USA - Illinois

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Illinois
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
100
Number of people convicted: 
Not known
Applicable law: 

720 Ill. Comp. Stat. § 5/12-16.2

A person who knows that he or she is infected with HIV commits criminal transmission of HIV if he or she (1) engages in contact with another person involving the exposure of the body of one person to a bodily fluid of another in a manner that could result in HIV transmission; (2) transfers, donates or provides his or her blood, tissue, semen, organs or other potentially infectious body fluids for administration (e.g., transfusion) to another person, or (3) in any way transfers to another any nonsterile IV or intramuscular drug paraphernalia. The actual transmission of HIV is not a required element of this crime. It is an affirmative defense that the person exposed knew the infected person was infected with HIV, knew the action could result in infection, and consented with that knowledge.

Violation of this statute is a Class 2 felony. The sentence for attempt to commit a Class 2 felony is the sentence for a Class 3 felony.

Penalties

For a Class 2 felony, not less than 3 years in prison and not more than 7 years.

For a Class 3 felony, not less than 2 years in prison and not more than 5 years.

A felony offender may be sentenced to pay a fine not to exceed, for each offense, $25,000 or the amount specified in the offense, whichever is greater.

Key Cases: 

In People v. Dempsey (Ill. App. Ct. 1993),  a 34-year old, HIV-positive man was convicted of aggravated criminal sexual assault and criminal transmission of HIV when he allegedly ejaculated in the mouth of his 9-year old brother. On appeal, the defendant argued that Illinois’ criminal transmission law was unconstitutionally vague, as the phrase “could result in the transmission of HIV” is overbroad and fails to define precisely what conduct is prohibited. He also contended that the Illinois legislature’s failure to define “bodily fluid” meant that exposure to saliva and tears could conceivably be criminalized, and an individual interpreting the law would be left to speculate about the legality of activities that pose no risk of transmitting HIV, such as spitting.

The Illinois Appellate Court rejected this challenge, finding that the defendant’s conduct fell squarely within the language of Illinois’ criminal transmission statute, and that the law was not unconstitutionally vague as applied to him. The court reasoned that the defendant clearly exposed his brother to HIV because semen was well known as a “transmitter of HIV” and oral sex was a recognised route of HIV transmission. Given that the defendant’s conduct was clearly targeted under Illinois’ HIV transmission statue, the court found that he was given fair notice that his conduct would be considered criminal. The defendant did not have standing to challenge the statute on hypothetical scenarios that were not reflective of his conduct.

In 1994, the Illinois Supreme Court also ruled that the state’s transmission law was not unconstitutionally vague. People v. Russell concerned two prosecutions for HIV “transmission” that were consolidated into one appeal. In one case, an HIV-positive woman was charged with criminal transmission of HIV when she engaged in consensual sexual intercourse allegedly without disclosing her status to her partner. In the second, an HIV-positive man was charged with the same offense after he raped a woman with knowledge of his HIV status. In both cases, the trial judges found Illinois’ criminal transmission law to be unconstitutionally vague.

The Illinois Supreme Court reversed the trial courts decisions finding that the specific conduct of the defendants were clearly addressed by the statute, and that the argument that the Illinois’ criminal transmission law “might open the innocent conduct of others to possible prosecution is a matter of pure speculation and conjecture.”

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: 

Illinois’ definition of “bodily fluids” for the purpose of its HIV exposure law does not limit its definition only to fluids known to transmit HIV. Even though the CDC has long maintained that saliva, tears, and sweat do not expose others to a risk of HIV transmission, these bodily fluids are not excluded from consideration under Illinois’ criminal transmission law. This means that spitting, biting, scratching, and other activities pose, at best, only theoretical risks of HIV transmission may be subject to prosecution. There have been numerous prosecutions in Illinois for criminal transmission of HIV stemming from an HIV-positive person biting someone, despite the fact that the CDC has concluded that there exists only a “remote” possibility that HIV could be transmitted through a bite and such transmission would have to involve various aggravating factors including “severe trauma, extensive tissue damage, and the presence of blood.”

In Illinois, as in many states, it is not a defense if HIV transmission was impossible under the circumstances. Even a verbal offer to engage in “intimate contact” may result in prosecution despite the fact that the completed act would not have had any risk of HIV exposure (i.e.: a hand job, fingering, or performing oral sex).

Despite its flawed language and broad scope, the Illinois HIV criminal transmission law has survived multiple legal challenges arguing that its language is unconstitutionally vague. (See Key Cases, above).

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).

According to information collected by SERO, charges have been laid using Illinois's HIV-specific criminal statute 100 times since it was enacted in 1989. (Source: Illinois Criminal Justice Information Authority)

Between January 2008 and November 2011, seven cases were reported in the media. (See Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012, and Criminal HIV Transmission)

Given that there are an estimated 32,498 people living with (diagnosed) HIV in Illinois (Source: http://www.statehealthfacts.org), prosecutions per capita of PLHIV are an estimated 3.08 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.
Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Illinois

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

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