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Table of Contents
- What Is HIV Criminalization?
- Where Do These Laws Come From?
- What Is the Impact of These Laws?
- Do These Laws Help Women?
- Expanding Perspectives on HIV Criminalization
- Tools for Change
What Is HIV Criminalization?
No one should be punished simply because they have a health condition. But in many areas of the world, laws and practices unfairly punish people living with HIV because of their HIV-positive status. In other words, people living with HIV can face criminal charges for engaging in acts that would not be considered criminal if a person who is not living with HIV engaged in them, such as having consensual sex (both people agree to have sex) with another adult. This is often called HIV criminalization.
UNAIDS reports that in 2024, 156 countries (including the US) had HIV-specific laws that criminalized non-disclosure, exposure, and transmission:
- non-disclosure law: imposes criminal penalties against people living with HIV based on their sexual, drug use, or other partners claiming they did not tell them that they were living with HIV
- exposure law: imposes criminal penalties against people living with HIV for engaging in activities that the law claims could create the possibility of HIV transmission (such as having sex)
- transmission law: imposes criminal penalties with the requirement that a person acquired HIV from another
One example is the case of Julie Graham, a young nurse who was arrested in the US state of Pennsylvania after a man she dated claimed that she had not told him that she was living with HIV. The man who made the police complaint against her did not acquire HIV, and there was no chance of HIV transmission between them because Julie had an undetectable viral load. While Pennsylvania does not have HIV-specific laws, general criminal laws have been used to charge people living with HIV in cases of alleged non-disclosure or exposure. This was the case for Julie, who was charged with sexual assault, aggravated assault, reckless endangerment, and simple assault, just because she was living with HIV during a consensual relationship.
Julie is not alone: In the majority of known HIV criminalization cases across the globe, HIV transmission is not a deciding factor in the case – only alleged HIV non-disclosure, which pits the word of two partners against one another in court, and is almost impossible to truly prove. Although many criminal justice systems are meant to be based on ideals of due process and "innocent until proven guilty," those values and processes are weakened when people living with HIV are inherently seen as sexual predators and "infectors" just for having a health condition.
What Activities Are Criminalized?
Some cases involve acts that pose either zero chance of HIV transmission, or risk that is so low that it is basically nonexistent – such as spitting, biting, scratching, oral sex, sex with condoms, or sex while the person living with HIV is taking effective HIV drugs. Despite the nonexistent risk, a notable portion of HIV-specific criminal charges come from incidents of spitting and biting, most of them involving law enforcement officials (cops, etc.). There are no known cases of a law enforcement officer acquiring HIV due to this type of event.
For people who engage in sex work when they are living with HIV, particularly women, charges for "solicitation" or "prostitution" that would normally be misdemeanors can be enhanced to harsh felonies In multiple US states – including Pennsylvania, Florida, and, previously, Tennessee – even when there is no chance of HIV transmission occurring.
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Where Do These Laws Come From?
These laws were originally based on myths and misconceptions about HIV transmission. When they are applied, they reinforce fear, discrimination and stigma against people living with HIV, as well as dangerous misinformation about how HIV is transmitted and can be prevented.
The world's first HIV-related prosecutions and laws happened in the mid- to late-1980s, when HIV was truly a death sentence for millions of people around the globe who acquired it. These laws were an attempt to control a raging epidemic that virtually no one understood. But they also served to spread the myth that people living with HIV were dangerous "monsters" and that the threat of people "intentionally infecting" others was high, when cases in which a person actually intends to do harm by transmitting HIV to another person are very rare.
It would seem logical that, as powerful tools like effective HIV treatment make controlling the epidemic more possible, the use of criminal laws against people living with HIV would stop. But irrational fears, not current scientific knowledge about HIV, is the basis for these laws, and criminalization of HIV status remains a threat to health and human rights around the world. Still, numbers of cases and laws have decreased slightly in recent years, according to HIV Justice Network findings. These facts suggest that years of global advocacy to decriminalize HIV is working. You can learn more about that advocacy in the "Tools for Change" section below.
What Is the Impact of These Laws?
There has never been any evidence that HIV criminalization laws serve a purpose to protect the health of any community. Furthermore, as advocates and health professionals try every day to make HIV drugs accessible to everyone living with HIV, these laws make that work harder by increasing stigma and discrimination.
