Robert Suttle was 30 when he was arrested and imprisoned for the felony of “intentional exposure to the Aids virus”. He had met the man at a gay club on New Year’s Eve 2007 and they had quickly begun a relationship.
Suttle says he disclosed his status as HIV-positive to his partner immediately. However, when the couple separated a few months later, the man pressed charges claiming that Suttle had not disclosed his status. Suttle now views this as “retaliation” over the breakup.
Despite the fact Suttle was on treatment that brought his viral load low enough that he could not transmit HIV to another person, Louisiana police arrested him at his workplace and he was sentenced to six months in prison. The Louisiana law – like many across the US – focused on exposure and not transmission and did not require actual transmission for a conviction to occur.
HIV exposure or transmission is still criminalised in 33 US states under various laws, most of which involve disclosure and exposure. The laws fail to take into account that people like Suttle, on therapeutic medications, can be “undetectable” – meaning the risk of transmitting the virus is effectively zero, while the HIV prevention drug PrEP reduces the risk of infection by 99% when taken correctly. Having sex with another person when you are living with HIV can land you with years of prison time even though, thanks to modern science, HIV is no longer a death sentence.
Other HIV laws criminalise acts such as breastfeeding, biting and spitting. Many of these laws were instated in the 1980s, “when people were scared to death of HIV and didn’t know how HIV was transmitted”, explains Catherine Brown, executive director of the Elizabeth Taylor Aids Foundation, which runs the campaign HIV Is Not a Crime. The campaign does not aim to legalize rare cases of malicious contamination but to bring the laws up to date with contemporary science, specifically “U=U” – “undetectable equals untransmittable” – or the fact that HIV cannot be transmitted through saliva. It’s clear that these enduring laws are a result of HIV stigma, adds Brown, because other viruses are not criminalised in the same way.
“If you’re having sex and you know you’re HIV-positive in Louisiana, that is considered intent, it makes you criminally liable,” says Suttle. “We did have sex, so that’s the exposure – but they didn’t look into whether I was on treatment or used a condom. And if people say ‘did you disclose’, it doesn’t matter, because it’s one person’s word against the other’s.”
Although Suttle was incarcerated for six months over a decade ago, he is still paying the price. After leaving prison, he was placed on the sex offender’s register, a fact his neighbors were alerted to via mail notifications listing his “crime” and thus disclosing his HIV-positive status. “Being Black, being gay, being HIV-positive, then being an incarcerated person and a ‘sex offender’ in the conservative south?” he says over Zoom from his home in New York City. “I didn’t know how I was going to move forward.”
The overall number of people arrested under HIV criminalisation laws in the US is not tracked. However, HIV Justice counts at least 2936 cases to date, with the real number probably much higher. According to the Williams Institute, a thinktank at the University of California, Los Angeles, certain groups are disproportionately targeted.
“The data shows that Black transgender women and Black and brown men having sex with men are the two groups these laws disproportionately affect,” says Brown. Before Nevada updated its laws in 2021, for example, 28% of people living with HIV were Black, whereas 46% of convictions for HIV-related laws were against Black people. As of 2022, Black women are 290 times more likely to be on the registry for an HIV conviction than white men. Ten states also have laws specifically targeting sex workers, turning a prostitution charge – often a misdemeanor – into a felony for people living with HIV.
For those prosecuted under these laws, doing prison time or being placed on the sex offenders register can end up affecting their lives more than their diagnosis itself.
“I lost my retirement, my career, my home,” says Ken Pinkela, a former US army lieutenant colonel in his 50s who joined the military when it was illegal to be openly gay. Pinkela was convicted in June 2012 of an alleged aggravated assault for HIV exposure and spent 272 days in the military prison at Fort Leavenworth. Discharged from the military, and with an assault charge on the books (despite a lack of evidence), he struggled to find employment. “Once you’ve been convicted, it never goes away.”
Lashanda Salinas, 41, who was first diagnosed with HIV at 16, was convicted under HIV criminalisation laws in 2007. Her listing on the Tennessee sex offender’s register ranks highly among Google search results for her name.
In 2006, Salinas – then on treatment – began a relationship with a man. “I told him I was HIV-positive and asked if he was OK with that and he said he was,” she says. They moved in together and later separated.
