On Feb. 28, in honor of HIV Is Not A Crime Awareness Day, PA State Rep. Ben Waxman (D-Phila.) announced plans to introduce legislation to eliminate a felony penalty for people with HIV charged with prostitution. Waxman is collaborating with State Rep. Malcolm Kenyatta (D-Phila.) and State Sen. Vince Hughes (D-Phila./Montgomery) on this legislation.
Prostitution is typically a misdemeanor offense; however, people living with HIV in Pennsylvania who are charged with prostitution can be charged with a felony. This would happen even if transmission would not be possible, because no physical contact occurred or the nature of contact is not a method of transmission.
Pennsylvania is one of nine states that still subjects people living with HIV to harsher penalties if charged with prostitution.
Prostitution and other forms of sex work are generally considered law priority enforcement crimes, when they are considered crimes at all. The addition of the felony enhancement for persons with HIV engaging in prostitution or other forms of sexual activity took place in the early days of the HIV epidemic, when an HIV diagnosis often resulted in a high degree of fear and discrimination.
“HIV criminalization laws have not kept up with the four decades of progress in the fight against HIV, and do not reflect current scientific knowledge around HIV prevention, transmission, and treatment,” Waxman said in a statement released to the public. “The harsher criminalization of those living with HIV only stigmatizes those who have contracted this virus as well as the marginalized communities it disproportionately affects.”
Concurrent with their announcement of their intent, Waxman and Kenyatta released a sponsorship memorandum for the purpose of signing up sponsors for the prospective legislation. The memo says, in part: “In Pennsylvania, people living with HIV have been prosecuted under generally applicable laws for conduct that would not be a crime, or would be a less serious crime, but for their HIV status.
“HIV criminalization laws have not kept up with the four decades of progress in the fight against HIV, and do not reflect current scientific knowledge around HIV prevention, transmission and treatment. Pennsylvania law should reflect this scientific understanding, while having the flexibility to adapt to future developments in research.
“By keeping discrimination against people living with HIV embedded in Pennsylvania law, the state also faces the prospect of costly legal challenges. On December 1, 2023, the Department of Justice issued findings that Tennessee is violating the Americans with Disabilities Act by enforcing its aggravated prostitution law, which similarly makes prostitution a felony offense for people living with HIV. The same logic applies to Pennsylvania’s felony prostitution law.”
According to Mario Allegrini of the House Democratic Communications Office, there is currently no projected time table for when the prospective legislation will be introduced.
The AIDS Law Project of Pennsylvania is assisting the legislators in crafting the bill.
A recent press release from the AIDS Law Project stated, “HIV criminalization does not make anyone safer, but reinforces stigma and undermines public health goals. The two legislators, both known for their advocacy on behalf of people living with HIV, intend to remove this stigmatizing law from the criminal code.”
The release continues, “Removing the felony charge removes the last relic of HIV criminalization laws in Pennsylvania, one of nine states still subjecting people living with HIV to harsher penalties if charged with prostitution. In recent years, other states — including Georgia, Nevada and California — have modernized or repealed their prostitution laws.”
A recent poll from Susquehanna Polling and Research shows that a majority of Pennsylvanians believe that the state’s HIV laws should be updated to reflect modern science. The poll found that an overwhelming majority (76%) feel that the state’s HIV laws need to be updated, while 79% of the respondents believe that people living with HIV should receive the health and treatment they need, rather than face criminal charges that discriminate and discourage proper testing, treatment and disclosure.