Safety Net

For Homeless Youth, Statistics and Reality Are Miles Apart

At the headquarters of Covenant House Washington in Southeast D.C., a nonprofit serving youth experiencing homelessness, ten twin-sized black canvas cots fill a white-tiled alcove on the main floor. The space serves as an emergency shelter for homeless young people, which Covenant House calls “The Sanctuary.” In keeping with its name, the walls are a deep, soothing blue.

Five of the cots are for women and five for men, which is far short of the demand. The room is empty now, in mid-afternoon, but by 6:00 p.m., when the shelter opens, young people will be lining up for a chance to snag a few square feet of space for the evening, and maybe a shower and a hot meal.

“We turn away at least 8 youth per night,” says Madye Henson, Covenant House Washington’s chief executive officer.

Henson has added extra beds for hypothermia season and is planning a permanent expansion to 20 beds this year. In combination with its other programs, that would bring Covenant House’s total emergency shelter capacity to 77, making it the city’s largest provider of emergency shelter for homeless youth. But compared with the D.C. General Family Shelter for families with children, with 264 beds, Covenant House is still tiny.

The shortage of shelter beds for homeless youth is endemic across the country. Youth homelessness has been a low priority for federal funding and largely an afterthought in communities’ efforts to fight homelessness. Instead, young adults have been thrown into the system for chronically homeless adults, despite their very different needs and the dangers they face in adult shelters.

As a result, millions of young people are going without the shelter and services they need, at enormous downstream costs for government. “Shelter providers can tell you that some of the [homeless] adults they see now are the same people they saw as kids,” says Barbara Duffield, executive director of Schoolhouse Connection, a nonprofit advocacy group focused on ending youth homelessness.

As many as 1 in 10 young adults between the ages of 18 and 25—or 3.5 million young people—experience homelessness over a 12-month period, according to the Voice of Youth Count survey, a new study by Chapin Hall at the University of Chicago. About half of this is “couch surfing,” which could include crashing at a friend’s house for a few days between apartments but typically involves more long-term housing instability. The other half is “explicit” homelessness, such as sleeping in cars, sheds, or under bridges. And while homelessness is often perceived to be an urban problem, the Chapin Hall study found that rural youth were just as likely to have experienced homelessness as youth in cities.

“When most people think of homelessness, they think of older adults or families on the streets, not adolescents or young people,” says Matthew Morton, principal investigator for Chapin Hall’s research. “We’ve always assumed young people were running away or acting out but not becoming chronically homeless over time.”

Morton’s research validates what’s long been evident in places like the Latin American Youth Center (LAYC)’s “drop-in” center for homeless youth—a brightly painted row house in the Columbia Heights neighborhood of Washington, D.C. While places like Covenant House provide space at night, LAYC is one of only two places in the city where homeless youth can find a safe place to stay during the day. Young people can get something to eat, take a shower and brush their teeth, talk to counselors, get help finding a job, and even do some laundry. The center also distributes 9,000 diapers a month to homeless young moms and maintains a roomful of donated clothing in all shapes and sizes.

LAYC is one of only two places in the city where homeless youth can find a safe place to stay during the day

John Van Zandt, the center’s director, says that about 30 to 35 young people come in every day. While the majority of these are regulars, about 100 or so every month are first-timers.

On the Monday before Thanksgiving, there’s a turkey roasting in the oven of the communal kitchen on the top floor of the row house. One young man is doing his laundry, carefully separating whites from colors. On the ground floor, in what would otherwise be the living room, there are several desks and computers for staff and a row of chairs where half a dozen young people are hanging out. Some are scrolling through their smartphones, one man with long braids and ripped jeans is working on his resume with a staffer, and two others are resting on bunkbeds in a small room at the back. A lot of casual banter is flying. The atmosphere is relaxed.

An African American man named Trevor is among the young people sitting in the chairs at the front of the room (he did not give his full name for privacy reasons). His build is tall and stocky but his long-lashed features are delicate and his beard closely shaved. At the moment, he’s getting ready to leave for a part-time retail job at a cosmetics store downtown. Many of the youth who come to LAYC have jobs, but they don’t earn nearly enough to afford D.C. rents.

