Feminists Should Recognize That HIV Criminalization Harms Women

"Criminalization has always been used as a means to control people who are poor, discriminated against and otherwise disenfranchised ... HIV criminalization laws are just another tool in the toolbox to control communities of color and poor people." So says the Positive Women's Network of the USA (PWN-USA), an advocacy network of women who have HIV. But while PWN-USA has consistently spoken out against HIV criminalization, many other women's groups have remained silent about the issue.

HIV criminalization statutes have been touted as a way to stop the spread of HIV. But should a person who has HIV be arrested, prosecuted and imprisoned for having sex? Should that person be required to register as a sex offender for the rest of her life? Do these laws actually curb HIV transmission? To the contrary, like the 1999 Violence Against Women Act (VAWA), which provided for more police and introduced more punitive sentencing to stop domestic violence, criminalization can serve as a pathway to prison and permanent pariah status for society's most vulnerable, including its most vulnerable women.

In 2014, I wrote a piece about carceral feminism, which I described as "an approach that sees increased policing, prosecution and imprisonment as the primary solution to violence against women." I also see this approach in HIV criminalization laws and practices -- adherents tout them as a way to prevent the spread of HIV while ignoring the ways in which race, class, gender and immigration status leave certain people even more vulnerable.

Punitive HIV laws harm women, particularly those most vulnerable to violence, and impede women's advancement. But this has often been left out of discussions about HIV criminalization (which often focus on men) and feminism (which often ignore women who are marginalized). Tiffany Moore falls into the cracks of both discussions.

Moore was 15 when she was forced into the sex trade. She was raped by men who intended to transmit HIV. At age 21, she was arrested and -- for being HIV positive -- was charged with aggravated prostitution, which carries the penalty of being labeled a violent sexual offender and spending a lifetime on the state's sex offender registry. She joined 38 other women placed on Tennessee's Sex Offender Registry because of an aggravated prostitution conviction.

Tennessee's law criminalizing HIV obviously did nothing to prevent Moore's rape or infection. It did not address her poverty or her vulnerability to violence. But prominent women's organizations remained silent about the prosecution and the application of the sex offender label to a rape survivor. Racial justice groups didn't challenge the characterization of a young African-American woman as "a walking felony".

Instead, Moore was left on her own and forced to register as a sex offender, further restricting her already limited options. As a sex offender, Moore was prohibited from living in a place that also houses juveniles, excluding her from some residential drug treatment centers and shelters. Fifteen years later, Moore, now age 34 and the mother of an HIV-negative child, still has to contend with the label and its restrictions, which limit where she can live and work, and whether she can take her child to storytime at the local library.

Tennessee isn't the only state where people with HIV face criminalization. In 1990, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides state funding for AIDS treatment, required each state to certify that its laws were adequate to prosecute any person with HIV who knowingly exposed another person. Many of these laws were passed before studies proved that antiretroviral therapy reduces the risk of HIV transmission. But laws passed in a panic are often difficult to reverse and many still stand today. In 2011, 33 states had laws criminalizing certain behaviors for people with HIV.

As Moore's story demonstrates, criminalization does not stop HIV transmission. It places the focus on policing people living with HIV rather than addressing HIV as a public health issue. Criminalization perpetuates the fear and stigma around HIV and AIDS, discouraging people from getting tested or disclosing their status to potential partners.

As I noted in "Against Carceral Feminism," "Women marginalized by their identities, such as queers, immigrants, women of color, trans women, or even women who are perceived as loud or aggressive, often do not fit preconceived notions of abuse victims and are thus arrested." The same holds true of women living with or most at risk for HIV. In 2013, the Sero Project, a network focused on ending HIV criminalization, reported that people in the U.S. who are trans or third sex are more likely than others to avoid HIV testing (58%), not disclose their status to sex partners (61%) and not access treatment (48%) due to fear of HIV criminalization and distrust of the criminal justice system. Together with laws criminalizing the sex trade that use condoms as evidence of prostitution, HIV criminalization laws undermine a person's ability to protect against HIV and other sexually transmitted infections (STIs). In other words, criminalization does the exact opposite of what it purports to do, which is to stop HIV transmission.

The same systemic inequalities that make some people more vulnerable to arrest and imprisonment also put them more at risk for HIV infection and treatment disparities. For instance, in 2013 the incarceration rate of black women was twice that of white women. Using records for 2010, the U.S. Centers for Disease Control (CDC) showed that black women were over 4 times more likely than white women to be diagnosed with HIV. Carceral feminism does not acknowledge police as purveyors of violence and prisons as sites of violence. Similarly, HIV criminalization ignores the racism and increased violence -- physical and medical -- suffered by those ensnared in the legal system.

Prominent women's rights advocates have largely remained silent about law enforcement violence and the imprisonment of abuse survivors. Not surprisingly, they have also said little about HIV criminalization and the ways in which it undermines women's well-being. Relying on criminalization as an HIV policy exacerbates the social and economic inequalities that leave women vulnerable both to HIV transmission and to violence. It does nothing to stop the spread of HIV or ensure that those with HIV are receiving necessary treatment.