Decriminalization as a Public Health Issue


Criminalization drives stigma, harms public health, and violates human rights. The imposition of criminal penalties exist across the U.S. and around the world, and it creates barriers to adequate and comprehensive health care for many populations. Beirne Roose-Snyder from the Center for Health and Gender Equity (CHANGE) and Preston Mitchum from Advocates for Youth sit down with us to discuss how criminalization negatively impacts access to multiple types of care for the most vulnerable in our society.

Criminal penalties often extend to a number of individuals who are seeking care but already face barriers and are marginalized, including low-income people, black and brown people, and people who live in the global south. Criminalization, state statutes and criminal codes may often extend to those with HIV, those seeking abortion care, and sex workers. In reference to sexual and reproductive health and rights, criminal codes may be used to police consensual sexual behavior between adults, or identity and expression among adults.

Criminalization of abortion happens in many different ways. There are countries in our hemisphere that have entirely criminalized environments. In El Salvador, women are often jailed for stillbirths, miscarriages and self-managed abortions. These women are often poor, rural, indigenous, or ethnic minorities. Criminalization also exists in the U.S., as exemplified in the 2013 case of Purvi Patel, a young woman convicted under feticide and child neglect laws in Indiana and sentenced to twenty years in prison after giving birth to and disposing of a newborn she believed to be dead.

Criminalization occurs throughout and beyond the sexual and reproductive health sphere, and there is a persistent theme of prosecuting the most vulnerable people. This includes the global criminalization of LGBTQ persons, sex work, and those with HIV.

Criminalization is deeply connected to bodily autonomy and the ability to have agency over one’s own body. Criminal penalties are used both internationally and in the U.S. to try to reinforce specific views on bodily autonomy. It is not secret that these penalties heavily contribute to stigma, infringe upon human rights, and actively damage global and domestic health.

Photo by Ye Jinghan on Unsplash


Jennie: Welcome to rePROs Fight Back a podcast on all things repro. I'm your host Jenny Wetter. In each episode, I'll be taking you to the front lines of the escalating fight over our sexual and reproductive health and rights at home and abroad. Each episode, I will be speaking with leaders who are fighting to protect our reproductive health and rights to ensure that no one's reproductive health depends on where they live. It's time for repros to fight back.

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Jennie: Welcome to rePROs Fight Back. On this week's episode, we are going to talk about something we haven't really talked about a lot before and that's decriminalization. And so to have this conversation, I really, there's just two amazing people that had to be the guests for this episode. Um, so Beirne Roose-Snyder at the Center for Health and Gender Equity and Preston Mitcham from Advocates for Youth. Hey y'all. Thanks for coming.

Beirne: Thanks Jennie.

Jennie: And apparently I decided I'm from the South this morning. Um, so since there are two be different people will, uh, I'll let them each do a quick intro of themselves. So you know who's talking one. So Preston,

Preston: Hey everybody. Preston Mitchum with Advocates for Youth. I'm our senior legal and international policy analyst working on young people's access to sexual reproductive health and rights.

Beirne: And Hi, this is Beirne Roose-Snyder. I'm the director of public policy at the Center for Health and Gender Equity. And we promote comprehensive sexual and reproductive health and rights in US foreign assistance.

Jennie: So today we're going to talk about how criminally criminalization drives stigma, harms public health and violates human rights. So when we talk about criminalization, what are we talking about?

Preston: So largely we're talking about criminal penalties and this exists really across the United States and global in the global context as well. Um, so a lot of the things that we're talking about are why criminalization is a barrier, why folks who from sex workers to people living with HIV, to drug users, um, to folks who seek abortions. Why Because of criminal penalties. You know, many of folks are marginalized. So, um, our poor, um, our black and brown live in the global south. Um, so we are really talking about the barriers that exist that make them more likely to be criminalized and punished, uh, by many state statutes and federal laws.

Beirne: When we talk about criminalization, we're often talking about direct criminalization with a statute that, um, might name the exact sort of violation and penalty or we may be talking about a set of, uh, morality codes or sort of less explicit codes that are used disproportionately or entirely to police only certain sets of behaviors from certain sets of people. And when we're talking about criminalization in this context, especially talking about it around sexual and reproductive health and rights, um, and how criminal codes are used, uh, to police consensual sexual behavior, um, between adults. And that's a really important distinction because the, what about ism comes in heavily when you're talking about criminalization and people start talking about trafficking, coercion, violence force, all of those things are even as we sort of think about how we unpack the relationship between public health and criminalization, all of those things are things that we all want a irradicated and we don't want fraud, coercion forced to be part of our own sexual expression or that of others. But what we're really talking about here is the kind of criminal penalties and morality codes that that play out for consensual sexual behavior, um, or identity and expression amongst adults.

Jennie: You know, this, we see this in a lot of different areas. So do you maybe want to talk about some examples of things that we have already been seeing?

