The U.S. Department of Justice Calls on States to Eliminate or Reform Archaic HIV Criminalization Laws

New York, NY -- The U.S. Department of Justice (DOJ) today issued important new guidance to help end the use of state criminal laws to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status. DOJ's guidance, titled "Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors," rebuts the unsupported assumptions that triggered the adoption of most state criminal laws targeting HIV; outlines the impact on individuals and public health of the stigma these HIV-specific laws reinforce; and explains the current scientific knowledge and medical developments that compel reform.

"HIV criminalization laws are rooted in profound ignorance about the roots, risks and consequences of HIV transmission. This ignorance reflects and perpetuates stigma associated with an HIV diagnosis, and has no place in law and public policy," said Catherine Hanssens, Executive Director of The Center for HIV Law and Policy (CHLP). "Today's guidance is the first of its kind from a government law enforcement agency, and an important step in addressing that ignorance. The Department of Justice rightly focuses on three essential truths: that HIV is not an easy virus to transmit, that treatment and other risk-reduction methods can reduce that risk to negligible or zero, and that currently available therapies have transformed HIV into a manageable chronic disease."

Nearly two-thirds of U.S. states have HIV-specific laws that impose criminal sanctions on people who do not disclose their HIV positive status to a sexual partner or who engage in behavior -- such as spitting or biting -- that poses virtually no risk of transmitting HIV. Regardless of whether HIV transmission occurs, those who are charged are prosecuted as serious felons, often receive lengthy sentences, and in nine states are burdened with mandatory sex offender registration. The classification of HIV exposure and transmission as a serious felony is grossly out of proportion to the actual threat of harm.

"The DOJ guidance carefully outlines the facts that call for modification of sentences associated with HIV transmission or exposure -- the impact of current treatment options and the impact on life quality and expectancy. I wish the guidance more explicitly connected the dots by directly calling for an end to felony prosecutions. At the same time, this is the clear context for that information in the guidance," Hanssens noted.

A number of states also use general criminal charges such as assault or reckless endangerment to prosecute people living with HIV who are sexually active or who are charged following altercations with law enforcement personnel. The DOJ guidance does not directly address these laws, although its underlying rationale is applicable to all forms of state HIV criminal law policy.

"At 43 years old I never imagined how different my life would be because of my arrest and incarceration," says David Plunkett who was sentenced to 10 years in New York State, which has no HIV specific criminal law, for "assault with a deadly weapon" -- his saliva. "I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness, and remains uninformed about the nature and transmission of HIV."

Stigma associated with HIV is a barrier to testing, treatment, and prevention. Recent studies show that antiretroviral therapy can reduce the already-small per-act risk of transmission by an additional 96%, but approximately 16-20% of the one million Americans living with HIV do not know they have the virus and likely are the primary source of new infections. Those who are newly infected, when the level of HIV virus in their bodies is high, but who are unaware that they are infected, are the most likely to transmit HIV to another partner.

"Today, the risk of transmission of HIV from a patient taking effective medical therapy is close to zero, and the life expectancy of a newly diagnosed patient with HIV is nearly indistinguishable from his uninfected neighbor. But HIV remains with us and will do so as long as those who are infected are not diagnosed and treated," says Dr. Wendy Armstrong, Program Director for the Infectious Disease Fellowship Training Program at Emory University in Atlanta, Georgia. "Criminalization laws do nothing to advance individual or public health, but rather enhance stigma, embrace blame, and discourage testing. There are more effective means to combat this epidemic."

The guidance notes that many HIV-specific criminal laws run counter to scientific evidence about routes of HIV transmission, and undermine public health goals such as promoting HIV testing and treatment. DOJ recommends that states reform their laws to eliminate HIV-specific criminal penalties, with the exception of sentence enhancement in cases of sexual assault where HIV transmission could occur or in cases in which a person with HIV acts with the intention to transmit HIV and engages in conduct posing a significant risk of transmission.

The DOJ guidance is the product of two directives: one is President Obama's National HIV/AIDS Strategy, which tasked DOJ with assessing HIV criminal laws and offering technical assistance to states looking to reform their laws; the other is a Congressional Committee Report that accompanied the Commerce, Justice, Science, and Related Agencies Appropriations Bill 2014, which called for similar action and an analysis of civil commitment laws used to extend the confinement of registered sex offenders. The DOJ guidance is available here.

Through the Positive Justice Project (PJP), a national coalition of organizations and individuals working to end HIV criminalization in the United States, CHLP is actively working with community advocates and people living with HIV across the country to modernize HIV-related criminal laws.