In Illinois, engaging in certain activities as a person living with HIV can be a felony, punishable by a prison sentence and $25,000 fine. But public health experts say the law is harmful and outdated. Advocates for change say it is ineffective at stopping the spread of HIV, and instead acts to increase shame and stigma.
The original 1989 law was part of legislative efforts across the nation crafted during a time of rapid transmission of HIV, when the virus was still largely misunderstood. The state law was part of the "gay panic," according to state Sen. Robert Peters, D-Chicago, sponsor of a new bill to decriminalize HIV. "What we want people to do is to seek the treatment that they need, to seek counseling that they need, to get the help they need – and not to feel like they need to live in the shadows," said Peters.
HIV-positive people can be prosecuted for having unprotected sex without disclosing their HIV status beforehand. Current statute requires there to be "specific intent to commit the offense." But, according to The Center for HIV Law and Policy, Illinois courts have not clarified whether that means there must be specific intent to transmit HIV, or rather intent to perform acts covered by the law – such as engaging in sexual activity or sharing needles for drug use. Transmission of HIV is not a requirement for prosecution.
Currently, people can only be charged with a crime related to having HIV if they know of their positive status. Chris Wade, health equity adviser for the Illinois Public Health Association, said instead of protecting people from the virus, current policy can prevent some people from wanting to get tested. HIV is the only disease in Illinois that's been criminalized, he said. Since transmission of HIV is not a requirement for conviction, legal cases can come down to one person's word versus another's.
"We need to treat HIV like any other chronic disease, using proven effective public health strategies and science," said Wade. Since 1989, much more is known about how to prevent the spread of HIV and how to treat people living with HIV so they may have long, healthy lives. "Transmission of communicable disease is a public health issue, not a crime," said Wade.
Through advances in treatment, HIV-positive people can reach a point where the virus is undetectable. The U.S. Centers for Disease Control and Prevention (CDC) says those who are undetectable cannot transmit the virus via unprotected sex. In addition, pre-exposure prophylaxis – known as PrEP – can reduce the risk of transmission of HIV by more than 96%. PrEP is a pill those who do not have HIV but who are at risk of getting the virus can take to prevent infection.
The CDC points to five states – California, Colorado, Iowa, Michigan and North Dakota – that have modernized HIV criminalization laws since 2014. That was the year the Civil Rights Division of the U.S. Department of Justice published a report along with the CDC that found general best practice would have states reform existing laws to eliminate HIV-specific criminal penalties.
Current law in Illinois serves as a "barrier to testing and treatment," said Timothy Jackson, director of government relations for AIDS Foundation Chicago. He said people in focus groups the organization has led have confirmed they don't get tested for HIV because they don't want to open themselves up to litigation. "We want everyone to get tested for HIV," Jackson said. "We know that these laws are inherently discriminatory." AIDS Foundation Chicago has compiled a list of about 90 public health and community organizations – including the Chicago Department of Public Health and the Phoenix Center in Springfield – that support the measure to decriminalize HIV.
Jackson said so far his organization has found more than 20 instances where the law has been applied in Illinois since 2012. Jackson said the University of California, Los Angeles plans to help study the broad impact the law has had in the state, and he expects the effort to turn up many more examples.
Black women are disproportionately impacted by HIV, compared to women of other races. "Although annual HIV infections remained stable among Black women from 2014 to 2018, the rate of new HIV infections among Black women is 13 times that of white women and four times that of Latina women," according to the CDC.
Meanwhile, Black men who have sex with men accounted for more than a quarter of new HIV infections in 2018, Hispanic/Latino men who have sex with men accounted for 22% and gay and bisexual men under the age of 35 of all races accounted for 46% of new HIV infections.
State Sen. Peters said it is time for Illinois to repeal laws that discriminate against LGBTQ people and people of color. "I think it's time for us to move away from a position of fear."
Contact Rachel Otwell at firstname.lastname@example.org.