Oklahoma Lawmakers Want to Criminalize STIs, a Trend with a Long, Discriminatory History
June 1, 2024
The epidemic of sexually transmitted infections (STIs) across the United States is particularly noticeable in states like Oklahoma, which ranks fifth in the nation for congenital syphilis, according to a 2022 STI surveillance report.1
The state also ranked 20th for chlamydia in 2022, 13th for gonorrhea in 2022, and fourth for primary and secondary syphilis in 2022, according to data from the Centers for Disease Control and Prevention (CDC).1
These findings are not surprising for a state that does not require evidence-based sex education in schools but does require abstinence instruction if any sex education is provided.
But what is surprising is how Oklahoma lawmakers plan to address their STI crisis: They have introduced a bill that will criminalize any “reckless” transmission of STIs, including human papillomavirus (HPV), which is so common that the CDC says nearly all sexually active people will get the virus in their lifetime.2
Oklahoma House Bill 3098, sponsored by Republicans, will make it a felony to knowingly or recklessly spread STIs, including HPV, chlamydia, hepatitis B, genital herpes, and trichomoniasis. The state already bans intentional spreading of gonorrhea, syphilis, and smallpox, and criminalized human immunodeficiency virus (HIV) transmission years ago.
The history of criminalizing STIs is long and sordid, including a time in the early 20th century when women often were rounded up and detained to be examined for STIs. If they tested positive, they were locked in penal institutions.3
When people first began to die from HIV infection, the old fears returned, along with criminalization.
“Most HIV criminalization bills were passed in the early 1990s or late 1980s at a time when folks knew virtually nothing about HIV, and there was an outsized fear that if you were standing next to someone with HIV you could get it,” says Jose Abrigo, Esq., HIV project director at Lambda Legal Defense and Education Fund in New York, NY.
Lambda Legal and other organizations have worked to get states to reverse those outdated laws or at least to update them to not include potential arrest of people for spitting or taking other actions that could not result in HIV infection. They have had some success, although most states still have these laws in place, Abrigo adds.
It would be a big mistake for a state like Oklahoma to pass a new STI criminalization bill, he says.
“With this current law pending in Oklahoma, it is dragging the state back 30 years,” Abrigo says. “Almost all of the public health organizations are against health status criminalization because it disincentivizes testing.”
When people are criminalized for having an STI, they often will not be tested for infection, even if they have symptoms because they fear being arrested. And it is usually the people who are already experiencing healthcare inequities, including people of color, who disproportionately will be arrested, Abrigo says.
The new bill would include recklessness as a criterion for arrest in cases of syphilis, gonorrhea, and smallpox.4,5
However, there is no definition of what is considered reckless — and people could receive two to five years in prison for violating the law.
“Reckless is not defined, so something like HPV under this potential law could be subject to criminalization,” says Taryn Norman, PhD, executive director of Health Outreach Prevention Education (HOPE) Testing in Tulsa, OK.
“If someone doesn’t get regular Pap smears, if she has HPV, would that be considered reckless?” she says. “Oklahoma has a high rate of uninsured individuals in this state, so there’s probably a lot of women who are not getting annual screening, and then you add on the complication that men are not screened for HPV, so this is targeting — potentially — females.”
The state already has one of the highest rates of female incarceration in the United States, Norman says.
“The female incarceration rate has come down in the last couple of years, but this could potentially push us back up rather than bring us down,” she adds.
“We’re concerned about this bill because we think it will deter people from seeking out testing,” Norman says.
“A lot of STIs are infections that could impact fertility and other healthcare-related issues, even up to and including death in some cases,” she adds. “So, it’s scary to think about individuals making a choice between ‘do I go and get tested and know and then maybe get jail time.’”
Criminalizing STI transmission has the reverse effect of its intention to reduce STIs in a state, says Darren L. Whitfield, PhD, associate professor at the University of Maryland School of Social Work in Baltimore.
“If your goal is to reduce those rates, criminalizing the behavior does not reduce the rates. It increases stigma so people are less likely to get tested in those states and get treatment because you have created this stigma that this thing is a criminal offense,” Whitfield explains.
“The behavior doesn’t go away. People go underground, stop getting tested, and stop getting treatment,” he adds.
Criminalizing STIs also targets young people because they are most at risk of new STI infections.
The Oklahoma state house also is considering a bill to standardize expedited partner therapy, which HOPE supports, Norman notes.
“This would bring the state in alignment with CDC recommendations,” she adds. “But if House Bill 3098 deters people from being tested, it removes the benefits of expedited partner therapy.”
