HIV and sex work criminalization often intersect, which means a person suspected of “exposing” someone to a virus can be grouped with a person exchanging sex for money, housing, or food, as both are labeled “criminals.” Advocates from both decriminalization sectors have rallied for doing away with these long standing policies, which have public health and criminal justice implications.

Organizations ranging from the Positive Women’s Network and the Sero Project to Sex Workers Outreach Project USA (SWOP-USA) have concentrated forces most recently to tackle both HIV and sex work criminalization in a collective called Health Not Prisons. They’re organizing to remove criminal charges and shift policing away from sex workers and people living with HIV (PLWH).

Chauncey McGlathery, sexual justice coordinator at the Sero Project, supports breaking down the silos that have kept HIV activists and sex worker activists from joining forces.

“They kind of go together naturally, but I think it’s important to acknowledge that the criminal justice system that we have is as imperfect as our legislators and our law enforcement officers,” he said. “We live in a layered society, and we have a history that is well known and well documented. Any time you’re dealing with layers of oppression, whether it be race or gender or sexual orientation, these further complicate and create great opportunities for harm.”

Laws and law enforcement have a long track record of targeting sex workers and PLWH. These intersect because certain populations are more prone to be exploited than others, McGlathery said.

“That is part of the overlap,” he said.

The Importance of Decriminalizing HIV

According to the Center for HIV Law and Policy, 30 states have HIV-specific laws that impose criminal penalties for what they consider HIV exposure. This is loosely defined as interactions between a PLWH and someone not diagnosed with HIV. These laws are based on perceived notions of HIV transmission.

The Center has filed complaints with the U.S. Department of Justice on behalf of PLWH in Ohio and Tennessee who have been prosecuted or are at risk of prosecution under criminal laws that single out PLWH for uniquely punitive treatment. The complaints allege that these laws violate federal laws prohibiting disability-based discrimination, including the Americans with Disabilities Act. The ADA prohibits discrimination against people with physical and mental disabilities as well as those who are treated as disabled.

PLWH in both states face arrest, incarceration, and mandatory sex-offender registration. Still, neither Ohio nor Tennessee requires proof of intent to harm for a conviction for “HIV exposure.”

Tiffany Moore, who lives in Nashville, Tennessee, and serves as a Council of Justice leader at the Elizabeth Taylor AIDS Foundation, has been a vocal proponent of decriminalization. Organizing to decriminalize sex work and HIV has been empowering, she said.

“It’s putting the health back in our position because then we’re not forced to have to do that sexual encounter without a condom. We’re allowed to use condoms. We’re allowed to say no,” she said. “When you criminalize, it forces it more underground, which allows for the more street-level underground control and it turns into more survival and trying to dodge. You’re constantly dodging, which puts you into more dangerous situations. Your mindset changes to where you’re not in that mindset to be able to make those safe choices.”

U=U (undetectable equals untransmittable), the campaign popularized by Prevention Access Campaign, has been fundamental when Moore speaks with elected officials and their staff. Stigma remains, she said; however, she sees breaking down generational discrimination, lies, and misconceptions as the challenge and the key.

The Challenge of Decriminalizing Sex Work

Monica Jones represents The Outlaw Project based in Arizona. Jones made headlines in 2014 when she was harassed and arrested under a “Walking While Trans” statute as a student at Arizona State University.

“With decriminalization, it reduces the stress on the individual and puts it on everyone to be respectful not just to the sex worker, but it is on everyone to respect our bodies, to respect our boundaries,” she said. “We [also] can go file a report if we face violence.”

Jones added: “When we talk about policies that protect sex workers, we want to talk about the violence that sex workers face all across the board, especially Black trans women. Having policies that protect us and recognize our legitimate form of work is very important. 

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Editor's Note: This article, written by CNP Narrative Justice Fellow Stephen L. Hicks, was originally published on The Body. An excerpt from this piece appears on The Reckoning. You can read the full piece on The Body’s website.