The potential for violence during police encounters with Black Americans is all too common, but when the person in custody is living with HIV, their health status in proximity to law enforcement can often result in prosecution. 

In many states throughout the U.S., potentially exposing someone to HIV and failing to inform sex partner(s) of one's HIV status before sex can often result in multi-year prison sentences. Potential HIV exposure also pertains to interactions with police, specifically during arrests, often resulting in increased stigma and further policing of people living with HIV. 

Pennsylvania's state legislature passed House Bill 103 in early November. This legislation specifies HIV and Hepatitis B as communicable diseases that can be transmitted to police officers, resulting in a third-degree felony. Rep. Louis R. Schmitt, Jr. (R-Pa) sponsored the bill with encouragement from the Pennsylvania State Lodge Fraternal Order of Police (PA FOP)—an advocacy arm whose membership includes 40,000 law enforcement personnel.

Joe Regan, President of the PA FOP, provided comment to The Reckoning via email.

"House Bill 103 creates a consistency between the offense of intentionally causing a law enforcement officer to come into contact with a bodily fluid and that which has been the law for assaulting a corrections officer in the same manner. The original bill provided an enhancement against a person simply for having a disease. PA FOP recognized that to be unfair and advocated for a change, reflected in Act 99 of 2022, that the enhancement would only apply if the disease can be transmitted in the same manner in which law enforcement was exposed. We feel this struck the appropriate balance of keeping our officers safe while not subjecting offenders to overly punitive charges simply due to their health issues," Regan said.

Positive Women's Network campaigned against the bill, stating: "HB 103 creates two new, unnecessary, and broadly applicable felony offenses and subjects people with a communicable disease, such as HIV, to harsher penalties under law. Increasing penalties because someone has a communicable disease is stigmatizing, discriminatory, and harms public health efforts."

‘No risk of transmitting HIV through spitting’ 

Modes of HIV transmission have long been established; however, laws concerning HIV are not evidence-based but remnants from the early 1990s in a climate of fear and hysteria. For example, HIV is not transmitted through saliva, yet spitting saliva on a police officer stokes fear of HIV.  

According to research published in HIV Medicine, there is "no risk of transmitting HIV through spitting, and the risk from biting is negligible." An international team of researchers conducted a meta-analysis and systematic review of HIV transmission reports attributed to spitting or biting. No cases of transmission were due to spitting, while there were only four highly probable cases of HIV being transmitted by a bite.  

The Center for HIV Law and Policy reports 30 states to have HIV-specific laws that impose criminal penalties for what they consider HIV exposure. These laws are loosely defined as interactions between a person living with HIV ( PLWH) and someone not diagnosed with HIV. These laws are based on perceived notions of HIV transmission. Louisiana, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, Pennsylvania, and Texas explicitly criminalize people living with HIV spitting on others, according to Mark Satta, an associate professor at Wayne State University.

Satta researched the reasoning for HIV fears in spitting as the 2018-2019 Student Fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. He cites several examples. 

In 2008, a woman living with HIV in Georgia was found guilty of "aggravated assault" and sentenced to three years in prison for spitting on a neighbor. In 2014, an HIV-positive man in Mississippi was charged with "exposing another to HIV" for spitting on a police officer during an arrest. In Maryland, in 2010, an HIV-positive man was sentenced to five years in prison for second-degree assault because he spit on a police officer. In 2016 an HIV-positive woman in Texas was jailed with a bond set at $10,000 after she spit at a paramedic seeking to give her treatment.

PLWH face arrest, incarceration, and mandatory sex-offender registration, and this trend often follows a racial component, recent studies show.

Since 2011, close to 176 people have had contact with Louisiana's criminal legal system because of allegations of HIV crimes, according to a new report by the Williams Institute at UCLA School of Law. The HIV-specific law disproportionately affects Black men. In Louisiana, Black men represent 15 percent of the state population and 44 percent of people living with HIV but 91 percent of those arrested for an HIV crime. Louisiana does not require actual transmission or intent to transmit. This also includes incidents where HIV transmission is not probable, like spitting. 

There is a movement to modify, change, and repeal HIV statutes nationwide. Most recently, in 2021, Virginia modernized its law. The previous law only required proof of intent, which placed the burden of proof on the partner living with HIV. The new law in Virginia requires that accusers prove their sex partner's intent to transmit HIV, a formal diagnosis, and the actual transmission of HIV to occur. In addition, the penalty was lowered from a felony to a misdemeanor.

HIV criminalization continues to evolve, yet the legislation lags behind the science. 

PA HIV Justice Alliance, Positive Women's Network-USA, the Sero Project, the ACLU-PA, and others continue to stand against Pennsylvania's recent legislation. In their shared statement, they declare, "We are opposed to HB 103 because of this regressive and harmful approach to public health."