“About a month or two after our relationship ended, I’m at my job and a police officer walks in and says: ‘Are you Lashanda?’ I said, ‘Yes, ma’am,’ and she said, ‘You’re under arrest.’ I asked her what I had done and she said: ‘Your boyfriend says you did not tell him that you are HIV-positive and he’s bringing charges against you.’”
In the police car on the way to Nashville, Salinas tried to tell the officer that something wasn’t right; her partner knew she had told him. “But when I got in jail and those doors locked, I realised this is not a prank – this is what he is really doing.”
Salinas ended up serving nearly two months in jail, after accepting a plea bargain of three years’ probation. As in Suttle’s case, the judge did not tell her that upon release, she would be placed on the sex offenders register for 15 years because her crime was a sexual offence. She was required to take sex offender classes, must pay $150 a year to be on the register, and is not allowed around anyone under the age of 18. Her cousin graduates this year and she is unable to attend the ceremony. “I just want a normal life,” says Salinas. “My life is nowhere near normal.”
Since her conviction, Salinas has asked a partner to sign a written document attesting to her disclosure of her HIV status. In future, she says, she would consider videoing a partner as she discloses her status. “That’s the only way I can have some kind of stability so this won’t happen again,” she says.
As Pinkela points out, the laws put pressure on those who are living with HIV to disclose their status before they are ready, or when it might not be safe to do so.
The American Psychological Association also notes the laws can also increase risky behaviour when it comes to HIV and therefore appear to do more harm than good. Brown agrees that these laws are stifling the fight against Aids, citing UNAids’s goal of eradicating HIV globally by 2030: “The issue with criminalisation is people are afraid they will be arrested if they test positive. Yet if we have the issue of getting them tested, then we can’t get them into treatment, and that’s a barrier to us ending the epidemic.”
The problem extends far beyond the US. On a global level, HIV Justice Network has recorded 270 arrests across 39 countries over the last three years, although the real number may be closer to 700. Conviction rates were highest in Uzbekistan, Russia and Belarus, followed by the US. Many countries also maintain travel restrictions against people living with HIV, while more than a dozen countries worldwide hold residency bans.
According to Ken Pinkela, who now campaigns against the laws, the work involves educating prosecutors and legislators about contemporary HIV science, as well as the UN’s recommendation for limiting HIV criminalisation to rare cases of intentional transmission, where malicious intent can be proven beyond a reasonable doubt.
S Mandisa Moore-O’Neal, a former civil rights attorney and now executive director at the Center for HIV Law and Policy (CHLP), agrees with this approach. “If we are serious about ending the epidemic, we must update these laws, including repeal if we can ensure that what is created in their place won’t have to be reformed 10 years from now,” she explains. She adds that we should “not fall into the trap” of using one’s undetectable viral load – which can change in a person’s lifetime – as the sole basis for modernizing these laws. “It should be based on a specific intent to transmit and actual transmission.”
In April 2022, a federal court ruled that the Pentagon’s restriction policies regarding service members with HIV were outdated and unconstitutional. Pinkela hopes this indicates the same approach may be applied to more state laws in the near future.
Since the Elizabeth Taylor Aids Foundation launched HIV Is Not a Crime in 2020, six states have updated their laws, with the help of awareness-raising from celebrities such as Andy Cohen and Paris Jackson. However, in November 2022, Pennsylvania’s governor, Tom Wolf, signed a new law charging people with a second-degree felony and up to 10 years in jail if they knew or “should have known” that they had a communicable disease after transmitting it to someone else. Nonetheless, “we’re continuing on campaigning in seven states in 2023”, says Brown.
In the meantime, what is devastating, Pinkela says, is that someone in the US reading this who has recently been diagnosed with HIV may be finding out for the first time that these laws exist. They may be wondering whether they can engage in sexual relationships at all. He reminds them that HIV is not a death sentence and advises them to talk to their doctor and get to know the laws in their area using resources such as HIV Justice and CHLP.
“Those three letters just still seem to invoke such fear,” says Pinkela of enduring HIV discrimination. He hopes that seeing the faces of healthy people living with HIV like himself helps get the message across that it should not be viewed differently from other chronic health conditions.
For Salinas, advocacy work has been a way to reclaim self-esteem and a sense of identity when it has been so difficult to get a job. “I got to the point where my voice needs to be heard, to affect somebody, somewhere, somehow. If not for me, I want these laws changed for the people behind me.”