There has never been any evidence that these laws serve a purpose to protect the health of any community.
Most HIV criminalization laws only require that a person knew they were living with HIV in order to prosecute (sue in criminal court) them. This punishes people for taking the healthful step of being tested for HIV and knowing their status. This is particularly true of whoever in the relationship knew their HIV status first because the accusing partner can claim they acquired HIV from the other, even if the accusing partner had not been tested previously. Since women are more likely than men to engage with sexual and reproductive healthcare, they tend to find out their HIV status before their male partners.
This was what happened to Samukelisiwe Mlilo of Zimbabwe. Samukelisiwe claimed that she disclosed her HIV status to her husband during their marriage. But in 2012, she was found guilty of "deliberately infecting" her husband with HIV. She may spend up to 20 years in prison, despite no proof that her husband acquired HIV from her. She also said that her husband made the complaint in revenge against her, because she reported him for intimate-partner violence.
Do These Laws Help Women?
A common argument for HIV criminalization laws is that they protect women from partners who might be dishonest about their HIV status -- or even violent towards their girlfriends or wives, rendering them vulnerable to HIV. But these laws do not promote honesty or heal violence in relationships. Instead, they are more often used as tools of abuse, harassment or coercion, as we see in Samukelisiwe's case. These laws do nothing to address the epidemic of gender-based violence and uneven power dynamics that can leave women vulnerable to acquiring HIV.
Women who are prosecuted or even just accused in HIV-specific cases may lose their homes, custody of their children, access to services, standing in their community, and so much more. For example, in the US state of Louisiana, a person convicted under the "intentional exposure" law must register as a sex offender once released from prison. This makes it even more difficult for a person to rebuild their life after being incarcerated.
The same laws or principles you may want to use against the person who you believe harmed you can easily be used against you.
Further, communities that are already subject to more than their share of policing and incarceration tend to bear the highest burden of HIV-related charges, such as sex workers (or those thought to be engaging in sex work) and communities of color. For instance, in Australia, CJ Palmer, a transgender woman who worked as a sex worker in the past, was convicted of grievous bodily harm in a case of alleged HIV transmission to a past partner. CJ served a harsh sentence in a men's prison, even though she is a woman – a potentially life-threatening punishment.
Criminalization and Family Policing
Another form of criminalization that has been used to punish people living with HIV in the past is involvement with the family policing (child welfare, child protection, CPS) system. Once a mechanism to provide services to families in the US (from which Black families were excluded), as these systems began to be integrated, the focus shifted from support to the current system, which focuses largely on removal of children as a “remedy” for challenges their families might be facing – particularly Black, indigenous, and other families of color.
When healthcare providers or others make calls to CPS, they may think they are helping a family when, in reality, they are engaging a system that is known to cause great harm, even if a call is later shown not to be of substance. Further, policing and punishment are not a helpful way to encourage people to stay connected to healthcare.
Numerous parents living with HIV have reported being threatened with or actually subjected to a CPS call after expressing a desire to breast/chestfeed their baby (even though the US HIV treatment guidelines for pregnant people and babies now reflect the safety of breast/chestfeeding while taking HIV drugs). In addition to the harm of being watched and monitored by authorities, often in their own home, and being threatened with or actually having children taken away, these encounters increase HIV stigma and can drive people to breast/chestfeed in secret, without clinical support. The guidelines now point out the damage CPS reporting causes, and warn providers against engaging CPS for infant-feeding inquiries.
Expanding Perspectives on HIV Criminalization
What about people who "intentionally infect" others with HIV? Shouldn't they be punished?
Cases in which a person deliberately intends to transmit HIV to someone else are extraordinarily rare. When genuine intent to harm exists, general criminal laws are fully sufficient to address that conduct. HIV-specific criminal statutes (laws) are not only unnecessary but highly discriminatory. In many states, they do not even require proof of intent, allowing people to be punished for merely living with HIV. This is deliberate harm; it is unjust and completely contrary to public health.
Under current laws and practices, punishments are extremely harsh compared to the supposed harm caused. For instance, in the US state of Texas, a man received a 35-year sentence for assault with a deadly weapon after spitting at a police officer, when spit does not even transmit HIV. This is a perfect example of the harsh HIV-related enhancements described above.