Preston: Yeah, so I'll start with an abortion. And so I have a story that I really wanted to, um, have your listeners be aware, and I'm sure people have heard of her, but Purvi Patel in Indiana. Uh, and so though her conviction was eventually overturned, I do think it's important to bring up, because it kind of captures feticide laws, abortion and, uh, things that originally the state legislature hadn't intended for what the court used it for. So Purvi Patel was convicted and sentenced to 20 years, um, under fetus by laws. So that's the act of destroying a fetus, um, and child neglect laws. And this was in Indiana. And so the story is Purvi Patel had a baby, uh, the baby was born really small, about less than one pound. Purvi believed that the child that the, that the baby, the newborn had died. Uh, and so she, and this is a home delivery, so delivered, um, the baby in a bathroom and she went and put the baby in a bag, put it behind a target, and this is the all public record. Um, and then as she, she started to hemorrhage. And so as she got to the hospital, uh, the doctors look at the umbilical core and said there had to be, there had to be a birth. Um, and so essentially where's the baby, which is how a lot of it starts really in the hospital. And really just this stereotypical idea of who has delivered, how did they deliver, um, which usually impacts a lot of black and brown women in poor women and poor people generally. Nonetheless. Um, she admitted to, uh, birthing this child and essentially told the child, the doctors that the baby had died. Uh, the doctors, um, against her wishes searched for the child, uh, found the child actually buried the store to speak, uh, what's the bag and then obviously got the prosecutor's office and the police involved and they determined that they use a test and they determined that the baby was actually born alive so the baby wasn't dead as Purvi thought. So the court, uh, ended up because of that evidence. The trial court decided that she actually did violate feticide laws and child neglect laws and then sentenced her to 20 years. So the Indiana Court of appeals thankfully overturned it saying the trial court had a gross departure from the meaning of what feticide was for. Like it wasn't for, it wasn't to convict people for this idea of my self induce or self manage abortion. That just wasn't the original purpose behind the, the legislation of it. And they say to that she, even if the child was born alive, that she, that they did not, the state did not prove that if she had gone to the hospital earlier, that the child would have still survived. And so I bring that longer story just to kind of really talk about the idea of criminalization. And that would have been the first time in the entire country where feticide laws would have been used in a criminal context against this, against this young woman. And so criminalization of abortion happens in many different ways or just like reering of children happens in many different ways and that's just a smaller one. And that's really just domestically too.

Beirne: I think, um, when we're talking about criminalization of abortion, I think it's so good that Preston sort of started with the US because I think most of your listeners probably have a sense of urgency and a sense of how volatile things are at the state level. But, um, you know, we have countries in our hemisphere that have entirely criminalized environments. And one of the reasons that Purvi Patel story is so indicative is because we can look at El Salvador and we can see what, um, more systemic jailing of women for stillbirths, for miscarriages, for, for self-managed abortion. Um, I think there's a, there's a huge... When we're talking about El Salvador, we often talk about miscarriages and stillbirth and that's really important. But like women, they're also self-managed their own abortions and they also have criminalized abortions and they have sort of a lot of the same rates of abortion as most other countries, um, with poor contraceptive access. And, um, and that's okay too. Um, and there what's so important about criminalization as a, as a method of control is that those women aren't differentiated at all. So what you have is criminal law getting involved in really complex obstetric care and in ways that aren't always blunt and are always playing out on existing prejudices. So most of the women jailed in El Salvador are poor and rural and ethnic minorities or indigenous women. Um, and similarly you see immigrant women, you see black and brown women in the United States who are going to be more vulnerable to those prosecutions. Um, not because they have different obstetric care needs though in some cases they do because they've maybe got poorer early interventions, but that they're actually just more vulnerable to the criminal side of things. And I think, you know, the instinct in all criminalization is that we'll be talking about is to sort of look for the differentiation. Why it would never be you, um, that you wouldn't have, you wouldn't have disposed of, of fetal remains or, or, um, or a baby that was born alive. There's such a incentive to do that, um, for our own psyches. And one of the things that's really important to remember about criminalization as a, as a structure is that it, it's such a blunt instrument. There's a lot of ways that she could have gotten help and that if she had been able to engage systems that weren't penalty based, things could've gone so differently. And that's true across criminalization, um, viewing criminal law as the way that we interact with people, especially poor people, vulnerable people is what leads to so many of these outcomes. And I think as we talk across issues, it becomes clearer how they're all connected in how they play out. Um, and lead to very poor public health results. Um, and very, very, um, real stigma that keeps people from being able to even access preventative care or um, some of the, the public health decisions that we would in many cases, um, as a society really benefit from. Yeah.

Jennie: I really appreciate you starting with Purvi Patel's story because I feel like often when we talk about decriminalization, particularly around abortion, a lot of the stories we hear are El Salvador, which is important and talk about how that could become reality here, but often, you know, Purvi Patel's story is something that people might not be as familiar with.

Preston: And I think with Purvi Patel's story, it, it sometimes it feels like an episode of Law and Order to be completely honest. And I remember reading the facts of the story a couple of years ago and was incredibly uncomfortable because I knew how people would read it and they would read it in ways that was not sensitive to her, her needs. And you know, just the idea of someone putting a newborn in a bag is already something that people are, are, they have a visceral reaction to. And I think the way the media actually hounded on that particular part of this story for me was very intentional. Um, and it was intentional to make sure that she did not have any, you know, sensitivity to her or to her story. But you know, when you're particularly vulnerable and marginalized and have nowhere else to go and have health needs and doctors aren't really necessarily concerned about those specific health needs, you know, it makes it, it makes the criminality a lot more attached there. And I think that, you know, I brought up the facts because they are the facts and their poor, their, their public opinion, excuse me, their court record. Um, and so that they're really important to know. But even with those facts being the facts you right, like the larger picture is still, why was she in the position that she was in? Um, and that attaches criminality to it naturally versus like in state law. And then they took the court of appeals to say, you know what, trial court you are exciting, completely wrong from the legislature is not something that is necessarily common. Uh, so this is actually a unique case, particularly with the light in light of bill returning.

