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How America’s HIV laws are weaponising scientific development

This World Aids Day Biden praised science and challenged HIV-criminalisation. What he missed was how they link

Frances Perez / Panoramic

In a recent speech for World Aids Day, President Biden struck a hopeful but cautionary tone. Celebrating the ‘redirection’ that had taken place under his leadership, he reiterated plans to eradicate the US ‘epidemic of HIV’ by 2030. Biden spoke of the unequal access to care impacting HIV treatment across America, directing his message ‘especially’ to the members of the ‘LGBTQI+ community, communities of colour, women, and girls’, for whom ‘a diagnosis is still life-altering.’ He also called for the ‘repeal or reform’ of the HIV criminalisation laws which exist across the nation and disproportionately affect queer people, Black people, and sex workers. What the President failed to address was the paradox that sits at the heart of HIV legislation in America: the opposing currents of scientific development and decriminalisation. Not only has politics failed to catch up with science, but scientific development has itself been weaponised to perpetuate criminalisation.

Despite their liberatory potential, scientific developments are being used to justify the arrest and mistreatment of HIV-positive people throughout the country. As the Elizabeth Taylor Aids Foundation makes clear, ‘U=U’: undetectable means untransmissible. With advances in HIV medical treatments, those who take antiretroviral medication and achieve an undetectable viral load present virtually no risk of transmission to partner(s). Likelihood of transmission is even lower if the HIV-negative partner(s) use PrEP correctly, with PrEP reducing the risk of contracting HIV from sex by around 99%, and 74% amongst those sharing needles for injection drug use.

Unfortunately, regardless of the availability of such medication, many state laws focus on exposure to HIV, rather than on transmission, disregarding the isolation of the two with the help of medication. States such as Arkansas, Ohio, Oklahoma, Louisiana, and Tennessee criminalise exposure as well as transmission, with Tennessee law describing any individual who exposes another to HIV as a ‘violent sexual offender.’ HIV-positive people can be arrested even after they have disclosed their HIV status to their partner(s). Crucially, individuals can be arrested irrespective of whether they are on therapeutic medications that make the virus “undetectable” (where the chance of transmission is zero). This often means that taking life-altering medication counterintuitively places users directly in the line of fire of criminal charges.

"Socioeconomic burdens of imprisonment and appearance on a sex-offenders registry often harms people more than the HIV for which they are criminalised"

States’ focus on exposure is driving up convictions, binding up vulnerable individuals in abstruse policy. The use of legislation to target and criminalise HIV-positive people across America is clearly evident in the state of Louisiana. Having sex whilst being knowingly HIV-positive in Louisiana is considered intent, which renders sexually active HIV-positive citizens criminally liable. By focusing on exposure rather than transmission, Louisiana law does not require actual transmission for conviction to occur. Those who are convicted are required to register as a sex offender for 15 years.

The average prison sentence for HIV crimes is 3.2 years in America, but the situation varies from state to state. Some states still apply a life-sentence to those seen to have violated HIV laws. A 2017 study into 393 convictions in Arkansas, Florida, Louisiana, Michigan, Missouri and Tennessee found that the average sentence for an HIV-related crime was nearly eight years in prison.

Analysis of the data on HIV conviction reveals that this disproportionately impacts Black transgender women and men of colour who have sex with other men. In 2021, black people accounted for 28% of the country’s HIV positive population, but 46% of convictions. As of 2022, black women are 290 times more likely to be on the registry for an HIV conviction than white men. In overlooking how ongoing criminalisation ignores scientific development, the Biden administration has failed to acknowledge the lack of trust and support in legal systems that those most hurt by HIV criminalisation often feel.

The reality is clear: socioeconomic burdens of imprisonment and appearance on a sex-offenders registry often harms people more than the HIV for which they are criminalised.

Some progress has been made. Since 2014, twelve states have modernised or repealed HIV criminal laws, including California, Michigan, and Virgina. Changes entail the removal of HIV prevention issues from the criminal code. Instead, they are placed under disease control regulations. New charges also take factors such as ‘intent to transmit’ into account and include defences for those who are noninfectious, use condoms, or have a partner using PrEP.

Despite such changes, as a 2021 Lancet report made clear: to succeed in tackling HIV, the nation needs not only to “overcome scientific and programmatic barriers to testing, treatment, and prevention, but also to address the legal obstacles, racial discrimination, economic disadvantage, and homophobia that underpin many of the disparities that are prevalent in the HIV epidemic.”

In calling upon the reform of HIV criminalisation laws, Biden needs to fight for the justice of those who are already currently imprisoned for HIV. For trust to be built, scientific development must be met by legal reform. For now, Biden continues to miss the mark.


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