Prison Is No Substitute For Health Care and treatment of HIV

Over half of U.S. states still criminalize HIV. More resources should be allotted to care, treatment, and prevention not prison time

By Stephen Hicks
By Stephen Hicks

Stephen Hicks is a researcher, writer, and public speaker. He is the 2021 Narrative Justice Fellow at the Counter Narrative Project. His bylines have appeared in TheBody, TheBodyPro, HuffPost, Architect Magazine, and VICE.

We would only use the criminal justice system to solve public health concerns if we’re stuck on stupid or set on continuing oppressive practices. But what a choice we still choose.


In over half of the United States, a person can find themselves in court due to their HIV status. Criminalization of non-criminal acts is a deeply rooted practice in America – the criminalization of HIV, a disease most often transmitted through exchange of bodily fluids, is no different. Americans address this public health issue with the criminal justice system instead of public health solutions.


Twenty-six states throughout the U.S. have laws on their books aimed at criminalizing HIV, according to The Center for HIV Law and Policy. Guilt is often based on not disclosing one’s status and a host of what-if scenarios. Proving a person’s intention to transmit HIV  — is near-impossible; but the legal system, not health experts, determine whether a person will serve prison time for living amongst the general public with HIV. 


These HIV criminalization laws render people disposable solely based on a health condition. Yet, if we go beyond mere surface analysis, the health status of living with HIV is further complicated by racism, homophobia, transphobia and poverty. HIV criminalization statutes prioritize outdated hysteria rather than evidence-based research. These type of laws in the South and Midwest are exceptionally horrible and stretch from Washington, D.C. to Mississippi.


“We know that HIV criminalization laws are a hodge-podge of antiquated, draconian policies that unnecessarily regulate HIV-positive people’s sexual citizenship—denying them basic rights to sexual health, wellness and pleasure,” Riko Boone, a researcher at George Washington University who conducted extensive research on HIV criminalization’s consequences, said.


The U.S. has a sick obsession with targeting the most marginalized communities while simultaneously underfunding their resources and gaslighting them, asserting that it’s their fault they haven’t done enough.


The prison industrial complex thrives from this negligence of people living with HIV. Meanwhile, those living with stigmatized health conditions are pushed into the shadows with deadly consequences. Any criminalization of HIV further brands people who live with it and blocks them from care.

Those incarcerated due to these laws contribute to the America hosting the largest prison population in the world per capita. 


At the end of 2016, the Bureau of Justice Statistics estimated that 2.2 million people were locked up in the U.S., including 1.5 million in federal and state prisons and close to 741,000 in locally run jails. Another four million people were under supervision, either on parole or probation. Black males are specifically incarcerated at disproportionate rates. Though Black males made up only 12% of the adult U.S. population in 2016, they represented 33% of the individuals behind bars.


“By and large, Black people have always faced and continue to face huge inequities in both regards. And therefore, HIV criminalization laws – much like the criminal justice system writ-large – [are] inherently anti-Black and yet another example of how structural racism is baked into nearly every system in the U.S.,” Boone added.

ACT UP 30th Anniversary Gathering Rally at the NYC AIDS Memorial at St. Vincent Triangle Park at 200 - 218 West 12th Street in the West Village in Manhattan, New York City, NY on Thursday afternoon, 30 March 2017. by Elvert Barnes

 This past July marked the 40th year since The New York Times reported on HIV impacting gay men. As more people who were not gay men were diagnosed, a sense of urgency ensued, but bigotry disguising itself as genuine care also emerged. HIV wasn’t a concern until it was discovered the disease didn’t discriminate.      


We, as an electorate on the local, state, and federal levels, have trekked further in this discriminatory direction policy-wise despite other progressive evolutions, which adds more obstacles to people living with HIV. We’re long overdue to head in another direction. This direction should include greater health equity resources like expanding Medicaid, better cost-sharing with pharmaceutical companies and housing-first policies which prioritize housing for people no matter their health status.


About one in seven persons living with HIV pass through a correctional or detention facility each year, reports The Center for HIV Law and Policy. And when these people look to re-enter society, they face even more issues due to the criminalizing of their health status.


Incarceration often interrupts HIV care and treatment and provides greater difficulties for returning citizens from prisons and jails. There is no solid, consistent pipeline to get people back into care after release. Therefore, criminalization heightens the following challenges: family support, neighborhood violence, relationship with law enforcement, employment, mental health concerns and medical care and medication management.

Most recently this year, Missouri and Illinois chipped away at their respective HIV criminalization laws; however, it’s important to note chipping away doesn’t mean overturning the laws. This is called modernization. In Missouri’s case, their modernization means reducing the charges and sentencing faced by a person accused of exposing someone to the virus. This isn’t a complete overhaul of a ridiculous law. To quote Molly M. Pearson of Missouri HIV Justice Coalition: “the modernization law doesn’t go far enough.”

Pearson writes in TheBody: “People living with HIV deserve to be seen and valued more than a little blue pill. I want every person living with HIV to celebrate their birthday, go to the movies, have great sex, and lay on the beach with a cold beverage. I want people living with HIV to live, and it’s on us to build a world where they can, without fear.”

The Missouri HIV Justice Coalition has been pushing for HIV decriminalization for a decade and deserve much of the credit for advocacy in challenging the standing statutes.

Maybe, living in a global pandemic that has infected at least 219 Million people worldwide should drive home why criminalizing a disease won’t work. This criminalization focuses upon those already experiencing state violence, over policing and discrimination – namely Black and brown folks, sex workers, and drug users. And the resources never seem equitably distributed to these communities dealing with mounting oppression. Instead, they receive the worst of it all: criminalization, ridicule and stigma.


More states need to re-evaluate their HIV criminalization laws. What’s currently in place deprives people of their human dignity, stamping them as pariahs which creates a less healthy and equitable America for everyone.

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