USA - Minnesota

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Minnesota
Whether Specific law enacted: 
No
Number of people prosecuted: 
Min. 3
Number of people convicted: 
Min. 2
Applicable law: 

MINN. ST. § 609.2241

Knowing transfer of communicable disease

It is a crime for a person who knowingly harbors an “infectious agent” to transfer it to another person through:

1. Sexual penetration with another person without having first informed the other person that the person has a communicable disease;

2. Transfer of blood, sperm, organs, or tissue; or

3. Sharing of nonsterile syringes or needles for the purpose of injecting drugs.

This crime may be under Minnesota laws concerning: attempt; murder in the first and second degrees; and assault in the first, second, third, fourth, and fifth degrees.

It is an affirmative defense that:

1. The person who knowingly harbors an infectious agent for a communicable disease took practical means to prevent transmission as advised by a physician or other health professional; or

2. The person who knowingly harbors an infectious agent for a communicable disease is a health care provider who was following professionally accepted infection control procedures.

“Sexual penetration” may include sexual intercourse, cunnilingus, fellatio, or anal intercourse when the acts described are committed without the use of a latex or other effective barrier, regardless of whether emission of semen (ejaculation) occurs. MINN. STAT. § 609.341(12).

Key Cases: 

In 2008, a civil commitment proceeding was initiated against an HIV-positive man in In re Renz (No. A08-898, 2008 WL 4706962, Minn. Ct. App. 2008). Renz appealed his commitment for being “mentally ill and dangerous,” arguing that though he is mentally ill he is not dangerous and his commitment should only be for his mental illness. To be confined as “mentally ill and dangerous,” in addition to having a mental illness, the person must present a “clear danger to the safety of others” because she/he has “engaged in an over act causing or attempting to cause serious physical harm to another” and there is a “substantial likelihood that the person will engage in acts capable of inflicting serious harm on another.” Renz contended that there was no clear and convincing evidence that he engaged in any act causing or attempting to cause physical harm to another.

The court held that because Renz knew his HIV status and engaged in unprotected, undisclosed sex with his partners, such activity was a danger to others. The court reasoned that because of Renz’s history of unprotected sex, as evidenced by his contracting gonorrhea and syphilis, he presented a danger despite the fact that there was no evidence of a specific person or instance of such sexual conduct. The court also noted that though earlier case law held that any commitment of an HIV-positive person who intended to have sexual intercourse with others without advising them of his HIV status had to be addressed by the Health Threat Procedures Act rather than civil commitment, one’s HIV status would not preclude civil commitment if other requirements of the law were met. Here, the court found that due to Renz’s sexual history, he met the requirements for commitment as mentally ill and dangerous.

In October 2009, an HIV-positive man pleaded guilty to intentionally inflicting or attempting to inflict bodily harm on another (misdemeanor assault in the fifth-degree) and was sentenced to ninety days in jail after he had unprotected sex with a woman without disclosing his HIV status. This is believed to be the first HIV-related prosecution under Minnesota's "knowing transfer of communicable diseases" law. 

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: 

This non-HIV-specific law still means that HIV-positive persons must disclose their HIV status to sexual partners prior to vaginal or anal sex, whether or not ejaculation occurs. Condoms and/or disclosure prior to sex are defences.

The Positive Justice Project reports that so far there have been three HIV-related prosecutions, two since 2009. 

Of greater concern is the civil commitment case discussed above, which allows for an individual found to be “sexually dangerous,” a “sexual psychopathic,” or “mentally ill and dangerous” to be indefinitely confined by the state to protect the public safety.  The Positive Justice Project found two civil commitment cases in total.

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.

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