USA - Arkansas

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Arkansas
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 8
Number of people convicted: 
Min. 5
Applicable law: 

Ark. Code Ann. § 5-14-123

It is a class A felony for a person who knows that he or she has tested positive for HIV to expose another to HIV (1) through the transfer of blood or blood products or (2) by engaging in sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, without first having informed the other person of the presence of HIV. The emission of semen is not a required element of the crime. The minimum sentence for a Class A felony is six years, but sentences and fines of up to thirty years and $15,000 are possible. Sex offender registration may also be required by a sentencing court.

Ark. Code Ann. § 20-15-903

A person who is HIV positive must, prior to receiving any health care services of a physician or dentist, advise such physician or dentist that the person has HIV. Failure to do so is a class A misdemeanor punishable by up to one year in prison, a $2,500 fine, or both.

Key wording in the law: 

Expose another to HIV [via] sexual intercourse…or any other intrusion, however slight.)

Key Cases: 

In State v. Weaver (Ark. Ct. App. 1997) an HIV-positive man was sentenced to a thirty-year imprisonment for allegedly having sex without disclosing his status, even though he maintained at trial that he did disclose his status to his partner. To rebut the defendant’s testimony, the prosecution called a health official to testify that the defendant said he would infect anyone he could if he was HIV-positive. On appeal, the court found that the rebuttal testimony was sufficient as it went to the intent of the defendant to expose others to HIV, and therefore to the fact that the defendant probably did not tell the complainant that he was HIV-positive.

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)

In December 2009, an 18-year-old Arkansas man born with HIV pleaded guilty  21 to five counts of exposing another person to HIV and was sentenced to 15 years in prison.  More information on the case can be found at Criminal HIV Transmission.

In October 2009, a 41 year-old man in El Dorado, Arkansas admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status. However, the man was, in fact, HIV-negative, something he'd maintained during his arrest. More information on the case can be found at Criminal HIV Transmission.

Further 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.

Discussion: 

People living with HIV in Arkansas should be aware that penalties for engaging in a broad range of sexual activities, without being able to prove that you first notified partners of one’s HIV status, can result in criminal penalties. If a person in Arkansas is aware that she/he is HIV-positive, she/he must disclose this to a sexual partner before engaging in penile-vaginal sex, anal sex, oral sex, or the insertion of any body part of an HIV-positive person, or any object, into the genital or anal openings of another person.

Though the statute’s title emphasises “transmitting AIDS/HIV,” neither the intent to transmit HIV, actual transmission of HIV, or the ejaculation of semen are required for prosecution. The only affirmative defense to prosecution is the disclosure of one’s HIV status. However, it is difficult to prove whether HIV status was disclosed in the course of private sexual activities because the evidence in these matters is often, if not always, limited to “he said, she said” testimony by the parties or third-party witnesses.

Arkansas also requires court-ordered involuntary HIV testing for complainant notification. All criminal defendants in Arkansas charged with sexual assault, incest, or prostitution may be required to submit to an HIV test and, upon conviction, and at the victim’s request, will be required to take an HIV test.

Sentences for violating Arkansas’s HIV exposure statute are severe. The minimum sentence for the Class A felony is six years, but sentences and fines of up to thirty years and $15,000 are possible. Sex offender registration may also be required by a sentencing court.

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)

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).

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

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