On March 20, 2024, PA State Representative Ben Waxman, State Representative Malcom Kenyatta, and State Senator Vince Hughes announced plans to introduce legislation eliminating the felony penalty for people with HIV charged with prostitution. In announcing the legislation, Senator Hughes said “HIV is not a crime. This is 2024, not 1984. We have evolved so much in the forty years since we were confronted with this virus. Stigma was wrong then, and it is wrong now. Let’s continue the journey of eliminating this issue of discrimination toward HIV from the laws of the Commonwealth of Pennsylvania.”
The criminalization of HIV only serves to discriminate against HIV positive individuals, disproportionately impacting marginalized populations. By criminalizing HIV status, lawmakers, prosecutors, and police officers perpetuate the stigma against HIV-positive individuals and play into decades-old stereotypes. This creates a system that shames individuals for their diagnoses and discourages individuals from seeking out testing and treatment, further exacerbating health disparities.
The enhanced grading for HIV status is a remnant of the early days of the HIV epidemic. In the 1980s, many states passed laws that placed harsher criminal penalties on HIV-positive individuals out of fear and based on unfounded beliefs surrounding the disease’s transmission. Today, these laws remain in effect and are still applied by states, ignoring decades of scientific knowledge around HIV prevention, transmission, and treatment. Versions of these laws appear in statutes across the country as either specific HIV criminalization laws or enhanced grading provisions. However, many states have gone further, prosecuting HIV-positive people under general criminal laws.
Pennsylvania is one of nine states that still subjects people living with HIV to harsher penalties if charged with prostitution. Under Pennsylvania law, a person is guilty of prostitution if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; or (2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity.” For a first or second offense the charge is graded as a third-degree misdemeanor, a third offense is a second-degree misdemeanor, and a fourth or subsequent offense is a first-degree misdemeanor. However, a person may face a felony charge if they are arrested for prostitution and “knew that he or she was human immunodeficiency virus (HIV) positive or manifesting acquired immune deficiency syndrome (AIDS.)”
Recently, law enforcement applied this enhanced grading to a woman facing prostitution charges in Lackawanna County. In early April, Lackawanna County detectives and Scranton police made contact with a woman through an escort website promoting the services of transgender women. An undercover detective arranged to meet with the woman at a hotel in the 900 block of Viewmont Drive. According to investigators, the woman allegedly agreed to accept $400, mentioned multiple times her fear of being arrested for prostitution, and admitted to being HIV positive. The detective then arrested the woman and searched the hotel room, finding a bag of marijuana, numerous condoms, lubricant, $239 in cash, and the cellphone used to arrange the encounter. The woman currently remains in Lackawanna County jail after being unable to post the $15,000 bail.
This case is an example of how enhanced grading for HIV-positive status impacts the population. The woman charged previously plead guilty to a promoting prostitution charge in 2022, making this her second prostitution charge. Under Pennsylvania state law, a second offense should be graded as a third-degree misdemeanor, however, due to her HIV status, the woman faces felony charges.
While the introduction of this law is a step in the right direction, the CSE Institute urges lawmakers to go further, removing prostitution from the Pennsylvania crimes code entirely. The practice of prosecuting people who are bought and sold for sex perpetuates the harmful ideology that people in prostitution are criminals rather than people who are exploited. It increases the traumatization and stigmatization of this population and creates even more barriers for victims attempting to exit “the life.” A single criminal conviction can serve as a massive obstacle to stable employment, housing opportunities, and much more.
Multiple prostitution convictions can be even more devastating for people in prostitution. The crime of prostitution still carries draconian recidivist provisions; the more a person is convicted of a crime, the higher the penalty gets. These laws reflect the same myths that characterize prostitution as always being a voluntary “choice” the law must deter people from pursuing. However, the “choice” to sell sex is often made due to vulnerability, addiction, and in an effort to survive. Any choice made under these circumstances is no choice at all. Sex buyers always have the choice to not purchase sex and further the exploitation of an already vulnerable population.
The current system produces a gender-based inequality that perpetuates prostitution in the long run. Pennsylvania, as well as every state in the United States apart from certain counties in Nevada and Maine, adopted a full criminalization policy concerning prostitution-related offenses. This means that both buying and selling sex are criminalized under the law. However, statistics demonstrate the large gender disparities that exist in the arrest and prosecution of those involved in the sex trade. Unfortunately, it is more common for law enforcement to arrest those who sell sex- mostly women and girls- than those who buy sex- mostly men- letting many sex buyers to walk free. Data collected from the Administrative Office of Pennsylvania Courts show 1,443 arrests for selling sex in Pennsylvania and 447 arrests for buying sex in 2017. Assuming those 1,443 persons selling sex had multiple buyers a day, it means that in a single day, thousands more sex buyers, compared to sellers, got away with committing crimes. This disparity is even larger for women of color and transgender women.
Even when sex buyers are arrested, they often face more lenient punishment. On the other hand, a person with their first prostitution charge is typically offered probation in exchange for a conviction, without a path to have their record expunged. The system permits buyers to dodge repeat-offense penalties, while prostituted persons accrue convictions that expose them to increased punishments, including state prison sentences.
These flawed laws place prostituted persons behind bars frequently and for long periods of time. While incarcerated, prostituted persons are often recruited by traffickers who take advantage of public inmate registries and arrest data to prey on these women’s vulnerabilities. Traffickers recognize that the lack of stable options that can lead a person into prostitution remains — and is even exacerbated by — incarceration.
While the CSE Institute acknowledges that the proposed law is a step in the right direction, it does not go far enough. The crime of prostitution is rooted in stigmatization, and removing it is inherent to the progress of this state. Pennsylvania laws should reflect that people in prostitution are not criminals, but survivors.
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.