“The Clinic to Prison Pipeline”: Intersections between the Criminalization of HIV and Sex Work and its Impact on Care, Policing, & Mass Incarceration
Lydia Babcock, M.A. and MPH Candidate
University of Memphis
Virtually all US jurisdictions criminalize sex work and cases of known HIV exposure. Yet, they use ambiguous language to define ‘intent’ and in practice these laws are often just another way to criminalize already over-policed communities.1 One Black transgender woman in Tennessee, for example, had to flee the state as she could not leave her home or walk in her community without being harassed or arrested by local law enforcement. Because she was living with HIV, the misdemeanor charge she would have faced was enhanced to aggravated prostitution– a Class C felony punishable by up to 15 years in prison and a $10,000 fine– numerous times for walking while Trans and as a known sex worker, even when she was not working. 1 Most recently, she was charged by an undercover cop who saw her walking alone and continuously asked her if she needed a ride until she reluctantly accepted.
Despite her refusal to discuss sexual services let alone perform them, it was his word against hers and there was thus a case against her. She was then forced to undergo mandatory HIV testing– the results of which were publicly available and announced in the court room as HIPAA somehow doesn’t pertain to ‘criminals’–and she was put in jail where she did not have access to her HIV nor hormone replacement medications. She was forced to register as a violent sex offender– a life-long status ordinarily given to pedophiles and other actual violent sex offenders– and was subjugated to increased surveillance by being forced to keep her address updated and attend mandatory check ins. As a registered sex offender, she was denied the few housing and employment opportunities available to her as a Black Trans woman as she could not work or live near children.
The HIV movement has largely excluded sex workers despite the fact that sex workers can be charged and subjected to enhanced penalties under both anti-HIV and anti-sex work laws, yet. 1,2,3 As such, there has yet to be any meaningful engagement between the sex worker rights and HIV movements in the US. While some public health professionals have advocated for the decriminalization of sex work and/or modernization of HIV laws, they have done so primarily by seeking to ‘control’ HIV through educational and behavioral interventions. Efforts to decriminalize sex work and/or modernize HIV laws in the name of public health have not been diffused within the discipline, which simultaneously seeks to ‘target’ both sex workers and other ‘risk’ groups for HIV intervention programs.
My Master’s practicum project bridges gaps between the sex worker rights and HIV movements as well as the disciplines of critically applied medical anthropology and public health by offering a point of collaboration for collective action to address criminalization. It seeks to answer the following questions: Who are anti-sex work and anti-HIV laws leveraged against and through what means? What commonalities emerge between who experiences further policing and incarceration under these laws and who is ‘targeted’ by public health initiatives? What is the relationship between the criminalization of HIV and sex work? What discourses and cultural logics inform the criminalization of HIV and sex work, and how are they upheld in criminal legal and public health apparatuses? How do these logics shape individuals under the threat of criminalization experiences with policing, incarceration, and public health and medical professionals? What discourses are used in networks of activists, advocates, grassroots organizers, and harm reduction workers to articulate and respond to the criminalization of HIV in comparison to the criminalization of sex work? How have sex workers been involved in the HIV movement and under what conditions? What opportunities for collaboration might exist between the HIV and sex worker rights movements?
Because HIV is criminalized differently across the United States, this project sought to better understand how anti-HIV laws are practiced in three key states with different penal codes: Florida, Tennessee, and Texas. Florida, the first state under review, is both one of 28 states with HIV-specific criminal laws and one of 25 states to prosecute PLHIV under non-HIV-specific, general criminal laws wherein positive HIV status was used to establish a non-HIV-specific aspect of an offense. 1-5 Tennessee, the second state under review, is one of 6 states that require PLHIV to register as a sex offender under HIV specific laws, one of 8 states with sentence enhancements for sexual offenses such as sex work and is one of the 28 states with HIV-specific criminal laws.5 Texas, the final state under review, was the first state to repeal its HIV criminalization law, but has prosecuted PLHIV under non-HIV specific, general criminal laws.5 By offering a comparative analysis of the ways in which sex workers living with HIV have been prosecuted in Florida, Tennessee, and Texas, this project hopes to offer exemplify the different ways in which anti-HIV laws and anti-sex work laws are enacted and enforced in three under-researched states.
