.org, 212-430-6733
- CHLP Resources
**National Lawyers Guild National Police Accountability Project: **www.nlg-npap.org, (212) 679-5100
National Networks for Support and Advocacy for People Living With HIV
- Positive Women's Network-USA
- Positively Trans
- Sero Project
- THRIVE SS
- US People Living with HIV Caucus
For Pregnant People
- ACLU national and state guidelines on pregnancy-related health care and abortion services in prisons
For Sex Workers
- Sex Workers Project, Urban Justice Center
- Desiree Alliance
For IPV Survivors
- Legal Momentum (IPV survivors)
- National Clearinghouse for the Defense of Battered Women, (technical assistance to attorneys defending IPV survivors)
- National Domestic Violence Pro Bono Registry
For LGBTQ people of color
For People Who Use Drugs
- Information for incarcerated survivors of IPV
- Williams Institute Report on HIV Criminalization in California
PWN-USA would like to acknowledge and thank the following individuals for their contributions to this guide:
J. Mercedes Cardona (Transitions Louisiana)
Cammie Dodson (AIDS Legal Referral Panel)
Robert Suttle (SERO Project)
Kathryn Boulton (Center for HIV Law & Policy)
Carly Calhoun (SisterLove, Inc.)
Monique Howell (PWN-USA South Carolina)
Ashley Slye (National Network to End Domestic Violence)
Monique Tula (Harm Reduction Coalition)
Dot Goldberger (National Clearinghouse for the Defense of Battered Women)
- "HIV/AIDS." Centers for Disease Control and Prevention, 30 May 2017, www.cdc.gov/hiv/basics/whatishiv.html
- "HIV Transmission." Centers for Disease Control and Prevention, 6 June 2017, www.cdc.gov/hiv/basics/transmission.html
- "10 Things to Know About HIV Suppression." National Institute of Allergy and Infectious Diseases, U.S. Department of Health and Human Services, 14 Nov. 2017, www.niaid.nih.gov/news-events/10-things-know-about-hiv-suppression
- "PrEP." Centers for Disease Control and Prevention, 12 Oct. 2017, www.cdc.gov/hiv/basics/prep.html
- "HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice, The Center for HIV Law and Policy (2017)." The Center for HIV Law & Policy, Aug. 2017, www.hivlawandpolicy.org/sourcebook
- "Talking About Your HIV Status." www.hiv.gov/hiv-basics/hiv-testing/just-diagnosed-whats-next/talking-about-your-hiv-status
- "Protect Yourself." Sero Project, www.seroproject.com/protect-yourself/
- "HIV Disclosure Acknowledgement Statement." Sero Project, www.seroproject.com/wp-content/uploads/2015/05/sero_brochure_bw_print.pdf
- "Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure." The Center for HIV Law & Policy, Positive Justice Project, https://www.hivlawandpolicy.org/sites/default/files/Crim%20Checklist%20for%20PLWHA_122012.pdf. See p. 1
- "HIV Criminalization and The Public's Health: Policy Considerations in the Era of Treatment as Prevention (TasP) and Pre-Exposure Prophylaxis (PrEP)." American Psychological Association, March 2017, www.apa.org/pi/aids/resources/exchange/2017/03/policy-considerations.aspx
HIV criminalization laws undermine the public's health.
- Some examples of state HIV laws that recognize being adherent to treatment as an affirmative defense include Idaho section 39-608, California health & safety code § 120290 (b), (e)(3) (2018)
- "Spit Does Not Transmit: Fact Sheet for Law Enforcement Professionals on the Risk of HIV Transmission in the Line of Duty." The Center for HIV Law & Policy, https://www.hivlawandpolicy.org/sites/default/files/Spit%20Does%20Not%20Transmit_0.pdf. See introduction
- Some examples of state criminal codes that specifically punish exposing law enforcement to bodily fluids include Montana section 45-5-214, New Jersey section 2C:12-13, Minnesota section 609.2231, and California section 243.9.