Trevor has been homeless since his grandmother, his only relative, passed away four years ago. “She did everything for me,” he says. For a while, he coped with alcohol. “You know how they have the wine in the plastic containers that hold three glasses?” he says. “I would drink three of them a day … But I wouldn’t be like drunk,” he adds quickly. “I don’t like to show up at work drunk.”

Trevor is 26 years old, technically past the age that he’s eligible to receive the center’s services (which is 24), but he has nowhere else to go. At night, he’s been staying at Casa Ruby, a shelter for homeless LGBTQ youth nearby. By day, he is often at LAYC.

Van Zandt hears dozens of stories like Trevor’s every day. “About 40 percent of the youth we serve identify as LGBT,” he says. “We have a lot of young trans youth here. Others have differences with their families and decide to leave. Some of them have babies, and their parents tell them, ‘If you’re old enough to have a baby, you’re old enough to be on your own.’” Other young people have been incarcerated but then released with no place to stay, while others are fleeing backgrounds of domestic violence or substance abuse or are aging out of foster care. Still others are what Van Zandt calls “generationally homeless,” with parents who are homeless, too.

Piled up against the walls of Van Zandt’s office in the basement are kitchen bags and paper sacks filled with clothes and random belongings—all left with him for safekeeping by the center’s clients. Each pile is its own story.

“That hamper down there is a boy who’s in jail,” says Van Zandt, pointing to a white plastic basket filled with sweatshirts and other clothing. “So we’re hanging onto his stuff till he comes back.” Van Zandt also says young people are allowed to use the center as their mailing address. “We have two huge mailboxes upstairs full of mail,” he says. “Hundreds of youth use this as their permanent address—packages, checks, you name it. I’m sure the DMV is wondering why there are so many people who say they live at 3045 15th Street.”

Despite the depth and breadth of youth homelessness that is obvious at places like LAYC and Covenant House, until only a few years ago, the Department of Housing and Urban Development (HUD) did not acknowledge homeless youth as a distinct population with distinct needs. Rather, HUD’s approach to homelessness has tended to be monolithic, with a particular focus on the highly visible, chronically homeless adults you see on park benches or sleeping in doorways.

One way this inattention to youth homelessness manifests itself is in the way that HUD determines the extent of homelessness in the country. On one night in January every year, the Department of Housing and Urban Development (HUD) coordinates a nationwide count of the number of people experiencing homelessness by gathering data from shelters and transitional housing programs and sending volunteers into the streets. In 2017, this count found that 553,742 people were homeless as defined by HUD—that is, living in shelters, transitional housing programs, or out in the open (unsheltered). Until 2013, however, HUD did not explicitly count youth ages 18 to 24 (instead lumping them in with adults), and it wasn’t until 2015 that HUD’s official point-in-time counts included “unaccompanied young adults” in their own category.

Moreover, the way that HUD defines homelessness still results in a gross underestimate of homeless youth. “This count has been very oriented to adult patterns of homelessness and where adults are likely to go,” says Nan Roman, President of the National Alliance to End Homelessness. In D.C., for example, the 2017 point-in-time census found just 238 homeless youth (as defined by HUD)—a number belied by the experience of people like LAYC’s Van Zandt and Covenant House’s Henson. Nationally, the homeless youth count was 36,010—orders of magnitude below the figures from Chapin Hall’s research.

The problem with the federal numbers is that HUD doesn’t consider homelessness to include couch surfing, which advocates say is the predominant experience of homeless youth. “Young people are the hidden homeless,” says advocate Darla Burdine, executive director of the National Network for Youth.

For one thing, young people tend to avoid shelters, encampments and other places where they are more likely to be seen—but also less likely to be counted—out of justifiable fears for their safety. A recent study of homeless youth released by Covenant House International and Loyola University found that 91 percent of the youth surveyed had been approached with “work opportunities” that turned out to be “fraudulent work situations, scams, pandering, or sex trafficking,” and that one-fifth had ultimately been victimized by this kind of trafficking.

