USA - Maryland

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Maryland
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 8
Number of people convicted: 
Min. 5
Applicable law: 

Md. Code Ann., Health-General § 18-601.1

A person with HIV who knowingly transfers or attempts to transfer the virus to another individual is guilty of a misdemeanor.

A person who violates the provisions of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $2,500 or imprisonment not exceeding 3 years or both.

A bill is proposed to change the law from a mismeanor to a felony, see attached text, and discussion below.

Key Cases: 

In July 2010, a 44 year-old HIV-positive man from Hagerstown, Maryland was found guilty of second-degree assault for accidentally spitting on a police officer during his arrest (the man had no teeth) and was sentenced to five years in prison. (More details at Criminal HIV Transmission)

At least two cases in Maryland have ruled that an attempted murder charge cannot be used in cases of HIV exposure unless there is a specific intent to murder through the transmission of HIV. In 1996, the Maryland Court of Appeals overturned the attempted murder conviction of Dwight R. Smallwood, an HIV-positive man, who sexually assaulted three women during an armed robbery spree. Although Smallwood knew he could transmit the virus, Chief Judge Robert Murphy stated that the prosecution failed to provide sufficient evidence that Smallwood intended to kill. Smallwood was sentenced to life in prison for attempted rape and received concurrent sentences of 20 years for robbery with a deadly weapon and 5 years for reckless endangerment. Had the court upheld Smallwood's conviction, anyone with HIV who engaged in unprotected sex could have faced charges of attempted murder.

Discussion: 

Prosecutions for HIV exposure in Maryland have typically arisen under general criminal laws as opposed to the ‘knowing transfer of HIV’ statute. General criminal law charges occur regardless of whether HIV-positive persons exposed others to significant risks of HIV infection. In Maryland, reckless endangerment, which has been used in multiple prosecutions, is defined as recklessly engaging in “conduct that creates a substantial risk of death or serious physical injury to another.”

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).

Lawmakers in Maryland are currently (April 2012) considering changing the state’s HIV-specific criminal law from a three-year misdemeanor to a 25-year felony.  (See full text of House Bill 622, above, and two articles attached below). 

In March 2012, Positive Justice Project members were featured on a popular Baltimore radio show to discuss the proposed legislation.

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.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Maryland

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