Since 2022, HIV Is Not A Crime (HINAC) Awareness Day, founded by the SERO Project in collaboration with The Elizabeth Taylor AIDS Foundation, has been observed to amplify the experiences of individuals impacted by HIV criminalization laws. In more than 30 states nationwide, failure to disclose an HIV diagnosis before sex—regardless of actual transmission risk—can result in criminal prosecution, incarceration, and even placement on the sex offender registry. However, HIV criminalization laws do not consider the scientific advancement of antiretroviral drugs that have successfully suppressed the virus, allowing people living with HIV to achieve undetectable status and placing their partner(s) at zero risk for transmission (the core message of the U=U campaign, undetectable = untransmittable).
A throwback to the grim early days of the HIV epidemic where stigma, homophobia, and AIDS hysteria fueled public policy, decades later, HIV criminalization remains enshrined into law, placing an additional hurdle for people like Robert Suttle, Chair of the Elizabeth Taylor AIDS Foundation Council of Justice Leaders. A highly sought-after consultant and thought leader, Suttle’s conviction under Louisiana’s HIV criminalization statute in 2010 after a consensual sexual encounter led to a sentence and a six-month incarceration with an additional life-altering requirement of registering as a sex offender under Louisiana law. Suttle’s experience is one reason why he advises people living with HIV to be “mindful of who you engage intimately.”
“You don’t know how their reaction is going to be to HIV,” Suttle said. “You might just need to step back and evaluate how you engage in relationships with people because you need to be surrounded by or engage with people who can support and love you.”
Diagnosed in 2003, Suttle tells GLAAD he believes the topic of HIV criminalization should be included in conversations among health care providers and their patients living with HIV, especially the newly diagnosed.
“In prevention, testing, and treatment, they don’t mention criminalization,” Suttle said. “They just talk about the importance of getting treated and staying virally suppressed, which is important, but there’s another component to that, which is criminalization. If I look at it as a formula, criminalization needs to be added so that people can understand what they’re getting themselves into,” he said.
The reality of people living with HIV acting on the natural human desire to give and receive pleasure and the potential legal consequences of doing so in several states recently failed to be mentioned even in the “paper of record,” The New York Times’ Ethicist column.
Responding to a reader living with HIV questioning whether he needed to disclose his status before casual sexual encounters, Times ethicist and New York University philosophy professor Kwame Anthony Appiah offered this inaccurate and dangerous advice: “You don’t need to volunteer your status.”
After alarm from HIV centered media and organizations, The New York Times updated the column to include the mention of HIV criminalization along with an editor’s note.
“In some states, people who are living with H.I.V. can be criminalized if they don’t disclose their positive status before a sexual encounter. These circumstances may well be important considerations for people living with H.I.V. and should have been included in the original column.”
“These laws do not exist in a handful of states; they are widespread, deeply entrenched, and often enforced in ways that are unjust, unscientific, and rooted in stigma,” said Kyatara Epps, Public Health & Advocacy Strategist at the Center for HIV Law and Policy (CHLP) during a recent webinar on CHLP’s updated HIV Criminalization maps.
Accurate information about HIV is essential to end the 40+ year epidemic and the stigma that fuels new cases. Suttle tells GLAAD that HIV criminalization laws are rooted in a “false assumption that people living with HIV are intentionally wanting to transmit [the virus] to other people.”
“It’s a misconception, grounded in fear and stigma against certain groups of people based on how they identify,” he said.
Entitled to Pleasure
Justin James is one of those people. An Atlanta-based cultural critic, founder, and CEO of the popular YouTube Channel “The King of Reads,” James has been living with HIV for a decade and has been public about his status since 2018. While he has not encountered the criminal justice system due to HIV criminalization laws as Suttle has, a video he originally posted in 2022 (“Dear HIV Healthcare Providers”) which caught the attention of the Instagram blog “The Neighborhood Talk” a year later, where he declared he was “entitled to condomless sex” as a person living with HIV caused fierce and immediate backlash, much of which, James says, was rooted in stigma.
“When people talk about using the term undetectable, that’s sometimes not even enough,” James says. “Even how we frame it, it’s so heavy on [conveying the message that] I am safe; you can touch me. It comes off like I’m begging and pleading for someone to see me as human so they can un-other me,” he said.
In “Dear Healthcare Providers,” James argues (in his signature colorful way complete with expletives) for a more comprehensive approach to safer sex practices for people living with HIV that includes prevention tools beyond condoms to also include 99% effective medication such as PrEP. His commentary did not endear him to viewers, many of whom called for him to be pre-emptively prosecuted for engaging in sexual activity while living with HIV despite there being zero transmission.
“They wanted to punish me because of the audacity of me feeling that I was entitled to pleasure,” James said. “I don’t want to pretend as if I enjoy condom sex. I feel like a lot of people lie about that. They’re not using condoms, but they will say [they are] because it’s the performance of it all, and they don’t want to be othered. If we can be honest about how we’re engaging in sex, that allows doctors and physicians to show up for us in better ways,” he added.
When it comes to HIV criminalization, James says, too often, it comes down to which person is considered more credible, and although, as a public figure, his HIV status is widely known, James still makes it a point to share his status before engaging in sex.
“What does it take for somebody to say that I did not tell them? And considering how being positive is associated with being undesirable, you won’t believe me. You’re going to believe the [HIV]-negative person,” he said. “You’re going to automatically see the person who may not have even contracted anything and never was in any immediate danger, but it’s just the possibility of it.”
“Everybody has all the tools that they need,” said Suttle. “People living with HIV have U=U. People who are not living with HIV have PrEP and PEP. So we have the tools. We just need access to them, and we need access to be sustained so that we can have what we need when we need it.”
Suttle added that people living with HIV “have a right to pleasure, and just because we are living with a disease that impacts our health, it doesn’t mean that we can’t or we shouldn’t.”
“We are all in this together,” said James. “If we’re interested in eradicating the stigma [that fuels HIV criminalization laws], we’re going to have to take more radical approaches.”