- What are the most meaningful actions that can be taken to implement the HIV National Strategy Plan and improve implementation of the Ending the HIV Epidemic initiative at the national level and in your community to meet the goal of ending HIV?
- How can domestic HIV/AIDS programs better meet the needs of underserved communities and address the systemic barriers that communities face in order to achieve the goals of the President’s Executive Order Advancing Racial Equity and Support for Underserved Communities?
March 16, 2021: The Health Not Prisons Collective (HNP) appreciates the opportunity to submit a comment to the Presidential Advisory Council on HIV/AIDS (PACHA). HNP is a group of five national organizations: The Counter Narrative Project (CNP), The Positive Women’s Network, The United States People Living with HIV Caucus, The Transgender Law Center, and The Sero Project that have come together to tackle the issue of HIV decriminalization on a national scale. Through the meaningful engagement of people living with HIV, we have been able to move HIV legislation in several states, engage leaders of the community in decriminalization work and activate our base nationwide around the connections between the HIV movement and strategies to end the carceral response to public health.
HNP was founded with the central tenet that criminalization is not only a bad public health policy, but that it also stands in direct opposition to public health goals. Interactions with the criminal justice system can be especially dangerous for marginalized communities – causing risk of loss of employment, income, parental rights, isolation, dehumanization, and interruptions in health care – and too frequently, even death at the hands of the state. Mass incarceration disrupts communities and families. We believe that an effective national strategy on HIV would be guided by the same principle that carcerality does a grave disservice to our public health strategies. Beyond ending the future criminalization of people, it is critical for a national strategic plan to consider the harms being continually inflicted through the current criminalization and incarceration of people living with HIV.
HNP contends that the most meaningful actions that can be taken to implement the HIV National Strategic Plan (HNSP) and improve implementation of the Ending the HIV Epidemic initiative (EHE) at the national level and in your community to meet the goal of ending HIV are to (1) elevate the focus on racial equity in the HIV response; (2) end the practices of HIV criminalization; (3) declare an immediate moratorium on molecular HIV surveillance; (4) protect the rights of sex workers, who are at disproportionate risk of criminalization, and; (5) consider criminalization as a priority in EHE funding strategies.
Elevate a Racial Justice Focus in the Federal HIV Response
When we walk about racial justice, we are talking about liberation through addressing the conditions that race – and racism in the US – has wrought on communities of color. Racism, especially as it takes shape via anti-Black racism and xenophobia, underpins the devastating history of inequities in the HIV response, and circumscribe a legacy of criminalization and incarceration in the U.S. These interlinked forms of violence disproportionately harm the priority populations identified in the HNSP. High levels of health risks and poor health outcomes are inseparable from the race-driven criminalization and incarceration patterns that disproportionately harm Black and brown communities, as well as those who are transgender, gender non-conforming and non-binary, lesbian, gay and bisexual, immigrant, and sex worker communities, and, increasingly, cisgender women. The HNSP and EHE efforts must take a leadership role in ending the use of incarceration to deal with poverty, public and mental health conditions because incarceration only exacerbates the problem.
We recommend:
- Staffing in the Office of National AIDS Policy must include people openly living with HIV from the communities most impacted by the epidemic, including Black gay and bisexual men, Black cisgender women, and transgender women of color.
- Conduct ongoing and consistent community engagement strategies with Black gay and bisexual men, Black cisgender women, and transgender women of color through the Office National AIDS Policy.
- Directly address in HNSP, EHE, and other federal strategies institutionalized stigma and racism and prioritize policies that will decouple criminalization and incarceration from a public health response.
End HIV Criminalization
Criminalization of HIV occurs even outside the targeted laws that make engaging in consensual sexual acts with a positive status illegal. HNSP can rectify the lack of attention paid to underrepresented and marginalized communities by addressing enacted, internalized, interpersonal, community, and institutional stigma associated with HIV criminalization laws.
In terms of criminalization, this stigma can and does result in the inequitable application of punitive laws. Law enforcement practices target communities disproportionately impacted by HIV, including people of trans and gender-nonconforming experience, sex workers, people who use drugs, immigrants, people who are unstably housed, people with mental illness, and communities of color.
While we appreciate that there is an indicator designed to address stigma, we are unclear what the baseline survey from 2018 references, and it is unfortunate that the Global Stigma Index has not been referenced in HNSP. HIV stigma comes in many forms. HIV criminalization is one form of institutionalized stigma, and the language on HIV criminalization as a problem must be strengthened. HSNP makes a mistake in relegating the harms of HIV criminalization as stemming solely from HIV-specific criminal laws. People living with HIV are routinely prosecuted for “HIV crimes” under general criminal and public health statutes as well as under provisions of the Uniform Code of Military Justice that do not even mention HIV. Moreover, the phenomenon harms all people living with HIV as well as HIV prevention efforts; it is not a problem affecting only those prosecuted.
We recommend:
- The HSNP must formalize its stance against criminalization. Guidance should be issued for each federal, state, and local advisory and decision-making body with a purview over HIV, and prioritize decriminalization as a necessary measure to achieve positive public health outcomes.
- Indicators must be created that measure stigma and the disproportionate barriers to treatment and prevention that HIV criminalization laws have created. These indicators must then be used to create strategies to directly address the specific harms of criminalization.
