ACLU Seeks to Challenge Pennsylvania Law That Hypercriminalizes People Living With HIV

Attorneys at the Disability Rights Education and Defense Fund, ACLU LGBTQ & HIV Project, and Transgender Law Center are investigating a potential challenge to Pennsylvania § 5902(a)(4), a sentencing enhancement that hypercriminalizes people arrested for sex work if they are living with HIV. While arrests for prostitution generally result in a misdemeanor, this subsection makes it a felony if the person knew they were living with HIV, greatly increasing potential sentencing length. Even if the person is not charged or convicted under that subsection, it sometimes is used as leverage to get the person arrested to plead to the misdemeanor offense.

After meeting with organizations in Pittsburgh and Philadelphia over the last several months, we made records requests to prosecutors' offices and analyzed court records. Fortunately for Philadelphia and Pittsburgh, it looks like the statute we're interested in challenging has not been used against people in their counties for several years (but please let us know if you hear about people in Philadelphia or Pittsburgh being threatened with the use of this statute without a formal charge). We therefore are looking into other counties to see if this law is being used elsewhere. We would love to connect with organizations and individuals working outside of Philadelphia and Allegheny counties who are aware of people who were arrested for, charged with, or convicted of prostitution where the claim or fact that the person arrested knew they were living with HIV was part of the arrest record, the charging documents, or the disposition of the case.

If you would like to speak with us about this potential litigation, or have any questions about this work or the law, please reach out to us at: JonDavidson@aclu.org; aelewis@dredf.org; milo@transgenderlawcenter.org