While there are now highly effective medications to treat HIV, not everyone is able to access and take those medications regularly—and people are still dying even though this is now a treatable, chronic condition. Unfortunately, current laws criminalizing conduct based on a person’s HIV status make people less willing to seek testing and treatment and undermine public health efforts. We need sound public policies to encourage engagement in care, reduce the number of new cases, and end the HIV epidemic.
New medications have turned HIV into a manageable, chronic health condition. With a healthy lifestyle and the right medical care, a person living with HIV can expect to live a normal lifespan. There are also evidence-based HIV prevention strategies that have been proven to reduce, and in some cases eliminate, the risk of transmission (e.g., condoms, effective treatment, and pre-exposure prophylaxis (PrEP), to prevent HIV. These scientific advances should inform our laws.
No. There is no research indicating HIV criminal laws serve their purported goal of reducing HIV transmission, nor are there credentialed public health experts who assert such a claim. Public health experts—including the American Medical Association, American Nursing Association, National Alliance of State and Territorial AIDS Directors and many other professional organizations—believe HIV criminal laws are terrible public health policy and are making the epidemic worse. A growing body of evidence suggests these laws deter people from testing and treatment and make PLHIV less likely, rather than more likely, to disclose their HIV-positive status to potential partners.
No, such laws are completely unnecessary. All blood donations are screened and tested for HIV before they enter the general blood supply. The only donations containing HIV that could potentially enter the blood supply would be from people who have been exposed so recently they would not even test positive yet. Such laws function only stigmatize people living with HIV.
No, because safe conception procedures endorsed by the CDC and others (e.g. American Society for Reproductive Medicine) allow individuals to safely engage in artificial insemination using semen from men living with HIV. It is not in the interest of public health to criminalize people who choose to use these technologies under the guidance of medical professionals.
The laws pose several harms including:
- You can’t be prosecuted if you haven’t been tested for HIV. So the laws punish knowing your HIV status—the responsible action—and encourage not knowing your status.
- The laws also give PLHIV good reason to be less trustful and less willing to cooperate with traditional public health disease prevention strategies, like partner notification programs.
- By singling out HIV, the laws add to already high levels of HIV-related stigma, which remains a huge barrier to testing and treatment.
- Most people who receive an HIV-positive diagnosis go into some degree of mild shock, having been given life-altering news. Concerns for their personal safety, housing, custody of their children, employment and other factors may make it difficult or impossible for them to disclose their status immediately. HIV criminalization laws then make it even more difficult to disclose later, when they have accepted the diagnosis and properly prepared for the potentially difficult consequences of disclosure.
- Indiana laws can also punish a person who has no intent to harm, poses no risk of harm, and causes no harm, just as harshly as someone who engages in intentionally harmful conduct and actually injures someone.
HIV criminalization is the use of one’s HIV-positive status, either under “HIV-specific” criminal laws or under general criminal statutes, to create criminal liability or increase punishment simply because the person has HIV. Most HIV-specific criminal laws target and punish people living with HIV (PLHIV) for engaging in conduct that would otherwise be legal if not for the person’s HIV-positive status. These laws typically hinge on whether a person can prove they disclosed their HIV-positive status before sexual contact, rather than whether there was any harm inflicted (HIV transmission) or whether there was even any risk of transmission. Other HIV-specific laws mandate enhanced sentences for certain crimes (typically battery) solely because of one’s HIV status, including situations where it is scientifically impossible to transmit HIV.
Current laws are based on outdated assumptions about HIV and single out HIV to be handled differently from other sexually transmitted infections that, if left untreated, can also seriously harm a person. Most HIV criminal laws were passed when far less was known about the actual routes and risks of HIV transmission and prior to the introduction of effective HIV treatments. The laws also:
- Do not reflect current science regarding how HIV is (and is not) transmitted.
- Do not increase disclosure.
- Do not reflect best criminal justice practices.
- Frequently have punishments completely disproportionate to any purported harm; and
- Discourage people from accessing testing and treatment services, and worsen stigma against PLHIV, thereby fueling the epidemic.
The laws pose several harms including:
- You can’t be prosecuted if you haven’t been tested for HIV. The laws punish knowing your HIV status —the responsible action—and encourage not knowing your status.
- The laws make PLHIV less trustful of public health and less willing to cooperate with traditional public health disease prevention strategies, like partner notification or treatment adherence programs. By singling out HIV, the laws add to already high levels of HIV stigma, which remains a huge barrier to testing and treatment.
- Disclosure is made more difficult. Most people who receive an HIV-positive diagnosis go into some degree of mild shock, having been given life- altering news. Concerns about their personal safety, housing, custody of their children, employment and other factors may make it difficult or impossible for them to disclose their status immediately. HIV criminal laws make it even more difficult to disclose later, when the person has accepted the diagnosis and properly prepared for the potentially difficult consequences of disclosure.
Numerous national public health experts, policy organizations and federal government groups, including the Centers for Disease Control and Prevention and The American Medical Association, have all called for law reform. Numerous Indiana groups also support modernization including the Indiana State Medical Association, Indiana Disability Rights, the Indiana Prosecuting Attorneys Council and the Indiana Department of Health Ending the HIV Epidemic Plan (click here for the full list) For quotes from some of these leading organizations urging HIV criminalization law reform, Click here.
It is a very rare occurrence that someone acts with the intention to transmit HIV to another. If that happens and the person engaged in conduct that presented a substantial risk of transmission, a criminal prosecution could be appropriate. If such conduct ever were to occur in Indiana, there are laws under which that person could be prosecuted.
No. Best public health practices encourage disclosure but using the law to punish nondisclosure is not an effective way to motivate people to disclose. Disclosure is best encouraged in a non-punitive and supportive environment in which people feel safe to disclose – one that still promotes use of effective HIV prevention strategies (e.g., knowing one’s status, remaining in treatment, using condoms). Modernizing the laws will lead to a more supportive legal environment for disclosure.