Key Takeaways for Reform from the Williams Institute Report on HIV Criminalization in Missouri
by Marguerite Schauer, Interim Staff Attorney, Center for HIV Law and Policy
The latest in a series of reports on HIV criminal laws from the Williams Institute provides a thorough picture of how Missouri’s laws are being enforced, analyzing arrest and conviction data from 1990 through 2019. All of the offenses studied are felonies under current law (Missouri has one misdemeanor targeting PLHIV, related to violations of quarantine orders, but it does not appear this law was utilized in the time period studied).
Over a 29-year period, 593 people ranging from 17 to 76 years old were arrested for HIV-related felonies in Missouri. The total number of offenses charged, 723, reflects that some of those arrested were charged with more than one HIV-related offense. Of the 593 people arrested, 54% were convicted of an HIV-related offense. For one out of four arrested, it was their first contact with the criminal legal system.
Missouri’s HIV-related felonies are found in five laws. None of the felonies enumerated in these laws require actual transmission of HIV, the intent to transmit HIV, or even conduct that poses a risk of transmitting HIV. None of these offenses take into consideration the use of prophylactics of any type, with multiple provisions specifying that the use of condoms cannot be a defense. The criminalization of HIV in Missouri traces its origins to 1988, when fear and HIV stigma were particularly high, and before key advancements in HIV treatment allowed most people living with HIV to live a near-normal life span. That said, recent proposals for new criminal laws across the country suggest that neither ignorance nor bias related to HIV have changed significantly in the intervening decades.
Missouri’s HIV felonies only require that the accused had knowledge of their HIV status, rather than intent to transmit, and engaged in conduct the Missouri law describes as “exposure.”
A key takeaway from this report is that HIV-related offenses are prosecuted primarily against those who are already incarcerated. Consistent with previous Williams Institute findings on this topic, the authors found that Black people are the demographic most targeted by these laws in Missouri, representing 56% of the arrests and 60% of the convictions, while they account for 11.8% of the state’s population.
The figures get worse for Black men in particular, who are 5.5% of Missouri’s population. Half of those arrested for HIV-related offenses and 54% of those convicted are Black men. Among those charged with the most frequently enforced offense for which HIV is a required element — exposing another person to HIV through sex, needle sharing, or biting — 54% are Black men. Of those charged for the most frequently enforced offense overall — “endangering” a corrections employee — 41% are black men, while 37% of those who receive the elevation for HIV or hepatitis for this offense are black men. These figures reflect a frustratingly familiar pattern from across the criminal legal system: no matter what the intent of a law was, what behavior it criminalized, or who it was expected to target at its inception, criminal laws tend to have the most devastating effects on Black communities.
It is also notable that the “endangering” offense, which can only be committed in corrections settings, is charged most in Missouri, in contrast to other states where data show sex workers are the most frequent targets of HIV-related prosecutions.
This full report on Missouri’s criminalization of HIV came out in February, but the Williams Institute recently released a handy fact sheet summarizing the key data. Both documents could prove very useful for Missouri advocates as they look to reform their state’s laws. The analysis of Missouri’s data also provides an important warning in the age of COVID-19. If states turn to the criminal legal system as a fix for the current public health crisis, as they have in response to the HIV epidemic, the facts show that already oppressed groups will suffer the consequences.
Marguerite Schauer is Interim Staff Attorney at the Center for HIV Law and Policy.