U.S. Department of Justice Suggests HIV Law Changes

The U.S. Department of Justice Civil Rights Division is advising states to amend HIV criminalization laws, which often subject people with HIV to harsh penalties for engaging in sexual activities that actually pose a low risk of trasmission.

The division has released guidelines on how the states should change “HIV-specific state laws that criminalize engaging in certain behaviors before disclosing known HIV-positive status.” 

“Most of these laws do not account for actual scientifically-supported level of risk by type of activities engaged in or risk reduction measures undertaken,” reads the “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors.” “As a result, many of these state laws criminalize behaviors that the [Centers for Disease Control and Prevention] regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

Twenty-five states have laws on the books criminalizing “behaviors that expose a low risk of HIV transmission, including oral sex,” notes a study in the journal AIDS and Behavior. The laws do not take into account preventive measures including condom usage, antiviral therapy, or PrEP. Breaking these laws is, in most cases, considered a felony offense, and can lead to a 10- to 30-year prison sentence.

Positive Justice Project has released an HIV Criminalization Fact Sheet outlining the effects the current laws have on the transmission and risk associated with HIV infections. “Studies show that the criminalization of HIV exposure has no effect on risk behavior,” reads the fact sheet. “HIV criminalization can discourage individuals from seeking testing and treatment because a positive test result subjects a person to criminal liability for otherwise non-criminal conduct.”

“While initially well intentioned, these laws often run counter to current scientific evidence about routes of HIV transmission, and may run counter to our best public health practices for prevention and treatment of HIV,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division on the Department of Justice website. “The department is committed to using all of the tools available to address the stigma that acts as a barrier to effectively addressing this epidemic.”