Advocates who’ve long fought to repeal outdated laws in more than 30 states that criminalize people for having sex without disclosing their HIV status experienced mixed emotions when Virginia Gov. Ralph Northam on April 1 signed a bill into law that replaces the state’s old one.
On the happy side, the new law requires that accusers prove their sex partner’s intent to transmit HIV as well as their own actual transmission and diagnosis. Those changes set a new legal bar for accusers that’s nearly impossible to scale. The previous law only required proof of intent, putting the burden of proof on the partner living with HIV. Yet, on the bad side, the new law still classifies intent to transmit plus actual transmission as a felony, which can come with long jail time and permanent loss of rights such as voting. Advocates had strongly wanted the new law to downgrade the charge to a misdemeanor.
The new law comes at a time when there is strategic tension between the effort to outright repeal such laws versus so-called “modernizing” them. The latter can include measures such as making accusers show both intent and transmission (as in the new Virginia law) versus merely proving possible exposure, which is how many of the current laws are worded; taking a lighter legal hand with people who can prove their HIV was undetectable and hence untransmittable at the time of exposure; or adding other sexually transmitted infections into the law to take some of the special stigma off of HIV. In states where outright repeal proves not possible, advocates may have to decide whether some good changes are better than none at all.
That’s exactly how it went down in Virginia, where advocates are happy with many of the changes. “For once, people living with HIV can breathe a sigh of relief that there’s not a target on our back just because of our status,” says Deirdre Johnson, herself living with HIV and the Virginia state lead for the Positive Women’s Network. She’s also the cofounder of ECHO VA, a group that has been pushing for decriminalization since 2018.
“This is especially so for those of us who are aware of our HIV status and doing what we can for our health,” she adds. She’s referring to the now well-known scientific fact (called undetectable equals untransmittable, or U=U) that people with HIV on steady treatment whose virus is undetectable in their blood cannot transmit the virus sexually. This information was not known definitively until the early 2010s, whereas most criminalization laws are from the 1980s and early 1990s, predating treatment that guaranteed undetectability.
“And I like,” she adds, “how even if you can prove intent”—extremely hard in and of itself, since most people with HIV fail to disclose their status to sex partners out of fear of rejection, not to maliciously infect someone—“that transmission has to occur.” Additionally, she notes, the new law broadens its language from just HIV, hepatitis, and syphilis to all sexually treated infections—somewhat taking the special stigma off of HIV, even if the law can now potentially ensnare more people.
But, she said, the new Virginia law is also disappointing because it does not downgrade the charge from felony to misdemeanor. “That was one of our hard demands,” says Johnson, “but after careful consideration of how far we were able to push so many other great wins, we decided to accept it,” rather than withdraw the bill.
She and other advocates, including Sen. Jennifer McClellan, who sponsored the new bill in the state Senate, say they intend to push again for the downgrade to misdemeanor in the next legislative session.
Why couldn’t they nix the felony this time? “There’s still a fear that there’s someone out there intentionally infecting people, and no matter how hard we tried to debunk that myth, it was the one hurdle we couldn’t get over,” says McClellan, who is running for governor in Virginia. “So we took what we could get this time and decided that we’ll spend the year continuing to educate people and try again next year.”
A Slow-Burning Movement
What happened in Virginia reflects what has happened in many other states in recent years and also reflects the fact that fully repealing, or even fully satisfactorily modernizing, HIV criminalization laws in the U.S. remains a tough nut to crack, despite a decade of both updated scientific understanding of undetectability and intense nationwide decriminalization activism on the part of groups including the Sero Project, started by POZ magazine founder Sean Strub.
From state to state, advocates say that U=U science, as well as the testimony of people with HIV who’ve been prosecuted under such laws even when they did not transmit HIV, has not been enough to offset lawmakers’, as well as the general public’s, deep-seated fears that people with HIV are out to infect others intentionally.
“Legislators still aren’t educated on HIV transmission any more than the general public,” says Tami Haught, organizing and training coordinator of the Sero Project, herself living with HIV. Haught lives in Iowa, where she played a role in getting the state to be among the first to modernize its HIV law in 2014. The charges there can now range from a misdemeanor to a felony, depending on proof of intent to transmit as well as of actual transmission. The new law also removed those previously prosecuted from the sex-offender registry, which can damn future prospects for jobs, housing, and more.
“So it’s our job as advocates to educate,” she continues, “and that takes a long time, because so many people’s thinking is still stuck in the 1980s, when AIDS was an untreatable death sentence.” This, she says, perpetuates the idea that people living with HIV are public health hazards that need to be reined in, and punished if necessary.
On polls, she says, “Even if you ask gay men if someone should be prosecuted if they intentionally transmit HIV, they say yes.” But, she says, most people don’t know that the majority of existing laws prosecute merely not disclosing, never mind malicious intent or actual transmission.
