USA - Kansas

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Kansas
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
1
Number of people convicted: 
1
Applicable law: 

2010 Kan. Sess. Laws Ch. 136 (H.B. No. 2668, New Sec. 59)*

Severity Level 7, Person Felony: intentional exposure to life threatening disease

It is unlawful for a person who knows oneself to be infected with a life threatening communicable disease, to:
1. Engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease;
2. Sell or donate one’s own blood, blood products, semen, tissue, organs, or other body fluids with the intent to expose the recipient to a life threatening communicable disease; or
3. Share with another individual a hypodermic needle, syringe, or both, for the introduction of drugs or any other substance into, or for the withdrawal of blood or body fluids from, the other individual’s body with the intent to expose another person to a life threatening communicable disease.

Violation of this section is a severity level 7, person felony.**

“Sexual intercourse” shall not include penetration by any object other than the male sex organ.

“Sodomy” shall not include penetration of the anal opening by any object other than the male sex organ.

* Re-codification of KAN. CRIM. CODE. ANN. § 21-3435 (West 2010).

** See Kansas Sentencing Guidelines, available at http://www.sedgwickcounty.org/da/sentencing_grid.html.

Key Cases: 

In the 2009 case State v. Richardson an HIV-positive man appealed his conviction of two counts of exposing another to a life-threatening disease. He was convicted after having sex with two women at a time when his viral load measured as undetectable. At trial and on appeal, the defendant argued that Kansas’ communicable disease exposure law fails to give adequate notice as to what constitutes a “life threatening” disease, “exposure” to HIV, and what viral load would be sufficient for a criminal exposure to HIV. The Supreme Court of Kansas rejected these arguments, stating that the law does not criminalize communicable disease exposure per se, but rather sexual intercourse or sodomy with the intent to expose another to a communicable disease.

It added,

“One need not ruminate on exactly how the act must be performed to meet the legal definition of ‘expose’ or even know that a transmittal of the disease is possible.”

Importantly, the Richardson court also ruled that Kansas’ communicable disease exposure statute required that a defendant have the specific intent to expose sexual partners to HIV. It was not sufficient if a defendant had the general intent to engage in sexual intercourse while HIV-positive. In doing so, the court rejected the prosecution’s argument that Kansas’ communicable disease exposure law criminalized any act of sexual intercourse or sodomy by an HIV-positive person, even if a condom was used. The prosecution went as far as to suggest that complete abstinence from sex is the only way to avoid exposing others to a risk of HIV. The Kansas Supreme Court disagreed and vacated the man’s conviction after the state failed to prove that his specific intent was to expose his sexual partners to HIV.

The court found that the elements of specific intent could include an analysis of whether the HIV-positive person disclosed her/his HIV status, used a condom during sexual acts, or specifically denied having HIV or sexually transmitted diseases. Without taking into account such elements the prosecution cannot prove specific intent.

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: 

It appears that so far just one person has been prosecuted for alleged HIV exposure under Kansas law, but that this person has been prosecuted twice in two different counties. He was originally sentenced to 32 months in prison in Douglas County but was later re-sentenced to two years probation. His conviction in Lyon County was successfully appealed (see above).

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)

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