It’s also often not clear when young people begin an episode of homelessness. “Young people aren’t fine one day and then sleeping under a bridge,” says Chapin Hall’s Morton. “Homelessness often involves a trajectory. A young person might run away a couple of times or sleep on someone’s couch or with a relative or neighbor. And then over time if these challenges they’re experiencing continue, running away or couch surfing becomes sleeping in the car or on the streets.”

That kind of instability was the experience of Carla R. of Fairfax, Virginia, who fled her abusive parents at age 17 while pregnant with her first child. “I was living in a lot of different places,” she says. “I was living at my sister’s house, my son’s father’s sister’s place, then my boyfriend’s friend’s place sometimes.” At one point, she stayed with her boyfriend’s mother, who was renting out space in her house for extra cash. She says she slept on the floor with at least a dozen other people scattered throughout the house. “I had bedbug bites everywhere.”

Nevertheless, Carla would not have been considered homeless by HUD.

The definition of homelessness matters because of its impact on the resources available—a principal purpose of HUD’s annual count is to help communities allocate their funds for preventing and ending homelessness. Undercounting homeless youth means that localities are in turn underestimating the extent of the problem and limiting what they spend on shelters and services targeted to youth.

According to Jasmine Hayes, deputy director of the U.S. Interagency Council on Homelessness, HUD spent $2.38 billion on homelessness assistance in 2016, but just $134 million on youth-specific services. Congress has also consistently underfunded services available under the Runaway and Homeless Youth Act, passed in 2008. While the law authorizes up to $165 million a year, actual funding has stayed flat at $119 million, Hayes says.

‘The need is just immense’

As a result, young people aren’t getting the services they need. Carla, for instance, was able to avoid the trajectory into street homelessness through a residential housing program for young mothers run by Second Story, a nonprofit based in Fairfax County, Virginia. The program helped her arrange for child care, improve her parenting skills, find a job, and even attend college. Today, at age 25, she has a well-paying job at a defense contracting agency and owns her own condo.

But she’s one of the lucky ones. According to executive director Judith Dittman, Second Story is now the only nonprofit in Fairfax County serving homeless youth, while five other shelters have closed their doors over the past few decades because of funding cuts. Despite Fairfax County’s reputation for affluence, the county reports more than 2,300 homeless children in its schools, and Dittman says there is consistently a waitlist of at least 20 to 30 youth for Second Story’s housing programs. “The need is just immense,” she says.

When a young person comes into an emergency shelter, many localities administer a standardized questionnaire, called the “Transition Age Youth Vulnerability Index – Service Prioritization Decision Assistance Tool” (TAY-VI-SPDAT), to assess the severity of a young person’s situation. The questionnaire asks, for example, how many episodes of homelessness a young person has experienced in the past three years, and whether they’ve ever been assaulted or engaged in risky activities such as exchanging “sex for money, food, drugs, or a place to stay.” It also includes questions about a young person’s mental and physical health and connections to family and friends. The higher the score, the more desperate the young person’s situation.

For example, says LAYC’s Van Zandt, “If you score high on the SPDAT, [it could be that] you’ve been trafficked, you’re addicted to K2 [a synthetic marijuana], and you’re bipolar.” But resources are also so scarce that it’s often only the young people in the direst of situations who are able to get help, while preventive services for people who are on the cusp of chronic homelessness are almost entirely absent.

That, says Morton, is the greatest tragedy of the current federal non-response to youth homelessness. “We’re forcing a cycle of waiting unless young people have suffered long enough to deserve services,” he says. “That’s the problem with the way the system works. Every young person who asks for help should get help.”

Instead, the lack of help and resources means that many of today’s homeless youth are almost certain to be tomorrow’s homeless adults. The result is not just greater costs for government but the catastrophic—and all too avoidable—loss of human potential.

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Culture

Would You Believe Me If I Said I Was Starving?