The proposed STI criminalization bill also jeopardizes anonymous reporting. It is unclear from the two-page bill whether data collected in STI screening could be used if law enforcement gets involved in a case.5
“As an organization that has to report data to the state department of health so they can try to track down partners and make sure folks receive treatment, that raises questions for us about how that data is going to be used,” Norman says.
The Infectious Diseases Society of America (IDSA) and the HIV Medicine Association (HIVMA) oppose legal statutes that criminalize transmission of HIV, viral hepatitis, tuberculosis, and other infectious diseases, according to a 2015 policy position.6
Criminalizing infectious diseases discourages people from being screened and treated for conditions and is not effective at reducing transmission. The organizations have encouraged state policy makers to undo laws criminalizing STIs.6
There are 34 states that criminalize actions taken by people with HIV, and 14 states criminalize actions that have a low risk of transmitting HIV, such as spitting, biting, and oral sex. Thirteen states require people with HIV to disclose their status to sex partners, and 14 states have a maximum sentence penalty of more than 10 years, according to the CDC.7
Often when someone is arrested for HIV transmission, the prosecutor does not have to prove intent, Abrigo says.
“The way criminal laws work, 99% of criminal charges are settled through a plea deal,” he explains. “Proving intent is incredibly hard, and prosecutors know this, so these laws give prosecutors a tool to criminalize folks.”
Worse, these laws can be used by domestic violence perpetrators to control the other person.
“It’s primarily women who are arrested, and their abusers are using it to control them,” Abrigo says. “There’s a messy breakup and someone says ‘I’m going to the police because you knowingly have given me an STI,’ and who knows if it’s true.”
As of mid-April 2024, the Oklahoma legislature had not asked organizations like HOPE for their input on the proposed bill, Norman says.
“We’ve been hearing that maybe they don’t understand what STIs are and how prevalent they are in the state already,” she says.
If the bill were to pass the state senate and be signed into law, then pregnant women who have syphilis could be at risk of arrest.
“There have been efforts in the state to make sure that uninsured pregnant people are connected to prenatal care so we can decrease congenital syphilis rates, and this could deter pregnant people from getting prenatal care and detract from those efforts,” Norman says.
Some states have moved in the direction of ending HIV criminalization, and HOPE had wanted HIV infection to be decriminalized. Instead, the state appears to be moving in the opposite direction, she notes.
“This STI criminalization kind of came out of nowhere,” she adds. “It wasn’t on our radar from previous sessions, and it’s disappointing.”
Public health efforts that work at reducing STIs, such as putting more funding into STI testing and screening and providing evidence-based comprehensive sex education to students, have not been used in Oklahoma, Norman says.
If the bill passes, HOPE will need to meet with attorneys to understand the potential impact for its clients and patients, she says.
“We’re hopeful it won’t go to the senate floor for a vote,” Norman adds. “The question is, if it fails this year, will it come back next year?”
REFERENCES
- Centers for Disease Control and Prevention. 2022 STI Surveillance Report. State ranking tables. https://www.cdc.gov/std/statistics/2022/tables/2022-STI-Surveillance-State-Ranking-Tables.pdf
- Centers for Disease Control and Prevention. Human papillomavirus (HPV) statistics. Page last reviewed April 5, 2021. www.cdc.gov/std/hpv/stats.htm
- Stern SW. America’s forgotten mass imprisonment of women believed to be sexually immoral. History.com. Updated July 21, 2019. https://www.history.com/news/chamberlain-kahn-act-std-venereal-disease-imprisonment-women
- Buchman B. Bill criminalizing spread of STDs — including some conditions that do not require sexual contact — sails through state House. Law & Crime. April 11, 2024. https://lawandcrime.com/high-profile/bill-criminalizing-spread-of-stds-including-some-conditions-that-dont-require-sexual-contact-sails-through-state-house/
- LegiScan. Oklahoma House Bill 3098. Senate Floor Version. April 4, 2024. https://legiscan.com/OK/text/HB3098/2024
- Infectious Diseases Society of America (IDSA) and HIV Medicine Association (HIVMA) Position on the Criminalization of HIV, Sexually Transmitted Infections and Other Communicable Diseases. March 2015. https://www.hivma.org/globalassets/hivma/policy-and-advocacy/policy-priorities/policy-statements/hivma-idsa-communicable-disease-criminalization-statement-final.pdf
- Centers for Disease Control and Prevention. HIV criminalization and ending the HIV epidemic in the U.S. Updated Dec. 18, 2023. www.cdc.gov/hiv/policies/law/criminalization-ehe.html