USA - North Carolina

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

North Carolina
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 6
Number of people convicted: 
Min. 2
Applicable law: 

10A NCAC 41A .0202    CONTROL MEASURES – HIV

The following are the control measures for the Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) infection

(1)  Infected persons shall:

(a)  refrain from sexual intercourse unless condoms are used; exercise caution when using condoms due to possible condom failure;

(b)  not share needles or syringes, or any other drug-related equipment, paraphernalia, or works that may be contaminated with blood through previous use;

(c)  not donate or sell blood, plasma, platelets, other blood products, semen, ova, tissues, organs, or breast milk;

(d)  have a skin test for tuberculosis;

(e)  notify future sexual intercourse partners of the infection;

(f)   if the time of initial infection is known, notify persons who have been sexual intercourse and needle partners since the date of infection; and,

(g)  if the date of initial infection is unknown, notify persons who have been sexual intercourse and needle partners for the previous year.

Key wording in the law: 

Infected persons shall…refrain from sexual intercourse unless condoms are used [and] notify future sexual intercourse partners

Key Cases: 

A 23 year gay man was prosecuted under NC’s public health laws in 2008 – the first time in 15 years that these laws had been used. He was sentenced to thirty months of probation for having unprotected sex with numerous partners. He was later sentenced to six months of house arrest for further acts of unprotected sex. (Further details of this case can be found at Criminal HIV Transmission.)

Discussion: 

Although there is no specific HIV-related criminal transmission statute in North Carolina, HIV is considered a communicable disease requiring compliance with health regulations and control measures governing the spread of such a disease. A maximum of two years imprisonment may occur from violating these regulations, and individuals will not be released before the end of their sentence unless they are no longer considered a public danger by local authorities.

Although the outcome is unknown, in 2009 a man was charged with "assault inflicting serious bodily injury and assault with a deadly weapon" because "knowing he is HIV-positive, [he] twice tried to expose the officer to his blood, once by cutting the officer's thumb and also by head-butting him and biting his ear."

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/North Carolina

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