Two weeks ago, I was reading a food blog with instructions on how to throw better dinner parties. In the grand tradition of lifestyle bloggers, the author promised me that everything would be much better if I just stopped trying so hard. He included a recipe for baked ham, and suggested that hosts everywhere should just chill out and let guests slice their own sandwiches. Play it right, and everyone would be so happy and full that Ina Garten and her sweet husband Jeffrey would moan with a mix of pleasure and jealousy.

I sent the post to my little brother, a well-coiffed yuppie who organizes most of his social life around food, and asked what he thought about the recipe. “I don’t know,” he replied. “Ham’s still hard for me.”

With consistent refrigeration, a baked spiral ham will stay fresh for three to five days. That’s when its color shifts from a cheerful pink to a dull grayish-green, as the preservatives begin to buckle under the pressure of prolonged oxygen exposure. After a few more days, it starts to develop a thick, snot-like slime. That’s the bacteria breaking down sugars in the meat, as the decay sets in for real.

Most people throw their food out well before they have to confront this arc in the circle of life. But most people aren’t starving. If you are, you learn to wash the slime off—under hot running water, with soap if you need it—and hope for the best.

Most people throw their food out well before they have to confront this arc in the circle of life

There was a point before the weeks of rotting ham, or months of tortillas and processed cheese, when I could have asked for help. I didn’t.

I had already been fat for my entire life. When I was born, my baby cheeks were so big that they squeezed my eyes shut for the first three months of my infancy. As a kid, I was the worst-case scenario in every game of “would you rather.” I was also stable, smart, and well-adjusted—except that I was miserable. That’s what being fat does: It swallows up everything you do right and hides it in the giant failure that is your body. For women in particular, being fat is such a colossal fuck up that it squeezes out the room to be anything else: Being fat and isn’t an option. (The only exception is being fat and funny, if you manage to be in on the joke of your own fatness.)

By the time I was a teenager, I had learned how to avoid anything that would draw attention to my body: to wear clothes that hid my size, to avoid activities where people looked at me, and above all to hide the fact that I ever ate.

Hiding your eating is tricky in the best of circumstances—there are only so many times that you can just “not be hungry” during lunch, and there’s a thin line between tapping your pen just loud enough to cover the sound of your stomach growling and actually doing desktop drumrolls during Math class. But hiding your eating and asking for help getting enough food is actually impossible: You have to admit that you eat to tell someone you don’t eat enough. And I couldn’t do it.

Instead, my little brothers and I made it five years without setting eyes on a vegetable, eating stale scraps and spoiled meat. It sounds almost foolish now—like we were undone by our own vanity. But the truth is, society uses appearance as a shortcut to determining value. Thin is good; fat is bad. Fat people know that. We are acutely aware that we are considered lazy, weak-willed, and even incompetent—doubly so if we’re also poor.  But humans simply can’t endure being told we’re terrible all of the time. So we avoid situations where that’s likely to happen.

It turns out the stigma against being fat is so intense that it stops people from getting health care, exercising in public, or interacting with other people. For me, that also included finding someone who could help me get food. I knew what I would be up against—what it would take to convince someone I was telling the truth—and I didn’t have the energy. I had homework to do, power to get turned back on, and college essays to write.

Eventually, through no work of my own—I’ll cut off my own feet before anyone ever turns me into a “pulled herself up by the bootstraps” folk hero—the food available to me got better. It got more plentiful. It got healthier. I stayed fat. And now that I’m okay—now that I have water, and heat, and trash pickup—that’s fine. I have the luxury of rejecting the idea that the things that society says give me value—like thinness and prettiness and obedience—mean anything. Because right now, my survival isn’t tied quite so closely to whether or not other people think I deserve to be alive.

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Safety Net

No, Forced Labor Is Not Good for Your Health

The Trump administration announced last week that it will allow states to deny Medicaid to people who are not meeting work or other daily activity requirements imposed by state officials. As my colleagues have shown, more than 6 million people are at risk of losing health insurance under the new policy. This makes it all the more infuriating that the Trump administration is making the Orwellian claim that its change will make people healthier.

In a series of tweets, Seema Verma, the Trump official who oversees Medicare and Medicaid, argued that work requirements will “improve health outcomes” and cause improvement in “mental and general health, and well-being.” The administration’s guidance allowing states to deny people Medicaid makes similar claims.