In Virginia, says McClellan, “Most of my colleagues had no idea that [HIV criminalization] was even an issue or that these laws were even on the books. A big part of our job was educating people, whose initial reaction was, ‘These laws must be on the books for a reason—why would we second-guess that?’”
Unwinding that thinking is hard work, says Haught. “We’ve spent so much time calling and emailing legislators to try to get them to understand the impact of having a felony charge left in the bill. Advocates in every state, even California, have had to negotiate on their bill. We’re dealing with legislators who aren’t aware of the advances in HIV treatment, and it’s complex to try to explain it to them—and that even includes our champions.”
The State of Play
Despite those challenges, progress has occurred—and likely will continue. Virginia became the ninth state in recent years to repeal or modernize its HIV criminalization law, after Washington, California, Colorado, Texas, Iowa, Illinois, Michigan, and North Carolina. Perhaps surprisingly, Texas is the only state thus far to have fully repealed its law (as early as 1994, no less), while other states have softened their laws by reducing certain charges from felonies to misdemeanors, allowing protection measures such as being undetectable on meds as a defense, or demanding proof of transmission. Additionally, some states have laws not specific to HIV that still have ensnared people with HIV under similar sexual hook-up circumstances.
But advocates feel that too many states’ HIV criminalization laws, even modified ones, still call for a felony charge or put too much burden of proof on the accused. And they also take issue with modified laws in North Carolina and Michigan that protect people who can prove that they were undetectable at the time of the incident at the expense of those who can’t.
“This means that the most marginalized and vulnerable people—most likely not to be undetectable, often people of color or immigrants dealing with poverty, homelessness, drug use—are the most at risk,” says Haught. New laws should not draw a bright line between undetectable and detectable HIV, she says, but instead specify that accusers must prove both intent and transmission.
In coming months, says Haught, Illinois, Missouri, and Nevada have the greatest opportunity to pass new bills. There’s also hope that Illinois becomes the second state after Texas to do a full repeal of the existing law; a bill calling for just that passed overwhelmingly in Illinois’ House of Representatives on April 14, and advocates hope to get the bill through the state Senate and onto the governor’s desk for signing into law by the end of May.
“Momentum is on our side,” says Haught of the HIV decriminalization movement.
But momentum also runs in the opposite direction. In recent years, says Haught, advocates have had to respond rapidly to kill bills in states such as Alabama and Rhode Island (where it was introduced by “a well-meaning Democrat”) that would have made things worse for people with HIV. In Texas, “We still have to fight every two years, including this year,” to keep a legislator from getting an HIV-specific law back on the books. “And this can be sparked by something as simple as a legislator getting a call from a constituent who says, ‘Person X gave me HIV,’ with no confirmation.”
The Importance of Educating
Educating lawmakers and the public is key to these campaigns, advocates say. And it takes work and time. According to Johnson, an important point to drive home in Virginia was the racial-justice aspect: in the state, Black people make up 19% of the population but 58% of new HIV diagnoses. This inverse equation exists in many other states, putting Black, Indigenous, and other people of color (BIPOC) at higher risk of being prosecuted under such laws. “We have to stress,” she says, “that putting people in jail based on their HIV status completely goes against public health.”
Also key, she says, is building as broad a coalition of stakeholders as possible. “Whoever your legislative sponsors are have to be as much a part of the team as everyone else. For us, Sens. McClellan and [Mamie] Locke made a major effort not just in the Senate, but they followed through in the House. We also had a great relationship with our state health department and Ryan White programs. It wasn’t just [ECHO VA cofounder] Cedric [Pulliam, Ph.D.] and me. At least 30 people were behind us. We did in-person meetings and had constant email conversations.”
Their team also had national partners like Positive Women’s Network and Sero, she says, guiding them and using their connections in the state as well. Also on board were Equality Virginia, the state’s LGBTQ advocacy group, and Virginia General Assembly member Danica Roem, the first transgender person ever elected to a U.S. state legislature. “We also had someone who was penalized under the law share their story,” adds Johnson. That, she says, can really drive the argument home for elected officials who know next to nothing about the law and its consequences on people living with HIV.
More advice for other states? Have a strategic plan, says Johnson, a step-by-step process of educating key parties and then moving forward a bill with language drafted by advocates themselves. Also, be ready to implement a rapid response to unforeseen events. “When it seemed likely the felony charge would stay in, Cedric and I reached out to over 20 folks in 24 hours to figure out how to handle it,” she says.
But, Haught’s greatest advice is to never give up.
“This can be done—Virginia is a complete living witness to that,” she says. “Things will align at the right place and the right time. Just remember the endgame.”
Because, says Haught, the stakes are high, and the current laws must change. In states where they exist, she reminds, “Everyone with HIV is just one bad breakup away from being prosecuted.”