February 28 is HIV is Not a Crime Awareness Day, a day to emphasize the importance of HIV decriminalization, describe HIV criminalization from a legal and policy perspective, and explore paths towards a more equitable future. In honor of this day, CHIPTS Policy Impact Core Co-Director Ayako Miyashita Ochoa, JD, had a discussion with Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute in the UCLA School of Law. Check out their discussion below.

Since 2015, when the first comprehensive report on state-level HIV criminalization data was published, the Williams Institute (WI) has engaged in continued efforts to analyze HIV criminalization trends across key states in the United States. Today, Nathan will share some of his reflections on this work.

  1. Nathan, can you tell us about yourself and your current role at Williams Institute?

I came to the Williams Institute two years ago as our first full time HIV criminalization analyst. The Williams Institute has been studying the impact of HIV criminal laws for seven years now. We approach this issue in the same way we approach other policy areas that affect LGBTQ communities—we fight myths and stereotypes with deep dives into the data and facts. It’s a good fit for someone like me a background who knows how to analyze data and who wants to do social science for good.

  1. For people who are unfamiliar with HIV criminalization, can you tell us why we should we care about the issue and its effects on people living with and at risk for HIV?

I like to remind people that we all have an HIV status. That status might be positive or negative, and we might know our status or we might not know our status. And that status might change over time. So what is HIV criminalization? HIV criminalization refers to criminal laws that make something a person does illegal because of their HIV status.

Let me give you an example. In Ohio if I don’t disclose my HIV status to a sex partner that’s perfectly legal—so long as my status is negative. If it’s positive, however, I’m suddenly liable for eight years in prison, and mandatory sex offender registration. Ohio’s law doesn’t require actual transmission, the intent to transmit, or even the possibility of transmission. In Tennessee, a sex worker who knows they’re positive can be put in prison for ten years for having a conversation about transactional sex.

HIV criminal laws also single out people living with HIV for harsher penalties. For example, spitting on someone might normally be a misdemeanor, but if you’re a person living with HIV, it might become a felony. The fact is, you cannot get HIV from someone spitting on you.

Today, over half of states across the U.S. criminalize people because of their HIV status. And HIV is pretty unique in the way a health condition is singled out in criminal law. Many of these laws were written at the height of the AIDS pandemic when there was a lot of fear and stigma and shame. Today we know so much more about how HIV is transmitted, and how to care for people living with HIV. It’s actually pretty hard to transmit HIV aside from sex and needle sharing, and we now have medications that can reduce risk of acquiring HIV through sex by about 99%.

Unfortunately, most HIV criminal laws haven’t been updated to reflect the latest science and medicine. Instead, they continue to single out people living with HIV for special punishment, and they perpetuate stigma and discrimination. That’s why the latest National HIV/AIDS Strategy calls on states to modernize or eliminate their HIV-specific criminal laws.

  1. What’s something you have learned in the course of your research that you want to share with the world?

Many people are surprised that these HIV criminal laws are on the books and that they are still being enforced. Yet, through our research, the Williams Institute has uncovered incidents where thousands of people living with HIV were criminalized because of their HIV status. And it is still happening today—in red states and blue states, big states and small states—criminalizing things that hold zero HIV transmission risk.

For me, the biggest lesson has been to understand the real costs of these laws—not just to state governments, which can run into the tens of millions of dollars just on costs to incarcerate people—but to the people at risk of criminalization, and to their loved ones and the communities in which they live. There are people living with HIV in just about every community, in every county, in every one of the United States. So those costs, that real harm, isn’t just some abstract thing over there. It means it is a burden to members of all of our communities, and ultimately to us as well.

I’d also add that our research shows criminalization disproportionately affects the most vulnerable populations—including Black people, women, and sex workers. The burden of criminalization is simply not evenly distributed, and I think it is useful to ask why that might be so.

  1. How can ending criminalization improve public health and health for all?

The public health rationale on this is pretty clear: HIV criminal laws can lower testing and treatment, which runs directly counter to both federal and state public health goals around ending the epidemic. HIV criminal laws also increase stigma and discrimination against people living with HIV, which itself can directly harm a person’s mental and physical health. Our recent experiences with other pandemics has shown some of the limits of trying to address public health needs through the criminal code. HIV is no different.

  1. Thank you, Nathan, for this important information. Do you have any last thoughts?

Facts matter. Our work does a great job summarizing some of the science and medicine around HIV, and what we know about the who and how of HIV criminalization. I hope people will take a look themselves.