USA - Kentucky

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Kentucky
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 8
Number of people convicted: 
Not known
Applicable law: 

Ky. Rev. Stat. Ann. § 311.990 (24)(b)

Any person infected with HIV – knowing that he or she is infected and having been informed of the possibility of communicating the infection by donating human organs, skin or other human tissues – who donates organs, skin or other human tissue is guilty of a class D felony.

Ky. Rev. Stat. Ann. § 529.090(3) & (4)

Any person who commits, offers, agrees to commit or procures another to commit prostitution by engaging in sexual activity in a manner likely to transmit HIV and who, prior to the commission of the crime, had tested positive for HIV and knew or had been informed that he or she had tested positive and could possibly communicate the disease to another through sexual activity, is guilty of a class D felony.

A Class D felony is punishable by one to five years in prison and a $1,000- $10,000 fine

Ky. Rev. Stat. Ann. § 508.070 (1) & (2)

A person is guilty of wanton endangerment in the second degree when he wantonly engages in conduct which creates a substantial danger of physical injury to another person. Wanton endangerment in the second degree is a Class A misdemeanor.

A Class A misdemeanor is also punishable by one to five years in prison and a $1,000- $10,000 fine.

Key wording in the law: 

§ 311.990: Any person infected with HIV…who donates organs.

§ 529.090: Any person who commits…prostitution…who…tested positive for HIV…and could possibly communicate the disease…through sexual activity.

§ 508.070: Wantonly engages in conduct which creates a substantial danger of physical injury.

Key Cases: 

In Hancock v. Commonwealth (998 S.W.2d 486, 497, Ky. Ct. App. 1998) Kentucky’s first case determining whether HIV exposure could be prosecuted under the state’s wanton endangerment laws, an HIV-positive man had a two-year sexual relationship with a woman, allegedly without disclosing his HIV-positive status. Although the man testified that his partner knew he was HIV-positive, he later pleaded guilty to second-degree wanton endangerment. He received a 120-day suspended sentence plus one year of probation.

On appeal of the initial indictment, the Court of Appeals of Kentucky rejected the argument that Kentucky’s wanton endangerment statute could not apply to HIV exposure, finding the charge valid on its face “in light of the deadly nature of HIV.” The court also found that the defendant’s contention that his partner knew of his HIV-positive status had no bearing on the issue of whether his charges should have been dismissed. That was an issue of fact the man would have to raise before the jury as a defense to prosecution.

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: 

Neither the intent to transmit HIV nor actual transmission is required for prosecution for wanton endangerment. Because the defendant in Hancock pleaded guilty, there is no jurisprudence on how condoms or other protection during sexual intercourse or evidence of a defendant’s low viral load would factor into a prosecution for wanton endangerment, although it certainly could be argued that those factors reduce the risk to below that of the statutory “substantial danger” standard.

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 Kentucky's HIV-specific criminal statute six times since 2005. (Source: Kentucky State Police) This is likely related only to sex work whilst HIV-positive or donating blood or organs whilst HIV-positive and not to wanton endangerment charges, which is non-HIV-specific. 

We know of at least two cases that have used the wanton endangerment statute to prosecute alleged HIV exposure.  The case above and a case in April 2008 where a woman with HIV bit a store clerk while robbing the store. The clerk tested HIV-negative.  She was sentenced to 12 years in prison of which 2 years was for wanton endangerment (for biting whilst HIV-positive).  She had originally been charged for attempted murder for the bite.  (See Criminal HIV Transmission for details)

Survey respondents/Organisations working on HIV and the Law: 

Information obtained 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)

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/Kentucky

USA Other Prosecutions Kentucky prisoner with HIV who threw urine on prison officer charged with attempted murder, 2nd degree assault and 3rd degree assault Metro Corrections: H.I.V. positive inmate throws urine on officer February 7, 2013
See more at: http://www.hivjustice.net/storify/kentucky-charges-prisoner-with-hiv-who-threw-urine-on-prison-officer-with-attempted-murder-2nd-degree-assault-and-3rd-degree-assault/

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