The History of HIV Criminalization

FreeState Justice Executive Director Phillip Westry and Victims Advocate Coordinator Nina Ovian sit down with Jada Hicks, Senior Attorney at the Center for HIV Law & Policy. Listen in as the trio discusses the history of HIV in the U.S. and the stigmas that led to its criminalization. Then stick around till the end to learn about the amazing work Hicks sees from advocates fighting for decriminalization and what keeps her grounded as she enacts this vital work every single day.

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Visit www.hivlawandpolicy.org to learn more about Jada's fight against HIV criminalization.

Phillip Westry, Executive Director of FreeState Justice, is the host of Pathway to Progress. Learn about FreeState's fight to provide LGBTQ+ Marylanders with the FREE legal services they need at freestate-justice.org.

Pathway to Progress is produced by Joel Medina. 

Transcript

This podcast is brought to you by Free State Justice, Maryland's LGBTQ plus advocates. Free State Justice is a 501c3 nonprofit working to improve the lives of lesbian, gay, bisexual, transgender, and queer Marylanders. We do this work through a combination of pro bono legal services, policy advocacy, resource navigation, and community education. To learn more about Free State Justice, please visit freestate-justice.org.

Hello, and welcome to Pathway to Progress, a new podcast from Free State Justice about how the legal system impacts people living with HIV and the work people are doing to change it. I'm Nina Ovian, Free State's victim advocate coordinator.

Hey, everyone. I'm Phillip Westry, the executive director of Free State Justice. Today's episode is going to focus on modern HIV medical care options and how they're impacted by the current state of criminalization. A lot of our criminalization laws originated in the late 80s, at a time when HIV and AIDS was considered a death sentence. Thanks to remarkable scientific advances, HIV is preventable, manageable, and a treatable chronic disease. I'm excited about this conversation that we're going to have with Jada Hicks. Jada is the senior attorney at Center for HIV Law and Policy. She has a wealth of knowledge about the history of criminalization and I think folks are to learn a lot from her. So stay tuned and when we get back we're going to be talking to Jada Hicks.

Welcome back from our break. We're here today with Jada Hicks from CHLP. Jada, could you start us off by introducing yourself, CHLP, and kind of what the work you're doing there is? Yeah, of course. Thanks, Mina. So my name is Jada Hicks. I'm a senior PJP attorney at the Center for HIV Law and Policy.

So CHLP is an abolitionist legal and policy organization that envisions and works for a world where HIV and other stigmatized health conditions are no longer criminalized, meeting people with compassion and the resources that they need to thrive. So at CHLP, I head our Positive Justice Project, or PJP work, which is a national collaborative working to decriminalize HIV and other stigmatized health conditions.

So Jada, first again, thank you for joining us. Can you tell us a little bit about sort of how the HIV epidemic or the AIDS epidemic began and sort of what the response was at the time? 

Yes, so, you know, the AIDS epidemic really started in the early 1980s. For folks that don't know, it wasn't always called AIDS, right? It was this mysterious illness that was really taking hold in the gay community. It was really originally identified and thought of just as a gay men's disease. It appeared sporadically and then we started to see in around 1981, there were a lot of young men being diagnosed with Kaposi sarcoma, with pneumonia, typically with diseases that were associated with being immunocompromised. so alarms really started to go off as this mysterious illness just swept through communities. And so really what kicked it off was the CDC publishing report on these cases, this mysterious illness. And that article, a report in the MMWR, is really what technically kicked off the AIDS crisis. And later this illness was identified as AIDS. And from there we see the death toll just skyrocketing. In 1991, the CDC formed a task force to really investigate the most likely cause of this disease and to see if there were other areas that needed to be addressed like blood transfusions or other like patterns with transmission as well. So in the early and mid 1980s, you have these like rumors of a gay disease or gay plague as it was sometimes called, little is known about the disease, about roots and risk of transmission even. And that's really like where we start, where we see the beginning of the AIDS epidemic. 

And just for our listeners, MMWR, that's the morbidity and mortality weekly report that's published by the CDC, right? 

Yes, thank you. Sorry, acronyms. Thank you for that. 

We live with acronyms, but I just want to make sure folks know.

Yes, and then I also wanted to just point out as well that one of the things that we really saw kind of establish HIV as an epidemic and something that we've never seen before was that in the late 80s in 1988, we see the Surgeon General C. Everett Coop under a congressional mandate send out the understanding AIDS pamphlet. And this was sent to every American household. was the largest mailer in US history that talked about AIDS, the ways that it was transmitted, that you couldn't get AIDS through casual contact, really trying to bring awareness. We've never seen anything like that before.

