We Modernized California’s HIV Criminal Laws & the Right Wing Attacked

Just when you think we’ve moved beyond HIV-related ignorance and fear, this happens.

Last week, Governor Jerry Brown signed SB 239, a bill I co-authored to modernize California’s HIV criminal statutes by treating HIV *exactly* the same as other serious and deadly diseases such as Ebola, SARS, hepatitis C, and tuberculosis: as a misdemeanor. Under current California law, only HIV is treated as a felony, and you don’t have to infect anyone — or even create a risk of infection — to be guilty and go to state prison.

SB 239 recognizes the fundamental reality that jailing sick people isn’t a good public health strategy. You reduce HIV infections (and infections for other diseases) not by sending people to state prison, but rather by getting people tested and into treatment and by educating the public. That’s why pretty much the entire public health community, including the Health Officers Association of California, county public health directors, the California Medical Association, HIV physicians, and other key public health voices support the bill.

Since the bill was signed into law, the right wing has had a meltdown, with vile posts reminiscent of the ignorance, hatred, and fear that led to these laws being passed in the 1980s and that led, at that time, to calls to quarantine people living with HIV.

Just as sad, some media outlets have played into this reactionary response with what can only be described as sensationalistic, click-bait headlines. (Kudos to the Sacramento Bee and San Francisco Chronicle, in addition to the Bay Area Reporter and other LGBT press, for working to report this issue accurately.)

I thought we’d moved past the 1980s demonization of people living with HIV. I guess not. Whether in 1985 or 2017, people living with HIV are viewed as sociopaths who run around trying to infect people. Never mind that that kind of behavior is very rare. Never mind that those aren’t the people being prosecuted under these laws. Never mind that SB 239 keeps on the books the sentencing enhancement for HIV-positive people who rape people.

For those who are interested in the facts about SB 239 and HIV decriminalization generally, here they are:

-California law treats every other serious and deadly infectious disease as a misdemeanor. Only HIV is singled out for harsh felony treatment. That’s wrong and makes no sense. SB 239 doesn’t eliminate criminal penalties for reckless behavior by people living with HIV. Rather, it simply aligns our criminal treatment of HIV with how we treat every other serious infectious disease in existence: as a misdemeanor. That’s why the Los Angeles and San Francisco District Attorneys endorsed the bill and no law enforcement agencies opposed it.

-Under current California law, you don’t have to infect anyone with HIV — or even create a risk of infection — to be guilty of a felony and sentenced to state prison. If you are non-infectious — for example, if you are on medication and thus can’t infect anyone — you’re still guilty. For one of the felonies, relating to sex workers, you’re guilty even if you never have physical contact with the person. These laws are extreme.

-The right wing attacks on SB 239, and some irresponsible media accounts, focus on the exceedingly rare situation where a sociopath runs around and intentionally tries to infect people. That’s not who’s being prosecuted under these laws. Who’s being prosecuted? An awful lot of women, particularly African American women and transgender women. Women constitute about 12% of HIV-positive people in California, but they account for 43% of prosecutions under these laws. Yet, the popular stereotype of the male sociopath trying to infect people persists, the facts notwithstanding.

Positive Women’s Network speaking about why SB 239 is important to keep women safe. Photo: Bay Area Reporter

-These HIV felonies trap women in abusive relationships. When HIV-positive women try to leave an abusive relationship, their abusers at times respond by telling them that if they leave, the abuser will call the police and say that the woman never told him she was positive. Indeed, prosecutions under these laws often grow out of a break up, followed by retaliation. That’s why one of the strongest and most vocal supporters of SB 239 is the Positive Women’s Network, an organization that advocates for women living with HIV, and why Planned Parenthood supports the bill.

-The newest attack on SB 239 focuses on the bill’s repeal of an unused felony relating to blood and tissue donation by HIV-positive people. Why is this particular felony never charged? Because due to modern testing technology, it’s almost impossible to get HIV from a blood transfusion. If a blood donor knows he or she is HIV-positive — in other words, if he or she gets a test that comes back positive — that means that when the blood bank tests that person’s blood, which they always do, that test will also come back positive, and the blood will be discarded and won’t infect anyone. If the blood bank tests the blood and the test comes back negative but is actually positive (that could happen if the infection occurred within a few weeks of the blood draw), then the donor’s HIV test also would have come back negative, meaning he wouldn’t be guilty of a crime since he never tested positive.

-Let’s talk about how you actually reduce infections, which is presumably what all of us across the political spectrum want. You don’t reduce HIV infections by threatening to throw people in jail if they engage in behavior that might transmit the virus. That’s why the Obama Administration advocated repeal of HIV-specific criminal laws. Criminalizing health conditions isn’t a good prevention strategy and only serves to keep people in the shadows and encourage them not to be tested, since if you don’t get tested you’re ignorant of your status and can’t be guilty. We know this in San Francisco because after HIV wreaked so much havoc in our city, we adopted aggressive public health strategies — not criminal strategies — to reduce infections. We made HIV testing ubiquitous, we made it really easy for people who test positive to get into treatment quickly and stay in treatment, we promoted needle exchange, we engaged in major public education campaigns, and we made first condoms and then PrEP (a daily pill that almost eliminates HIV risk) easily available. The result? HIV infections in San Francisco have collapsed by about 90%, dropping from over 2,000 new infections a year in the early 1990s to slightly more than 200 in 2016. And, our infection rate continues to go down every year.

These are the facts. For those who want to continue to demonize HIV-positive people and advocate that jailing sick people is a good public health strategy, that’s your right. But for those who are interested in the facts, I hope this helps.



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Scott Wiener

CA State Senator. Urbanist. Environmentalist. Advocate for transit, housing, clean energy, criminal justice reform, health, ending poverty. Democrat. 🏳️‍🌈