A serious issue, often not discussed by lawmakers, is the number of selectively enforced criminal laws against HIV transmission that exist across the United States today. These laws allow for the prosecution of people who do not disclose their HIV status, even if transmission risk is minimal or non-existent. In fact, people living with HIV (PLHIV), can be charged with assault and imprisoned even in situations where they did not know their HIV-positive status at the time of sexual intercourse.
These laws pose a major threat to the safety and human rights of PLHIV, particularly those who are members of other marginalized populations, such as transgender people. According to the National HIV Criminalization Survey, 58% of transgender PLHIV believe it is reasonable to avoid HIV testing due to fear of HIV criminal prosecution and general distrust of the criminal justice system.
“These findings don’t surprise us,” said Cecilia Chung, Senior Strategist at the Transgender Law Center. “The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.”
The National HIV Criminalization Survey reported that approximately 25 percent of HIV-positive respondents reported knowing at least one person who refused to get tested for fear of criminal prosecution and unfair treatment. These results should raise concerns for public health workers and policymakers, because they underscore the difficulties transgender people, particularly people living with HIV, encounter in accessing health care. Moreover, criminalizing an individual solely based on HIV status discourages HIV testing and treatment. These results also raise serious questions about cultural competency in the medical profession and inequities in our legal system.
- Responses from PLHIV paint a picture of a disabling legal environment, one where PLHIV receive vague information — if any — about how to protect themselves from prosecution, which results in a fear of false accusations and little trust in the judicial system to give them a fair hearing.
- Despite the existence of criminal laws to prosecute non-disclosure, when asked to describe their motivations for disclosing their HIV status to a partner, very few PLHIV in the sample named the law as important in their disclosure decision-making. The primary reasons for disclosure were that disclosure is the right thing to do, to have honest relationships, and to not cause harm to another person.
- More than 8 in 10 PLHIV in the study said that they believe that both sexual partners share equally in the responsibility for safer sex.
Transgender individuals are at the highest risk of HIV in the United States. According to the National Transgender Discrimination Survey, transgender women reportedly have over four times the national average of HIV infection, with rates much higher among transgender women of color. In order for transgender individuals to feel comfortable disclosing HIV status, assuming it is known, it is important to create a system that does not stigmatize PLHIV. Multiple studies have shown that HIV criminalization increases discrimination and stigma, deters HIV testing, and does not serve as an effective method of HIV treatment and reduction. The clear goal should be for lawmakers to prevent HIV, and this is not accomplished by enforcing HIV criminalization laws against individuals.
Preston Mitchum is a Policy Analyst for LGBT Progress at the Center for American Progress.