Beirne: I'll talk about some of the other sort of criminalization that, that Preston I work on and that we think it's really important to think about sort of, um, all together and within sexual and reproductive health. But I would really highlight that there's a theme which is the prosecution of most vulnerable and, and people who are painted or sort of for first societal and structural reasons seem less sympathetic. Um, and one of the sort of exercises in empathy is to, to look at how could we have dealt with this as a, as a society and as a family and as people in ways that didn't involve the criminal law. And also a real politic, which is, it always starts with the most vulnerable, but it never ends there. A lot of the cases we know about only ended up getting a lot of public attention cause it's like it's a good criminal narrative. Um, and we don't hear about a lot of the ones where it's not the perfect victim or not that the sort of perfect a villain because that tends to be globally the stories that people really pick up on. One of the other, uh, sets of criminalization that, that Preston and I look at in our global work, um, but it's not far passed in the US are, um, the criminalization of LGBTQ persons. Um, in the United States. It came as sodomy laws a lot. And we had a supreme court case, um, only in the last 25 years, um, that, that overturned them.

Preston: But sadly much less, oh my gosh, 2003. Even more sad.

Beirne: Oh my god. But, um, globally, uh, we see this a lot and, and um, I think it's important to note that most of these are English laws. Um, and are a artifact of, of colonialism. Um, some of them are Portuguese or French or other sort of colonial powers. Um, and that's really important because, uh, conservative groups will very much talk about LGBT issues as a western invention and, um, some somehow something that the US is propagating, um, to create social division and marginalized LGBTQ persons. But it's sort of always important to hold the line on truth, which is actually sodomy laws, the criminalization and marginalization and definition of LGBTQ persons is, is really, really a western narrative and something we very intentionally added to the criminal codes in Tanzania, in Uganda, in, uh, in South Africa, in so many of the countries that were, uh, were colonized. And so that's sort of an important framework, but we're still seeing now, um, you know, there are many, many countries worldwide that criminalize some aspect of, of, uh, same sex conduct. We can talk a lot about the harm of this. I do want to like lightly note the humor of, of thinking of sodomy as a strictly LGBTQ thing and not just like ways people have sex no matter what their sexual orientation and gender identity is. And oftentimes, many of the colonial era laws are, are either defined using really old language that is a little hard to parse through now or euphemism, which is sort of a hard, hard to deal with on a legal level. Um, or, uh, I mean really hones in on men who have sex with men and, um, does not necessarily on paper criminalize sexual conduct between women.

Preston: Yeah, I mean, a lot of this really is about identity and behavior based. And I think it's interesting because I do think back to like Supreme Court decisions that in 1986 Bowers v Hardwick in a Georgia statute did ultimately rule that, you know, it was across the board anti sodomy. So, you know, men weren't having sex, couldn't have anal sex, women couldn't have anal sex, which was obviously not the intent of the statute. The intent was a statue to obviously to target gay men or bisexual men or men who have sex with men. Uh, but in 2003, and that was overturned as, as, uh, Beirne noted earlier in Lawrence v Texas. Uh, because it was a little bit more discriminatory. And so the court, I guess wouldn't withstand that, uh, but I do think it's interesting, right? Because Beirne makes a really good point and that is a lot of these laws are really when we think about how colonialism is exported abroad, you know, I teach LGBT health law and policy and one of the things that my students always raise, um, and, and curious and curiosity is really about how Africa, um, seems like a more homophobic continent. Right? And so the one thing we have to stop and have a brief history lesson one is how like homosexuality is actually a normal thing in many countries on the continent and that homophobia was brought to Africa and so many countries in Africa. So, uh, you know, it's always interesting and thinking about the criminal context and connecting that to like broader issues of colonialism. Uh, both in, you know, in western concepts in the United States. And even though this is not a criminal context, I think about cases like Smug v Lively, um, you know, sexual minorities, Uganda where Scott lively was literally working with, uh, ministers and ministries in Uganda to actually push forward, you know, the kill the gay bill, um, which was obviously both criminal and actually violent because there was this propagation and propaganda of killing, uh, gay people, um, gay and lesbian people. And so yeah, this definitely exists across the board, both in terms of how the United States and other Western countries work, uh, to push forward this anti LGBTQ propaganda. Um, and so, you know, we've really been working in this context to really kind of demystify what's really happening in other countries and to push for the sexual reproductive health and rights of all.

Jennie: Yeah, you definitely see the groups that have been like really fighting the advancement of LGBTQ rights in the US are just taking their work and going and pushing it in other countries. And that's a huge problem.

