Activists had a huge victory against HIV criminalization laws last year when California modernized its HIV-related laws to be more in line with how other transmittable conditions are treated in the state.
Under the previous legal language, an HIV-positive person could be convicted of a felony for not disclosing their status to a partner and having anal or vaginal sex without a condom — even if they were on treatment and undetectable. The old laws, like so many around the country, relied on outdated ideas about HIV and how it is actually transmitted.
According to a Williams Institute study, in California 800 people were charged under HIV criminalization laws between 1988 and 2014. In 98 percent of those cases, the prosecution wasn’t required to prove the defendant had intended to transmit HIV to another person. None of the cases — that’s right, zero — required that transmission of HIV had occurred before the defendant was charged. The 2015 Williams Institute study also found that 67 percent of those who were arrested under these laws were people of color, 95 percent of the cases involved sex workers, and — perhaps most disturbingly — “every incident in which charges were brought resulted in a conviction.”
The new law reduced even intentional exposure from a felony to misdemeanor, and also applies to those donating blood or tissue after becoming aware that they are HIV-positive (it’s still not legal for HIV-positive people to donate, but doing so no longer carries the risk of a felony sentence).
The bill, SB 239, was coauthored by California State Senator Scott Wiener (D-San Francisco) and assembly member Todd Gloria (D-San Diego), and cosponsored by Equality California, the ACLU of California, APLA Health, Black AIDS Institute, Lambda Legal, Positive Women’s Network, and Californians for HIV Criminalization Reform.
“[The bill] has been a priority of ours for a couple years,” Rick Zbur, executive director of Equality California, told Plus after it passed in 2017. “We realized we need to educate both the public and members of the legislature about why this is so important... and what these draconian penalties do. When you’re on treatment and undetectable, it’s virtually impossible to transmit the virus and I think most people don’t know that yet. I think when people understand that, they will view these laws [differently].”
As of 2014, 34 states still had laws that specifically criminalize HIV exposure (not transmission) through consensual sex. These laws were primarily created during the 1980s and ‘90s, and often based on fear due to the limited understanding of HIV — and the high mortality associated with AIDS — at the time. But once on the books, these laws failed to evolve with the advances in treatment and medical knowledge about HIV transmission.
“Today, California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals,” said Wiener on the day Governor Jerry Brown signed the new bill into law. “HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does. We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care.”
“State law will no longer discourage Californians from getting tested for HIV,” added Gloria. “With the Governor’s signature today, we are helping to reduce the stigma that keeps some from learning their HIV status and getting into treatment to improve their health, extend their lives, and prevent additional infections. This action keeps California at the forefront in the fight to stop the spread of HIV.”
Unfortunately, the new law does not decriminalize HIV if you’re a sex worker. It remains illegal (and a potential felony) to engage in sex work after receiving a positive diagnosis. Coincidentally, the month the bill was signed, the Williams Institute released a new study, HIV Criminalization and Sex Work, which concluded, “Unfortunately, in California, black women bear the heaviest burden of the criminalization of sex work generally and the felonization of sex work while living with HIV. This is unlikely to change without drastic shifts in societal bias and discrimination or the decriminalization of sex work.”
In the wake of the bill’s passage, a discouraging number of media outlets chose to run headlines like “California Lowers Penalty for Knowingly Exposing Partners to HIV,” (CNN) and, “Knowingly Exposing Others to HIV Will No Longer Be a Felony in California,” (Los Angeles Times). While technically correct, they were also misleading. SB 293 does reduce the penalty associated with intentionally exposing a sexual partner to HIV, but the news coverage failed to recognize that an HIV-positive person cannot “expose” a sexual partner to HIV if they are virally suppressed, nor transmit the virus if their partner is on PrEP. And having sex while HIV-positive (without transmitting the virus) should never have been considered a felony. Sadly, mainstream media missed a perfect opportunity to reduce stigma and increase understanding about the realities of living with HIV.