December 1st is World AIDS Day. On World AIDS Day, Sex Workers Outreach Project-USA calls to end mandatory testing and the criminalization of HIV. We also call on the United States to end the practice of using condoms as evidence in prostitution arrests and the criminalization of sex work which increases sex worker vulnerability to HIV. And we support Adult Film communities’ fight against legislation introduced by Michael Weinstein and the AIDS Healthcare Foundation president that would require adult film actors to use condoms in and allow the general public to sue producers for failing to use condoms in porn.
Condoms as Evidence
Police in New York, Los Angeles, Washington, DC, and San Francisco frequently confiscate condoms from sex workers and trans women and use condoms as evidence to support prostitution charges. According to the Human Rights Watch:
The Crusade Against Condomless Porn
In August, three large adult industry STI testing and treatment facilities were served subpoenas demanding the release of adult performer medical records dating back to 2007. Filed by Michael Weinstein of the Aids Healthcare Foundation, the subpoena is part of an ongoing crusade against condomless porn–one that is far from over. Weinstein is seeking to pass “The California Safer Sex in the Adult Film Industry Act,”a broader, state-wide version of Measure B, the 2012 ballot-measure that mandated condom use on adult film sets in LA county. The measure would allow the broader public to sue adult film producers for failing to use condoms in adult film, even giving a financial incentive to due so. California will vote on the California Safer Sex in the Adult Film Industry Act in 2016. To learn more about what’s wrong with the Act, read Red Light Legal’s blog: CA Voters Will Put Porn Performers at Risk.
Mandatory Testing and the Criminalization of Sex Work and HIV
According to the HIV Law and Policy Report (p. 292):
Thirty-two (32) states and two (2) U.S. territories explicitly criminalize HIV exposure through sex, shared needles or, in some states, exposure to “bodily fluids” that can include saliva. At least thirtyfive (35) states have singled out people who have tested positive for HIV for criminal prosecution or enhanced sentences, either under HIV-specific criminal laws or under general criminal laws governing crimes such as assault, attempted murder or reckless endangerment.
Because sex workers are criminalized for engaging in an activity at risk of transmitting HIV, sex workers are frequently subjected to mandatory HIV testing during interactions with the criminal justice system and sex workers often face disproportionate burdens for the criminalization of HIV.
*95% of the 800 individuals charged with HIV exposure in California between 1988 & 2014 were sex workers or individuals profiled as sex workers. (source)
* Between 2000-2010, in Nashville, Tennessee, 25 individuals were charged with “aggravated prostitution” and at least one individual engaging in sex work was charged with HIV exposure. Sex Workers disproportionately took the brunt of the criminalization of HIV and accounted for 63% of the 41 sexual exposure to HIV-related charges filed in the 10 year period. (source)
* Half of those charged with aggravated prostitution in Nashville had only offered oral sex, an act with minimal risks of transmitting HIV.
* Nearly half of those charged engaged in substance use or had mental disabilities, and one-third were homeless.
* Street-based sex workers and individuals engaging in sex work to meet immediate survival needs, sex workers who use drugs, sex workers of color, and trans women face disproportionate criminalization and (due to the use of condoms as evidence, increased risks of violence, decreased ability to say no to clients who refuse condoms) are disproportionately vulnerable to acquiring HIV and are disproportionately criminalized for engaging in sex work while HIV.+
At least thirty-two states have statutes permitting involuntary HIV testing of certain suspects, defendants, or convicts (source) and at least 25 states have statutes permitting mandatory testing of individuals arrested for, charged with, or convicted of prostitution.(source) *Note, in these 25 states, statutes may refer to all “sex crimes,” all crimes, or specifically to prostitution.
Statutes criminalizing engaging in sex work while HIV+
Engaging in sex work while HIV+ can result in a second, felony conviction for HIV exposure or “aggrevated prostitution.” Statutes criminalizing engaging in Sex Work while HIV+ are often broader than general statutes that criminalize engaging in sex while HIV+.
General statutes criminalizing sexual HIV exposure often require an actual transmission or engagement in a sexual activity likely likely to transmit HIV (Condom use is often regarded as an affirmative defense. Individuals cannot be criminalized for giving a hand job while HIV+). In a number of states, they also require intent to transmit HIV. Finally, disclosure of HIV status is often an affirmative defense.
In contrast, to be convicted under statutes that criminalize engaging in sex work while HIV+:
*No activity likely to transmit HIV required: (except, possibly, in Florida, although “likely to transmit” is not defined). states specifically criminalize violation of prostitution-related statutes, which include oral sex, hand jobs, sex with condoms, while living with HIV. Since many of these charges occur following sting operations, no actual sex act must take place. (Source)
*Disclosure is not a defense: (except in Georgia, Florida) (Source)
*Intent to transmit HIV is not required: (all states) (Source)
California | Colorado | Florida | Georgia | Kentucky | Missouri | Nevada | Ohio | Oklahoma | Pennsylvania | South Carolina | Tennessee | Utah
Knowing HIV status is often a requirement: an individual often must KNOW HIV+ status to be charged under these laws. Knowing your HIV status is key to starting anti-retroviral therapy, which reduces HIV viral loads and risks of transmitting HIV. Knowing your status is also critical in preventing the spread of HIV.
Additional Resources on HIV and Sex Work
The Center for HIV Law and Policy (Website)
HIV and Sex Work (The Lancet)
Subpoenas and Community Condom Policing: The War on Condomless Porn (SWOP-USA | Free Speech Coalition)CA Voters Will Put California Porn Performers at Risk in 2016 (Red Light Legal)
Sex Workers at Risk: Condoms as Evidence of Prostitution in Four US Cities (Human Rights Watch)