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HIV and STD Criminal Laws

During the early years of the HIV epidemic, a number of states implemented HIV-specific criminal exposure laws. Some of these state laws criminalize behavior that cannot transmit HIV and apply regardless of actual transmission. As of 2018, 26 states had laws that criminalize HIV exposure.

HIV Risk Behaviors

The laws for the 50 states and the District of Columbia were assessed and categorized into five categories.

  1. HIV-specific criminal laws criminalize behaviors that can potentially expose another to HIV.
  2. STD/communicable/infectious disease criminal laws criminalize behaviors that can potentially expose another to STD/communicable/infectious diseases. This might include HIV.
  3. Sentence enhancement specific to HIV are laws that do not criminalize a behavior but increase the sentence length when a person commits certain crimes while infected with HIV.
  4. Sentence enhancement specific to STD are laws that do not criminalize a behavior but increase the sentence length when a person commits certain crimes while infected with an STD. This might include HIV.
  5. No HIV criminalization laws.

 

General criminal statutes, such as reckless endangerment and attempted murder, can be used to criminalize behaviors that can potentially expose another to HIV and or an STD.

This graph depicts the different types of criminalization laws in the United States
This map depicts the different HIV criminalization laws across the United States

Criminalization of potential HIV exposure is largely a matter of state law, with some Federal legislation addressing criminalization in discrete areas, such as blood donation and prostitution. These laws vary as to what behaviors are criminalized or what behaviors result in additional penalties.

In 19 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 12 states require disclosure to needle-sharing partners.  Several states criminalize one or more behaviors that pose a low or negligible risk for HIV.

This graph depicts the number of states that criminalize high risk HIV behaviors
This graph depicts the number of states that criminalize high risk STD behaviors
This graph depicts the number of states that criminalize low and negligible HIV risk behaviors
This graph depicts the number of states that criminalize low and negligible STD risk behaviors

In 19 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 12 states require disclosure to needle-sharing partners.  Several states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.

This graph depicts the number of states that have disclosure requirements for HIV
This graph depicts the number of states that have disclosure requirements for STDs

Some laws identified in the analysis account for HIV prevention measures that reduce transmission risk, such as condom use, and antiretroviral therapy (ART).  These analyses may be used by states to assess their laws’ alignment with current evidence regarding HIV transmission risk.

This graph depicts the number of states with relevant defenses in HIV criminalization
This graph depicts the number of states with relevant defenses in STD criminalization

The maximum sentence length for violating an HIV-specific statute is also a matter of state law. Some states have a maximum sentence length as high as up to life in prison, while others have maximum sentence lengths that are less than 10 years.

This graph depicts the number of states that have maximum sentence lengths for HIV criminalization
This graph depicts the number of states that have maximum sentence lengths for STD criminalization

It should be noted that all states have general criminal laws—such as assault, battery, reckless endangerment, and attempted murder—that can and have been used to prosecute PWH for any of the above-mentioned behaviors. For example, Texas does not have laws that specifically criminalize HIV exposure but has used general criminal statutes, like aggravated assault with a deadly weapon, to criminalize defendants with HIV. See, Mathonican v. State, 194 S.W.3d 59, 67 (Tex. App. Texarkana 2006)  finding that the seminal fluid of the HIV-positive defendant was a deadly weapon.

The information presented here does not constitute legal advice and does not represent the legal views of the Centers for Disease Control and Prevention or the Department of Health and Human Services, nor is it a comprehensive analysis of all legal provisions relevant to HIV. This information is subject to change and does not contain measures implemented by counties, cities, or other localities. Use of any provision herein should be contemplated only in conjunction with advice from legal counsel.

HIV Criminalization Resources

Background on HIV Criminalization in U.S.

The following resources provide a broad overview of HIV criminalization in the United States. Specifically, these resources address the science of HIV, provide background literature on the history and practices of HIV criminalization, and the current status of HIV criminalization laws and statutes in the United States.

  1. The Center for HIV Law and Policy: “HIV Criminalization in the United States”
  2. The Center for HIV Law and Policy: “Criminal Law” webpage and resource bank
  3. The Center for HIV Law and Policy: “The Science of HIV for Lawyers and Advocates”

Case Studies

The following case studies provide an in-depth analysis of the HIV criminalization laws, practices, convictions, and sentencing outcomes in a variety of states.

  1. The Williams Institute: State Case Studies

Federal Guidance

The current federal guidance from the U.S. Department of Justice on HIV criminalization practices and reform is provided below.

  1. S. Department of Justice: “Best Practices Guide to Reform HIV Specific Criminal Laws to Align with Scientifically Supported Factors”

Scientific and Legal Research

The following resources represent a sample of articles from the legal and scientific research communities.

  1. Sweeney, P., Gray, S., Purcell, D., Sewell, J., Babu, A., Tarver, B., Mermin, J. (2017). Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States. AIDS,31(10), 1483-1488. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/28398957.
  2. Lehman, J. S., Carr, M. H., Nichol, A. J., Ruisanchez, A., Knight, D. W., Langford, A. E., … Mermin, J. H. (2014). Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS and behavior, 18(6), 997–1006. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/
  3. Barré-Sinoussi, F., Abdool Karim, S. S., Albert, J., Bekker, L. G., Beyrer, C., Cahn, P., Godfrey-Faussett, P. (). Expert consensus statement on the science of HIV in the context of criminal law. Journal of the International AIDS Society, 21(7), Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/30044059
  4. Harsono, Dini. Bibliography on criminalization of HIV non-disclosure, exposure, and transmission. New Haven, CT: Center for Interdisciplinary Research on AIDS at Yale University; 2018. Retrieved from https://cira.yale.edu/sites/default/files/Criminalization%20of%20HIV%20Bibliography%20Aug%202018.pdf
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