Hoosier HIV anti-donation law used 18 times since 2000, report says

Since 2000, Indiana has arrested 18 Hoosiers with human immunodeficiency virus (HIV) on charges of donating plasma, according to a report released this week. None were charged under provisions penalizing actual transmission.

But sixteen were convicted of at least one HIV-related crime. That’s more than were documented in 13 other states examined in previous studies, per the report.

Researchers with the University of California at Los Angeles Law School’s Williams Institute collaborated with Indiana’s HIV Modernization Movement to produce the 29-page study.

They’re pushing the lawmakers to ditch the bans.

“There has not been a reported case of HIV transmission from plasma donation in the U.S. 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 news release Monday.

“Ending the HIV epidemic requires modernizing state HIV criminal laws to reflect what is known about HIV science today,” Cisneros continued. He directs the institute’s HIV Criminalization Project.

Decades on the books

Indiana lawmakers in the late ’80s made it a felony for people with HIV to donate, sell or otherwise transfer whole blood, plasma or semen for artificial insemination through two laws.

Some Hoosiers contracted the virus from the blood supply, like 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’s website.

“There was so much unknown. The laws were created to protect the blood supply of the country,” Damien Center President and CEO Alan Witchey said. The Damien Center is the state’s largest HIV service organization.

“Flash forward to today (and) the world is so different. We know so much more,” Witchey said. “… Our state has not really caught up to the science.”

Universal screening procedures implemented since then mean donors must answer questions about their health and blood banks test all donations for infectious diseases. The American Red Cross, for example, began antibody testing for HIV in 1985 and nucleic acid testing in 1999, according to its website.

Plasma-derived products are also heat-treated to deactivate blood-borne pathogens, according to the report, while plasma donors identified as positive for those 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 Indiana’s HIV Modernization Movement and is a professor of sociology at Indiana University Indianapolis.

“I was 18 years old. I’m going on 55 in August,” said Foote, who is also an author on the report. “That was decades ago in a time of fear and stigma, and we didn’t have effective treatments like we do today. The blood supply wasn’t safe like it is today.”

Report’s findings

Researchers found that, between 2000 and 2023, 18 unique individuals were charged with 21 violations of Indiana’s HIV-related donation ban.

Three people had more than one charge because they attempted to donate more than once, but were turned away at the screening phrase because of, for instance, low iron levels.

All donated plasma, not whole blood or semen.

Blood donations are uncompensated, but plasma can be an income source: the median compensation given in five probable cause affidavits was $50, per the study.

Fourteen of the arrests were made in Marion County. Lake County recorded two arrests, while Elkhart and Howard counties recorded one each.

Most of those arrested said they saw or completed the screening and informed consent documents, and slightly less than half indicated a negative status either orally or on their forms. Indiana’s laws don’t punish people who donate without knowing of their HIV-positive status.

The arrestees ranged in age from 20-58, but averaged 33 years old. About three-quarters were men and about one-quarter were women. Almost 80% were Black, and more than 20% were white, researchers found.

All but one were found to be too impoverished to afford private counsel, and were instead assigned public defenders.

Ultimately, about 72% were convicted under the HIV-related donation laws, and 17% were convicted under a separate HIV status disclosure law — an 89% conviction rate. Indiana recorded more convictions than other states examined by the institute: 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 agreement and one was found not guilty of any crime.

Foote said the data doesn’t include arrests that didn’t lead to charges being filed, or court cases that were sealed, expunged or deemed confidential.

Researchers’ data sources — primarily bulk data requests, supplemented by electronic case filing services — also did better with more recent cases, Foote said.

That’s why the study begins in 2000, more than a decade after the laws were enacted. But researchers found newspaper evidence of at least one case in the 1990s.

The most recent case went through the courts in 2019, for an incident referred to law enforcement in mid-2018, according to the report.

Researchers suggested the decline may stem from a change in Indiana Department of Health (IDOH) policy. From at least 1996 through 2018, if IDOH confirmed people with HIV knew of their status when donating, the agency would refer the case to law enforcement. By the end of 2018, IDOH changed its policy in favor of providing mental health care and other needed services to donors with HIV.

The legislative session approaches

Foote and other advocates say laws criminalizing conduct that poses no risk of transmission discriminates against people with HIV. She has for years pushed to do away with the donation laws and several others.

She said the study shows several parts of the donation laws aren’t being used, like the bans on semen and whole blood transfers.

“Today, it’s perfectly safe for a man who might be experiencing fertility problems and he lives with HIV to seek fertility treatment. We have safe conception practices,” Foote added.

And she critiqued the donation laws’ handling of those with HIV given modern safety procedures.

“If blood tests positive (for a blood-borne virus), it’ll get destroyed and screened out of the process,” Foote said. “People, for example, with viral hepatitis, they would just be screened out, turned away, not allowed to donate, but they wouldn’t face potential criminal prosecution. But someone with HIV would. There’s just differential treatment in the law that is just outdated.”

Foote plans to bring the study’s results to lawmakers.

“Legislators would ask us, ‘Well, how are these laws even being used? We didn’t even know they were on the books,’” she said. “… We didn’t have the data to share with them. We just had anecdotal information, and there were no systematic studies to actually collect data.”

She said prosecutors’ and defense lawyers’ organizations could pull up arrests, but lawmakers wanted greater context.

Previous bills have made it past the House, but haven’t received Senate committee hearings. A 2022 interim committee recommended lessening penalties, however.

Foote said studies on other HIV-related criminalization laws are on the way.