Beirne: We'll see a world council of Families Meeting in Russia. It's a lot of, a lot of planning around, um, how to export anti LGBTQ, um, law and animosity into countries, um, in Africa, in Asia, um, in eastern Europe. Um, it's not an accident. Um, it's a, it's a really well organized attack when you're talking about, um, sort of my work on, on sexual reproductive health and rights and foreign assistance and Preston's as well, you know, the rights part is the part that like Preston and my heart sing for. But the health part is really important to criminal criminalization of a single act. Like sodomy has huge repercussions for how people are able to present for health care, how they're able to engage with their health care providers, what they are and are not willing to disclose. And even if people aren't prosecuted under a criminal statute anymore, the level of fear and stigma and a really sort of can stay. Right now there are a number of countries that regularly use forced anal exams to try to prove that um, that men are gay and have therefore and have violated the law. It, the evidence is not there. I mean, even if it was that, but it's like, it's like virginity tests, like it's not, it's not like legit medical stuff. And what it really is is state sanctioned rape. And, and it is a way to scare people as a way to torture people. Um, it has been considered cruel and inhumane, inhumane treatment by UN bodies. Medical bodies are against it. WHO is against it. Everyone knows that the purpose is to scare people, uh, and harm them and to keep them, I mean, it keeps them out of care. If you, if you are a gay or bisexual man or a man who has sex with men, your willingness to go to the doctor to get an HIV test, to get an STI test, to in any way articulate to others what you need in order to live a healthy and happy life is really diminished. If there's the possibility that your medical files may be taken by the state, that criminalizes um, or that your doctor or your neighbors might turn you in. Um, and so it obviously has huge human concerns, but even if you are just taking a sort of real politique very public health only focus, we know that there's really tangible driving people from care and outs out of health, um, health seeking behaviors by criminalizing all of actually all of the things we're talking about. Um, but I think I'm very, um, I'm thinking about it a lot this week just cause of some of the stuff that's going on in Tanzania.

Jennie: The next one to turn to is obviously something I know is very near and dear to both of your hearts and that's criminalization around sex work.

Preston: So there's such a connection with what Beirne is saying. I think with sex work and criminalization of HIV too, but just start with sex work at least, you know, a criminal penalties attached to consensual, um, exchange of sex among adults. And so people always are wary when we talk about young people in the context of sex work, which is interesting because WHO, and other bodies have actually discussed it. And it's important to note that young people, it doesn't inherently or necessarily mean under 18, which is what I think the fear or um, the fear is I'll say. Um, but that's just not necessarily true. And so, um, in almost every country in the world, sex work is in some way criminalized. And so, um, it increases sex workers vulnerability to actually have treatment and care and need. Um, there's then obviously a connection between sex work and HIV. And on the hill last week, Beirne and I were there really discussing our work with the sexual and reproductive health and rights round table, where I think there was a collective gasp in shock when we told folks about a Lancet study that, you know, decriminalization of sex work could avert HIV, um, infections up to 46%. And so it does really show that there that the criminalization of sex work is the harm and that, you know, criminal penalties attached to consensual acts is really something that's harmful and impacts particular people. And that's true both here in the United States and in many other countries. I'll say within DC in 2017, we introduced the DC City Council through the work of many grassroots organizations, introduced a decriminalization bill, which really focused on the public health needs of people who are sex workers. Uh, the bill obviously got halted. Um, and I will say, because we needed to do a lot more community engagement work and work among, uh, AMCs within the district. And so we're going to reintroduce the bill this year, but instead this time we're actually attaching a lot of the decriminalization aspects of thing like housing and making sure that there is actually like these wraparound services because it's one thing to decriminalize sex work. It's another thing to actually like insert public health approaches and actual housing, um, to ensure that sex workers may not, if they don't want to go back to sex work. And so, you know, I'll let Beirne talk a little bit more about that, but there's such a connection between sex works, HIV and all the, the overarching criminalization issues we're talking about today.

Beirne: Yeah. So I think the decriminalization of sex work is something that, uh, public health people are really aware of. And the human rights advocates, um, have a much more split sense of, I think one of the things that's so important to really is how criminalization is a barrier to sex workers health and rights. Um, and, and as Preston said, you see very similar situation with criminalization around HIV, but also really around LGBTQ real and perceived sexual and gender difference is, can sex workers tell their healthcare providers what their actual risk is? Can they actually talk about what their needs are? Can they be screened for violence in a meaningful way? So their ability to access their own health care and be honest about it in a way that protects themselves is really, really hampered by criminalization. We know in South Africa, the vast, vast, vast majority of sex workers face violence, and this is one of the reasons then, then people pivot and say, great, we should get rid of sex work. The ways that that sex workers experience violence w is, is about in South Africa is, you know the recent data was about 40% was clients, about 35% was the police and the rest was their intimate partner, their primary partner. All of those ways, they are unable to access help because they are criminalized their ability when they go to the police, the police will rape them. They're experiencing 35% of their violence is from the police. And that is absolutely because they have been set up as a set of people who cannot access justice. They cannot access their human rights. They cannot show up at a police station and say I was raped because there'll be told you shouldn't have been doing that. Like you're, you're a whore you can't rape a whore, which is a, a constant refrain from the police to vulnerable and marginalized women especially. And especially trans women who just cannot access justice because we've criminalized them.