Molecular HIV Surveillance
An immediate moratorium of the practice of molecular HIV surveillance should be a top priority for any administration that hopes to bring an end to the HIV epidemic and the disproportionate negative impacts it has on vulnerable populations. The practices of molecular HIV surveillance, cluster detection, and sequencing of HIV genomes without consent from the individuals involved have come under immense scrutiny in recent years and as networks representing people living with HIV, we strongly oppose these practices for several reasons. Because it is conducted without knowledge or consent, molecular HIV surveillance undermines trust in the public health system and in individual healthcare providers and clinicians and can reduce willingness to engage in HIV care and treatment.
Communities heavily burdened by HIV are also those with a deep distrust of the medical system, for justifiable reasons. The risk of having personal health data taken without consent, then having it sequenced and shared, also without consent, can present a deterrent to people even wanting to access HIV screening and testing. Laws protecting the privacy of this data and permitting sharing and use of molecular HIV data vary widely from state to state and there is no current national standard that would uniformly protect the misuse of this data for people living with HIV.
As acknowledged in HNSP, over 30 states have laws criminalizing people living with HIV[1]. The practice of molecular HIV surveillance, cluster detection, and corresponding public health investigations create vulnerabilities for inadvertent disclosure, stigma, risks to physical safety, employment, and housing, and even criminal liability for people living with HIV.
We recommend:
- Molecular HIV surveillance and cluster detection practices must be stopped immediately and have no place in a national HIV plan.
- The process of sharing HIV data is a sensitive issue and must be thoughtfully considered in real, meaningful partnerships with networks of people living with HIV before it is implemented.
Include and Prioritize Sex Workers in a Federal Response
The HNSP must uphold sex worker rights and ensure that sex workers are meaningfully engaged in HIV prevention and care activities. Sex workers are at elevated risk for community violence and service delivery settings often marginalize sex workers. Sex work is labor and deserves the same legal protections that other forms of labor are afforded.
The attempts to criminalize sex work reflect a desire to impose morality onto people who are using bodily autonomy for economic gain. This type of carceral imposition of moral codes is illegitimate and only achieves stigmatization, harm, and isolation for sex workers. Increasing these things leads to worse health outcomes and disincentives treatment and prevention. HNSP should assure that competent and non-stigmatizing HIV services are provided to sex workers so that sex workers can participate in HIV services without fear of judgment, criminalization, or confidentiality violations. Sex workers should be meaningfully engaged as partners in designing and implementing HIV prevention and care policies and programs.
Often times in an attempt to protect people from the dangers of sex trafficking, harm is done to sex workers through criminalization. To be clear, sex trafficking victims deserve community care and strong legal protections. But sex workers are those who participate in sexual exchanges and are of legal age and have fully consented. They are often caught in the crossfire of the justice system as it attempts to protect people with broad strokes of laws and regulations. Where sex work is decriminalized, sex workers can participate in policy tables freely, partner with law enforcement if they choose, and are subject matter experts in differentiating between consensual sex work and the harms of sexualized violence. In order to create safe environments in which sex workers feel safe to seek affirming and respectful health care, they must be seen, valued, and engaged with as experts.
We Recommend:
- Sex workers, particularly those of transgender experience, should be engaged with as key stakeholders. This engagement should be meaningful, regular, and formalized.
- Similarly, sex workers are a part of the population that is most impacted by the epidemic, and therefore should be prioritized as staff positions are created and filled.
Inclusion of HIV Criminalization in the EHE
Local and state EHE plans must include a focus on HIV decriminalization. Funding for EHE plans should be contingent on meaningful community engagement and a commitment to end this form of institutionalized stigma which impedes HIV prevention and care efforts. It is also critical that the national strategic plan on HIV prioritizes decriminalization as adjustments are made to EHE plans.
In order to address the disparate HIV outcomes for communities of color, those of trans experience, sex workers, and drug users, the conversation must center on decriminalization. The ever-present threat of criminalization and how it is weaponized against vulnerable populations has manifested in the unequal access to prevention and treatment of HIV that this federal strategy aims to address. As funding strategies are created, they should give favor to jurisdictions applying a racial and gender justice lens, and those working explicitly to address criminalization.
Bringing an end to criminalization will bring better health outcomes for many populations that have been gravely impacted by the HIV epidemic. As science advances and the understanding of the negative correlation between criminalization and public health becomes more evident, it is only right that the federal government corrects public policy mistakes that were made previously out of fear and lack of information. The largest beneficial impact that the federal government could make would be to put the weight and power of its funding scheme behind plans that aim to end the criminalization of HIV.
We recommend:
- The HSNP makes formal the consideration of decriminalization as favorable in the consideration of EHE funding.
- EHE plans must be required to demonstrate their commitment to creating a favorable human rights environment for people diagnosed with HIV by including concrete efforts and commitments to decriminalize HIV exposure, transmission, and/or non-disclosure including sentence enhancements predicated on HIV-positive status.
Thank you to PACHA for the opportunity to provide a written comment. We look forward to continued opportunities to meaningfully engage people living with HIV in the direction of the federal response to the HIV epidemic. We hope that these concerns about the role of criminalization in the public health response will be taken seriously.
Signed,
Charles Stephens, He/Him
Executive Director
Counter Narrative Project (CNP)
[email protected]
Ronald Johnson, He/Him
Chair
United States People Living with HIV Caucus
Naina Khanna, She/They
Co-Executive Director
Positive Women’s Network-USA
[email protected]
Tami Haght, She/Her
Managing Director
Sero Project
[email protected]
Cecilia Chung, She/Her
Senior Director of Strategic Initiatives and Evaluations
Positively Trans, Transgender Law Center
[email protected]
[1] “HIV and STD Criminalization Laws.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 21 Dec. 2020, .