USA - Nevada

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Nevada
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 3
Number of people convicted: 
Min. 3
Applicable law: 

Nev. Rev. Stat. § 201.205

A person who has received notice that he or she is HIV positive and who intentionally, knowingly or willfully engages in conduct in a manner that is intended to or is likely to transmit the disease to another person is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment. It is a defense that the person subject to exposure to HIV knew that the defendant was HIV positive, knew the conduct could result in exposure to HIV, and consented to engage in that conduct with that knowledge.

Nev. Rev. Stat. § 441A.300

A person diagnosed with HIV who fails to comply with a written order of a health authority, or who engages in behavior through which the disease may be spread to others, is subject to confinement by order of a court.

Nev. Rev. Stat. § 201.358

A person who works as a prostitute in a licensed house of prostitution after testing positive for HIV and after receiving notice of that fact is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment.

Key Cases: 

In Glegola v. State (1994) the Nevada Supreme Court affirmed a sex worker’s conviction and fifteen-year sentence for solicitation while being HIV-positive, even though she testified that she did not actually intend to perform any sexual acts and did not engage in any activities that could transmit HIV. The defendant testified that her only intent was to steal the undercover agent’s money, without engaging in any sexual activities, and she should therefore not be prosecuted under the statute. No sexual act was committed, and she was taken into custody after offering sexual services. She produced multiple witnesses to testify to such facts on her behalf. The defendant also argued that her fifteen-year sentence was cruel and unusual punishment and disproportionate to the crime for which she was convicted. The court found that both the conviction and sentencing were appropriate because the “harm threatened by the act of solicitation of prostitution while HIV-positive is great.” The “legislature did not intend for the unsuspecting client to be fatally infected[…] [and as such] her crime should be treated differently [as] it is much more serious and obviously much more deadly than an ordinary crime of mere solicitation defined as a misdemeanor.”

Since the decision in Glegola, the penalties for violating Nev. Rev. Stat. § 201.358 have been revised, decreasing the maximum sentence to ten years from fifteen years.

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).

In June 2010, in what appears to be the first prosecution under Nevada's HIV-specific criminal statute for non-commercial sex, two men with HIV were charged for having sex with another man that they met on a male dating website. One of the defendants had an undetectable viral load and mentioned his HIV-positive status on his dating profile. Rather than face trial, however, the men pleaded guilty to lesser gross misdemeanor charges,  which carry a maximum sentence of one year in county jail.

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