I did not know that. That is very interesting. So kind of talking about this beginning of the epidemic, people are getting sick, people are dying, there's a lot of misinformation. How did we get from there to this carceral response towards HIV and AIDS? 

Yes, so I think the immediate response to HIV and AIDS is obviously one of fear, right? Of stigma. So much was unknown. And so we really start to see in the 1980s legislation specifically criminalizing the transmission of HIV. This is largely fueled by that panic surrounding the epidemic and not only that, but by homophobia. Again, it's still a widely held misconception that it's a gay disease. And so therefore we kind of see these intersecting issues of racism, of homophobia, of queer phobia, and panic all coalescing into a carceral response. And so really what we saw is President Reagan in 1987, the presidential commission on the HIV epidemic recommended that states adopt HIV specific criminal laws. Even though the purpose of that commission was actually to address severe discrimination faced by people living with HIV, we actually saw another avenue to discriminate people living with HIV come out of the council. And then what we saw was with the passing of the Ryan White Comprehensive AIDS Resources Emergency Act, which commonly referred to as the CARE Act. We saw that in 1990. And this really ushered in a new era of legislation. And under the CARE Act, once it was enacted, it actually conditioned additional funding to states based on the state's ability to use criminal laws to address, quote unquote, intentional HIV exposure and transmission. So you really saw this punitive response and you saw it tied to funding. So that's where we saw this proliferation of HIV criminalization being passed. 

Is it okay if I ask you a question about Ryan White, the person? 

Yeah. I'd love it if you ask me, yes.

Necause I think a lot of us who work in the sort of HIV realm kind of have a general sense of like, okay, I think I know who Ryan White is. Can you tell us who Ryan White was and sort of why the whole sort of response around Ryan White's life kind of changed the conversation a bit? 

Yeah. So, you know, what's so interesting too is I found in this work that sometimes people don't actually realize that Ryan White was a real person. They hear of the Ryan White Care Act and they think that it's a piece of legislation not realizing that is actually based on a young boy. so Ryan White was actually a 13 year old. He was a hemophiliac and he contracted AIDS from a blood transfusion. So this was before we had any of the blood screening that is currently in place now. So I want to start off by saying this is not something that we would see today. But so he contacted AIDS through this blood transfusion. And what we saw really was the discrimination and the panic and how it affected a white child from the suburbs. So we see that Ryan tries to return to school in Indiana. He actually faces AIDS related discrimination. They will not let him return to school. Again, this is in 1984. So we know at this point that HIV and AIDS is not gonna be spread by casual contact. And yet we're still seeing the discrimination play out for this young child where they have to fight and it has to get national attention basically. And this public education campaign about the disease where he was finally allowed to go back into school. Really the fear was that he would pass HIV to his classmates. And it took a years long court battle for Ryan to be able to return to school. And unfortunately, Ryan passed away in 1990. And so we see the Ryan White Care Act named after and honoring his legacy in kind of bringing this public attention not only to AIDS, but to the fact that the stigma surrounding AIDS and that it's not just gay men that are going to be affected by HIV, right? It's a young child. And so really bringing that public education piece into the AIDS epidemic fight.

Yeah, I think a lot of people too also think of Ryan White, even if you know who he is, like working in the field. It's so, I think, synonymous these days with funding for services. We don't really think about it in terms of the conversation around criminalization. So can you talk a bit more about that Ryan White Care Act and its implications around criminalization? 

Yes. So with the Ryan White Care Act, what happened was they actually passed a provision in the act itself saying that they wanted states to have strong enough criminalization laws to prosecute people who were transmitting HIV. And what we see at this time is we really see kind of a break away from normal criminal laws in that we don't see an intent to harm incorporated anywhere in this wave of legislation that's being passed. So I have a background as a prosecutor and that was actually something to me that was very shocking when I first got into this work. An intent to harm or an element of harm is almost in every criminal law that you can find. It is not in HIV specific criminal laws. And so you really see that sort of law take off in this moment. And of course, it's no longer, we no longer have that conditional funding requirement, but these laws remain and they are still on the books. And not only that, they really haven't been updated since then. So I think that that's something that's really key about HIV criminal laws. They're not, quote unquote, strict liability offenses, but they almost function as such, meaning you engage in an action and that's it. You're guilty, right? So typically it's someone has sex, they don't disclose their status, and then you're guilty of the offense. No requirement of transmission, no intent to harm. You don't have to engage in conduct that's likely to transmit. It's enough that you're a person living with HIV and you engage in some sort of sexual activity without disclosing. Jada, I'm so glad that you brought that up. And of course, to remind everybody who's listening, Maryland is still one of those states that has not updated their criminal law since 1989 around HIV. And yeah, as another attorney, it just, it's one of the laws that just doesn't make sense on his face, but here we are. Can you tell us a little bit about kind of what's going on in other states? I know that CHLP is doing some awesome work across the country. 