Beirne: So if justice is your concern, you have to view criminalization as, as one of the ways. It's not, as Preston said, it's not the end, but it is an absolutely vital part of people being able to, to access. I think a lot of people who view themselves as sexual and reproductive health and rights advocates are perhaps very comfortable talking about why criminalizing sodomy is wrong and won't work, or very comfortable talking about why criminalizing abortion is wrong and doesn't work, but don't see the parallels to sex work. They see it as inherently very, very different. And I think what's so important to see there are the threads of what does it mean to criminalize, what does it mean to criminalize acts that are about your body and how your body is engaging in the world and with the criminal system and whose bodies it privileges and, and there are fact patterns that we're uncomfortable with. But that doesn't mean that engaging with the criminal justice system is the right way to provide housing. Social supports create less, less violence, less uh, social exclusion. I mean there are real ways to say we, like we say all the time, like good comprehensive sexuality, education, good contraceptive access. Those are the ways you reduce abortion if you're really concerned about it. Instead of punishing people. Similarly, good housing, good social structures and decriminalization are how you reduce violence and exploitation if you really care about that. Jennie: You know, and it could be that I am steeped in this field and work in it a lot, but it does feel like the conversation has moved forward. And like I think the great work that you two are doing and other amazing organizations are doing have slowly started to move this sex work conversation forward. And I know Preston talked a little bit about it last time he was on the podcast and with a focus group of one. I know he started to convince my mom, which I mean you're talking about a wonderful, um, 70 or 70 year old woman from the Midwest. So I think when people hear these things, they can start hearing some of these arguments. And I know it's still a long road. Um, but I do feel like some of those first steps are starting to happen.

Preston: Yeah, they are. And you know, I will say also that we, it was, we received a lot of positive feedback last week at the Commission on the status of women in New York City. Um, but I will also say, I mean to your point, Jennie, I completely agree that I do think many organizations and individuals are moving along, understanding, you know, less about morality, quote unquote and more about, wow, this actually is a public health approach. Um, and that sex workers will be better, will be better with, with the decriminalization approach. I will also say, unfortunately too, that, you know, to Beirne's point, last week we received, um, from, from really people who loved the Nordic model and you know, so they really believe that...

Beirne: Hey Preston, what's the Nordic model?

Preston: They really believe, they really believe, essentially they believe that, you know, you should be able to criminalize the, the, the buyer of sex and that, you know, of course you should never criminalize the seller of sex. You know, that's, they believe that true to Nordic models form. And so as we were trying to say, like no actually study show that do come up, both is better and you know, it doesn't reduce Nordic moderate does not reduce violence. In fact it actually increases violence, you know, have sex workers et cetera. And then to your point about rape though, someone actually said that the only way you can rape a sex worker is if you don't pay them. But if there was no other form of rape of a sex worker, and I think that is the work that we have to do, realizing that you know that you know, sex workers are raped, sex workers do experience violence and is not necessarily connected to payment. You know, and of course that is a part of it. And we can have a conversation about what that looks like too. But I think we should also be very careful of just having this conversation of nonpayment of sex workers equals theft and not rape too.

Jennie: And again, I think this goes back to something we're not really talking about today, but it is a big part of it is just conversations around consent and that need to happen. Okay. Anyway, so that's like a huge sidetrack when you go down. So I'm just going to ahead and skip that and say we've started to talk about but maybe want to talk a little more about uh, criminalization around HIV.

Beirne: Yeah, so this is, um, this is one that oftentimes it's interesting across sexual and reproductive health and rights. Again, there are orgs that are really comfortable with like a couple of the things Preston and I are talking about and not the others. HIV criminalization is a really significant issue in the United States and it's one like anti LGBT laws and sort of culture that we've exported with some of our global programs and with, um, model laws and in, in a number of ways. And HIV criminalization started essentially as soon as the epidemic started. It's rooted in stigma and it's rooted in sort of using a criminal penalties to try to force people into health seeking behaviors, which I think the theme in this episode is you cannot use criminal laws to force people into help seeking behaviors it ever, ever. It just doesn't, it doesn't work. And we can show that data across all sort of all scopes of, of things. Early in the HIV epidemic in the United States, people talked about quarantine, talked about locking people away, um, if they were HIV positive and then a real narrative and, and it would be an absolute disservice to suggest that the narrative doesn't come out of US morality around sexuality, Homophobia. Who did the epidemic impact first and how did the sort of, um, the rest of particularly, um, Ronald Reagan's party and America respond to it? And so it, in the United States that takes the form of criminal laws at the state level, they're usually called HIV transmission laws. They are not ever HIV transmission laws. They are HIV exposure laws or they are more likely HIV nondisclosure laws. So these are laws specifically calling out HIV, which say basically if you have sex, um, and you are HIV positive, you can be prosecuted for quote HIV transmission though in all... I'm actually trying to remember what state laws have updated but you don't have to prove transmission for the most part.

Preston: Nearly all of them have HIV laws. Yeah.

