1.) What are the medical and scientific advances necessitating modernization of these laws?
We have seen many scientific advances in the field of HIV since the late 1980s, when most of these laws were enacted. Effective medications dramatically lengthen and improve quality of life for people living with HIV (PLWH), and successfully treated PLWH have a near normal life expectancy. Science also shows that PLWH on successful treatment are essentially non-infectious. According to Dr. Carl Dieffenbach, Director of the Division of AIDS at the National Institutes of Health (NIH), “Once you begin therapy and you stay on therapy, with full virologic suppression, you are not capable of transmitting HIV to a sexual partner. With successful ART [anti-retroviral therapy] that individual is no longer infectious.” In addition, it has recently been definitively established that when HIV-negative people regularly take certain HIV medications, known as pre-exposure prophylaxis (PrEP), they can almost entirely eliminate the risk of acquiring HIV. These scientific advances should inform our laws, the manner in which we address our public health response to HIV/AIDS, and our thinking with respect to the equally shared responsibility between partners for maintaining sexual health.
2.) Do HIV-specific criminal laws help reduce the spread of HIV?
No. These laws hurt—rather than help—public health. There is no evidence that laws targeting PLWH for criminal penalties actually reduce the number of new cases of HIV or improve public health in any way. In fact, research suggests that such laws may be a disincentive to testing and disclosure of one’s HIV status and a barrier to seeking care for people living with HIV. In addition, these laws may give HIV-negative people a false sense of security with respect to the health of their sexual partners, thereby encouraging riskier behaviors and more sexually transmitted infections. Undoubtedly, these laws further isolate and increase stigma towards PLWH, which are known to be significant drivers of the HIV/AIDS epidemic.
3.) Who supports reform of HIV criminalization laws?
A wide array of public health experts, medical professionals, HIV advocates and civil rights leaders support the reform of outdated HIV criminalization laws. These groups include the National Alliance of State and Territorial AIDS Directors (NASTAD), HIVE (UCSF), HIV Medicine Association (HIVMA), ACCESS-Women’s Health Justice, ACLU of California (co-sponsor), AIDS United, AIDS Institute, American Psychological Association, APLA-Health (co-sponsor), Black AIDS Institute (co-sponsor), Black Women for Wellness, The Center for HIV Law and Policy, Equality California (co-sponsor), GLMA: Healthcare Professionals Advancing LGBT Equality, LA LGBT Center, Lambda Legal (co-sponsor), Latino Commission on AIDS, National Center for Transgender Equality, National Immigration Law Center, National Minority AIDS Council (NMAC), Positive Women’s Network (PWN)-USA (co-sponsor), San Francisco AIDS Foundation, SERO Project, Transgender Law Center, Trans Latina Coalition, UN AIDS, the U.S. Department of Justice and others.
4.) Will the law continue to penalize individuals who intentionally attempt to transmit HIV?
Intentional transmission of HIV is very rare. In the exceptional instances where this actually happens, the bill provides criminal sanctions for anyone who intends to transmit HIV, or any other serious infectious or communicable disease, to another person. The amended statute also would require conduct involving a substantial risk of transmission and clarify that taking practical means to prevent transmission—such as using a condom or being on treatment—is incompatible with the intention to transmit HIV or any other infectious or communicable disease. Unlike current law, which potentially results in a longer sentence than certain types of manslaughter, the revised law would impose penalties in keeping with transmission of other diseases that can be managed with proper medical treatment.
5.) Does this bill encourage disclosure of HIV status?
Yes. By reducing HIV-related stigma and potential criminal consequences for knowing and sharing one’s HIV-positive status, this bill encourages HIV testing and disclosure to sexual partners. And a person living with HIV (or any other communicable disease covered by the statute) can still avoid criminal liability by disclosing their status. The bill does not otherwise change California law regarding disclosure of one’s HIV status.
6.) Do the current HIV criminalization laws protect women?
No. In fact, women are prosecuted under these laws at a much higher rate than men. Though women represent only 13% of people living with HIV in California, they comprise 43% of the people arrested under one of the state’s HIV-specific laws. Transgender women, who are subject to police profiling as sex workers (i.e.,“walking while trans”), may be unfairly affected by these laws. Because 95% of all HIV-related criminal incidents in California take place under the statute that transforms misdemeanor solicitation into a felony, modernizing this law has the greatest benefit for some of the most marginalized people in California.
7.) Why does this bill eliminate the penalty enhancement for people living with HIV who are charged with prostitution or solicitation?
This bill eliminates a California law that turns a misdemeanor solicitation or prostitution charge into a felony simply because the accused is a person living with HIV. This law does not make our communities safer. Instead, it further criminalizes an already vulnerable community and harms public health by making them less likely to access HIV testing, care and treatment. Additionally, the penalty enhancement for people living with HIV charged with solicitation is generally used in situations with no possibility of HIV transmission, such as an arrest resulting from a conversation or exchange of money. Rather than using our resources to put people in jail because they have HIV, our resources would be better spent connecting people with treatment to improve their health and prevent further transmission of HIV. This bill does not affect existing laws that already make solicitation or prostitution a crime—it eliminates the extra punishment people living with HIV face under the law.
8.) How does this bill affect penalties for exposure to other communicable diseases?
This bill does not increase penalties for exposure to other communicable diseases. Instead, it puts HIV on par with other serious communicable diseases, which are defined as those involving significant, long-term consequences on the physical health and life activities of the person infected. Regardless of the disease in question, this bill would require both the intent to transmit and actual transmission before a criminal sanction is imposed. The authors and sponsors of this bill are committed to the basic principle that any modernization of the law should not increase criminal penalties for any disease.
9.) How will this bill impact the safety of the blood supply?
The blood supply is not made safer by the current law, and it will remain safe under this bill. Over the many years since these laws were enacted, scientific technology for detecting HIV in the blood supply has become much more advanced. By the time a person is able to test positive and learn their HIV-status, standard screening for all donated blood will also be able to detect the virus and screen out the donation. Therefore, standard screening procedures are sufficient to protect the blood supply in the rare event that someone would knowingly donate blood while living with HIV.
10.) Is there a cost savings in reducing the scope of criminal laws pertaining to people living with HIV?
Yes. Incarcerating individuals is extremely costly, and paying for HIV medication is a heavy cost burden to the State prison system. Among those who were convicted under these criminal laws, 90% were sent to prison for an average of 28 months. Incarcerating a person taking antiretroviral medication has the potential to cost the state over $81,000 per person, per year. The funds spent to incarcerate PLWH would be better spent on evidence-based strategies known to reduce HIV rather than punishing people simply for living with HIV.