Sometime in the coming weeks, Illinois Gov. J.B. Pritzker will sign into law a bill making it no longer a felony in the state to have sex with someone without disclosing your HIV status. The new bill, which the Illinois House passed in April and Senate passed in May, repeals a criminalization law on the books since 1989.
Variations of such laws still exist in roughly 37 states, although a movement in the past decade or so has made headway in softening such laws in several states. These efforts, spearheaded by groups including the Sero Project and the Center for HIV Law & Policy, often result in the demotion of HIV non-disclosure charges from felonies to misdemeanors or shift the burden of proof from the accused to the accuser.
Since 2014, California, Colorado, Iowa, Michigan, North Carolina, Virginia, and Washington have all softened their laws. But Illinois is only the second state—after, surprisingly, Texas in 1994!—to fully repeal its law to the point where there will be no specific mention of HIV in its criminal code.
Granted, Illinois is solidly Democratic, thanks to the huge electoral power of the greater Chicago area; the repeal bill hardly faced the kind of pushback that similar (or even more cautious) bills have faced in more conservative states. But making the bill happen still took strategy and planning, which may hold clues for other states trying to soften or fully wipe clean their HIV “crim” laws.
How Illinois’ HIV Anti-Crim Efforts Succeeded
At the core of the strategy in Illinois was a blueprint to educate legislators and the general public alike about the harmful nature of the existing law and why it needed to be wholly repealed, says Tim Jackson, the Black, gay, and openly HIV-positive head of government affairs at AIDS Foundation Chicago (AFC), who was the lead lobbyist on the bill.
In 2019, HIV advocates throughout the state formed the Illinois HIV Action Alliance “with the goal of doing a lot of awareness, education, and outreach statewide in hopes of being able to eventually run a [repeal] bill,” says Jackson. Organizations that joined the alliance included AFC, Chicago’s longstanding LGBTQ Howard Brown health center, Equality Illinois, Lambda Legal, and the state chapter of the ACLU.
As alliance members talked to legislators, says Jackson, “They’d ask us, ‘Where’s the bill?’ and we’d say, ‘There is no bill yet—we want to talk to you about the broader issues around these laws.’ Many of them told us they didn’t even know the criminalization law existed.” And many were surprised to hear that 22 people living with HIV had been arrested under the law since 2012, when it was amended to include an “intent to transmit”—meaning that prior to the change, HIV transmission didn’t even need to occur for one to be prosecuted.
Importantly, says Jackson, the alliance had to include advocates from parts of the state beyond Illinois’ largest city—such as Bloomington, Peoria, and Rockford—which also have higher-than-average HIV rates “but often get left out because everything is so Chicago-dominated.” The alliance also sought out the engagement of groups most impacted by the law, including transgender women and drug users. Amid the COVID pandemic, the alliance held virtual focus groups across the state.
To a one, says Jackson, every alliance member supported pushing for a full repeal instead of just a modernization. “People felt that even if we lowered the penalty from a class 2 felony to a misdemeanor, that still carries stigma and harm that can stand in the way of” people getting tested and treated, he said. (The Centers for Disease Control and Prevention agrees).
In mid-2020, the alliance looked at the roll call of Illinois legislators and made a list of who was most likely to be open to, or even get behind, a repeal bill. In November, they drafted bill language, including not only a direct repeal but also a block on attorney generals’ ability to access information about people’s HIV status via medical records.
Next came a decision regarding whom to ask to sponsor the bill. In the Senate, the alliance approached Robert Peters, who Jackson said is a longtime friend of the LGBTQ and HIV communities—and who had sponsored a 2019 bill (which was ultimately signed into law) allowing young people to access PrEP, the HIV prevention pill, without parental consent. Peters introduced the new anti-crim bill in the Senate, with a twin bill teed up to be introduced in the House.
The House sponsor would become Rep. Carol Ammons. “I’ve been an activist and organizer myself, and have worked around these issues in my community for a long time,” she says. “But I didn’t know until Tim called me that this law existed in Illinois. I said, ‘Are you serious? This is really a thing still?’ He said, ‘Unfortunately, it is.’ And I said, ‘If you file the repeal bill, I’ll help.’”
The Delicate Dance of Politics in Advancing HIV Anti-Discrimination Laws
Then, says Jackson, “We ran into a hiccup.” Some Senate leaders were worried that the bill was controversial, contending it would let people with HIV who intentionally and successfully transmitted HIV off the hook. “We told them that that question was premised on the inaccurate trope that people with HIV are an inherent threat to society, whereas HIV should be treated as a public health issue, just like COVID,” says Jackson. “We told them that the current bill said that actual transmission of the virus was not needed to be arrested, and that was a barrier to people getting tested and treated” (because if a person avoids HIV testing, they can reasonably claim they didn’t know their HIV status).
But the alliance got a boost when the Cook County state attorney’s office, which had prosecuted HIV crim cases in the past, came out with a statement in favor of repeal. According to the Chicago Tribune, the statement read: “Decriminalizing HIV is in the interest of justice and public health. There is no need to single out one disease, particularly one already burdened with stigma. Those who cause harm to others by purposefully transmitting HIV can still be held accountable, without the need to unfairly criminalize all those living with HIV.” The alliance was able to take the statement back to legislators who had voiced that very concern.
When the bill finally hit the floor of the state legislature in February 2021 and came up for testimony from Jackson and others, such as a Howard Brown doctor and the head of the Illinois Public Health Association, “The questions for us were benign,” says Jackson. “And then there was no debate on the bill at all. I was like, ‘Is that it?’” The bill passed in the state House by a 90-9 vote on April 14 and the state Senate by a 37-17 margin on May 25.
The Path Ahead for HIV Criminalization Repeal
Ammons thinks the Illinois HIV criminalization repeal bill passed easily because “the law itself was outdated in terms of current science. We also know it did nothing to reduce HIV transmission—it just made people living with HIV feel they weren’t being supported. I think we all agreed in the legislature that this was a public health issue and not a criminal one.”
Gov. Pritzker will almost certainly sign the bill into law—but perhaps not until the end of June or later. “We’d like a signing ceremony,” says Jackson. (The bill does not expunge the records of those who’ve already been criminalized under the old law, but Jackson says that the alliance may address that aspect in the future.)
The repeal happened with relative ease compared to how it would’ve gone in other states, Jackson concedes. “Our neighbors in much more conservative Indiana are trying to soften their HIV crim bill piecemeal instead of passing a full repeal,” he said.
Jackson also acknowledges that other bills he and allies are pushing to get passed in Illinois, such as one that would create a base standard for comprehensive sex-ed in Illinois public schools, are a much heavier lift. The sex-ed bill, for example, would require inclusion of LGBTQ topics, even though districts would be able to select the exact curriculum they used and parents would be able to opt their child out.
“But it involves children, so it’s tougher,” says Jackson. “Some senators are calling it a perversion.”
But regardless of whether the HIV crim repeal was a relative piece of cake in Illinois compared to other states, Jackson says that he and other folks living with HIV are mighty glad it’s happening. “It allows people living with HIV to breathe again, without fear of our status being used against us.”
Jackson adds that such a law is needed not just in Illinois, but every state that is serious about ending its HIV epidemic. “We can put all the money in the world into Ending the Epidemic plans, but if we don’t address stigma and these criminalization laws, we won’t get there,” he says.
Ammons agrees. “I think other states, if they pay attention to the science, will realize that laws criminalizing HIV are not necessary.”
Another state (almost) down; only a few dozen more to go!