Beirne: I should say this is tricky for us to talk about in broad strokes because it's done at a state level. So we're dealing with a pie of 50 and so we're trying to, trying to make some, some clear um, patterns. But you know what you, what you see is this, the core of it is this fear of HIV is so extraordinary that we want a specific criminal penalty that says if you transmit HIV to someone, you will be prosecuted under this statute. Now what's really, there's like nine different pieces to unpack there. One is you don't actually have to prove transmission to it treats HIV is so extraordinary compared to any other infectious disease and really comes out of that, that 1980s mentality around HIV exposure. It's also very much rooted in the idea of people living with HIV as predators. And it's very, very much rooted in a misunderstanding of the science and also just, uh, what the proact risk is for HIV transmission. And it's, uh, it conflates awareness of your HIV status with intent to do harm. And that I think is one of the things, Preston and I are both lawyers, I think that's one of the most breathtaking things about HIV criminalization is across all of these laws there is no, there's no need to prove intent to harm, which is extraordinary in criminal law. Most of them explicitly say, or the case law since says knowledge of HIV status is intent.

Preston: That is the, that is really such an important point because what that also means is when you talking about HIV prevention and treatment, right? Like what is the point of someone actually seeking services around HIV to even know their status? Because at least if they didn't know their status, then you couldn't prove the knowing element, which therefore you can't prove that they intentionally transmitted or attempted to transmit. Um, which obviously goes against our entire goal of how to reduce HIV epidemic.

Beirne: Yeah. The only defense for, for HIV criminalization is not knowing your status and so in, in, in most states. So like it's a huge disincentive to people, particularly people who think they may be at risk. It's a huge incentive to not get tested and not know your status. This is also a place where we see highly political prosecutions already marginalized population, gay men in, in a criminalized environments, a lot of sort of playing into sexual stereotypes. Um, and again, I don't, I don't like to say this cause I really, really don't think criminal law should be used as a tool in public health because it's, it's uh, not the right tool. But if you can prove that someone wanted to harm someone else and that the weapon they wanted to use was an infectious disease, in this case, HIV, we have criminal laws that will get you there. That's assault, that's like, you know, attempted murder. I mean, we and some of those cases have played out in, in, in states where you have a doctor who takes blood from one of his positive patients and injects it into his mistress, who's trying to leave him. Yeah, that's a crime. And he was prosecuted under existing criminal law. You did not need a stigmatizing specific HIV statute because of that. So when you're thinking about that sort of archetypal harm that people are so afraid of, you shouldn't be able to intentionally infect someone and not have there be a criminal penalty. We have an entire criminal law that is able to do that. What the HIV specific criminal laws do is increase the perceived fear of HIV. Um, they really call it out as extraordinary as an extraordinary harm. They're not rooted in science at all. Condoms aren't a defense in most cases. Having an undetectable viral load is not. So the, essentially the inability to transmit HIV is not reflected in our criminal law. And I will say as someone who worked a lot of these cases, we are in 2019 and the vast majority of the judiciary in the United States and abroad comes from a single point of view, which is that, and this is a cross for the most part, age and political spectrum, the vast majority of the judiciary lives with an assumption that no one would ever willingly have sex with someone who's HIV positive. And that is an unstated presumption that is reflected in all HIV specific laws and the prosecutions that result from them.

Preston: Absolutely. Especially that last part. And I'm actually had many conversations with folks both on the hill and just on social media about that. And the idea is literally who would have sex with someone with it, knowingly have sex with someone who's living with HIV, uh, and Beirne did such a wonderful job. And I just want to highlight a couple of things. And those are just statistics. And so in many states actually that have HIV specific criminal laws in the book, you also have to register as a sex offender if you are convicted.

Jennie: Oh, I hadn't, that I had no idea.

Preston: Yeah. And the United States, 34 states have specific HIV laws. Um, and or you can use it as a sentence enhancement. Um, and half of this states to Beirne's point, there are non HIV general criminal statutes that you can use and all of the states you have battery, et Cetera. But this one is literally a non HIV general criminal statute. And, and I do want to highlight one case because just to let your listeners know, this is not just, you know, hyperbolic or just random. You know, the story of Michael Johnson is his nickname. Um, as a wrestler. He's the co, he was a college student, um, at Lindenberg, uh, college in Missouri. Um, his wrestling name was Tiger Mandingo. And so, you know, he's a black gay man, tall, muscular. And so I think we can already kind of understand why the media decided to use his wrestling name instead of his real name to really talk about his, um, his h him living with HIV in this case. So he was actually sentenced to 30 years in prison for what was called a quote unquote, recklessly endangering, uh, four other four people who have sex with. Even though if you actually look up the court record, one or two of them actually said that they knew he was living with HIV, like they said that they knew and they still have condomless sex with him and they were still able to bring forward their case. Uh, so he was, so I will say his, it was overturned, um, later, um, due to a lot of pressure. You know, thankful to an organization called the Counter Narrative Project, Cyril project and a few others, um, around the United States that are just really focused on decriminalization of HIV. Um, he will be released from prison this October. Uh, but it's still a goal is to say, look, you know, someone was actually charged and convicted. And, and also we're talking about like the courtroom. He had a public defender, which should, this is no disrespect to public defenders. They're overworked and underpaid all through over the country, but him having a public defender, um, part of the issue behind it also was that she was overworked. And so it was really tough for her to really dedicate a lot of attention to this huge case. Also, one of the reasons why it was overturned, it's important to note, and it's because the prosecutor did not turn over what's called a sculptortory evidence. And so that's evidence that really would give way to you and understanding that he did not actually commit a criminal offense. And to the last point about you equals you about like this undetectable.