Further, the definition of "intent" in a legal statute means acting knowingly and purposefully to bring about a specific (and in this case harmful) outcome. Under this standard, choosing to engage in consensual sexual acts is intentional, but that does not mean that HIV exposure or transmission is. Yet these laws often treat ordinary consensual acts of sex as evidence of an intent to cause harm. This blurring of lines allows prosecutors to infer that intent exists where it does not
It is important to note that "intentionally infecting" a person with HIV and not disclosing one's HIV status are not the same thing. We know that HIV is difficult to transmit even in the riskiest instances, so sex or contact with a person living with HIV does not automatically equal transmission. Further, there are many complicated reasons why a person may not disclose to a sexual partner, including the potential threat of violence. Simply saying "I am living with HIV" is not always a safe option.
There are steps that people can take to counter HIV stigma and make HIV disclosure safer in communities around the world. For example, you could join an advocacy group or educate people in your community about HIV and how it is (and is not) transmitted. Getting rid of laws that seek to justify stigma and fear, instead of promoting public health and community safety, is one of those steps.
I recently found out that I am living with HIV. Do I need to tell my past partners?
Disclosing (telling others) your HIV-positive status is a deeply personal decision that individuals must make for themselves. The most common situation involving a legal obligation to disclose one's HIV-positive status is to sexual partners – not previous partners, but current and new ones. Some US states require this.
You also may have a legal obligation to disclose when you:
- share injection drug equipment with someone;
- donate blood, organs or tissue;
- do a certain job (there are very few of these); or
- visit a physician or a dentist in the state of Arkansas (the only state with this requirement)
Except in two states (Indiana and North Carolina), people testing positive for HIV are not required to inform previous sexual partners of a positive result. However, once you become aware of your HIV-positive status and then have sexual relations, state laws often require that you disclose your positive status to those sexual partners.
For up-to-date information in the US, visit Lambda Legal's Know Your Rights tool.
What if someone living with HIV, including a partner, rapes or molests someone else?
Rape and molestation are intentional. Living with HIV and committing these acts is not equal to an intent to transmit HIV.
There are general, non-HIV-specific laws against sexual violence for such cases. However, these laws are unfortunately often poorly enforced. Criminalizing people because of their HIV status does not protect women or anyone from sexual assault. It is a crime to rape; it is not a crime to live with HIV.
My partner didn't tell me he was living with HIV, and now I'm living with it. I feel that I have been harmed. Isn't my only option to send him to jail?
It is understandable to be angry or feel betrayed if you acquire HIV and believe it is someone else's fault because they didn't tell you they were living with HIV; or they did not respond truthfully when you asked them about their HIV status; or if for whatever reason you felt unable to ask for condom use during sexual encounters. And yes, you have experienced a life-changing diagnosis and may feel distraught or confused. Still, by no means is your life over. People with HIV can live long, dignified lives thanks to advances in treatment. Taking legal action against a past sexual partner might feel like the right thing to do, but it can put that person in jail for decades and/or require them to register as a sex offender, which can ruin a person's life.
Sometimes people file a complaint with the police and then change their mind, but it is too late. Once the police open an investigation, changing your mind may not stop an investigation and prosecution. Furthermore, this pattern opens the accuser up to further criminalization if they are also living with HIV. People may begin by pressing charges and leave with a case against them. The same laws you may feel drawn to use in this moment could just as easily be used against you, and many people living with HIV have experienced that firsthand.
It is completely valid to feel hurt or overwhelmed at the point of diagnosis, and you deserve support. At the same time, it may help to pause and consider all the implications before turning to legal action – especially in a system that often misunderstands HIV and can have lasting consequences you might later wish you could undo.
Alternative approaches to healing rifts in communities and relationships that may result from instances of HIV transmission need to be further explored. One alternative to criminal law is restorative justice, which focuses on repairing harm by seeking redress for those who feel they were harmed and amends from those who may have caused that harm. This option avoids the brutal consequences of involvement in the criminal justice system for individuals, their families and communities.
Finally, HIV stigma plays a major role in why living with HIV continues to be so difficult for so many people. The existence of these laws worsens that stigma and has a negative impact on quality of life for people with HIV.
Tools for Change
I've heard that "Undetectable Equals Untransmittable." How can we use this information to fight these unfair, outdated laws?
In your advocacy, it is important to be careful not to spread the false idea that, without HIV drugs and an undetectable viral load, legal punishment of people living with HIV is acceptable.
