USA - Florida

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Florida
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
239
Number of people convicted: 
Not known
Applicable law: 

Fla. Stat. Ann. § 384.24(2)

It is unlawful for any person who has HIV, with knowledge of such infection and having been informed that he or she may communicate it to others through sexual intercourse, to have sexual intercourse with any other person, unless the other person has been informed of the presence of HIV and has consented to the sexual intercourse.

Fla. Stat. Ann.§384.34(5)

Any person who violates the provisions of s. 384.24(2) commits a felony of the third degree, punishable as provided in ss. 775.082, 775.083, 775.084, and 775.0877(7). Any person who commits multiple violations of the provisions of s. 384.24(2) commits a felony of the first degree, punishable as provided in ss. 775.082, 775.083, 775.084, and 775.0877(7).

Fla. Stat. Ann. § 381.0041(11)(b)

Any person who knows he or she has HIV and has been informed that by donating blood, organs or human tissues he or she may communicate HIV to another person and with this knowledge donates blood, organs, plasma, skin or human tissue is guilty of a felony of the third degree.

Fla. Stat. Ann. § 796.08(4)

A person who commits prostitution, offers to commit prostitution or (by engaging in sexual activity likely to transmit HIV) procures another for prostitution, and who had previously tested positive for HIV and knew or had been informed of the test result and of the possibility of transmission to others through sexual activity commits criminal transmission of HIV.

Fla. Stat. Ann. § 775.0877

A person who pleads guilty or nolo contendere to, or is convicted of, committing or attempting to commit one of the crimes that is listed in subsection (1) of this statute and involves the transmission of bodily fluids from one person to another, who subsequently tested positive for HIV and was informed of that test result, and who then again commits one of the crimes listed in subsection (1) is guilty of criminal transmission of HIV, a felony of the third degree. The offenses listed in subsection (1) include, among others, sexual assault, incest, child abuse, indecent assault upon a minor child, sexual performance by a minor, and donation of contaminated blood.

Fla. Stat. Ann. § 775.082

Penalties: third-degree felony : Conviction of a felony of the third degree can result in a sentence of imprisonment not exceeding five years.

Penalties: second-degree felony : Conviction of a felony of the second degree can result in a sentence of imprisonment not exceeding 15 years.

Penalties: first-degree felony : Conviction of a felony of the first degree can result in a sentence of imprisonment not exceeding 30 years.

Fla. Stat. Ann. § 775.083

Fines: A person convicted of an offense other than capital felony may be sentenced to pay a fine, in addition to any punishment described in s. 775.082; Fines for designated crimes and for noncriminal violations shall not exceed $5,000 when the conviction of a felony is for the third degree.

Key wording in the law: 

Knowledge of [their HIV infection] and informed [they may transmit through sex] unless [partner has] consented.

Key Cases: 

Sexual intercourse is defined as the “penetration of the female sex organ by the male sex organ, however slight, emission of semen is not required. § 826.04 (statute on Incest). Until July 2011, Florida’s HIV exposure statute had also been applied to sexual intercourse between people of the same sex. However, two decisions in July and October 2011 applied the statute as written and found that “sexual intercourse”, and therefore the statute, did not apply to sex between two women or sex between two men. There is no statutory indication that oral sex is considered “sexual intercourse.” (See attachments below)

At least one case has found that HIV can be considered a deadly weapon for prosecution under general criminal law. In August 2009, a 35-year-old, HIV-positive man in Florida was charged with attempted murder when he allegedly yelled that he had HIV and threatened to kill a police officer with HIV before biting him in the shin and leaving a permanent bruise. He was later convicted of aggravated battery on a law enforcement officer and sentenced to fifteen years in prison. The officer did not test positive for 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 October 2008, a 37 year-old woman was sentenced to two years' probation after she pleaded guilty to felony child neglect, in what appears to be the first successful case of a criminal prosecution for vertical transmission of HIV in the United States. She had faced up to 15 years in prison, but "prosecutors agreed to the deal because sending her to prison would significantly hinder her ability to care for him financially in the future." Further details of the case can be found on Criminal HIV Transmission.

Discussion: 

Florida appears to have used its HIV-specific criminal statutes against people living with HIV more often than any other US state.  According to information collected by SERO, charges have been laid 239 times (Source: Florida Department of Law Enforcement) under multiple statutes.

Between August 2008 and February 2012, 14 cases were reported in the media, including arrests and prosecutions related to sex following alleged non-disclosure; sex work whilst HIV-positive; biting whilst HIV-positive; spitting whilst HIV-positive; and vertical transmision.

Given that there are an estimated 125,000 people living with (diagnosed and undiagnosed) HIV in Florida, prosecutions per capita of PLHIV are an estimated 1.91 per 1000.
 

 

 

 

Survey respondents/Organisations working on HIV and the Law: 

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.

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.

Florida court to decide if HIV non-disclosure law applies to sex between men Man charged with spreading HIV wants case dropped December 9, 2013
See more at : http://www.hivjustice.net/storify/us-florida-court-to-decide-if-hiv-non-disclosure-applies-to-sex-between-men/

 

 

USA Alleged exposure Appeal Gay men Prosecutions Appeal court decisions US: Florida court rules ‘sexual intercourse’ can apply to gay men, HIV non-disclosure charges reinstated against Olympic equestrian Appeals court reinstates HIV–related charge against equestrian star, Darren Chiacchia June 1, 2013

See more at: http://www.hivjustice.net/storify/us-florida-court-rules-sexual-intercourse-can-apply-to-gay-men-hiv-non-disclosure-charges-reinstated-against-olympic-equestrian-star/

 

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

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