Beirne: What is you equals you?

Preston: So really about the idea that you can't transmit if you're undetectable, if you have an undetectable viral load, which I hesitate to always talk about that because it creates a hierarchy of people living with HIV. But it is important to note that scientifically you cannot transmit HIV if you have an undetectable viral load. But the court does not pay attention to any of that, uh, because it just has not exactly...

Beirne: We haven't even gotten them to pay attention to condoms as a defense. We're sure not going to get them to pay attention to science.

Preston: In fact, in some, in some states, condoms can be used as the form of evidence that you were intending to have sex. So it just, you know, this is all about a fear of individuals having sex even even if it's consensual sex or just worry. Well, sex is consensual, so I'll clarify that. Uh, but you know, that's really what this is about are people who are having sex and people fearing people having sex.

Beirne: I will say all of the high profile prosecutions, um, the ones that have gone to trial have been gay men and I've been, um, in fairly conservative states. It's been very, um, you know, media circuses about sort of like what really sort of reinforcing narratives about, um, sexual predation, um, and, and a lot of early narratives about the HIV movement and, or about, and about promiscuity and, and sort of really some hardcore 1980s narratives. I think it's also important to note that the vast harm of HIV criminal laws never ever makes it to the courts. Um, the two places where we actually see the most use of the laws within and outside of the actual courtrooms. One is against prisoners. Um, so HIV positive prisoners can have nearly anything that happens inside prison amplified because they're positive. So you see a ton and I mean, I really truly cannot name them and it's very, very hard to get access to the records to be able to name them, let alone to defend them. Uh, we have multiple cases of prisoners being beaten by guards in prison, um, altercations or uprisings who were HIV positive because they were HIV positive and blood got on the guards. They got an additional four to six years for HIV exposure of the guards who were beating them.

Jennie: Yeah, perfect sense.

Beirne: The vast majority of the people who have enhanced criminal penalties around HIV are already existing prisoners and whose prison systems use their HIV status as an additional tool of control and sort of weaponizing them in a attempted most marginalized, most marginalized, least able to access help. Yeah. Similarly, the way women experience HIV criminalization is oftentimes different than how we see the high profile cases. It's oftentimes used first as a tool of control and intimate partner violence. As Preston said, knowledge of status is not necessarily a defense. So even if you can say, my partner knew that may not actually stop you from getting prosecuted. So the vast, like for women, oftentimes what they experience is their HIV status and the threat of criminal prosecution as an additional tool used by their abusers to threaten them if they try to leave, uh, threatened to take the kids away, threatened them in other ways, and basically say, well, I'll just, I'll tell him, I didn't know. Or you got pregnant after you knew you were HIV positive in quite a few US states, a woman living with HIV, getting pregnant is defacto evidence of a crime. So we also see medical providers and a couple of very, very, very sad cases that don't necessarily make it to the court. They certainly don't make it to the appeals court because women have huge social incentive to capitulate or take a plea deal if it gets as far as getting charged. But where doctors say, this woman isn't taking my medical advice, I'm gonna threaten to take away her children because for child endangerment or like the way women in the US and abroad experience, HIV criminalization oftentimes doesn't make it to the courtroom and is often weaponized around around children, around pregnancy and around intimate partner violence.

Beirne: Again, totally predictable when we think about it, but really important to note those high profile front page cases as destructive as they are is not how HIV criminalization plays out for women most of the time. So some people are really comfortable talking about some of these topics but really uncomfortable talking about others. You want to talk about how they all fit together?

Preston: All of this is really connected to bodily autonomy and the rights for folks who have access over their own bodies. The other day I was on a panel and I'm going to connect it, I promise. Someone that was on a branding panel and it was about branding and the 21st century and how do you brand yourself both online and in person. So they asked every panel list, you know, what is, what is your brand? What do you want people to know about you? And I say a pro black pro queer pro hole. And the room kind of sums you up. And this is like 50 attorneys in the room. You know, who are pretty respectable in the legal community. And so, uh, when I said that there was laughter of course from folks who knew me and the other people were like, what just happened? And so I actually ended up explaining what that meant to me. I mean, pro black and quote pro queer, I think people understand. The idea of pro hoe, to me, it's just so important because to me it's a reclamation of your own body. And so, you know, there, there are so many rumors and judgements that people make about your ability to act, have access to control of your own body. And as a survivor, it's really important to me. To know that I have control over my own body and that, you know, that's what's most important to me. No matter if I have sex with one person or a hundred people or zero people, right? Like the ideas that I've still own that.From so many parts of the world, people do not have access over their own bodies, uh, because of states and statutes and just codes and criminal codes. And you know, I think that's by design, right? I think it's by design because folks want marginalized communities and other communities to feel like they don't have control over their bodies, that it's owned and controlled by the state. And so, you know, to me the connected experiences is this is all about sexual reproductive health and rights and about individuals owning their body and having access over bodily integrity.

