USA - Louisiana

Last updated on: 26 April 2012

Criminalisation of HIV transmission/exposure

Louisiana
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 55
Number of people convicted: 
Not known
Applicable law: 

La. Rev. Stat. Ann. § 14:43.5

It is unlawful for any person to intentionally expose another to HIV through sexual contact or through any means or contact (including spitting, biting, stabbing with an HIV contaminated object, or throwing of blood or other bodily substances) without the knowing and lawful consent of the victim. (If the victim is a police officer, and the offender has reasonable grounds to believe the victim is a police officer acting in performance of his or her duty, fine can be not more than $6000 and imprisonment can be not more than 11 years, or both.)

La. Rev. Stat. Ann. § 40:1062

It is unlawful for any person to inoculate or infect another person in any manner with a venereal disease or to do any act that will expose another to inoculation or infection with a venereal disease. (“Venereal disease” means syphilis, gonorrhea, chancroid, or any other infectious disease primarily transmitted from one person to another by means of a sexual act, La. Rev. Stat. Ann. § 40:1061.)

Key Cases: 

Full text of appeal decision in State  v.  Gamberella (633 So. 2d 595, 602 La. Ct. App. 1993), is attached below.

In State v. Caine (652 So. 2d 611,La. Ct. App. 1995), an HIV-positive man was convicted of attempted second-degree murder after he allegedly stuck a store clerk with a syringe full of clear liquid and said “I’ll give you AIDS.” The syringe was never recovered, and it is not known whether the clear liquid was contaminated with HIV. However, because the defendant was HIV-positive, pulled a needle out of his pocket, and had “track marks” on his arm suggesting a history of drug use, the Court of Appeal of Louisiana found it likely that the needle was infected with HIV, and affirmed the defendant’s sentence of fifty years in prison at hard labor.

In State v. Richmond the Court of Appeal of Louisiana rejected an argument from an HIV-positive sex worker that a ten-year sentence for conviction of a crime against nature by soliciting "unnatural oral copulation" for compensation was excessive. Although the court noted that a ten-year sentence was harsh, the trial judge, who is afforded wide discretion on sentencing, supported the sentence by stating that the woman committed prostitution with knowledge of her HIV-positive status and should, therefore, be punished to the full extent of the law for the danger that she posed to others “who are not ill right now, who can be protected.” The trial court compared the woman’s actions to imposing a death sentence for others “because of what [she carries] around inside [her] body.”The Louisiana Court of Appeal affirmed the defendant’s sentence of ten years in prison based on her prior record as a third felony offender. Despite the fact that the defendant did not engage in oral sex, and even if she had there was only a remote chance of exposing another to HIV in such a manner, she was sentenced to the full extent of the law, in large part based on her HIV status.

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: 

In June 2011, Louisiana's Governor signed into law a bill sponsored by Louisiana State Representative Charmaine Marchand Stiaes, that effectively moves sex work convictions back to the level of misdemeanor, and means that sex workers (with or without HIV) convicted of such 'crimes' no longer have to register as sex offenders.

According to information collected by SERO charges have been laid using Louisiana's HIV-specific criminal statute at least 55 times since it was enacted in 1993. Since charges have also been laid under general laws, this is likely to be an underestimation of the number of HIV-related criminal cases.

Given that there are an estimated 16,869 people living with (diagnosed) HIV in Louisiana (Source: Kaiser State Health Facts), prosecutions per capita of PLHIV are an estimated 3.26 per 1000.

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/Louisiana

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.

(Sources: 1, 2)

For updated information, please go to: www.hivrestrictions.org.

  1. Dr. Nancy Ordover and the authors, November 2, 2009 and April 7, 2010
  2. Memorandum, U.S. Department of Homeland Security, U.S. Citizenship and Immisgration Services, November 24, 2009

     
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

Is it possible to change your gender on official documents?: Only in some areas
 
Gay or lesbian able to serve in the armed forces: No

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