Gov. Jerry Brown signed Senate Bill 239 into law, putting California at the forefront of states modernizing HIV laws.
These laws – which criminalize otherwise legal conduct of people living with HIV and increase criminal penalties based on a person’s HIV-positive status – were passed at the height of the AIDS crisis, when the public perceived HIV as a death sentence, and there was no effective treatment.
Nearly 30 years later, while HIV remains a serious chronic condition, patients who take their medications can expect to have a near-average lifespan. Also, most scientists agree that those who lower the amount of HIV in their body to an undetectable level cannot transmit the disease.
By modernizing these laws, California took a step toward reducing stigma around HIV, which can help people feel safe to get tested, seek care and protect themselves.
Before, it was a felony for a person to engage in sex without a condom without disclosing their status if they had intent to transmit HIV. That law was often used as leverage when an abusive partner would threaten to go to the police if their HIV-positive partner tried to leave the relationship.
The new law recognizes that disclosure and condoms aren’t the only way to prevent transmission or prove lack of intent. It incorporates other preventive measures and additional ways to prove they did not act with intent. And it also covers any serious transmissible disease with significant public health implications, such as people with SARS using public transit.
Before, public health officials could compel individuals to comply with treatment. The new law still allows them to do so in emergency situations.
The old law allowed HIV-positive individuals arrested for solicitation to be punished more harshly than others. It was unfairly and disproportionately applied to women and people of color, and put immigrants at risk of deportation.
The new law repeals the felony that applied only to sex workers living with HIV. Reduced criminalization in other countries has given sex workers increased power to demand safer sex practices.
It is easy to be lulled into a false sense that California’s HIV criminal laws were keeping us safe from HIV. We thank the governor and Legislature for their vision to see these laws needed changing.
Ayako Miyashita is director of the Los Angeles HIV Law and Policy Project at the UCLA School of Law. She can be contacted at email@example.com.