The administration points to two research reviews it says support its case for allowing state officials to deny Medicaid to low-income people not meeting state work requirements. In fact, neither of the studies say that imposing work requirements as a condition of receiving health care will improve health. Moreover, both of the studies rely heavily on research from countries with universal health coverage—that is, countries that provide health care and coverage to all of their people regardless of employment status and without imposing work requirements. In these countries, people are empowered to make work and education choices without being threatened with the loss of health insurance if the state doesn’t like their choices.

In short, the reviews don’t tell us anything about the impact of Medicaid work requirements on health. What they actually do tell us is the that relationship between health and employment is much more complicated than the administration suggests.

The most rigorous and recent of the two reviews found insufficient or inconsistent evidence that employment was beneficial for general health, except for depression. The authors also cautioned that selection effects—the fact that more healthy people are more likely to work—may have caused an “overestimation” of their findings that work was beneficial for depression. In theory, one could conduct a demonstration study that denied employment to some people while providing it to others in order to isolate the causal effects of employment on health. But, as the authors note, this would be unethical.

The older and less rigorous of the two reviews, a 2006 evidence review commissioned by the United Kingdom’s Department of Work and Pensions, concludes that “the balance of the evidence” shows that work is “generally good for health and well-being, for most people.” But it goes on to detail what it calls “major provisos.” These include that “health effects depend on the nature and quality of work” and its “social context,” and that “jobs should be safe and accommodating.” The more rigorous review makes a similar point and notes research concluding that “low-quality jobs can lead to reduced health, while high-quality jobs can lead to improved health.”

These findings about how low-quality jobs can negatively impact health are particularly relevant for Medicaid beneficiaries. As researchers at the Kaiser Family Foundation have documented, most non-elderly Medicaid enrollees (who do not also receive SSI disability benefits) are employed, but typically in poorly compensated jobs that do not offer health insurance. Among non-elderly Medicaid enrollees who are not employed, physical and mental health impairments are common.

If the state officials and the administration want to improve health and well-being, they should offer real help with finding well-paying, safe, and accommodating work to all Medicaid enrollees, but on a voluntary basis. This help should include child care assistance and other work supports. But allowing state officials to coerce people to take any job—or work even more—under threat of losing their health insurance takes away people’s agency and will cause far more harm than good.

Finally, if the administration is serious about improving the health of working-class people, then it should stop rolling back important labor standards and worker protections. And it should get serious about improving job quality, including by raising the minimum wage as President Trump made a campaign promise to do.

Bottom line: All the happy Orwellian Twitter talk from Trump officials won’t change the fact that their policy will hurt millions more than it will help.

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Labor

What Farmworkers Can Teach Hollywood About Ending Sexual Harassment

What could Hollywood’s brightest stars learn from farmworkers in Florida’s tomato fields? When it comes to creating a workplace where women are empowered to report sexual harassment—and receive justice rather than retaliation when they do so—the farmworkers of the Coalition of Immokalee Workers (CIW) offer a proven model. That the group created this solution in a town known less than a decade ago as “ground zero for modern slavery” makes it all the more remarkable and promising for other industries.

Agriculture is a notoriously dangerous industry for women: 80 percent of women farmworkers report having experienced some form of sexual violence on the job. The CIW is addressing this crisis through its Fair Food Program (FFP), which puts market pressure on tomato growers to enforce a strict code of conduct in their fields. The code, which was developed by workers themselves, sets various human rights standards, one of which is zero tolerance for sexual assault. (It mandates immediate firing for unwanted “physical touching.”) If violations of the code go unaddressed, the result is severe economic consequences for the grower.

To enforce the code, which covers more than 90 percent of Florida’s $600 million tomato industry, the CIW has established legally-binding agreements with 14 of the world’s largest retail food corporations that purchase tomatoes—including WalMart, Whole Foods, Trader Joes, and all major fast-food companies with the exception of Wendy’s. These corporations promise to cut off purchases from farms that are out of compliance with the code. Now, tomato growers know if they don’t crack down on abuses in their fields, they can’t sell their produce to these major buyers. These agreements didn’t come easily: CIW educated consumers about the plight of farmworkers via hunger strikes, marches, and direct action. It took intense public pressure to get most of the corporate retailers to sign on.

