USA - New York

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

New York
Whether Specific law enacted: 
General
Number of people prosecuted: 
Min. 6
Number of people convicted: 
Not known
Applicable law: 

NY Penal Law § 120.25

Reckless endangerment in the first degree. A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, herecklessly engages in conduct which creates a grave risk of death toanother person. Reckless endangerment in the first degree is a class D felony.

Key Cases: 

In 1997, Nushawn Williams pleaded guilty to two counts of statutory rape and two counts of reckless endangerment and was sentenced to twelve years imprisonment. The Williams case was heavily covered in the media after local public health and law enforcement officials publicized it, claiming that Williams may have transmitted HIV to numerous women in upstate New York. As Williams’ sentence was nearing completion, on April 13, 2010, New York Attorney General Andrew Cuomo sought to keep Williams in indefinite civil confinement for sex offenders under the Sex Offender Management Treatment Act of 2007. A civil jury trial (possibly delayed until 2013, see 'Buffalo News' article below) will determine whether or not he suffers from a mental abnormality and should be confined in a psychiatric facility or released under intensive supervision.

New York courts have also found that HIV can be considered a “deadly weapon.” In 2007, an HIV-positive man was found guilty of aggravated assault and sentenced to ten years in prison for biting a police officer. In that case, the judge found that the saliva of an HIV-positive person could be considered a “deadly weapon” for the purposes of aggravated assault, despite the fact that there is no scientific evidence to support such a claim.

(For more details see the brief by Lambda Legal Defense and Education Fund, Inc. et al. as Amici Curiae in Support of Defendant-Appellant, X v. The People of New York, 2010, attached below)

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: 

It appears that HIV is not included in the definition of venereal disease under NY Pub. Health Law § 2307 Venereal disease; person knowing himself to be infected.“Any person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another shall be guilty of a misdemeanor.” Consquently, there are no reports of prosecutions of persons with HIV under this statute.

However, general laws - notably reckless endangment - have been used to prosecute both sexual and non-sexual (ie. spitting, biting) alleged HIV exposure and transmission.

It is not known exactly how many HIV-related cases have been prosecuted in New York State.  Our figures are based on the Positive Justice Project's analysis. However, as there have been three cases  since 2009, this is likely to be a significant under-representation.

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