With thanks to members of SWOP-USA

Laws that criminalize HIV exposure are supposed to benefit public health, but in practice are extremely harmful to public health and to the targeted HIV-positive individuals. Sex workers are highly vulnerable to these laws, which sometimes target HIV-positive prostitution specifically. Many require forcible HIV testing, and sometimes they simply criminalize HIV but in reality are applied to sex workers more frequently than to other populations.

The criminalization of HIV-positive sex workers and mandatory post-arrest HIV testing arguably violates international human rights treaties signed by the United States. Treaties with applicable provisions include the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), specifically their provisions on privacy, rights to equality before the law, and sanctions against inciting hatred and racial bias. Recent forced HIV testing in Greece provoked outrage among international human rights organizations such as Amnesty International and Human Rights Watch. WHO/UNAIDS (World Health Organization/the Joint United Nations Programme on HIV/AIDS) made a statement opposing forced testing. It is widely accepted that best practices for HIV testing, with the best public health outcomes, involve three key principles—consent to testing, the provision of counseling before and after testing, and confidentiality of results. The imposition of felony offenses on individuals who are said to be engaging in sex work while living with HIV punishes members of already vulnerable communities. They are prosecuted even when they use condoms and engage in less risky forms of sex with their partners, sometimes even if they have disclosed their status to their partner. Information about their HIV status, sometimes accompanied by photographs, is often distributed widely by the media in their communities, placing arrestees at risk of retaliation and other abuse. This incentivizes avoiding testing and does nothing to encourage treatment or safer sex practices.