California Introduces a Bill Aiming to Reform HIV Criminalization Laws

A bill was introduced to the California state legislature by Senator Scott Wiener (D-San Francisco) and assembly members Todd Gloria (D-San Diego) and David Chiu (D-San Francisco) aiming to modernize laws that criminalize and stigmatize people living with HIV. (Read the bill HERE) 

Co-sponsored by Equality California, the ACLU of California, APLA Health, Black AIDS Institute, Lamba Legal, and Positive Women’s Network, what the bill would do is repeal all HIV specific laws that criminalize otherwise legal behavior, turning misdemeanors into felonies that put innocent people like Michael Johnson in prison simply because they’re HIV-positive.

Currently, California has four criminalization laws that turn HIV-positive people into felons: Solicitation if the person tested positive for HIV in a prior solicitation or other sex offense that resulted in mandatory HIV testing; Donating blood, tissue, semen or breast milk after becoming aware that one is HIV-positive; Anal or vaginal sex without a condom in which an HIV-positive person does not disclose their status and has a specific intent to transmit the disease to they sex partner; and having knowledge that one is HIV-positive while engaging in a nonconsensual sex crime.

According to the Williams Institute, 800 people have been victims of HIV criminalization laws from 1988 to 2014. Of that number, 98 percent did not require proof of intent and 93 percent didn’t require proof of conduct. None of them required — that’s right, zero — required actual transmission of HIV as a reason to charge them.

What does this all mean?

It means an HIV-positive person can be convicted of a felony, even if they’re on treatment and/or use a condom, simply because they’re HIV-positive. In fact, laws don’t require you to have any form of sexual activity. Someone can be charged for simply engaging in a conversation or exchanging money. But if this bill turns into law, that will change.

“[The bill] has been a priority of ours for a couple years,” Rick Zbur, executive director of Equality California, says to Plus. “We realized we need to educate both the public and members of the legislature about why this is so important. Luckily, Senator Weiner and Senator Gloria were both elected and decided to pick it up this year.”

The bill itself is comprehensive because it effects a number of provisions to existing laws, which were passed in the late 1980s based on fear and a lack of understanding about HIV — a reflection of how it was perceived at the time. Supporters of the laws said they were for public health reasons, but Zbur says that was never the case.

“There was a misunderstanding that these laws somehow protect public health, and what we know is they do just the opposite,” Zbur explains. “The thing we needed to do to make people understand was that those laws impede public health objectives. What we’re proposing now is to treat HIV like every other communicable disease, which generally have misdemeanor penalties for certain activities. Modifying and updating these laws has been a national priority for HIV communities across the country.”

Equality California and other co-sponsors have been trying to educate legislators about this bill for years. After working on a model bill, they were able to hand it off to Weiner and Gloria, who now have the job of pushing it through the legislature.

“Luckily, in California we have a progressive legislature and a governor who’s really been at the forefront of advancing both LGBT civil rights, social justice, and protecting people living HIV” Zbur says. “We’re very hopeful that this bill will proceed in a way so that it becomes a model for the rest of the country.”

Next month, the California legislative LGBT caucus will host a legislative hearing where panelists ranging from doctors, health professionals, and pollsters will be given opportunities for public comment, as well as to educate members about the danger of HIV criminalization laws. But as Zbur says, the public also has a personal responsibility.

“What we all need to do is educate the public about the disease and what these draconian penalties do,” he urges. “We’ve heard cases of people who are in a relationship and the relationship goes bad, someone who’s abused in a partnered relationship will then use these laws as a way to coerce their partners into doing, or not doing, things… When you’re on treatment and undetectable, it’s virtually impossible to transmit the virus and I think most people don’t know that yet,” Zbur adds, “hence the fear around anything with HIV. I think when people understand that, they will view these laws in a very different way.”