Nely Rodriguez, a CIW staff member originally from Mexico, says it’s the economic consequences that make all the difference. “We’ve shown how the power of the market can be used to improve the conditions in the field,” she says. Under the FFP, workers are able to monitor their own workplaces for violations of the code, and can lodge complaints via a trilingual 24-hour hotline operated by an independent monitoring organization, which does annual announced and unannounced audits on participating farms and investigates all complaints. (During those audits, they speak to at least 50 percent of the workforce, including workers, crew leaders, and supervisors.) In contrast to other workplace hotlines that might be contracted out, or answered by a machine or a corporate HR representative, CIW’s always has an expert on call who understands the power dynamics of the tomato industry. Headed by a retired New York State Supreme Court Justice, the monitoring organization also audits the payroll, looking for minimum wage violations and enforcing the penny-per-pound of tomato surcharge that buyers pay to administer the program.

Since the Fair Food Program started, “Everything about working in the fields as a woman has changed,” Rodriguez says. Every new hire immediately receives a tri-lingual pamphlet and watches a CIW-produced video about the code, and then participates in worker-to-worker education sessions in the fields. “You literally can see people speaking up about issues—even in front of the bosses—during these sessions,” she says. “You see the lack of fear—it’s a completely different culture,” Rodriguez says. Prior to the FFP, it was “commonplace” to either suffer sexual violence or to know a victim, “and there was never any consequence if it came to light, or the consequence was the woman losing work.”

‘You literally can see people speaking up about issues—even in front of the bosses’

In recent years, 23 supervisors have been disciplined and nine fired as a result of complaints. When a violation requires corrective action, growers don’t hesitate because they know the hit they will take to their bottom line if they fail to comply. Rodriguez says the number of allegations has slowed, and the nature of the allegations has also changed, as employees and supervisors come to understand that zero tolerance truly means zero tolerance. “Instead of a boss who watches women when they are sleeping, now it might be some vulgar language on the bus,” she says.

CIW’s model is now being replicated in other states, and reaching workers in other industries—most recently dairy workers in Vermont. The MacArthur Foundation recently wrote that it offers the “potential to transform workplace environments across the global supply chain.” And the New York Times called it “the best workplace-monitoring system” in the United States. The CIW has exported its model to farms in seven states and three crops along the East Coast, and it will soon be piloted on citrus and watermelon farms in Texas. It is also informed historic reforms in the Bangladesh garment industry, and is being studied by janitorial and construction workers in Minnesota.

Could this approach work in the television and film industry? The key question is, what parts of the supply chain are equivalent to the tomato buyers? If a CIW-like movement led by the women of Hollywood inked legally binding agreements with 150 major corporations, declaring that they would not buy advertising on network shows that were in violation of a code offering recourse to victims of harassment or assault—that could be a start. What about agreements with the platforms that stream content, like Netflix, mandating that they will only carry films or shows produced by companies that are in compliance with that same code? One could even look at potential agreements with cable providers and national movie theatre chains. All of these agreements would together send a signal that sexual misconduct will not be tolerated in the television and video supply chain, and that companies that do not comply with the agreed-upon code will experience severe economic consequences.

“All Hollywood has to do is ask who has the power, and then bring public pressure to get those agreements signed,” says Rodriguez. “If a solution came from the most unexpected place to eliminate sexual violence in the workplace, they can do it too. And then they could help make sure the model reaches more workers in industries across the country who don’t have the platform and resources that they have.”

This article was produced in partnership with The Nation.

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Media and Politics

What We Can Learn From California’s New HIV Law

California HIV advocates scored a win this past October, when lawmakers voted to reform several criminal statutes that specifically targeted people living with HIV. The new law, S.B. 239, reduces the penalty for not disclosing HIV-positive status prior to sexual activity from a felony charge punishable by up to eight years of imprisonment to a misdemeanor carrying a potential punishment of up to six months in county jail. The law also repealed a felony that was specific to sex workers living with HIV.

