USA - Nebraska

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Nebraska
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
0
Number of people convicted: 
0
Applicable law: 

NEB. REV. STAT. § 28-934 (2011)

Assault with a bodily fluid against a public safety officer; penalty; order to collect evidence

Any person who knowingly and intentionally strikes any public safety officer with any bodily fluid is guilty of assault with a bodily fluid against a public safety officer. A person who violates this provision is guilty of a misdemeanor unless he or she knew the source of the bodily fluid was infected with the human immunodeficiency virus, hepatitis B, or hepatitis C at the time the offense was committed, making the violation a Class IIIA felony punishable by a maximum term of imprisonment of nt more than 5 years, or by a fine of not more than $10,000, or by both fine and imprisonment.

Upon a showing of probable cause that such an offense has been committed, a judge shall grant a court order or search warrant authorizing the collection of medical test results or medical records and may authorize tests to determine the presence of human immunodeficiency virus, hepatitis B, or hepatitis C.

Discussion: 

The Assault with Bodily Fluids Act was passed in June 2011, despite the fact lawmakers ignored evidence arguing that HIV cannot be transmitted through spit, urine, vomit, or oral/nasal mucus; punishes the decision to get tested for HIV; and will not keep public safety officers safer, but rather will reinforce misinformation and stigma about HIV.  (For more information see Criminal HIV Transmission)

There have been at least two previous attempts to pass an HIV-specific law, in 2009 and 2004. In 2009, Nebraska State Sen. Pete Pirsch (R)  introduced a bill (LB 625) that would make having sex with the intent of transmitting HIV a Class 1B felony, which carries a minimum 20-year prison sentence and a maximum sentence of life in prison. in 2004, State Sen. Lowen Kruse introduces a bill that would have made it a crime for an HIV-positive person to engage in sex without disclosure. Those found guilty of violating the law would have faced a prison sentence of up to 20 years and a fine of up to $25,000.  Neither law  passed.  (For more information see Criminal HIV Transmission)

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/Nebraska

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