USA - Idaho

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Idaho
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
54
Number of people convicted: 
Not known.
Applicable law: 

Idaho Code § 39-608

Felony: transfer of bodily fluids which may contain HIV

Any person who exposes another in any manner with the intent to infect or, knowing that he or she has HIV, transfers or attempts to transfer any of his or her body fluid, tissue or organs to another person is guilty of a felony. It is an affirmative defense that the sexual activity took place between consenting adults after full disclosure by the accused of the risk of HIV transmission. It is also an affirmative defense that the transfer of body fluid, tissue or organs occurred after advice from a licensed physician that the accused was noninfectious. (“Body fluid” means semen, blood, saliva, vaginal secretion, breast milk, and urine. “Transfer” means engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact; or permitting the use of an unsterilized hypodermic syringe, needle, or similar device; or giving blood, semen, body tissue, or organs for purposes of transfer to another person.)

Sentences and Fines: Up to 15 years in prison and/or up to a $5,000 fine.

Idaho Code § 39-601

Misdemeanor: knowingly exposing another to a venereal disease

It is unlawful for anyone infected with HIV to knowingly expose another person to HIV infection.

Key Cases: 

In State v. Thomas, an HIV-positive man was convicted under Idaho’s statute and sentenced to fifteen years in prison for engaging in anal and oral sex, without ejaculating, with a transsexual woman without disclosing his HIV status. At trial, the defendant questioned his accuser’s credibility regarding her denial that he had disclosed his HIV-positive status, suggesting that she had a history of drug use, psychological problems, a reputation “untruthful and dramatic” behavior, and that she had several drinks before having sex with him that would have affected her memory of the evening’s events. Friends of the complainant, however,testified that they were in her apartment, could hear her sexual encounter, and when they, knowing of the defendant’s status, told her he was HIV-positive, she was very upset and alluded to the fact that she had no knowledge of his HIV status. The Idaho Court of Appeals saw this testimony as sufficient to sustain the jury’s guilty verdict despite the contradictions in testimonies.

In 2009, after serving fifteen years in prison, the defendant in State v. Thomas pleaded guilty to two more charges of exposing women to HIV. A judge chastised the defendant for giving his sexual partners “a potential death sentence” and sentenced him to thirty years in prison with the possibility of parole after twenty years. The woman in this case did not test positive for HIV, but transmission of HIV is not an element of the crime and, as such, would not have been a consideration to the conviction. The same defendant was also charged under Idaho’s exposure law during a 1990 statutory rape case.

In State v. Mubita an HIV-positive man was sentenced to forty-four years in prison (eleven counts of transferring bodily fluids) with a possibility of parole after four years for performing oral sex on his female partner and ejaculating on her thigh.140 On appeal, defense counsel argued that it was factually impossible to violate Idaho's felony exposure law, intended to criminalize “knowingly expos[ing] another person to AIDS,” because oral sex, when being performed by an HIV-positive party, and ejaculating on intact skin, has no, or only a remote, possibility of transmitting HIV. The Idaho Court of Appeals did not go beyond the plain language of Idaho’s felony exposure law and found that because the man engaged in oral sex, which is a prohibited act unless there is disclosure, and the law specifically included saliva in its list of “bodily fluids” capable of transmitting HIV, the man violated Idaho Code Ann. §39-608. (Further details of the Idaho Supreme Court's decision, and commentary, can be found at Leonard Link)

Cases 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: 

Idaho's HIV-specific criminal statute goes beyond the usual HIV disclosure statutes: informing a partner only of one’s HIV-positive status, without disclosing the risk of transmission, is not a sufficient defense on the face of this statute. It is also not a defense if condoms, or other protection, were used. However, it is a defense if the accused can prove that a licensed physician informed them that they were “noninfectious” (could not transmit HIV to others). This could occur if a person’s viral load was undetectable.

Also unusual is the fact that Idaho’s HIV-specific criminal statute specifically targets intravenous drug users and others who share their needles and syringes.

According to information collected by SERO, charges have been laid using Idaho's HIV-specific criminal statute 54 times since it was enacted in 1998. (Source: Idaho statewide trial court automated records system)

Between June 2008 and October 2011, four cases were reported in the media. All involved otherwise consensual sex, and no complainant claimed to have become HIV-positive as a result.

Given that there are an estimated 1,250 people living with (diagnosed) HIV in Idaho (Source: Idaho Dept of Health and Welfare), prosecutions per capita of PLHIV are an estimated 43.2 per 1000, one of the highest in the world for any single jurisdiction.

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.

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