The project is collaborative in nature and pulls from tenants of participatory action research to not only include sex worker and HIV activists throughout the project, but to involve them as project collaborators. To accomplish this, I first worked with the Sex Worker Outreach Project (SWOP) Behind Bars to establish a network of activists, advocates, and harm reduction workers to recruit for initial key collaborator interviews using snowball methods. Five initial key collaborator interviews were conducted with individuals across the country who worked with sex workers in some capacity and were engaged in the HIV movement through policy advocacy, grassroots activism or organizing, harm reduction care and outreach, or research. Key collaborators in this initial stage not only shared their experiences but also helped inform and revise research questions and the interview guide and helped recruit individuals with lived experiences that were important for me to talk to and understand. They also invited me to webinars, workshops, panels, and town hall meetings organized to address and respond to the criminalization of HIV and give space for individuals who live under the threat of criminalization to share their lived experiences.
Where initial key collaborator interviews helped me to gain a scope of the ways in which anti-HIV and anti-sex work laws intersect and are practiced at a national level, the subsequent in-depth interviews homed in on the experiences of collaborators in Florida, Tennessee, and Texas. Collaborators in this second phase were recommended by key collaborators in the initial phase, some of whom were recommended by several people. Some individuals I reached out to for in-depth interviews had suggested that they didn’t have much experience with the intersection of HIV and sex work criminalization but were excited to hear about the project and recommended individuals who did. In total, I conducted 12 in-depth interviews with sex workers, activists, advocates, and harm reduction in the second project phase. Collaborators shared their lived experiences as sex work and HIV activists under the threat of criminalization and explained its impacts on the environments of risk that collectively construct the “clinic to prison pipeline”, as coined by one collaborator Venita’s friend.
Following the in-depth interviews, I conducted one preliminary findings focus group with six collaborators to get feedback on whether their experiences were reflected in the findings, discuss the findings as a group, and offer feedback on anything I might have missed. The focus group went surprisingly well, and collaborators were eager to talk about the findings and many even shared their lived experiences with both the criminal legal and public health and biomedical systems. Finally, I will conduct two action planning focus groups scheduled at the end of October 2021 to think through immediate, interim, and long-term goals and actions to address major issues found in the themes. These include but are not limited to data sharing and surveillance between police and public health officials, disenfranchisement from employment, housing, and Churches, access to quality testing and treatment in jails and prisons, and stigma and representation in public health and biomedical institutions.
The results of this practicum will lay the foundation for a broader policy advocacy campaign in which the HIV movement might become more inclusive of sex workers so that advocates and activists may work together to address the criminalization of HIV and sex work. It will call in public health and biomedical professionals alike to consider critically applied medical anthropology perspectives on ‘risk’ discourses and the unequal power dynamics between public health professionals and the individuals in environments of risk they seek to ‘target’. Moreover, it will elucidate how public health interventions tokenize PLHIV and bring into question why initiatives such as the Know Your Status Campaign selectively focus on testing when knowing one’s status could be potentially incriminating. Finally, it will urge critically applied medical anthropologists to further explore care in criminalized contexts and the cultural logics that inform anti-HIV and anti-sex work laws despite having seemingly obvious negative consequences on public health and harm reduction efforts.
1 Galletly, C. L., & Lazzarini, Z. (2013). Charges for criminal exposure to HIV and aggravated prostitution filed in the Nashville, Tennessee Prosecutorial Region 2000-2010. AIDS and behavior, 17(8), 2624–2636. https://doi.org/10.1007/s10461-013-0408-1
2 Center for HIV Law and Policy, HIV Criminalization in the United States: An Overview of Both the Variety and Prevalence of Laws Used to Prosecute and Punish People Living with HIV in the United States (2017), hivlawandpolicy.org/resources/map-hiv- criminalization-united-states.
3 Baskin, Sienna, Aziza Ahmed, and Anna Forbes. "Criminal laws on sex work and HIV transmission: Mapping the laws, considering the consequences." Denv. L. Rev. 93 (2015): 355.
4 Galletly, Carol L., and Steven D. Pinkerton. "Conflicting messages: how criminal HIV disclosure laws undermine public health efforts to control the spread of HIV." AIDS and Behavior 10, no. 5 (2006): 451-461.
5 Center for HIV Law and Policy, HIV Criminalization in the United States: An Overview of Both the Variety and Prevalence of Laws Used to Prosecute and Punish People Living with HIV in the United States : Florida (2017)