- "Guidance for People Living with HIV Who Are Threatened with, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure." See p. 2
- "Arrest Plan: Emergency Details." Red Light Legal, www.redlightlegal.org/wp-content/uploads/2016/07/ARREST-PLAN-1.pdf
- "Know Your Rights Medical, Dental and Mental Health Care." American Civil Liberties Union, Nov. 2005, www.aclu.org/files/images/asset_upload_file690_25743.pdf
- "Directory of Syringe Exchange Programs." North American Syringe Exchange Network, nasen.org/directory
- "What to Do If You're Stopped by Police, Immigration Agents or the FBI." American Civil Liberties Union, www.aclu.org/know-your-rights/what-do-if-youre-stopped-police-immigration-agents-or-fbi
- "The Intersection of Sex Work and HIV Criminalization an Advocate's Toolkit." National LGBTQ Taskforce and The Center for HIV Law & Policy, 2017, www.thetaskforce.org/wp-content/uploads/2014/09/Sex-Work-HIV-Toolkit-FINAL-R2_0.pdf, see page 3.
- "HIV Criminalization Are You at Risk?" The Center for HIV Law & Policy, www.hivlawandpolicy.org/sites/default/files/CHLP_PalmCard_FINAL.pdf
- "Your Right to Pregnancy-Related Health Care in Prison or Jail." American Civil Liberties Union Alaska, www.acluak.org/sites/default/files/field_documents/know_your_rights_if_you_are_pregnant_in_jail.pdf
- "Incarcerated Parents Manual: Your Legal Rights and Responsibilities." Legal Services for Prisoners with Children, June 2010, www.prisonerswithchildren.org/wp-content/uploads/2013/01/Incarcerated-Parents-Manual.pdf
- "HIV & Your Civil Rights Know Your Parenting Rights." American Civil Liberties Union, www.aclu.org/files/assets/know_your_rights_hivparenting.pdf
- "The Intersection of Syringe Use and HIV Criminalization an Advocate's Toolkit." National LGBTQ Taskforce and The Center for HIV Law & Policy, 2017, www.hivlawandpolicy.org/sites/default/files/Syringe%20Use%20Toolkit%20Final%20R2_0.pdf
- "The Intersection of Syringe Use and HIV Criminalization an Advocate's Toolkit."
- "Transgender, Lesbian, Gay, Bisexual, Two-Spirit, Queer, and Gender Non-Conforming People of Color Know Your Rights." FIERCE and The Audre Lorde Project, www.fiercenyc.org/sites/default/files/resources/0571_KnowYourRightsHandout-FIERCEandALP.pdf
- "Laws, Court Decisions & Advocacy Tips to Protect Transgender Prisoners." American Civil Liberties Union, www.aclu.org/know-your-rights/laws-court-decisions-advocacy-tips-protect-transgender-prisoners?redirect=transprisonrights
- "Know Your Rights a Guide to Your Rights When Interacting with Law Enforcement." Catholic Legal Immigration Network, Inc, cliniclegal.org/sites/default/files/resources/presidential-transition/Know-Your-Rights-Law-Enforcement.pdf
- "What to Do When Encountering Law Enforcement -- Additional Information for Non-Citizens." American Civil Liberties Union, www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-additional-information-non-citizens
- "ICE/DRO Residential Standard: Medical Care", U.S. Immigration and Customs Enforcement, www.ice.gov/doclib/detention-standards/2011/4-3.pdf
- "Factsheet: Criminalization as Violence Against Women Living with HIV." Positive Women's Network -- USA, www.pwn-usa.org/doa/factsheet-doa2016/
- "#Survived and Punished: Survivor Defense as Abolitionist Praxis." Love and Protect, Survived and Punished, view.publitas.com/survived-and-punished/toolkit/page/1
- "#Survived and Punished: Survivor Defense as Abolitionist Praxis."
- "For those charged with a crime." The National Clearinghouse for the Defense of Battered Women, www.ncdbw.org
- "The Intersection of Sex Work and HIV Criminalization an Advocate's Toolkit." See p. 3
- Baskin, Sienna, et al. "Criminal Laws On Sex Work and HIV Transmission: Mapping the Laws, Considering the Consequences." Denver Law Review, pp. 355-388.
- "Criminal Laws on Sex Work and HIV Transmission: Mapping the Laws, Considering the Consequences."
[Note from TheBody.com: This article was originally published by PWN-USA in Dec., 2017. We have cross-posted it with their permission.]