USA - Missouri

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Missouri
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 27
Number of people convicted: 
Min. 10
Applicable law: 

Mo. Rev. Stat. § 191.677

It is unlawful for a person knowingly infected with HIV to be (or attempt to be) a donor of blood, blood products, organs, sperm or tissue, except as deemed necessary for medical research. It is also unlawful for a person knowingly infected with HIV to act in a reckless manner by exposing another person to HIV without the knowledge and consent of that person, in any of the following manners: (1) through contact with blood, semen or vaginal secretions during oral, anal or vaginal sex, (2) by sharing needles, or (3) by biting another person or purposely doing anything else which causes the HIV infected person's semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person. The use of a condom is not a defense. A violation of these provisions is a class B felony, unless the victim contracts HIV from the contact, in which case it is a class A felony.

Recklessness” includes (1) knowledge of infection when other person does not know or does not consent; (2) evidence of infection with primary and secondary syphilis, gonorrhea or Chlamydia; or (3) another person provides evidence of sexual contact with the HIV infected person after a diagnosis of HIV infection.

Mo. Rev. Stat. § 565.085

An offender or prisoner commits the crime of endangering a corrections employee, a visitor to a correctional facility, or another offender or prisoner if she/he attempts to cause or knowingly causes such person to come into contact with blood, seminal fluid, urine, feces, or saliva. It is a Class C felony if the offender has HIV, hepatitis B, or hepatitis C, or exposes another to the HIV, hepatitis B, or hepatitis C.

Mo. Rev. Stat. § 567.020

Performing an act of prostitution, which is normally a class B misdemeanor, becomes a class B felony if the prostitute knew prior to performing the act of prostitution that he or she was infected with HIV. The use of a condom is not a defense.

Mo. Rev. Stat. § 558.011

Prison sentences

For a Class A felony, a term of imprisonment not less than ten years and not more than thirty years.

For a Class B felony, a term of imprisonment not less than five years and not more than fifteen years.

For a Class C felony, a term of imprisonment of no more than seven years.

Key Cases: 

In State v. Yonts (84 S.W.3d, Mo. Ct. App. 2002), a trial court found that even if one does eventually disclose her/his HIV status to her/his sexual partner, and the parties continue to be sexually intimate after such disclosure, the HIV-positive person can still face prosecution unless the disclosure was done prior to the first sexual encounter. In Yonts, the HIV-positive defendant was sentenced to one-year imprisonment for exposing his girlfriend, the complainant, to HIV. Though the defendant testified that he disclosed his HIV status prior to any sexual conduct, the complainant testified it wasn’t until a year into their relationship that the defendant told her he was HIV-positive. After the later disclosure, according from the complainant, she continued to have unprotected sex with him because she thought that the medication the defendant was taking would prevent HIV transmission – which may have been the case if he had a low viral load. The complainant did not test positive for HIV, but such facts were irrelevant to the prosecution.

It is difficult to comprehend how a jury could possibly find the defendant’s actions “reckless” when the complainant still engaged in unprotected sex with full knowledge of the man’s status. This case serves as a stark example of the difficulty in defending oneself against accusations of HIV exposure and proving disclosure to sexual partners under such statutes.

In State v. Wilson (256 S.W.3d, Mo. 2008), the HIV-positive defendant was convicted of, amongst other charges, reckless exposure to HIV. On appeal, the defendant argued he could not be convicted under the statute because he ejaculated outside the body and therefore did not recklessly expose the complainant’s mucus membrane to HIV. The Missouri Supreme Court concluded that, “while withdrawal would have been relevant to the jury’s determination of recklessness, the statute does not contemplate that withdrawal is in itself a complete defense.” The jury could have concluded that ejaculating outside of the body negated the element of recklessness, and thus could have acquitted, but the jury concluded that unprotected contact was reckless because it posed some possibility of transmission.

The Missouri statute has been unsuccessfully challenged for being unconstitutionally vague. In State v. Mahan (971 S.W.2d,Mo. 1998), the Missouri Supreme Court consolidated the appeals of two men who were convicted under the Missouri statute for failing to inform their sexual partners that they were HIV-positive. One of the men, Sykes, was sentenced to ten years imprisonment for having sex with two women, including his live-in girlfriend, and failing to disclose his HIV status. The other man, Mahan, was sentenced to five years imprisonment for failing to tell his sexual partner that he was HIV-positive.

The appellants argued that the statute was overly broad and criminalized behavior such as an HIV-positive mother giving birth to her child. The court held that the appellants lacked standing on this matter because their behavior directly fell within the language of the statute and, as such, they could not challenge hypothetical scenarios that were not reflective of their behavior. The appeal by one of the defendants, Mahan, also argued that the statute was overly vague, as the phrase “grave and unjustifiable risk” did not provide enough notice as to what acts can be prohibited under the statute.

Specifically, Mahan reasoned that because the risk of transmitting HIV was not quantitatively known to scientists, a person would have no way of knowing when one’s conduct would rise to a “grave and unjustifiable risk.” The court found because Mahan was counseled that HIV could be transmitted through unprotected sex, including anal sex, and he continued to have anal sex without disclosing his HIV status, the statute was not vague as applied to him, and he had full notice that his actions could result in the transmission of HIV. The court upheld both of the convictions.

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: 

Oral, as well as anal and vaginal sex is included in the offence, and even having oral sex with a condom, in the absence of disclosure and “consent” from the HIV-negative partner, is against the law here. Even more worryingly, a third party can institute a complaint if they can provide “evidence” that an HIV-positive person has had unprotected sex without disclosure.

One notable aspect of Missouri’s law is that one can be prosecuted under this statute if, in addition to HIV, the defendant tests positive for syphilis, gonorrhoea, or chlamydia. Positive test results for STIs are used by Missouri officials to show that HIV-positive persons are engaging in unprotected sex. This statute allows prosecutors to more easily prosecute HIV-positive persons charged with failing to tell a sexual partner about their HIV status because, as opposed to relying on facts and witness testimony, prosecutors can rely on the defendant’s medical records to prove that she/he was “recklessly” having unprotected sex and placing others at risk. This segment of the statute all but eliminates the need for complainant testimony and other evidence to prove whether or not the defendant engaged in undisclosed, “reckless” sex. This unjustly prosecutes persons based on their medical history as opposed to the facts of a case.

The Missouri statute also provides that if a complainant tests positive for HIV and one of her/his former sexual partners is found to be HIV-positive, this would be enough to bring a charge of HIV exposure. Under the statute the prosecution would have to prove a sexual relationship existed between the complainant and HIV-positive defendant and that the HIV-positive defendant knew of her/his HIV-positive status at the time of the sexual activity. This statute enables prosecutions of persons where, without direct evidence as to the actual source of the infection, the defendant can face up to thirty years imprisonment for transmitting HIV.

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).

Exact number of prosecutions and convictions are not currently available. However, prior to October 2008, we had tallied 18 prosecutions and 8 convictions. In the period November 2010 to February 2012, there were media reports (in Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012) of nine further cases involving sex (6) biting (2) and spitting (1). Outcomes are only known in two cases where the defendants pleaded guilty and received lengthy custodial sentences. Given the overly-draconian nature of Missouri's HIV-related statutes, it is likely that these numbers do not represent the actual numbers of prosecutions or convictions.

Since there are an estimated 10,862 people living with (diagnosed) HIV in Missouri (Source: Missouri Department of Health and Senior Services), prosecutions per capita of PLHIV are at the very minimum an estimated 2.48 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)

 

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/Missouri

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