USA - Alaska

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Alaska
Whether Specific law enacted: 
No
Number of people prosecuted: 
0
Number of people convicted: 
0
Applicable law: 

Alaska Stat. §12.55.155(c)(33)

The sentencing court may impose a sentence above the presumptive range ifthe offense was a felony sexual offense specified in Alaska Stat. §§11.41.410-11.41.455 and the following factors are proven in accordancewith this section: the defendant had been previously diagnosed as having orhaving tested positive for HIV, and the offense either (A) involvedpenetration, or (B) exposed the victim to a risk or a fear that the offense could result in the transmission of HIV.

Key wording in the law: 

Aggravating factor, involv[ing] penetration, exposed…to a risk or fear [that sexual offence] could result in transmission

Key Cases: 

In 1996, a man’s HIV-positive status was considered an “aggravating factor,” and he was sentenced to ten years for sexual abuse of a minor. On appeal, the court affirmed the lower court’s sentencing because the defendant knew he had HIV at the time of the sexual conduct with the minor, didn’t disclose his status, and didn’t take any measures to protect her from HIV. The court found that even though the minor provided a condom that was used for the second sexual encounter, and the minor had thus far tested negative for HIV, it was “safe to infer that [the minor] will be very fearful for some time to come” that she may test positive for HIV. The court determined that such considerations supported an enhanced sentence.

Excerpted 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)

Discussion: 

Alaska has no statute explicitly criminalising HIV transmission or exposure, but enhanced sentencing may be applicable based on a defendant’s HIV status if she/he is found guilty of one of the specified sex offenses.

Survey respondents/Organisations working on HIV and the Law: 

Information 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)

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).

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

Is it possible to change your gender on official documents?: Only in some areas
 
Gay or lesbian able to serve in the armed forces: No

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