The new provisions, which took effect January 1, now require an actual transmission or for prosecutors to demonstrate that a defendant had intent to transmit HIV. They also recognize that certain risk reduction measures—such as being on antiretroviral treatment or the use of barriers like condoms—negate intent.

California’s new reforms have been hailed as an exemplar for advocates working to modernize laws in other U.S. states. As of 2011, there were 67 laws in 33 states focused on people living with HIV—many of which were drafted in the earliest days of the epidemic when no effective treatments existed. Most of the laws make it a felony to engage in sexual contact without disclosing your status, and some turn criminal misdemeanors like biting or spitting into felony aggravated assault or attempted murder, despite the universally accepted fact that saliva does not transmit HIV.

State Sen. Scott Wiener (D), who co-authored the bill, believes that the old laws “focus on the exceedingly rare situation where a sociopath runs around and intentionally tries to infect people.” He added, “That’s not who’s being prosecuted under these laws. Who’s being prosecuted? An awful lot of women, particularly African American women and transgender women.”

Recent research from UCLA’s Williams Institute found that 43 percent of the people arrested, charged, or prosecuted under HIV-specific laws were women, even though women only make up 13 percent of the state population of people living with HIV. They also found that felony solicitation enforcement was likely to disproportionately impact LGBTQ youth and transgender women of color, and that white men were statistically less likely to have similar charges brought against them.

“Most of this stemmed from the solicitation part of the law,” said Amira Hasenbush, the Jim Kepner Law and Policy Fellow at the Williams Institute. The first of California’s HIV criminal laws required mandatory HIV testing for individuals convicted of solicitation, and repeat arrests for those already registered as HIV-positive faced felony sentence enhancements. She added that street-based solicitation arrests in California had gone down over the last 15 years with the advent of the internet. But sex workers who rely on public spaces—overwhelmingly black women—now bear a higher burden of arrests.

‘Folks really do think that the laws require transmission’

Many state HIV-specific laws that criminalize non-disclosure do so without requiring actual transmission to take place. Many also do not require prosecutors to prove that the defendant had a malicious intent to transmit; what lawyers call a “culpable mental state.”

“Something that I encounter all the time, even among advocates, is that folks really do think that the laws require transmission,” said Kate Boulton, staff attorney for the Center for HIV Law and Policy. “They are surprised to discover that in fact, no harm needs to occur, and that there doesn’t even need to be a risk of harm,” she said. And risk of harm is growing increasingly rare: people living with HIV who have an undetectable viral load and receive antiretroviral treatment cannot transmit the disease to sexual partners.

The new California law takes this into account. “If you are on treatment, or if you used a condom, those are things that would negate the required intent to transmit,” said Boulton.

Still, advocates disagree on how to move forward.

“It’s very exciting what came from S.B. 239, because you see success is possible,” said Boulton. “But it’s not without its drawbacks,” she added, cautioning the use of viral load suppression as the basis for deciding a defendant’s intent.

“It’s important for advocates to be mindful of potential negative consequences if these laws are modified to criminalize only people with HIV who have detectable viral loads, even when there is no transmission or intent to harm,” says Bruce Richman of the Prevention Access Campaign. Legislation that places a premium on having an undetectable viral load would leave many HIV-positive people—particularly those experiencing a lapse in treatment or those whose HIV becomes resistant to treatment—subject to the same punishments that are currently in place. So for now, legal scholars, public health professionals, and HIV advocates are still struggling to find the balance between using viral suppression as an approach to defining risk reduction and negating intent, without tipping the legal scales against those who have less access to HIV care.

In the long term, advocates are hopeful that reforming these laws, educating lawmakers, and working to increase access to HIV prevention and care will improve legal and health outcomes in low-income and marginalized communities. Otherwise, added Boulton, “It’s just punishing and incarcerating people strictly on the basis of health status.”

Correction: This article has been updated to amend inaccuracies regarding S.B. 239, and to include the latest research from the Williams Institute.

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