HIV-Specific Criminal Laws
During the early years of the HIV epidemic, a number of states implemented HIV-specific criminal exposure laws. These laws impose criminal penalties on people living with HIV who know their HIV status and who potentially expose others to HIV. In 1990, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides states with funds for AIDS treatment and care, required every state to certify that its criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.1
Criminalization of potential HIV exposure is largely a matter of state law, although some federal legislation addresses criminalization in discrete areas, such as blood donation. The National HIV/AIDS Strategy, released by the White House in July 2010, provides some guidance regarding the issue of criminalization, noting that in some instances, existing HIV exposure laws may need to be re-examined.2
An analysis by CDC and Department of Justice researchers found that, by 2011, a total of 67 laws explicitly focused on persons living with HIV had been enacted in 33 states.3 These laws vary as to what behaviors are criminalized or result in additional penalties. In 24 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 14 states require disclosure to needle-sharing partners. Twenty-five states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.
The majority of laws identified for the analysis were passed before studies showed that antiretroviral therapy (ART) reduces HIV transmission risk and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP). The analysis encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws' alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes.
It should be noted that all states have general criminal laws—such as assault and battery, reckless endangerment, and attempted murder—that can and have been used to prosecute individuals for any of the above-mentioned behaviors.
1 Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 104 Stat. 576).
2 National HIV/AIDS Strategy See recommended action 3.3 - Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.
3 Lehman, JS, Carr, MH., Nichol, AJ, et al. Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS Behav 2014.