Since 2001, at least 97 people have been arrested under Virginia laws that criminalize people living with HIV, hepatitis B, and syphilis, according to a new report by the Williams Institute at UCLA School of Law. HIV-related crimes are disproportionately enforced on the basis of race and sex, with Black men being the most likely to be arrested and convicted.

Using data obtained from the Criminal Justice Information Services Division of the Virginia Department of State, researchers found that charges were filed in over 70 percent of HIV-related arrests in Virginia and more than half of them resulted in a guilty outcome, resulting in sentences averaging 2.1 years.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based upon a person’s HIV-positive status. More than two-thirds of U.S. states and territories have enacted HIV criminal laws.

Until this year, Virginia’s HIV criminalization statute contained a felony provision — which prohibited people living with HIV, Hepatitis B, or syphilis from engaging in sexual activity of any kind with the intent to transmit the infection — and a misdemeanor charge for engaging in sexual activity without disclosing a positive status.

“In reality, people have been charged with felony crimes under Virginia’s HIV criminal laws simply for not disclosing their status,” said lead author Nathan Cisneros, HIV Criminalization Analyst at the Williams Institute. “For two decades, Virginia law has singled out people living with HIV for criminal prosecution without requiring actual transmission or even the possibility of transmission. Moreover, the law ignored whether the person living with HIV is in treatment and virally suppressed, and therefore cannot transmit HIV.”

KEY FINDINGS 

• At least 97 people in Virginia have been arrested for HIV-related criminal offenses since 2001.
• Black people account for 20 percent of Virginia’s population, but 58 percent of the state’s people living with HIV, and 68 percent of all those arrested for HIV-related offenses.
• Men comprise 75 percent of people living with HIV in Virginia, but 87 percent of people arrested for HIV-related offenses.
  • Black men are 40 percent of people living with HIV in Virginia, but 59 percent of all people arrested for HIV-related offenses.
• Nearly one-fifth (18 percent) of those arrested for HIV-related crimes had no other criminal history.
• Charges were filed in over 70 percent of HIV-related arrests in Virginia. And over half (54 percent) of all charges filed resulted in a guilty outcome.
• Guilty outcomes resulted in an average sentence of 2.1 years.
• Incarcerating people for HIV-related offenses has cost Virginia at least $3.2 million.

Virginia is one of four states, including Missouri, Illinois, and Nevada, to modernize its HIV criminal laws in 2021. Virginia’s new law only criminalizes actual, intentional transmission, which remains a felony, and it removes HIV-specific language. Virginia also revised its donation law to align with the federal HIV Organ Policy Equity Act.