We cannot have a movement that blames the individual for not being able to ‘overcome’ systemic and institutional barriers meant to see them fail.
For the HIV Decriminalization and Modernization Movement to win our demands, some of which we have been moving towards for over 30 years, every aspect of our work must be grounded in and relevant to our communities directly targeted by the Prison-Industrial Complex*. It is imperative that we be abolitionist in our analysis of our work and abolitionist in how we do and assess our work. We are in a particularly critical moment—where power and harmful systems for so many of us (from those of us just coming into justice work, to those of us who have been involved for some time, to those of us who have been involved in one sector and are now involved in other sectors) are much clearer and sharper than ever before.
While this may seem like a moment of immense despair and hopelessness, this is also a moment to center the radical imagination as we demand and dream that another world, another way of addressing violence, another way of minimizing harm, another way of building community is not only possible but necessary. We must learn to name in precise detail what needs to shift in our local, state and federal governments and private institutions and actualize what needs to exist instead. It may seem impossible or just a waste of time to move towards a world that does not punish people with cages and where all our communities have what they need, but we have to ask ourselves: what do we have to lose? Are we ready to align ourselves and our values with the movement for freedom and justice? If so, at what cost?
Our current HIV decriminalization and modernization movement
We know there is so much to highlight in our HIV decriminalization and modernization movement. From a necessary increase in Black and Latinx trans femme leadership, to many statewide coalitions working to strategically modernize their HIV criminal statutes, to necessary connections between HIV surveillance and COVID-19 surveillance, the “Undetectable Equals Untransmittable” (U=U) campaign is particularly insightful. Some state coalitions have been successful in using “U=U” data to modernize criminal statutes and public health codes. Others have used the data to grow bigger, more effective coalitions and community partners, as well as to educate People Living with HIV (PLWH) and service providers on HIV criminalization.
While the U=U campaign is necessary to the ongoing health and political education we all must engage in, as advocates who believe in justice, we should be wary of this and similar campaigns as the basis for broad-brush public policy for our decriminalization and modernization efforts. If we are advocating that people who are virally suppressed cannot transmit HIV and therefore should not be criminalized under existing statutes, we are implying that people who are not suppressed should be criminalized or should have to go through further scrutiny to avoid incarceration. Focusing on viral load as the dividing line for who can be criminalized deeply undermines our efforts. Not only does it highlight a viral divide, but it will ensure that division happens in alignment with the white supremacist cisheteropatriachal value of targeting those already with the least access to resources and systemic power, which is often the basis for the increased viral load in the first place.
Not only are there so many racial and class-based implications of who can achieve viral suppression—and is therefore worthy of praise and not punishment—it reinforces the HIV stigma and discrimination so many fight so hard against. It also reinforces the belief that some PLWH are “deserving” and others are “undeserving”—based on something like viral suppression that is often out of their control.
There are systemic barriers that are often the underlying reason for non-viral suppression. We cannot have a movement that blames the individual for not being able to “overcome” systemic and institutional barriers meant to see them fail. This is not to say U Equals U or other data-driven initiatives cannot be effective when PLWH are actually charged under these antiquated statutes or even that these campaigns don’t have some place in our decriminalization and modernization efforts, but they cannot be at the center. What may be effective as an individual criminal defense strategy is not effective for policymaking that will impact thousands.
Oftentimes, our response is: we have to start somewhere. And that when we get this “win,” we will come back for the people and experiences we left behind. History shows otherwise.
A close examination of state and municipal LGBTQ non-discrimination campaign efforts reveals that when short-sighted advocates pushed to expand rights of only gays and lesbians because that would be “easier” or “less-controversial” than including our transgender and gender-nonconforming siblings, it took decades, if it happened at all, to expand the laws and policies to include our siblings who should have been included all along. There were conscious decisions to leave out tens of thousands of our community, and our movements are still paying the cost.
Likewise, we cannot use what seems “winnable” in the moment to craft policies that continue to harm our communities. We actually have the skill and the fortitude to include all of our people—and if we believe we do not, then let’s step aside for those who can do this vital work. We must create, push for, and build the necessary coalitions to create policy containers that take everyone at the same time. An abolitionist framework gives us the lens and shows us how to build the strategy to do so.
The necessity of an abolitionist framework
While much exists on abolition, Black feminist organizer, writer, and scholar Mariame Kaba defines it most effectively: “What is, so to speak, the object of abolition? Not so much the abolition of prisons but the abolition of a society that could have prisons, that could have slavery, that could have the wage, and therefore not abolition as the elimination of anything but abolition as the founding of a new society.”
