California Lawmakers Introduce HIV-Decriminalization Bill: “Living With HIV Should Not Be A Crime”

"These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals," said state Senator Scott Wiener.

Lawmakers in California have introduced legislation to revise HIV criminalization laws, which currently impose stiff prison sentences for activities that pose little or no risk of transmission.

Introduced by Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego), Senate Bill 239 would amend California’s HIV criminalization laws to make them consistent with statutes for other serious communicable diseases. It would also bring the laws up-to-date with the current understanding of HIV prevention, treatment and transmission.

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According to California Health and Safety Code section 120291(a), actual infection does not need to occur for a crime to be committed.

Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.

“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Wiener. “They need to be repealed.”

California’s current HIV laws were passed in the 1980s, when knowledge about the virus was limited. Some even called for a full quarantine of HIV-positive Americans.

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“It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV,” he added. “It’s time to repeal these laws, use science-based approaches to reduce HIV transmission (instead of fear-based approaches), and stop discriminating against our HIV-positive neighbors.”

Hillary Clinton promised to reform antiquated HIV-criminalization laws during her presidential campaign. The patchwork of statutes in this country has led to draconian penalties: Nick Rhoades, an HIV-positive man in Iowa, was sentenced to 25 years in prison—and had to register as a sex offender—for not telling a partner he carried the virus, even though his viral load was undetectable, he wore a condom, and his partner did not contract the virus. (Iowa finally amended it statues in 2014, allowing Rhoades’ record to be wiped clean.)

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They also disproportionately affect women and people of color: Of those convicted under California’s HIV laws, 43% were women, despite women comprising only 13% of people living with HIV in the state. And though Blacks and Latinos comprise half of HIV-positive Californians with HIV, they make up more than two-thirds of people cycled through the criminal justice system because of their status.

HIV-criminalization laws also discourage testing: A 2016 survey found that 25% of HIV-positive respondents knew at least one person who refused to get tested for fear of criminal prosecution. (The same study found 58% of transgender people believe it is reasonable to avoid testing for fear of prosecution.)

With SB 239, said Gloria, “California takes an important step to update our laws to reflect the medical advances which no longer make a positive diagnosis equal to a death sentence.”

Dan Avery is a writer-editor who focuses on culture, breaking news and LGBT rights. His work has appeared in Newsweek, The New York Times, Time Out New York, The Advocate and elsewhere.