HIV criminalization laws do not consider the realities of living with HIV in the modern era, in which we know that taking HIV drugs and having an undetectable viral load is a powerful and effective form of HIV prevention. This fact, supported by numerous research studies, is often expressed in the community using the simple phrase "Undetectable Equals Untransmittable," or U=U. The fact of U=U does not change the status of existing laws – and does not keep people with an undetectable viral load from being punished under the law because of their HIV status.
In fighting to change these stigmatizing laws, it is important to share current scientific information about HIV. When talking with lawmakers and community members as part of your advocacy, the concept of U=U can help show them why removing barriers to HIV care and treatment -- including stigmatizing laws -- is so important to the health and lives of people with HIV.
In fighting to change these stigmatizing laws, it is important to share current scientific information about HIV.
Further, in some jurisdictions (areas of legal authority, such as states), the science behind U=U can be one of the tools a legal team uses in an individual person's HIV criminalization case to prove they intended no harm to others. For example, a woman living with HIV named "El," in Malawi, was imprisoned after accidentally breastfeeding another woman's baby (she also breastfed her own baby on purpose). She was charged with "carrying out a negligent and reckless act, likely to spread a life-threatening disease." She eventually found an attorney who knew about HIV and was able to show the "infinitesimal risk" of HIV transmission through breastfeeding when a woman is on effective HIV drugs, which El was.
Individual cases are different from broader reform (change) of HIV criminal laws that can affect thousands of people. It is very important that revised laws not stigmatize or criminalize people who, for whatever reason, may have detectable viral loads. Women, especially, may have a harder time getting their viral loads to undetectable, for reasons including:
- Being more likely to be diagnosed later in life than men
- Prioritizing the health of others over their own
- Higher rates of violence, poverty, and the instability that comes with these social determinants of health, which can make it hard to be consistent with medication
Criminalizing people based on HIV status is harmful to public health and is never appropriate, no matter what the person's viral load.
What if someone brings charges against me for HIV nondisclosure?
- Know your rights. In the US, if you are arrested, you are not required to speak with anyone without a lawyer present. Positive Women's Network - USA has produced a great Know Your Rights guide geared toward women and gender-diverse people facing HIV-related charges. Lambda Legal's Know Your Rights guide (also mentioned above) is another good resource.
- Get help. It is essential that you be represented by people who understand HIV and HIV criminalization or are willing to be guided by people who are knowledgeable in this area. Contact your local HIV organization or legal clinic for support.
In the US, the following national organizations can also help you find legal representation:
- American Civil Liberties Union (to find your local ACLU chapter): aclu.org
- The Center for HIV Law and Policy: www.hivlawandpolicy.org
- Lambda Legal: lambdalegal.org
- Sero Project: seroproject.com
HIV Justice Worldwide is a global consortium that advocates against HIV criminalization; they may be able to help you find local legal representation (though they do not offer individual legal advice or representation). You can contact them via the form on their website.
- Become an advocate. Since the early 2010s, actions to repeal or modernize HIV-specific laws, and challenge HIV criminalization more broadly, have increased and become more coordinated – and successful. This work includes people living with HIV, attorneys and legal experts, healthcare providers, lawmakers, advocates in overlapping movements including antiviolence, immigrant rights, reproductive justice, LGBTQ rights, sex work decriminalization, and many more. The groups below can help you stay informed – and get involved!
- Health Not Prisons Collective (HNP) (also maintains a page tracking US HIV and sex work decriminalization bills)
- Positive Justice Project
- Sero Project Resources and Coalitions Map
- HIV Justice Network (global case tracking and advocacy updates)
Learn more with this Timeline of State Reforms and Repeals of HIV Criminal Laws (from CHLP)
- Know that you are not alone. Many people have faced HIV-related charges – and there is a growing movement across the globe to oppose these unfair practices. People who have themselves survived criminalization – including currently or formerly incarcerated advocates – are also key voices in these efforts.
The Sero Project works with people living with HIV who have survived HIV criminalization. They can help connect you with a community and, if you are interested, help you get involved in advocacy to end HIV criminalization in your area.
Special thanks to S. Mandisa Moore-O'Neal, Esq. – executive director of The Center for HIV Law and Policy and founder of The Moore-O'Neal Law Group, a Louisiana-based Black feminist law and policy practice – for her review of the original edition of this fact sheet.