Modernize and Reform HIV Criminalization Laws: The Role of Federal Mandates in the United States

Marcheskie, Rachel [Browse]
Senior thesis


Metcalf, C. Jessica [Browse]
Class year
Summary note
Across the world, countries have HIV-specific laws which criminalize individuals who expose others to HIV without disclosure. The United began to institute HIV exposure laws to comply for funding from the federal government for HIV support in the late 1980’s. These laws populate 32 U.S. States today, and people living with HIV are still prosecuted by general criminal laws in states without HIV-specific criminalization law. This thesis investigates the public health implications that these laws have had on the HIV pandemic and people living with HIV, and in doing so, recommends a federal mandate to modernize state legislation. In addition, it calls for more preventive efforts in the forms of greater access to drugs and education. When HIV first arrived in the United States, it travelled quickly and had an extremely high mortality rate. Due to the populations that were struck by it, stereotypes about who was more susceptible to HIV started cropping up. These ostracized groups included homosexuals, hemophiliacs, drug users, and to an extent, minorities in the United States. The arrival of HIV coincided with a change of social strategy from rehabilitation to incarceration for governing public health problems. This combination created a critical foundation for the formation of HIV criminalization laws. Great strides in medicine have been made, which have significantly dropped HIV new infection and mortality rates. However, leftover stigmas follow HIV everywhere it goes, especially in the form of outdated HIV criminalization laws. In a time when HIV is no longer a death sentence, stringent HIV criminalization laws have not been shown to deter individuals from acting sexually unsafe. They have been linked to discouraging testing, which has the potential to make the HIV pandemic much worse, as testing is key to treatment. In addition, many people who end up prosecuted by HIV criminalization laws are, by a large proportion, sex workers or minority populations, as they are already over policed. A significant share of prosecutions also occur for behaviors that pose zero to negligible risk of transmission. Other potentially dangerous communicable diseases are also discounted in most of these laws, as states only have laws that criminalize HIV. This thesis recommends specific policy changes for criteria that must be met in order for someone to be prosecuted. The criteria includes equality in sentencing between laws regarding all infectious diseases, accountability for malicious intent, recognition of attempts to prevent transmission, consideration if infectious disease was spread, exclusion of negligible risk activities, and reasonable sentencing, with a preference for rehabilitation. These policy reformations are expected to decrease the stigmas that surround HIV disclosure, and potentially increase testing. The success of antiretroviral medicine and more accurate testing is the cornerstone to prevent HIV and create a higher quality of life for people living with HIV. Along with policy changes, this thesis recommends an increase of funding towards supplying vulnerable populations with access to antiretroviral medicine and more comprehensive testing centers. In addition, this thesis recommends an extensive marketing campaign that educates the public about risk statistics for certain sexual behaviors. Joining these measures all together have the potential to have an impact on the HIV pandemic as a whole.
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