USA - Indiana

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Indiana
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 20
Number of people convicted: 
Min. 15
Applicable law: 

Ind. Code § 35-42-1-7

A person who recklessly, knowingly, or intentionally donates, sells or transfers blood, a blood component, or semen for artificial insemination that contains HIV commits a class C felony, but if it results in the transmission of HIV it is a class A felony. (Does not apply to person who, for reasons of privacy, donates blood to a blood center after the person has notified the blood center that the blood must be disposed of or who transfers HIV positive body fluids for research purposes.)

Ind. Code § 35-42-6(e)

A person who knowingly or intentionally in a rude, insolent, or angry manner places (or coerces another to place) blood or another body fluid or waste on a law enforcement or corrections officer, firefighter, or first responder (identified as such and engaged in performance of official duties) commits a class D Felony. If the person knew or recklessly failed to know that the blood, bodily fluid or waste was infected with HIV, it is a class C felony. If the person knew or recklessly failed to know that the blood, bodily fluid or waste was infected with HIV and the offense results in transmission of HIV, it is a class A felony.

Ind. Code § 35-42-2-6(f)

A person who knowingly or intentionally in a rude, insolent, or angry manner places human blood, semen, urine or fecal waste on another person commits a class A misdemeanor. If the person knew or recklessly failed to know that the blood, semen, urine or fecal waste was infected with HIV, it is a class D felony. If the person knew or recklessly failed to know that the blood, semen, urine or fecal waste was infected with HIV and the offense results in transmission of HIV, it is a class B felony.

Ind. Code § 35-45-16-2(a) & (b)

A person who recklessly, knowingly, or intentionally places human blood, semen, urine or fecal waste in a location with the intent that another person will involuntarily touch it commits malicious mischief, a class B misdemeanor. If the person knew or recklessly failed to know that the blood, urine, or waste was infected with HIV, it is a class D felony. If the person knew or recklessly failed to know that the waste was infected with HIV and the offense results in the transmission of HIV to the other person, it is a class B felony.

Ind. Code § 35-45-16-2(d)

A person who recklessly, knowingly, or intentionally places human blood,body fluid, or fecal waste in a location with the intent that another person will ingest it commits malicious mischief with food, a class A misdemeanor. If the person knew or recklessly failed to know that the blood, fluid or waste was infected with HIV, it is a class D felony. If the person knew or recklessly failed to know that the blood, fluid or waste was infected with HIV and the offense results in the transmission of HIV to the other person, it is a class B felony.

Ind. Code Ann. §§ 16-41-7-1, 35-42-1-9

Persons who know of their status as a carrier of HIV have a duty to warn – or cause to be warned by a third party – a person at risk of the following: both the carrier's disease status and the need to seek health care such as counseling and testing. A “person at risk” means past and present sexual or needle sharing partners who may have engaged in high risk activity with the carrier of HIV; or sexual or needle sharing partners before engaging in high risk activity with the carrier of HIV. “High risk activity” means sexual or needle sharing contact that has been demonstrated epidemiologically to transmit HIV. A person who recklessly violates or fails to comply with this law commits a Class B misdemeanor and a person who knowingly or intentionally violates or fails to comply with this law commits a Class D felony.

Ind. Code § 16-41-14-17

A person who, for the purpose of artificial insemination, recklessly, knowingly, or intentionally donates, sells, or transfers semen that contains HIV antibodies commits a Class C felony. The offense is a Class A felony if the offense results in the transmission of the virus to another person. (This does not apply to a person who transfers for research purposes semen that contains HIV antibodies.)

Penalties (all include the possibility of a $10,000 fine)
Class A felony: twenty – fifty years imprisonment
Class B felony: six – twenty years imprisonment
Class C felony: two – eight years imprisonment
Class D felony: six months – three years imprisonment
Class B misdemeanor: no more than 180 days imprisonment and a $1000 fine.

Key wording in the law: 

A person who knowingly…in a rude…manner places…blood or another body fluid or waste...infected by HIV.

[Diagnosed HIV-positive people] have a duty to warn… past and present sexual or needle sharing partners.

Key Cases: 

In State v. Haines (545 N.E.2d 834,Ind. Ct. App. 1989) the HIV-positive defendant attempted suicide by slashing his wrists, but was interrupted by police and emergency medical technicians. When the police and emergency team arrived, Haines began yelling at them not to come closer or else he would infect them with HIV. He began to scratch, bite, spit at, and throw blood at the officers. Haines was convicted of three counts of attempted murder, but the trial judge vacated the conviction because the state did not prove that HIV could be spread by the defendant’s conduct. On appeal, the court reinstated the attempted murder conviction because the defendant was HIV-positive, knew of his status, and intended to infect others with HIV by spitting, biting, scratching, and throwing blood. The court likened the defendant’s actions as “biological warfare […] akin to a sinking ship firing on his rescuers” and found that, even if the conduct in question couldn’t result in HIV infection, the defendant still believed that his conduct could result in HIV transmission.

Subsequent to this case, Indiana’s 'battery by body waste' statute was adopted.

In Newman v. State (677 N.E.2d 590, Ind. Ct. App. 1997) an HIV-positive sex worker was charged under the Class C felony of purposefully placing her “HIV-infected” body fluids on law enforcement officers who were trying to arrest her. The defendant “swung her head back and forth in an attempt to spray the officers with her tears, saliva, and nasal secretions.” The trial judge refused to enter the conviction as a Class C felony and instead convicted her under the lesser included Class D felony offense reasoning that “it’s medically impossible to transfer HIV and AIDS through spitting.” The defendant was sentenced to three years for battery by body waste. If she had been convicted under the original charges she would have been sentenced to a maximum of eight years imprisonment. Despite the trial court’s scientifically sound approach to the facts of the case, the Indiana Court of Appeals disagreed with the trial court’s ruling but did not address the sentencing because the State did not raise the issue on appeal.

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: 

Between February 2010 and March 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.) Most involved non-disclosure prior to sex but one case involved donating plasma whilst HIV-positive.  There have, in fact, been numerous cases of individuals being prosecuted under Indiana’s transfer and donating contaminated fluids statutes.

Given that there are an estimated 9,893 people living with (diagnosed) HIV in Indiana (Source: Indiana State Department of Health), prosecutions per capita of PLHIV are an estimated 2.02 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)

Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012.

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/Indiana

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: 

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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