How HIV Criminalisation Undermines the HIV Response

Increases stigma and social disadvantage

Stigma and discrimination against people living with HIV is highly problematic, undermining quality of life for people with HIV and creating an environment in which people are less likely to disclose their HIV status. Equality before the law requires that all people should be treated equally regardless of race, gender, religion or other characteristics. The following reports have shown that HIV prosecutions are more likely to be used against specific populations, exacerbating social disadvantage.

HIV Criminalization in California: What We Know

Highlights significant findings about Californian criminal law including that more than 800 people have come in contact with California’s criminal system based on their HIV status, with 93% of convictions requiring no proof of conduct likely to transmit HIV. Also finds HIV criminal statutes are disparately enforced based on race/ethnicity, sexuality and gender.

HIV Criminalization in Canada: Key Trends and Patterns

Provides a snapshot of the temporal and demographic patterns of HIV criminalization in Canada from 1989 to 2016, also updating information on the outcomes of criminal cases. Finds people are often convicted in cases involving negligible or no risk of HIV transmission, and that criminal law is increasingly used against people living with HIV from marginalized populations.

‘Callous, Cold and Deliberately Duplicitous’: Racialization, Immigration and the Representation of HIV Criminalization in Canadian Mainstream Newspapers

Explores mainstream Canadian newspaper coverage of HIV non-disclosure criminal cases in Canada, finding those newspapers are a source of profoundly stigmatizing representations of African, Caribbean and Black men living with HIV.

Cruel Intentions? HIV Prevalence and Criminalization During an Age of Mass Incarceration, U.S. 1999 to 2012

Argues that HIV criminalization laws impute a host of assumptions about the HIV-positive community and their sexual partners, suggesting social scientists and legislators should reassess the evidence that purportedly undergirds characterizations of HIV-positive persons as dangerous liaisons with cruel intentions.

Prevalence and predictors of facing a legal obligation to disclose HIV serostatus to sexual partners among people living with HIV who inject drugs in a Canadian setting:a cross-sectional analysis

Observes that if both condom use and a low viral load are required to avoid criminal liability for HIV nondisclosure, many people living with HIV who inject drugs risk criminal prosecution if they do not disclose their HIV serostatus to sexual partners. Further, the article finds that Canadian law disproportionately impacts the most marginalized and vulnerable women living with HIV in Canada.

Awareness and understanding of HIV non-disclosure case law among people living with HIV who use illicit drugs in a Canadian setting

Findings from a survey of people with HIV who use illicit drugs found that most were not aware of the 2012 Supreme Court ruling, which may place them at risk of prosecution. Discussions about disclosure and the law were lacking in healthcare settings.

State-Level HIV Criminalization Laws: Social Construction of Target Populations?

Applying a social constructionist framework that places people living with HIV in the intersection of both minimal power and negative social construction, this study investigates whether HIV criminalization laws are more likely to be present in states that have a relatively larger percentage of socially marginalized populations, finding that that states with HIV criminalization laws have relatively larger African American populations.

Impacts of criminalization on the everyday lives of people living with HIV in Canada

Based on interviews with people living with HIV, participants reported that HIV prosecutions had created a heightened sense of fear, vulnerability and stigma – “consequences that can run contrary to the ostensible objective of discouraging behaviour likely to transmit HIV.”

Disparate risks of conviction under Michigan’s felony HIV disclosure law: An observational analysis of convictions and HIV diagnosis, 1992-2010

Found uneven application of HIV criminalization laws in the state of Michigan, with black men and white women having a comparatively greater risk of conviction than white men or black women. White women had the highest conviction rate of any group analysed, suggesting they may face a particular burden under these laws. Many of the white women convicted were especially disadvantaged by issues such as poor mental health, substance abuse and homelessness.

From Sickness to Badness: The Criminalization of HIV in Michigan

Found that to justify a conviction or more severe punishment, prosecutors and judges often argued that HIV infection was a death sentence; that HIV is a deadly weapon; and that HIV-positive people are homicidal threats – despite fewer than 7% of cases involving alleged infection. Medical evidence was rarely invoked in the adjudication of cases. The study concludes that enforcement of HIV disclosure laws reflects pervasive, moralising narratives.