Asserting that abolition is not only a political framework but an organizing strategy, Kaba makes it clear that abolitionist work cannot solely focus on prisons or the police, but must address the systemic causes that have created the carceral state. To be abolitionist in our work, we must commit to bringing our full selves to the work, including all our contradictions and the ways we perpetuate harm and wrongdoing, even when not our intention. An abolitionist framework requires that as we honestly assess ourselves, we take responsibility when we are in error and do the continual repairing work to prevent it from happening again. Abolition mandates that we look at all of society and move beyond the binaries—not just those in prisons or those who directly put people in prisons, not only at the victims and the perpetrators, but all of us because we are all participants in these systems. Rooted in the Black radical tradition and Black feminism, a contemporary abolitionist framework is necessary to HIV decriminalization and modernization work. This is because so much of our decriminalization work to date has focused on these absolute dichotomies (that we inherit from the dominant culture) that don’t actually move us closer to actualizing our demands.
When we focus on transmission versus exposure, or contact from sex versus contact from needles, even those who are virally suppressed versus those who are not virally suppressed, we validate the idea that there are some People Living with HIV who deserve to be “punished” for their life circumstances and choices. We affirm that the complex lives that we live deserve to be reduced to the categories of “guilt” or “innocence,” which is another way of determining who is “good” or “bad” and who is “disposable” or who is “worth saving.”
We cannot ignore the reality that we live in a white supremacist society and in a white supremacist society, the notion of criminality, disposability and guilt will always maintain Blackness and those in the closest proximity to Blackness as culpable. Who is criminalized and policed via HIV exposure statutes is similar to who is criminalized and policed in other areas of our criminal legal system. We have to ensure that our efforts are not setting up those already targeted by this oppressive system to be further targeted by the criminal legal system overall. We did not “win” if PLWH are still targeted by the system, even if that system did not use an HIV-specific statute to do so.
An abolitionist lens to our decriminalization and modernization work means we must examine the ways we as advocates, providers, and community members participate in criminalization. We are not bystanders, helpless as police arrest our people and charge them under statutes that we know are unfair.
First, we have to take responsibility for the reality that HIV criminalization occurs not only when our community members are arrested. HIV criminalization occurs in the way we treat Black trans women in the waiting room, the way we partner with law enforcement even though we advertise a walk-up syringe access program or the way so many case managers are quick to get law enforcement involved in the lives of their clients instead of looking at other solutions to solve a problem. HIV criminalization occurs in the ways we criminalize poverty.
Since we all can participate in perpetuating this unjust society, we all must participate in the deconstruction of the injustice. In many ways, this demands a reckoning.
How many times have service providers been invested in getting law enforcement involved with their clients? Do our conversations around HIV criminalization include the ways that we criminalize our Black, Brown, trans, GNC, and working class clients just for existing? Are we prepared to have a deep conversation about the ways we uphold white supremacy by regulating and policing our Black clients, all in the name of “service provision?” Are we prepared to abolish the police inside of us—that voice, that socialization that screams at us to regulate, control what other people are doing—that threatens force when someone is perceived to fall out of alignment with the “norm?”
To honestly ask these questions and to honestly sit with our answers and most importantly to honestly shift our behaviors, policies, and procedures is a vital part of decriminalization and modernization work. It reminds us that change can happen and that we have the power to do it. It also builds the power we need to sustain the coalitions to modernize because we are no longer tokenizing people but engaging the fullness and complexities of who they are. Last, it deeply strengthens our strategies because we not only have a clearer sense of what we don’t want, but a clearer sense of what we need in its place.
In summation, there is so much more to say about the necessity of an abolitionist framework for our HIV decriminalization and modernization efforts. May this be a small piece of the ongoing conversations and ongoing work necessary to stop the criminalizing of our communities and building the world we deserve to live in.
* The Prison Industrial Complex (PIC) is a term used by abolitionist organizers, activists, academics, etc. to describe the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems. For more information on the PIC, please check out Critical Resistance, one of a few organizations doing critical work on this topic. The national office can be reached at 1904 Franklin Street, Suite 504, Oakland, CA 94612.
S. Mandisa Moore-O’Neal is a Black feminist and founder of The Moore-O’Neal Law Group, LLC, a Black feminist law and policy practice. Currently a civil rights attorney with a focus on HIV decriminalization litigation, education, and advocacy; family law litigation, education, and advocacy; employment and public accommodations discrimination litigation and education; and police accountability litigation and advocacy, Mandisa’s primary organizing support work is as a member of the Black Youth Project 100 (BYP100)-New Orleans chapter and a member of the Louisiana Coalition on Criminalization and Health. She also serves on the boards of directors of BYP100 and Political Research Associates.