USA - Maine

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Maine
Whether Specific law enacted: 
General
Number of people prosecuted: 
0
Number of people convicted: 
0
Applicable law: 

There is no law criminalising the transmission of or exposure to HIV.

Key Cases: 

In June 2009, a judge in Maine more than doubled the prison sentence of an HIV-positive woman in order to protect her unborn child. The judge admited he based the decision entirely on the woman's HIV status. The 28 year-old woman, from Cameroon, had previously pleaded guilty for having fake documents. She was not legally entitled to be in the United States and was planning to seek asylum.

District Judge John Woodcock said during sentencing

My obligation is to protect the public from further crimes of the defendant, and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

The case was taken up by the Amercian Civil Liberties Union and following their intervention she was freed on bail and won her expedited appeal in July.

Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties Union Foundation in New York City, attended the resentencing in Portland. She criticized Woodcock’s original sentence outside the courthouse. “It was inappropriate for our client to have received a long sentence solely because she was HIV-positive and pregnant,” said Kolbi-Molinas, a staff attorney with the ACLUF’s Reproductive Freedom Project. “So we’re very pleased with the result. “The widespread support in favor of a reversal of the sentence shows that we are no longer a society which incarcerates the sick and the poor because they are sick and poor,” she said.

More details of the case can be found at Criminal HIV Transmission.

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/Maine

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