Criminal laws on HIV transmission make little difference to sexual behaviour – or may make condomless sex more likely

This article is more than 8 years old. Click here for more recent articles on this topic

A study comparing the sexual behaviour of American gay men living in states with or without laws that criminalise HIV transmission has found very little variation by state, suggesting that legislation has minimal impact on public health. Or the law may be counter-productive – men who believed they lived in a state which criminalised HIV transmission were slightly more likely to have sex without a condom, the researchers report in AIDS & Behavior.

A handful of previous studies have shown that laws make little impact on the frequency with which people with diagnosed HIV disclose their status.

“Laws which promote public health through the curtailment of freedom can be justified only if they effectively achieve the desired goal,” the researchers say. More efforts are needed to inform policy makers and the public about the ineffectiveness of these laws to deter behaviour that places people at risk for HIV, they say.



Having sex without condoms, which used to be called ‘unprotected’ or ‘unsafe’ sex. However, it is now recognised that PrEP and U=U are effective HIV prevention tools, without condoms being required. Nonethless, PrEP and U=U do not protect against other STIs. 


In HIV, usually refers to legal jurisdictions which prosecute people living with HIV who have – or are believed to have – put others at risk of acquiring HIV (exposure to HIV). Other jurisdictions criminalise people who do not disclose their HIV status to sexual partners as well as actual cases of HIV transmission. 

The United States of America is the country which criminalises and jails people living with HIV the most for transmitting the virus and/or exposing others to the ‘risk’ of transmission (without transmission necessarily occurring). Many ‘exposure’ laws criminalise behaviours such as spitting which pose no real risk of HIV transmission.

Because different states of the union have different laws, it’s possible to use national surveys to see whether behaviour changes by jurisdiction.

Data come from a total of 2013 men who have sex with men who were recruited through online advertising to complete an internet survey in 2010. Average age was 36, three-quarters were white, half had completed college and two-thirds were single. One-fifth had been diagnosed with HIV but results were not presented separately according to respondents’ HIV status.

Most participants (68%) reported having sex without a condom in the past three months. Whether men lived in a state with an HIV criminal law or in which arrests and prosecutions had actually taken place made no difference to this figure.

While over half lived in states with HIV criminal laws, the respondents were not well-informed about this – three-quarters had no idea whether their state had an HIV criminal law or not. Men who had correct or incorrect information about their state’s law were just as likely to have sex without a condom.

But the 17% of men who believed there was such a law were more likely to report sex without a condom (75%) than men who were unsure about the law (66%).

The authors offer a possible explanation for this finding: “Men who believe that there is any or a sex specific HIV law in their state may believe that such laws are effective in discouraging HIV-infected persons from engaging in condomless anal sex. As a result, these men may engage in higher risk behavior because they perceive that they are at low risk for HIV infection, protected in part by state law.”


Horvath KJ et al. Men who have sex with men who believe that their state has a HIV criminal law report higher condomless anal sex than those who are unsure of the law in their state. AIDS & Behavior, online ahead of print, 2016.