Since 2000, Indiana has arrested 18 Indiana residents with human immunodeficiency virus (HIV) on charges of donating plasma, according to a report released this week. None of them have been charged under the provisions criminalizing actual transmission.
But 16 of them were convicted of at least one HIV-related crime. That’s more than documented in 13 other states examined in previous studies, the report said.
Researchers from the Williams Institute at the University of California, Los Angeles, School of Law collaborated with the Indiana HIV Modernization Movement to produce the 29-page study.
They are pushing lawmakers to drop the bans.
“There have been no reported cases of HIV transmission through plasma donation in the United States in nearly 40 years. Yet, as recently as 2019, Indiana arrested, prosecuted, and convicted a person for attempting to donate plasma,” lead author Nathan Cisneros said in a press release Monday.
“Ending the HIV epidemic requires modernizing state HIV criminal laws to reflect current knowledge about HIV science,” said Cisneros, who directs the institute’s HIV Criminalization Project.
Decades in books
In the late 1980s, Indiana lawmakers made it a crime for people with HIV to donate, sell, or otherwise transfer whole blood, plasma, or sperm for the purpose of artificial insemination, through two laws.
Some Indiana residents have contracted the virus from donated blood, such as the late HIV anti-stigma activist Ryan White. He received medication made from donated plasma for his blood clotting disorder, according to the Modernization Movement website.
“There were so many unknowns. The laws were created to protect the nation’s blood supply,” said Alan Witchey, president and CEO of the Damien Center. The Damien Center is the state’s largest HIV service organization.
“The world is so different today. We know so much more,” Witchey said. “Our state hasn’t really caught up scientifically.”
Since then, universal screening procedures have been implemented, requiring donors to answer questions about their health, and blood banks test all donations for infectious diseases. The American Red Cross, for example, began testing for HIV antibodies in 1985 and nucleic acid tests in 1999, according to its website.
Plasma-derived products are also heat-treated to inactivate blood-borne pathogens, the report said, while plasma donors identified as positive for these pathogens are placed on a permanent national donor deferral registry.
Indiana’s donation ban was enacted the year Carrie Foote tested positive for HIV. She now chairs the Indiana HIV Modernization Movement and is a professor of sociology at Indiana University in Indianapolis.
“I was 18. I’ll be 55 in August,” said Foote, who is also an author of the report. “That was decades ago, when fear and stigma were rampant, and we didn’t have effective treatments like we do today. The blood supply wasn’t as safe as it is today.”
Conclusions of the report
The researchers found that between 2000 and 2023, 18 unique people were charged with 21 violations of Indiana’s HIV-related donation ban.
Three people were charged with multiple offences because they tried to donate more than once but were turned away at screening because, for example, they had low iron levels.
All plasma is donated, not whole blood or sperm.
Blood donations are not paid, but plasma can be a source of income: the median payment given in five probable cause reports was $50, the study found.
Fourteen of the arrests were in Marion County. Lake County had two arrests, while Elkhart and Howard counties each had one.
Most of those arrested said they had seen or completed the testing and informed consent paperwork, and just under half indicated a negative status orally or on their forms. Indiana law does not punish people who donate without knowing their HIV-positive status.
Those arrested ranged in age from 20 to 58, but their average age was 33. About three-quarters were men and about a quarter were women. Nearly 80% were black and more than 20% were white, the researchers found.
All but one were found to be too poor to afford private counsel and were assigned a public defender.
In the end, about 72 percent of people were convicted under HIV-related donation laws and 17 percent under a separate HIV-disclosure law, for a conviction rate of 89 percent. Indiana had more convictions than any other state the institute studied: Arkansas, California, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, Ohio, Tennessee and Virginia.
One was convicted of a non-HIV-related crime as part of a plea deal, and the other was found not guilty of any crime.
Foote said the data does not include arrests that did not result in charges, or court cases that were sealed, expunged or deemed confidential.
The researchers’ data sources — primarily bulk data requests, supplemented by electronic records filing services — also performed better with more recent records, Foote said.
That’s why the study begins in 2000, more than a decade after the laws were enacted. But the researchers found newspaper evidence of at least one case in the 1990s.
The most recent case was brought to court in 2019, over an incident reported to law enforcement in mid-2018, the report said.
Researchers have suggested that this decline may be due to a policy change at the Indiana Department of Health (IDOH). From 1996 to at least 2018, if IDOH confirmed that people with HIV knew their status at the time of donation, the agency would refer the case to law enforcement. In late 2018, IDOH changed its policy to provide mental health care and other necessary services to donors with HIV.
Legislative session is approaching
Foote and other advocates say laws criminalizing behavior that poses no risk of transmission discriminate against people with HIV. She has campaigned for years to repeal the donation laws and several others.
She said the study shows that several parts of the donation laws are not being used, such as the ban on sperm and whole blood transfers.
Carrie Foot, president of the HIV Modernization Movement and professor at Indiana University Indianapolis. (Courtesy)
“Today, it is completely safe for a man who is experiencing fertility problems and living with HIV to seek fertility treatment. We have safe conception practices,” Foote added.
She also criticised the way donation laws treat people with HIV, given modern safety procedures.
“If the blood is positive (for a blood-borne virus), it will be destroyed and eliminated from the process,” Foote said. “People with viral hepatitis, for example, would just be eliminated, turned away, banned from donating, but they would not be subject to criminal prosecution. But someone with HIV would be. There is just differential treatment in the law that is just outdated.”
Foote plans to present the study’s results to lawmakers.
“We were often asked by lawmakers, ‘How are these laws being enforced? We didn’t even know they were in place,’” she said. “We didn’t have any data to share with them. We just had anecdotal information, and there were no systematic studies to collect data.”
She said prosecutors’ and defense attorneys’ organizations could overturn the arrests, but lawmakers wanted more context.
Previous bills passed the House but were not considered by the Senate committee. A 2022 interim committee, however, recommended easing the sanctions.
Foote said studies of other HIV-related criminalization laws are underway.
This story was initially posted on Indiana Chronicle of the capital. Learn more here.