The Williams Institute has produced a report about HIV criminalization in Florida. HIV criminalization occurs when a person’s HIV status determines whether behavior is criminal.
These laws make consensual sex without disclosure of HIV-positive status illegal. They increase penalties for sex work. They do not require transmission. Use of a condom or having an undetectable viral load are not allowed as defenses.
The Institute obtained data from the Florida Department of Law Enforcement. This Criminal History Record Information (CHRI) has data for cases, from arrest to sentencing. The Institute examined the CHRI from 1986 through 2017. They found wide variation by county, as well as by race and gender of the accused. The Institute found that these laws were enforced more often in the context of sex work than in other contexts.
Florida made 874 HIV-related arrests from 1986 through 2017. These 874 arrests involved 614 people. About 59% of those 614 were arrested for sex work while living with HIV. About 81% of arrested sex workers were female. Sex workers living with HIV in Florida have been bearing the brunt of these laws.
Few HIV-related arrests occurred before 1993. In the 24 years between 1993 and 2017, the annual number of arrests averaged 36.
HIV-related arrests occurred in 47 of Florida's 67 counties. These arrests showed no relationship to the number of people living with HIV. Duval County (Jacksonville) has about 6% of all people living with HIV in Florida. Yet it had 23% of all HIV-related arrests. In contrast Broward and Miami-Dade have 18% and 24% of all people living with HIV in Florida. Broward has 3% of all HIV-related arrests and Miami-Dade has 4%.
Race and gender impacted arrest, release without conviction, and conviction rates. About 56% of those arrested were women, but in 2017 only 28% of people living with HIV in Florida were women. The greatest disparity occurred among white women, with 39% of arrests, but 4% of people living with HIV. Black men were the most likely to be convicted in non-sex work cases. Black women were the most likely to be convicted in sex work cases.
Arrests do not always lead to convictions. Sometimes charges are reduced. Sometimes people are released without a conviction. Stark differences appeared between HIV-related sex work arrests and those not related to sex work. While 63% of HIV-related non-sex work arrests resulted in release without conviction, 31% of HIV-related sex work arrests resulted in release without conviction.
A sex worker would face two charges under these laws: one for sex work and one for HIV-positive status. The median sentence for an HIV arrest involving sex work was one year, added to the sentence for sex work. For a HIV arrest with no sex work, the median sentence was three years.
Problems with the data
The Institute found no record of Latinx among those arrested. Alternatively, the Institute suggested that that absence might reflect poor data collection practices rather than the non-arrest of Latinx. Law Enforcement may have used only black and white as racial categories. This would undercount Latinx and overcount blacks and whites. Until more is known, that remains a possibility.
The Institute noted the absence of sexual orientation and gender identity (SOGI) data. Given how these laws impact sex workers, it is important to know if the term “male” sex workers refers to hustlers or to transgender female sex workers. The absence of SOGI data makes that impossible to know.
Despite these data problems, this report makes a valuable contribution to our understanding of HIV criminalization in Florida.