Pressure Mounts Against HIV Criminalization as Prosecutions Continue

When Robert Suttle talks about his conviction for knowingly exposing someone to HIV, he doesn’t mince words.

“My character, the things that I’ve done in life that I’ve achieved, are counter to this perception of me as a criminal,” Suttle said. “It just doesn’t align.”

The criminal charges against Suttle stemmed from a brief, casual relationship in the early 2000s, after which he said his HIV status came into question through a mutual friend who knew he lived with the virus. The Shreveport Police Department investigated and eventually arrested Suttle at work in 2008, in front of co-workers who, he told The Appeal, were unaware he was gay and had HIV.

In 2009, Suttle was convicted and ultimately sentenced to serve six months in prison under a Louisiana law that makes it illegal to fail to disclose HIV status to sexual partners. Unlike most HIV criminalization laws, Louisiana is one of a handful of states that also requires people convicted under the statute to register as sex offenders.

As a gay Black man, Suttle sits at an intersection of two communities that police and the broader criminal legal system have historically targeted. He said it’s nearly impossible to describe how the ordeal changed his life. At the time of his arrest, Suttle was a clerk at the Louisiana Second Circuit Court of Appeal and not publicly out to his family. Thirteen years later, he lives in New York City and says he is still registered as a sex offender, a status he hopes to rectify in the coming years. He serves as chair of the Elizabeth Taylor AIDS Foundation’s HIV Is Not A Crime Council of Justice Leaders, where he works to end prosecutions like the one that took so much from him over a decade ago.

Although some view the criminalization of HIV status as a relic of the HIV/AIDS epidemic’s early days and the bigotry, ignorance, and fear that defined the era, Suttle’s dedication to this work remains critical today. Roughly 30 states—including Louisiana—still have some form of HIV criminalization law or sentencing enhancement on the books, according to the Center for HIV Law and Policy (CHLP). And prosecutors continue to file charges under these statutes with stunning regularity.

“There’s almost not a week at this point that goes by where there isn’t a case,” said Kenyon Farrow, a public health activist who tracks HIV-related prosecutions. Farrow is also the managing director of advocacy and organizing for Prep4All, a grassroots group that organizes to increase access to HIV treatment.

But there are signs of progress. In a World AIDS Day address last December, President Joe Biden called for moderating and updating HIV criminalization statutes, saying it was time to “follow science.” In June, law enforcement officials and infectious disease experts gathered at the White House to discuss modernizing laws to better reflect the present-day reality of HIV and its transmission.

The nearly 50 prosecutors and infectious disease experts in attendance broadly agreed that criminalization does not serve public health, said Catherine Hanssens, CHLP’s executive director. CHLP helped convene the meeting, along with the Association of Prosecuting Attorneys (APA) and the White House Office of National AIDS Policy. APA chair Dave LaBahn said that at the very least, laws need to be updated to account for scientific advances that both protect HIV-negative people from contracting the virus and prevent people with HIV from transmitting it.

Advocates say the goal of modernizing HIV laws must be to minimize the harms they cause, including their disparate impact on Black and brown people living with the virus. Public health experts warn that HIV criminalization statutes, originally touted as a measure to curb the virus’s spread, instead discourage testing and, by extension, hamper efforts to understand the true scope of the country’s HIV epidemic.

As the momentum for reform builds, the question now is how these changes will take shape.

In the past five years, states such as Georgia, California, and Virginia have reformed their laws to lessen punishments while still maintaining avenues for prosecution in some cases. HIV activists say these changes don’t go far enough and are in broad agreement in their support for fully repealing the laws. They also note that because many states also use general criminal laws to prosecute HIV-related crimes, reform efforts specifically targeting HIV criminal statutes may not be sufficient.

In one such case, a New York man was convicted in state court on an enhanced charge of aggravated assault after biting a police officer in 2006. Although similar incidents might have been considered simple assault, because the man was living with HIV, a lower court considered his saliva a “dangerous weapon.” He was sentenced to 10 years in prison, but in 2012 the New York Court of Appeals overturned the conviction and he was released.

Advocates in recent months have also raised concerns about a molecular surveillance system, which the Centers for Disease Control and Prevention uses to monitor a number of data, including genetic changes to the HIV virus. Critics fear the system could have implications for criminal charges.

In January, New Jersey became just the third U.S. state to repeal its HIV criminalization law, after Illinois last year and Texas in 1994. Previously in Illinois, exposing others to HIV without their knowledge was classified as a felony punishable by up to seven years in prison.