Can you tell me a little bit about what that looks like outside of Maryland? 

Yes, so many states are really working, I mean, tirelessly to reform their HIV criminal, right? It's really a battle. You guys know in Maryland, you'll get so close and then it just doesn't pass. Something comes up and revisiting strategies and approaches so that we can try and reform these laws. most of the coalitions that we are involved in are really trying to catch up the law so that it reflects what we know today about the reality surrounding the roots and risk of transmission of HIV. And Philip, what we were just talking about, incorporating that intent to harm piece. So we see a lot of states that are trying to either incorporate the intent to harm. They are trying to incorporate that transmission be required, trying to incorporate that someone engage in activity that is likely to result in transmission. Right there are some states right now where if a person living with HIV engages in sex play with sex toys, they can be criminalized. You cannot catch HIV that way. But you can go to prison in certain states, for example, Ohio, if you share a sex toy. And it's just wild because we have the science to back us up. And so we see a lot of states that are really trying to incorporate the science into the law. We also see other states that are trying to repeal. They're trying to repeal their HIV specific criminal offenses. And then you also see other states that are taking a public health approach and incorporating it into the public health code. Right, the main goal of reform is to really illustrate that we should be taking a public health approach instead of a carceral approach is a public health issue and carceral approaches. As we saw with the COVID pandemic, carceral approaches don't work. We really need to turn to public health in those moments.

Thank you for that. And I wanted to speak a little bit more broadly about that too, right? Like we talked about these laws started back then and a lot of them still exist now. But can you speak more about kind of how long it took before there was mobilization around repeal or modernization and kind of how long it took for people to make change or how long have people been working on this change?

Yeah, well, you know, the fight started immediately with the HIV epidemic, right? Like activists have been fighting since the very beginning. Activists are the reason the government even paid attention to the HIV epidemic. So I want to acknowledge that before we even get to legislative reform, there was a ton of advocacy work at the ground level, local level, the advocates engaged in. And they really set the stage for the advocacy work that we all engage in now. And so the first repeal that we see is actually Texas in 1994. They were the first state to repeal their HIV specific criminal law. And that had been years in the making. We don't see another reform though until the early 2000s, excuse me, mid 2000s, 2014, before we see another reform effort. So part of the problem is that a lot of times when you talk to people about HIV, the information that they have is still from the 1980s. You know, they don't have that knowledge surrounding HIV. They don't realize, for instance, you can't get HIV through spitting. I mean, we've had to do public health campaigns about spit does not transmit. So all of the battles that we fight, they're really long, they're hard fought and hard won for even the most incremental of change. But you really see in that mid 2000 region, states starting to reform their laws. So Iowa, Colorado, Michigan, Louisiana. We see some of them having incremental changes, some of them a little bit more wholesale. And it's really about what can happen in the political environment within the state.

First, Jada, thank you so much. This has been so thorough and the work that you all are doing at CHLP is amazing. And so I want to make sure that people know that they can visit CHLP's website to get more information. So recognizing the sort of emotional toll to the work that you do. What do you do that sort of brings you joy, either through that work or something that you do, outside of that work that brings you joy and kind of keeps you motivated and keeps you going. 

You know what? I feel like the advocates that fight alongside me, like really keep me going. They're some of the funniest people and we really like Kiki and laugh on our phone calls. Like they know my kids. They asked to see my kids. We really get to know each other, right? And so I think it's great to not only engage in this work together, but like to be friends outside of this work as well. So that really helps to keep me going. And on top of that, like my kids, right? Fighting for a world where I feel like my kids, no matter what their identities are, no matter where life takes them, that I want to make sure that they are safe, right? I'm raising Black children in a world where carceral responses target them. And so for me, HIV criminalization, like it's a racial justice issue. And so when I think of making the world better for my children, I think of improving anything I can that might affect and impact their lives. And that brings me joy, like trying to make the world a better place, as cheesy as it sounds. Like that really like, it empowers me to do this work. It makes it so I can keep going. And just like finding the light, the laugh, the joy, like where I can and celebrating. where we can, right? Not everything is gonna look like we are reform and get a bill across the line. We have to redefine wins sometimes and that's okay too. And doing that gives me joy and seeing my advocates get those victories and like watching them and that really just, it gives me the strength to keep up the fight. 

Thank you. And as cheesy as it is, I think it resonates with so many of us in this work community care. It's also so very important to all of us. But thank you. Thank you again for being here. Your expertise and everything you shared today was wonderful. I learned plenty of new things today. 

Thanks, y'all. I can't wait to have my mom listen!