United States of America

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

United States of America
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
913 (known arrests or prosecutions)
Number of people convicted: 
Not known
Applicable law: 

The United States of America is made up of states and territories all of which have different laws.

See individual state entries for further information.

Discussion: 

Overview

Thirty-four US states and two US territories have HIV-specific criminal statutes, many of which are vague, inconsistent with HIV science, and/or overly-broad. Rather than criminalising HIV transmission, most of these statutes criminalise behaviour that may or may not (and in some cases definitely does not) risk HIV transmission. Some outlaw practices that are not significantly risky or harmful (e.g. sharing sex toys, spitting, performing oral sex); and others criminalise non-disclosure of known HIV-positive status, regardless of whether or not a condom or other risk-reduction methods are relied upon.

In several states in the United States without HIV-specific laws (and even in some states with these laws), variations of assault or homicide laws have been used to prosecute a wide variety of sexual and non-sexual HIV exposure or transmission. Reckless endangerment statutes are commonly used to prosecute HIV-positive persons based on alleged non-disclosure of their status prior to consensual sex. Typically, “reckless endangerment” is defined as recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury. Prosecutions have also taken place using statutes criminalising assault, attempted murder, aggravated prostitution, bioterrorism, and terroristic threats.

At least an additional fifteen states have passed HIV-specific statutes that deal specifically with acts that are already crimes, including prostitution, rape or assaulting a peace officer, but are punished separately or more severely when the perpetrator knows he or she has HIV.

Arrests/Prosecutions

At least 38 states as well as the US Federal Goverment (via military court-martials) are known to have prosecuted HIV-positive individuals for alleged HIV non-disclosure, potential HIV exposure or alleged transmission. Penalties range markedly across states ranging from a $100 fine to imprisonment of up to 30 years in Arkansas. In addition, Missouri law allows for the death penalty if transmission is proven as a result of HIV exposure without disclosure.
In addition, military courts have court-martialled at least 25 HIV-positive individuals for having unprotected sex (with or without disclosure) and almost all have resulted in a conviction.

The Positive Justice Project (PJP) has been continually updating a list of arrests and prosecutions since January 2008. Although not exhaustive, it provides a broad snapshot of the current situation in the United States. The vast majority of the cases listed involved either cases of adults having sex, in the absence of disclosure of known HIV-positive status, with no apparent intent to harm, or conduct that poses no significant risk of HIV transmission (i.e. spitting, biting). Although the outcomes of some cases remain unknown, the known convictions and sentences often involve severe penalties, including prison terms that reach 25 years or more, even when no transmission of HIV occurred.

Proposed Federal legislation

In September 2011, California Congresswoman Barbara Lee introduced H.R. 3053, the REPEAL HIV Discrimination Act (see attached, below). This proposed legislation would require a review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. If passed, it would provide funding appropriations for a review of HIV-specific state and federal criminal laws; the production of human rights-informed best practice guidance; and ultimately recommendations to changes to federal laws and policies that are consistent with such guidance.

Advocacy

The Positive Justice Project (PJP), a campaign headed by the Center for HIV Law and Policy, was launched in September 2010. The PJP is the first coordinated, multi-organisational and cross-disciplinary national effort in the United States to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. Its primary focus is the repeal of laws that create HIV-specific crimes or which increase criminal penalties for people with HIV based solely on their HIV-positive status.

The PJP gained a boost from the 2010 National HIV/AIDS Strategy (NHAS), which includes recommendations for states to review such problematic laws. The Strategy report notes, "In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment."

The National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement in March 2011 supporting both the Project the NHAS recommendations, stating that it "supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm."

In August 2011, PJP's recommendations to the President’s Advisory Council on HIV/AIDS (PACHA) to include addressing HIV criminalisation as a key action in implementing the NHAS in the coming year were unanimously accepted.

Survey respondents/Organisations working on HIV and the Law: 

Information primarily obtained from:

Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011)

SERO. Launched in 2012 in response to the growing phenomenon of HIV criminalization, SERO is a non-profit initiative to combat HIV and viral related discrimination, stigma, and criminalization. It seeks to empower people with viral conditions to improve the quality of their lives and advocates for sound public health policy based on science and epidemiology, rather than ignorance and fear.

As well as The Center for HIV Law and Policy, and SERO, other organisations working on HIV and the Law include:

American Civil Liberties Union
Human Rights Watch
Lambda Legal

Further reading: 

Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011).

Recent cases can be found at: Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012.

Additional publications can be found at the Center for HIV Law and Policy's Resource Bank.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/USA

 

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

U.S. President Barack Obama has announced that all current restrictions affecting people with HIV from entering or migrating to the United States are lifted as of January 4, 2010. The final rule was published in the Federal Registry November 2, 2009. It stated: "As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration."

New instructions are being provided to panel physicians and civil surgeons who administer medical exams as for immigration purposes, but it may take time until they are all aware of the change, so residency seekers should be prepared. The revised instructions can be found at: www.cdc.gov/ncidod/dq/technica.htm

From January 4, 2010, people living with HIV can enter the U.S. like anybody else.

Guidance on the new rule is published here: http://travel.state.gov/visa/laws/telegrams/telegrams_4631.html and an HIV Travel and Immigration FAQ brochure is available for download in English and Spanish here: http://immigrationequality.org/template.php?pageid=176.

Important note for visitors under the visa waiver program (for countries where a visa is not required to travel to the USA) and are living with HIV, please note that HIV is no longer considered a communicable disease for entry purposes. When submitting the online ESTA form to clear your entry to the U.S., it is important that you do check „no“ for the question about communicable diseases. HIV is no longer considered as such by the U.S. authorities.

Customs regulations require people entering with prescription medication like antiretroviral drugs to carry a doctor’s certificate in English, stating that the drugs are required to treat a personal condition. This requirement applies to all prescription drugs.

Medication should always be carried in hand luggage, as checked luggage may be delayed or get lost. If you are carrying-on liquid medication exceeding 3 ounces / 100 ml, you must declare it at the checkpoint for inspection.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Marriage laws vary in this country depending on area

For updated information, please go to: http://ilga.org