Pennsylvania is Decrimnalizing HIV Sex When There isn No Risk of Exposure
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| Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania, speaks at a July 16 press conference about SB45. |
Philadelphia Gay News
Undetectable= No Transmission
Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania, speaks at a July 16 press conference about SB45.
For more than 30 years, people living with HIV/AIDS could face felony charges in Pennsylvania based solely on their HIV status. As the statutes currently read, sex work related charges — referred to as prostitution in the penal code — are misdemeanors. But people living with HIV facing sex work related charges could have their charges enhanced to felonies, even in circumstances when HIV transmission isn’t possible.
That will soon change thanks to Senate Bill 45 (SB45), a rare bipartisan win that will update the way the state approaches sex work and eliminate stigmatizing sentence enhancements. It now awaits a signature from Gov. Josh Shapiro before becoming official.
“Criminal penalties for living with HIV have never served an effective law enforcement purpose,” said Ronda Goldfein, executive director of the AIDS Law Project of Pennsylvania. Goldfein spoke at a press conference at Philadelphia FIGHT on July 16. “No credible research has ever linked penalties with a reduction in HIV transmission. In the 30 years since the penalties became law, they have rarely been charged, so why are we standing around on this hot day celebrating their demise? Because stigmatizing a medical condition instead of treating it has never gotten us anywhere.”
Goldfein explained that HIV was first criminalized in the early ‘90s in a misguided attempt to prevent HIV transmission. Congress required states receiving funds from the Ryan White CARE Act — which was newly developed to pay for HIV treatment — to have laws that criminally punished those who intentionally expose others to HIV. Pennsylvania became one of 32 states to pass legislation specifically targeting those living with HIV/AIDS. But creating new laws to become compliant was redundant, explained Goldfein, as criminal codes already punish this kind of harm with broader statutes that don’t explicitly call out HIV.
When the Ryan White CARE Act was amended in 2000, the exposure law requirement was eliminated. Pennsylvania slowly removed references to HIV in the criminal code, but this statute regarding sex work lingered. When Gov. Shapiro signs SB45 into law, references to HIV will be completely eliminated.
“Linking HIV to crime is just wrong,” Goldfein emphasized. “It’s discriminatory and stigma-producing, which fuels the AIDS epidemic.”
Dr. Jay Kostman, Chief Medical Officer at Philadelphia FIGHT, explained that there is no scientific basis for criminalizing HIV.
“If there are legal consequences for being HIV positive, people will avoid testing and treatment,” he underlined. “If they’re known to be HIV positive, those consequences may discourage disclosure to partners, overall actually producing the opposite public health effect to what was intended.”
Rep. Ben Waxman introduced a provision to decriminalize HIV, which passed in the House of Representatives but didn’t gain enough support in the Senate. Despite this challenge, advocates were able to get the measure included in SB45, which restructures the state’s approach to sex work charges. The bill passed unanimously, Waxman emphasized, with lawmakers in both chambers collaborating across party lines.
“This victory belongs to the advocates, to the healthcare providers, to the legal experts, and the people living with HIV who never stop pushing for change,” he said.
SB45 overhauls Pennsylvania’s statutes relating to sex work and prostitution, relocating those topics from the “public indecency” section of the crimes code to the “human trafficking” section. It removes references to “prostitutes” and instead opts for person-first terminology — a move that both destigmatizes sex workers and linguistically implies that the act is something that could be done to an individual through coercion. The bill doesn’t decriminalize sex work — but it reframes emphasis. It identifies sex workers as vulnerable people who could be victims of sexual servitude, funds programs that help victims of human trafficking, and enhances penalties for traffickers and those who enable trafficking or exploit vulnerable people.
“We did something just a few days ago that we need to do more of in Harrisburg,” said Rep. Malcolm Kenyatta. “People across the aisle, across the building, actually [came] together to solve real problems, not just keep arguing — sometimes over made-up problems, but actually solve real problems that can make people’s lives different.”
Kenyatta underlined that he believes the HIV/AIDS crisis will truly end in this generation. But, he emphasized, it will take specific steps to get there — like ensuring that PrEP and PEP are accessible to all, educating people about undetectable viral loads, and solving root causes that have previously left community members out of care.
Rep. Andre Carroll noted that more lawmakers across the country are finally ready to start caring about and acting on these kinds of issues thanks to the longtime advocacy work of activists. Philadelphia City Councilmember Rue Landau, who began her journey in advocacy work fighting for HIV/AIDS justice with ACT UP, underscored that perseverance made this win possible.
Waheedah Shabazz-El, co-chair of the Pennsylvania Justice Alliance, said at the press conference, “We have led this charge because the voices of lived experiences — people like me, people living with HIV — must be at the center of law and policies that impact our lives.”
Shabazz-El saluted “the vision, the courage, and leadership of Representative Malcolm Kenyatta, Representative Benjamin Waxman, and Senator Vincent Hughes for recognizing a fundamental truth: that having HIV is not a crime, but criminalizing people because of their HIV status is an injustice. Now, as we wait for the governor’s signature, we stand on the threshold — on the precipice — of meaningful and long overdue change.”
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