USA - Michigan

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Michigan
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Not known
Number of people convicted: 
53
Applicable law: 

Mich. Comp. Laws Ann. § 14.15 (5210)

A person who knows he or she has HIV, and who engages in sexual penetration with another person without informing that person of his or her HIV status, is guilty of a felony. “Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body; emission of semen is not required.

Maximum sentence is four years in prison.

Key Cases: 

In People v. Jensen (564 N.W.2d 192, 194-95,Mich. Ct. App. 1997, vacated in part, appeal denied in part by 575 N.W.2d 552, Mich. 1998.), a mentally impaired, HIV-positive woman received three concurrent prison terms of two years and eight months to four years after she engaged in unprotected sex with a man on three occasions. On appeal, she argued that the statute failed to differentiate between consensual and nonconsensual intercourse, and would seem to require that rape victims inform their attackers of their HIV status.

The Court of Appeals of Michigan rejected this argument, finding that the defendant did not have standing to challenge the statute on such grounds because her case did not involve forced sexual intercourse. The court found that the defendant’s actions of engaging in unprotected, consensual sex without disclosing her HIV status was clearly prohibited by law and rejected the defendant’s argument that Michigan’s uninformed partner law is unconstitutional due its lack of a clear intent requirement.

Looking to the reasoning of the Michigan legislature, the court held that the statute required only a general intent to engage in sexual penetration while failing to disclose HIV status. An HIV-positive person who fails to disclose her/his status could be considered grossly negligent because nondisclosure could only achieve the “further dissemination of a lethal, incurable disease in order to gratify the sexual or other physical pleasures of the already infected individual.”

In People v. Odom, an HIV-positive inmate was convicted on three counts of assault when he allegedly punched and spat on correctional officers during an altercation. Because he was bleeding from the mouth during the assault, and because his saliva containing blood was deemed a “harmful biological substance” under state bioterrorism laws, the spitting incident led to an increased sentence of five to fifteen years.

The defendant’s appeal was the first opportunity for the Michigan Court of Appeals to determine whether the blood of an individual with HIV could be considered a “harmful biological substance” under state sentencing guidelines. Relying on a statement from the CDC website that HIV can be transmitted via blood, the Court of Appeals concluded that HIV-positive blood is a “harmful biological substance,” as it can “spread or cause disease in humans, animals, or plants.” The man’s elevated sentencing was therefore upheld.

In 2010, another HIV-positive man was charged under Michigan’s bioterrorism law for allegedly biting his neighbor during an altercation. In People v. Allen the defendant was charged under bioterrorism laws due to the “possession” of a harmful biological substance (i.e., HIV) with the intent to frighten, terrorize, intimidate, threaten, harass, injure, or kill another. There was no evidence that the man was bleeding from the mouth at the time of the bite, that he intended to transmit HIV, or that he exposed his neighbor to anything but saliva.

This initial charge disregarded the fact that the CDC has concluded that there exists only a “remote” possibility that HIV could be transmitted through a bite and such transmission would have to involve various aggravating factors including “severe trauma, extensive tissue damage, and the presence of blood.” The CDC has also concluded that spitting alone has never been shown to transmit HIV.

The Macomb County Circuit Court dismissed the bioterrorism charge as unfounded. Relying on a statement from the CDC, the court acknowledged that saliva, tears, or sweat has never been shown to result in HIV transmission. However, the court also cited Odom and confirmed that HIV-infected blood is a “harmful biological substance” under state bioterrorism laws. Thus, Allen did nothing to remove the risk that an HIV-positive individual can be arrested and charged as a “bioterrorist”  under Michigan state law, but did help illuminate the fallacies of prosecuting HIV-positive persons for spitting and biting.

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: 

The use of condoms or other protection during sexual penetration is not a defense. The only defense to prosecution is if HIV-positive persons disclose their HIV status to sexual partners before engaging in sexual penetration. However, the disclosure of HIV status during private, sexual activities may be difficult to prove without witnesses or documentation, and evidence often rests of the testimonies of the parties where it is one person’s word against the other.

HIV-positive blood is a considered a “harmful biological substances” under the Michigan’s bioterrorism laws and exposing others to HIV-positive blood may increase prison sentences for assault or may be prosecuted as a crime of its own. Enhanced sentences for blood exposure are possible regardless of whether HIV infection was possible under the circumstances.

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).

PhD Candidate Trevor Hoppe has found 53 convictions (as of March 2012) for HIV-related criminal cases during his research.  This is significantly higher than the last total we were aware of, 12.  He has kindly shared with us a map of these HIV-related convcictions, below.

Given that there are an estimated 14,715 people living with (diagnosed) HIV in Michigan (Source: Michigan Department of Community Health), convictions per capita of PLHIV are an estimated 3.60 per 1000.

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)

Trevor Hoppe, University of Michigan.

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.

 

USA Alleged exposure Gay men Prosecutions US: Michigan man found guilty of HIV non-disclosure to man he met online Man convicted for not disclosing HIV | WOOD TV May 9, 2013
See more at: http://www.hivjustice.net/storify/us-michigan-man-found-guilty-of-hiv-non-disclosure-to-man-he-met-online/

 

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