Beirne: I really, um, agree with everything Preston said. Um, and, and I think all of these things are about how criminal penalties are used to try to reinforce very specific social views on bodily autonomy and, and how you should engage with your own body and your own sex life. And so much of the stigma we see is around an unwillingness to talk about sex and an unwillingness to think about sex. And I think we know, and I think you've talked about on other, other podcasts, that sexual behavior doesn't vary a lot. Um, no matter how conservative the state is, no matter sort of what the social mores are. Like there's actual data that majority of people in the world have sex because it's fun.

Jennie: What?

Beirne: I know.

Preston: Just for procreation?

Beirne: I actually had to check with our director of Policy Research Bergin Cooper on that cause I want it to be able to say it and she makes sure that I have a citation for everything I say. And so I actually have a citation for that. And I think it's really important because we do so much whataboutism, and we do so much focus both especially globally on the, the bad parts, right? The disease, the violence, the, the harm. The majority of sex is had because it is fun. And that is a scandalous thing to say out loud. And I think you see the flip side of that in all of this criminalization, is a really clear morality based perception that we need to, to criminalize people's use of their bodies, um, and their engagement with their own bodies, um, in ways that reinforce harm. So we, we want to criminalize abortion to penalize women for having sex because it's fun. There should be consequences, right? We all have heard those kind of talking points. We're very familiar with them. We're going to criminalize LGBTQ behavior because it falls outside of what we think sex should be for.

Jennie: You should be punished.

Beirne: You should be punished. HIV people who are living with HIV have already been punished and they definitely shouldn't be having sex. You know, afterwards. I think there's some real sort of themes about it and I guarantee that people have written brilliant thought pieces that Preston and I aren't citing right now, but in the very nitty gritty of the policy work we do, you see enormous similarities. I think we also constantly see similarities and themes in who it burdens the most. It's always poor women. It's always women of color. It's always immigrant women, whether you're talking about immigrant women in South Africa or immigrant women in Texas. Who is able to access care, who is able to circumvent, who is perceived as being a good victim or a good patient versus who isn't, who gets prosecuted, who doesn't. All of that stuff is you really, you have to notice who is constantly facing the burden of criminalization. I think we would be remiss if we didn't specifically call out trans women of color across all of these as who is specifically criminalized in their existence, disproportionately prosecuted and perceived as being sex workers, disproportionately prosecuted around, uh, LGBT and, and sodomy laws across the world. Disproportionally harassed facing police violence that makes them vulnerable to everything. I mean, if you just look at who gets harmed, you have to understand that these are all connected. Yeah. Yeah.

Preston: And that is why all of this is a reproductive justice issue. Right? And so, you know, obviously, you know, the sexual reproductive rights rely on your health and certainly all of those, rely on justice. And so we're really thinking about how this impacts the most marginalized. You know, we have to for me, you have to start with trans women of color. And I would obviously like to say for, for Beirne too with her previous note, you know, all of this is really about how do you get the most marginalized people and how do you actually make them as a state perceives them to be a quote unquote good victim. Um, and so there's so many ideas and so people who are criminalized and penalized for these statutes and for behavior, uh, and all of that is really because the state, many states led by cisgender heterosexual white men, namely are afraid of the idea of what other behaviors look like. Um, and so yeah, I agree with everything you just said. That was really my point that um, about who was most harmed by these criminalization policies and how this is actually connected to our reproductive health rights and justice issue.

Jennie: Great. Well that feels like a really good place to like stop, but I do always like to ask, what can listeners do to take action on these issues? So since I know you guys, I'm sure have some suggestions, what can listeners do?

Preston: In DC, at least I would say really look up the Sex Workers Advocates Coalition look up co collective action, excuse me, Collective Action for Safe Spaces. Look a or work that really on the ground folks are BYP 100. Work that folks on the ground are really doing to decriminalize sex work and in DC. And for folks who aren't in DC, there are still many opportunities to engage with either like local electeds and state electeds, right? Cause many, I say everything is local and so I know, you know, we, we work both in terms of federal and US foreign policy, but many of this starts on the local level. So definitely feel free to get involved write op-eds, write your members of Congress. Um, and of course I'll give the nerdy policy pitch so I'll make sure to get involved on the ground, but also pivot that to your local electeds and your state electeds as well.

Beirne: I think it's a really good time to speak to your elected officials about the broad harms of criminalization. Not even attached to a specific statute. Um, but about how it's not in your interest. Speaking up and just undermining the notion that everybody thinks, you know, we should criminalize sex work that everybody thinks, ah, you know, it's okay to have HIV specific laws. I think really engaging with your policymakers and your family on, on this isreally, really important opportunity. Preston, I work at the policy level. I would actually flag a resource from one of our colleague organizations. Um, Amnesty International has done a whole set of tools, um, called the Body Politics, um, which includes a lot of research but also a lot of amazing resources for activists on thinking about how to engage their local, national governments on, on issues of criminalization across criminalizations. And, and I think it's a really extraordinary resource, um, and certainly one that we use. Um, and so I do think that's a really great way to, to engage in systemic activism and not just plucking off the one you're most comfortable with.

Jennie: Thank you all for being here. That, uh, thank you, Beire. Thank you, Preston. I think this was a great conversation.

Beirne: Thanks Jennie.

Jennie: For more information, including show notes from this episode and previous episodes, please visit our website You can also find us on Facebook and Twitter at rePROs Fight Back. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.