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Switch On Your HIV Smarts.

New legislation would replace “outdated” and “dangerous” HIV criminalization laws

, by Emily Newman

Scott Wiener, HIV criminalization press conferenceHIV is not a crime. That was the message delivered at a press conference by a group of California lawmakers and community leaders as they unveiled a new bill that would modernize laws that criminalize and stigmatize people living with HIV.

Today, Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego) announced the proposed bill and highlighted the fact that current laws increase HIV-related stigma and are at odds with the current HIV treatment and prevention options available today. They were joined at the event by Assemblymember David Chiu, Rick Zbur of Equality California, Naina Khanna of the Positive Women’s Network, Edward Machtinger, MD of UCSF, Shannon Weber, MSW of HIVE, and city supervisor Jeff Sheehy, who all spoke in support of the bill.

The press conference was hosted at Strut, the San Francisco AIDS Foundation health and wellness center in the Castro neighborhood of San Francisco.

Naina Khanna, executive director of the Positive Women’s Network

Naina Khanna, executive director of the Positive Women’s Network

“Laws criminalizing people living with HIV place us at risk for harassment, for profiling by the police, they place us at risk for violence in our own homes,” said Naina Khanna, executive director of the Positive Women’s Network. “When HIV status can be used as a weapon, within the context of a relationship, that can prevent you from leaving a violent relationship. And we know these laws impact women and people of color even more than other communities.”

In 1988, the state of California passed several laws that criminalized behaviors of people living with HIV—behaviors that if not for an HIV-positive status, would otherwise be legal.

More than 25 years later, with advances in both HIV treatment and prevention, people living with HIV can still be prosecuted for doing things that pose little to no risk for HIV transmission. HIV criminalization laws make it illegal for an HIV-positive person with an undetectable viral load to have sex with an HIV-negative person taking PrEP if the person living with HIV doesn’t disclose their HIV status, for example. And importantly, people living with HIV can still be punished under the existing laws even if HIV transmission doesn’t occur.

The proposed legislation would modernize California’s approach to HIV in the penal code—and get rid of provisions that apply only to HIV and not any other infectious disease, said Senator Wiener.

“[SB-239] will eliminate discriminatory, outdated, non-science-based laws that were passed in the 1980s and early 1990s that single out people living with HIV for criminal prosecution. That create felonies and send people to state prison because they are HIV-positive,” said Wiener.

Machtinger, a clinician at UCSF, said that state laws that criminalize HIV status are the “worst offenders” in terms of propagating HIV stigma. “These laws, as they are currently written, are not only outdated and ineffective, but they’re dangerous. They’re dangerous because they create a climate of fear and discrimination that lead to more HIV infections. And they’re also dangerous to the health and well-being of men, women and children living with HIV.”

“Repealing these outdated laws is good for individuals and for public health,” said Weber. “It makes sense. Because HIV criminalization has reinforced stigma for decades. This has really built up many barriers for people to get an HIV test, a barrier to disclose an HIV status to their partner, a barrier to be engaged in care. These outdated laws need to catch up with the science.”

“It is my hope that we can pass this legislation,” said Gloria. “This is not a Bay Area thing. It’s a state-wide thing. Folks in San Diego are passionate about this issue. Folks in Los Angeles are passionate about this issue. And because of this coalition of community supporters we will make sure that Sacramento cares about this issue.”

Read more about how HIV criminalization laws disproportionately punish people of color on BETA and a lawyer’s perspective on the injustice of HIV criminalization.  

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