An overview of HIV history and its Queer criminalization

by Bryan C. Moore, Ph.D., J.D.

While the human immunodeficiency virus (HIV) does not discriminate in its transmission when an individual comes into contact with it, data suggest that HIV has a disproportionate impact on the queer community, especially young, queer people of color in the South. 

According to the Center for Disease Control, an estimated 1.2 million people are living with HIV in the United States. Around 13% who are HIV+ are unaware of their status. In 2022 alone, there were just under 38,000 individuals newly diagnosed with HIV. Of those individuals: approximately two-thirds were gay, bisexual, or men who have sex with men, nearly seventy percent Black or Hispanic, over half were under the age of 35, and over half lived in the South. 

In June of 1981, an article published in the New York Times under the headline “Rare Cancer Seen in 41 Homosexuals” was one of the earliest instances of media coverage related to acquired immunodeficiency syndrome (AIDS.) 

At the time, little was known about this novel disease. In fact, it was not even referred to as AIDS until the Center for Disease Control coined the term in 1982 and it was not known that AIDS is caused by HIV until 1984. In large part due to this lack of information that we now consider basic facts about HIV/AIDS, stigma spread quickly in the 1980s against individuals infected with the virus. Due to its early prevalence in the gay community, gay men bore much of the brunt of abuse and stigmatization.

By 1983, over 3,200 individuals in the United States had been diagnosed with AIDS and nearly 1,200 had died. Though numbers were markedly increasing, AIDS was not acknowledged by the Reagan administration until 1985. As the number of infections climbed and the fear of HIV infection spread, law and public policy measures were implemented with the goal of protecting the population from this threat. By the mid to late 1980s, bathhouses in large cities had been closed and gay men were prohibited from donating blood. 

Since that time, there has been a great deal of advancement of knowledge related to HIV/AIDS. Awareness of how it is spread (and can be prevented) as well as treatment have drastically lowered the number of individuals diagnosed with HIV and individuals who die of AIDS annually. However, while the number of new HIV diagnoses per year is considerably down since its peak of 3.3 million in 1995, HIV still has a significant impact on the wellbeing of many Americans and is a seriously stigmatized issue, especially in the queer community.

One unfortunate byproduct of the stigma of the HIV scare is the misguided and discriminatory treatment of individuals with HIV in the criminal justice system. In some ways, one could categorize this as the criminalization of HIV. According to the Williams Institute at UCLA Law School, there has been a history of prosecuting individuals in Kentucky based in large part on their HIV status. While sex work is already banned by law, an individual diagnosed with HIV who engages in sex work is in jeopardy of additional, enhanced felony criminal charges. Kentucky law makes it a criminal offense (a class D felony) for individuals with an HIV diagnosis to donate organs, skin, or tissue. Additionally, prosecutors have brought felony wanton endangerment charges against individuals who have failed to disclose their HIV diagnosis to sexual partners. 

Individuals familiar with the criminal justice system know that felony convictions have serious impacts on an individual. Beyond the possible imprisonment or fines faced in sentencing, collateral consequences, such as lack of voting rights and hardship in acquiring housing, employment, and a variety of benefits, follow an individual well beyond the time of conviction.

When one considers these potential consequences and what we know about HIV now, one may very likely question whether these laws do anything more than discriminate. For instance, we are aware that individuals with HIV who are receiving treatment for the virus and are undetectable do not carry high enough of a viral load of HIV to transmit it to others. Additionally, one may question why HIV is treated with such a harsh penalty in the aforementioned scenarios when there are not similar penalties for a variety of similarly dangerous communicable diseases that are known to be spread through sexual contact or the sharing of certain bodily fluids.

It appears that these laws that were adopted in response to the HIV scare do not hold up under close scrutiny. When one considers that one disease, which has long been stigmatized and attributed to the queer community, is treated more harshly than similar diseases in spite of the fact that advances in medicine have made individuals who are undergoing treatment physically unable to spread the disease, one could easily draw the conclusion that these laws are byproducts of discrimination and should be reconsidered.