This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, and The Buckeye Flame. Sign up for their newsletters, and follow them on Instagram, TikTok, Reddit and Facebook.
There are no national requirements for states to track arrests or prosecutions using laws that criminalize people living with HIV.
Until recently, it wasn’t clear how frequently people were arrested or prosecuted under six Ohio laws that criminalize certain acts — including sex — or whether penalties were substantially increased. Some of the laws also apply to people with hepatitis or tuberculosis.
Research released by the Ohio Health Modernization Movement and Equality Ohio, two groups pushing for the laws to be reformed, identified 214 cases prosecuted in Ohio during a six-year period ending in 2020. That number is likely lower than the actual number of cases prosecuted. The information came from court dockets, clerks and prosecutors in Ohio’s 88 counties. Not all counties included detailed information on the charges, so some cases weren’t counted.
What are the six Ohio laws that criminalize living with HIV?
Ohio law considers it a type of felonious assault to have sexual contact with another person without telling them if you have HIV, hepatitis or tuberculosis. This crime can be prosecuted regardless of whether the virus was transmitted, or whether protection, such as condoms, was used. It doesn’t matter if the person had an undetectable level of virus in their blood and was unable to transmit HIV.
It is also illegal to harass a person using a bodily substance, including blood, saliva, feces, urine or semen. The penalties increase for a person with HIV.
Soliciting sex, selling sex or loitering in an area with the intent to sell sex are all illegal and have higher penalties for people living with HIV.
Selling or donating blood or plasma if you have HIV is also against the law.
Where in Ohio are the most cases prosecuted?
Researchers found the most prosecutions in places with the highest populations: Cuyahoga, Hamilton, Franklin and Lucas counties.
Cuyahoga County charged four times as many cases under the six laws as Franklin County, which has a higher population and more people living with HIV and AIDS. The counties that charged largest share of cases were:
- 26% in Cuyahoga County
- 12% in Hamilton County
- 7% in Lucas County
- 7% in Franklin County
- 5% each for Montgomery and Warren counties
The Marshall Project looked at 36 Cuyahoga County prosecutions from 2016 through 2022. The cases involved 18 law enforcement agencies, including three hospital police departments and public transit police. More than a third of the cases were for not disclosing HIV status. Just under a third were for “harassment by inmate,” which the prosecutor’s office said included cases involving hepatitis and not just HIV.
How many people in Ohio have had an HIV diagnosis?
In 2022, about 25,000 people in Ohio were living with HIV, according to the state’s health department. The rate of Black residents diagnosed with HIV was more than six times the rate of white residents.
In Cleveland, new HIV diagnoses rose by 6% between 2017 and 2021.
What types of cases were prosecuted most often?
More than half — 56% — of the cases identified were for “harassment” with a bodily substance, such as saliva, urine, feces or blood.
A third of the cases — 36% — were for “felonious assault,” which carries the most severe penalty of any HIV-related charge. The rest — 8% — were cases involving sex work.
Researchers didn’t find prosecutions for selling or donating contaminated blood.
How do Ohio laws increase penalties for people living with HIV compared to those who do not have the virus?
Penalties for individuals living with HIV can be anywhere from two to 29 times stiffer than those for people who don’t have HIV.
Charges for harassment with a bodily substance carry a penalty of up to five years in prison and a $10,000 fine. That range is one to six times greater than for a person who does not have HIV. The potential fine is three times greater.
Felonious assault for not disclosing an HIV-positive status carries a minimum penalty of two to eight years and up to 12 years in prison and a $15,000 fine. A person may also be required to register as a sex offender. This penalty doesn’t exist for a person without HIV.
Prostitution or engaging in sex without disclosing HIV status carries a penalty of one to three years in prison and a $10,000 fine. That range is six to 18 times greater than for a person who does not have HIV. The fine is 19 times greater.
Soliciting or offering to sell sex without disclosing HIV status carries a penalty of one to three years in prison and a $10,000 fine. That range is six to 18 times greater than for a person who does not have HIV. The fine is 19 times greater.
Loitering in an area while intending to sell sex while HIV positive carries a penalty of six to 12 months in prison and a $2,500 fine. That range is two to five times greater. The fine is four times greater.
How are historically marginalized groups affected by HIV-related prosecutions?
Court records lack or have conflicting information on race or ethnicity. And the sex captured in law enforcement records does not always accurately capture a person’s gender identity. Records also don’t include whether a person identifies as an LQBTQ+ person. That prevents a full understanding of how the laws impact people of color and LQBTQ+ people.
However, there is a significant racial disparity between people charged under HIV criminalization statutes when compared to the general population. Of people prosecuted in Ohio, about 36% of defendants were identified as Black. The 2020 U.S. Census identified just under 13% of Ohioans as Black.
A separate report from the Williams Institute based at UCLA looked at arrests under Ohio’s six laws over a two-decade span. The institute does legal and public policy research on sexual orientation and gender identity.
It found that:
- Women were over-represented in HIV-related arrests: 48% of people arrested, but only 21% of people living with HIV in Ohio.
- Black people were 44% of people arrested for allegations of an HIV-related offense in Ohio but made up 13% of the state population and 44% of people living with HIV in Ohio.
