USA - Colorado

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Colorado
Whether Specific law enacted: 
No
Number of people prosecuted: 
Min. 6
Number of people convicted: 
Min. 4
Applicable law: 

Colo. Rev. Stat. § 18-3-415.5

If it is proven beyond a reasonable doubt that a person had notice of his or her HIV infection prior to the date that he or she committed a sexual offense, the judge shall sentence the person to a mandatory term of incarceration of at least three times the upper limit of the presumptive range for the level of offense committed, up to the remainder of the person's life. (“Sexual offense” refers to sexual offenses consisting of sexual penetration as defined in Colo. Rev. Stat. § 18-3-401(6).) (See also Colo. Rev. Stat. § 18-1.3-1004.)

Colo. Rev. Stat. § 18-7-205.7

Any person with knowledge of being infected with HIV who patronizes a prostitute is guilty of a class 6 felony. (“Patronizing a prostitute” is defined in Colo. Rev. Stat. § 18-7-205.) Class 6 felony sentence: minimum one-year imprisonment, maximum eighteen months imprisonment.

Colo. Rev. Stat. § 18-7-201.7

Any person who, in exchange for money or any other thing of value, performs or offers or agrees to perform, with any person not his/her spouse, any act of sexual intercourse, oral sex, masturbation or anal intercourse and does so with knowledge of having tested positive for HIV, is guilty of a class 5 felony. Class 5 felony sentence: minimum one-year imprisonment, maximum three years imprisonment.

Key wording in the law: 

Sentence enhancement: If it proven [that someone had] notice of his or her infection [before committing] a sexual offence.

Class 6 Felony: Anyone with knowledge [of being HIV-positive] who patronises a prostitute.

Class 5 Felony: Any person [who has] tested positive for HIV [who exchanges sex] for money.

Key Cases: 

In People v. Shawn (Colo. App. 2004) the Colorado Court of Appeals held that a person’s HIV-positive status could be a deadly weapon for the purposes of the menacing statute because HIV is capable of causing significant injury. In that case, an HIV-positive man was convicted of menacing when he allegedly scratched and pinched a store manager, broke his skin, and shouted “I’m HIV-positive, let go of me, let go of me.” Despite the fact that the store manager was not placed in fear of serious bodily injury, the court concluded that the defendant’s statements were intended to cause such fear and, as such, were menacing. The court also determined that HIV was a deadly weapon, because a deadly weapon does not have to be likely to cause serious bodily injury, only capable of doing so. The court determined that “the dangers of HIV are widely known,” and the man’s HIV status was “used” as a weapon when he broke the store manager’s skin, giving himself “ready access to means of transmitting HIV.”

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 July 2009, a 34 year-old man was sentenced to 15 years in prison after pleading guilty to child abuse charges for not warning his wife nor her doctors that he might have infected his wife with HIV during her pregnancy, resulting in their son being born HIV-positive.  Further details of the case and sentencing can be found on Criminal HIV Transmission.

In June 2010, an HIV-positive man was charged with assault with a “deadly weapon” after he allegedly spat on a technician while being fitted for an electronic monitoring bracelet. His charge was later reduced to misdemeanor harassment. (See attached reports below)

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).

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.

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

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