When I wrote about HIV criminalization in Illinois last year, I found that an overwhelming majority of people charged in Cook County—home to Chicago—were Black, and that the law had repeatedly been applied in cases where there is no evidence of HIV transmission or transmission is exceedingly rare, namely when people spit on or bite a police officer during arrest.

But the disparate impact of Illinois’ law isn’t unique. Research has shown that HIV criminalization laws in Florida, Georgia, Tennessee, Missouri, and other states are disproportionately used to target sex workers and Black and brown people living with the virus, according to the Williams Institute, a think tank at the UCLA School of Law that focuses on sexual orientation and gender identity law and public policy. Experts say this phenomenon is particularly troubling given that Black men who have sex with men are most at risk of contracting HIV in the United States.

Nathan Cisneros, an HIV criminalization analyst at the Williams Institute, said charges are often filed in circumstances where transmission of HIV is extremely rare, such as through spitting or oral sex.

“HIV criminal laws appear to be trying to solve public health issues through the criminal legal system,” he said. “And I wonder—if, indeed, the problem is a public health issue—whether the most appropriate government mechanism for dealing with that issue is through the criminal system.”

One of the chief criticisms of HIV criminalization laws is that they have failed to evolve even as advances in treatment have turned the virus from a death sentence into a manageable chronic illness. Most statutes also don’t account for novel medications known as pre-exposure prophylaxis, or PrEP, which are up to 99% effective at preventing transmission of the virus. States that do explicitly account for PrEP, such as North Carolina, use it as a means to exempt people living with HIV from prosecution if an HIV-negative partner takes the medication. Other states, like Iowa, make exceptions in cases where sexual partners take practical measures to prevent transmission of the virus.

HIV criminalization laws also largely fail to acknowledge the reality that people living with HIV can no longer transmit the virus if the amount of HIV in their blood is low enough to be considered undetectable—as is the case for many people who strictly adhere to regimens of antiretroviral drugs to treat HIV.

Tami Haught, managing director at the Sero Project, a national network of activists who aim to repeal HIV criminalization laws, has firsthand experience with how the laws can impact people living with HIV. Haught, who has lived with HIV for nearly 30 years, said her late husband for years lived with the fear that Haught’s family would push her to file charges against him after they were both diagnosed with HIV in the 1990s. Haught’s husband died in 1996 of pneumonia, kidney failure, and AIDS-related complications. But Haught said he also suffered significantly from fear, shame, and psychological trauma, in part due to the specter of being prosecuted under Iowa’s HIV law.

Haught testified before the Iowa Legislature twice in support of changing the law. In 2014, she helped update the state’s HIV statute to eliminate a 25-year prison sentence and allow for a tiered sentencing system, including felonies and misdemeanors, depending on the circumstances of the case.

While Haught said she’d prefer to see these sorts of laws repealed altogether, she acknowledged reform is rarely that simple.

“We don’t live in a [perfect] world, unfortunately,” Haught told The Appeal. “And there’s so much ignorance and lack of education, and that’s increasing around HIV. The lack of awareness is increasing to where I’m more for reform with specific guidelines on intent and transmission of HIV.”

Another central criticism of HIV criminalization is that the laws actually disincentivize people from getting tested. After all, people who don’t know their HIV status cannot “knowingly” expose others.

Farrow, the activist, said this is one reason reforms hinging on effective HIV treatment will not address racial disparities in prosecutions. This is especially true in the South, where recent CDC data shows the rate of new HIV infections is the highest—and where healthcare coverage for HIV-related medical needs is most lacking, according to Farrow.

“The likelihood that a person is living with HIV and maybe does not know their status is much higher in the states that, frankly, do a lot more of the criminalizing through the nondisclosure exposure,” Farrow said. “But they’re also the states that have done the absolute least to help people who are living with HIV get access to treatment.”

Advocates are also exploring new legal avenues to roll back HIV criminalization. In a 2021 Yale Law Journal article, Yale Law School fellow Joshua Blecher-Cohen argued that HIV criminalization laws violate the American with Disabilities Act, which explicitly applies to people living with HIV or AIDS. Although lawsuits challenging HIV criminalization laws under constitutional arguments have summarily failed, Blecher-Cohen wrote that lawsuits citing the ADA could pass muster.

For people like Suttle whose lives have been upended by HIV-related prosecutions, the damage has already been done. Still, Suttle said, change can’t come soon enough.

“It’s something I carry with me every day,” he told The Appeal. “Like most people who have faced the criminal justice system, they carry these traumatic experiences with them. I don’t think it’s something I’ll ever forgive.”