Report: Indiana HIV criminalization laws target actions with no risk of transmission

A new report shows most of the conduct targeted by Indiana’s HIV criminalization laws carry no risk of transmission. Advocates want lawmakers to use this information to modernize the laws around HIV in Indiana.

The analysis from the Williams Institute at the UCLA School of Law looked at the risk of transmission associated with Indiana’s six criminalization laws. The report found the laws were based on outdated science on how HIV is transmitted.

Carrie Foote, one of the researchers and a leader of HIV Modernization Movement-Indiana, said these laws create stigma around a chronic but manageable condition.

“It sends a message to you that you are a potential criminal. You are potentially a very bad person,” Foote said. “People with HIV because of their health condition are not inherently bad people. They're just people living with the health condition that happens to carry a lot more stigma because of the early years of the epidemic.”

Foote has been living with HIV since 1988, which was the first year one of Indiana’s laws were enacted.

“I remember those years, I was terrified,” Foote said. “I thought I was going to die. People were afraid. And then these laws were enacted. But here I am 36 years later, alive and well.”

The six laws include both public health and criminal codes. None of the laws require actual HIV transmission or the intent to transmit in order to prosecute or convict someone.

Two relate to the donation, sale or transfer of semen for artificial insemination, blood or plasma when someone “knowingly” has HIV. Another two enhance punishments for battery or malicious mischief by bodily fluid or waste for people living with HIV.

However, none of these actions carry risk of transmission.

The report explains the donor supply is safe because “every donation is tested for HIV, and units that come back positive are destroyed.” As for the battery or malicious mischief laws, HIV can’t be transmitted by being exposed to or ingesting fluids or waste.

“It's spreading misinformation, and that's not good for public health,” Foote said. “We want to spread correct information about how different viruses are transmitted and how they're not. The ultimate goal is to modernize the law, so at a minimum, it reflects advances in HIV science.”

The last two laws focus on alleged non-disclosure of someone’s HIV status. When the laws were originally written, they said people living with HIV have a “duty to inform” sexual and needle-sharing partners of their status prior to “high-risk activity.”

The report shows these laws do reflect some advances in science by restricting criminal conduct to only “certain forms of sexual contact and needle sharing.” The laws target acts that pose a significant risk. However, the law does not define what is considered a “significant risk.” The law does not specify the different HIV prevention measures that exist to effectively prevent transmission.

HIV can be what is called “undetectable.” Foote said a lot of people don’t know that HIV being undetectable also means it’s untransmittable. It’s sometimes called “U equals U” science.

“Not only does treatment keep us alive and sharing this science with everybody, because in many ways the U equals U science is key to dismantling and getting rid of stigma," Foote said. "Because a lot of the stigma is around people's fear of contracting HIV. And U equals U. You can't transmit it.”

When it comes to “duty to inform” laws, the lack of reference to prevention measures can make it difficult for people living with HIV to understand when they are legally obligated to disclose their status. And the lack of definition for “significant risk” can make it complicated to understand whether behaviors that pose no risk might be criminalized in practice.

READ MORE: HIV advocates, organizations talk legislative solutions at first advocacy summit
 

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Foote said many of these laws were enacted when there were still a lot of questions around what HIV is and how it spreads — and there hasn’t been much change since then.

“HIV is a chronic, manageable condition,” Foote said. “What we found is basically the laws just haven't kept up with the science.”

Foote said the stigma created by these laws can make fighting to end the epidemic even harder.

“We have this quote in the community, 'Take the test and risk arrest,' because you can only be arrested and prosecuted if you know you have HIV,” Foote said. “So these laws actually can create a disincentive to testing because they have a punishment potentially that can come along with knowing your status. And that's terrible because we want people to know their status.”

Foote said this can be damaging to the individual, but also overall public health efforts to prevent the spread of HIV.

“I always characterize stigma as ‘there’s another epidemic,’” Foote said. “HIV is the easy part. We know how to prevent it. We know how to treat it.”

Indiana saw some success in the past when it came to removing stigmatizing language from other parts of code. But Foote said Indiana needs to modernize these laws for the sake of public health.

A bill to modernize some of these laws has been introduced every year since at least 2018. Many were successful in the Indiana House of Representatives, but didn’t make it through the Indiana Senate.

Foote is hopeful for more success during the 2025 legislative session. She said she wants to provide resources to support “evidence-based lawmaking,” which is what inspired a series of reports — including this one.

“When we change a law, that's a serious thing,” Foote said. “People went to an effort to enact a law. So if we're going to change the law, what do we know about it? What is the evidence? And what are the pros and the cons here?”

Foote said the evidence shows there are benefits to modernizing and there are harms to not changing these laws.

She said she thinks there needs to be more education with state lawmakers, especially as they come and go.
 

Abigail is our health reporter. Contact them at aruhman@wboi.org.