Disability Law and HIV Criminalization

Abstract

Over thirty states maintain criminal laws that expressly target people living with HIV. Thousands of people are prosecuted under these statutes, exposing them to decades of incarceration, thousands of dollars in fines, and state-sanctioned stigma. This broad pattern of discrimination based solely on HIV status—what this Note terms serodiscrimination—is not supported by scientific evidence nor public-health rationales. This Note argues that many states’ HIV-specific criminal laws violate the Americans with Disabilities Act’s ban on discrimination by public entities. While previous constitutional challenges to these laws have fallen short, litigation under federal disability law offers a new pathway for reform.

Keywords: disability law, criminal law, HIV, ADA, Title II