USA - Oklahoma

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Oklahoma
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 6
Number of people convicted: 
Not known
Applicable law: 

Okla. Stat. tit. 21, § 1192.1

It shall be unlawful for any person – knowing he or she has HIV and with intent to infect another – to engage in conduct reasonably likely to result in the transfer of the person's own blood, bodily fluids containing visible blood, semen or vaginal secretions into the bloodstream of another, or through the skin or other membranes of another person, except during in utero transmission of blood or bodily fluids, if the other person did not consent to the transfer or consented without first having been informed that the offender had HIV.

Okla. Stat. tit. 21, § 1031

Any person who engages in prostitution with knowledge that he or she is infected with HIV shall be guilty of a felony.

Both of the above are punishable by up to five years in prison.

Okla. Stat. tit. 63, § 1-519

It is a felony for any person, after becoming infected with a venereal disease and before being pronounced cured by a physician in writing, to marry any other person or to expose any other person by the act of copulation or sexual intercourse to such venereal disease or to liability to contract the venereal disease. (“Venereal disease” is defined to include diseases which may be transmitted from one person to another through or by means of sexual intercourse and found and declared by medical science or accredited schools of medicine to be infectious or contagious, § 1-517.)

Key wording in the law: 

Knowing [HIV status] and with intent to infect…to engage in conduct reasonably likely to… transfer…blood, semen or vaginal secretions…[without] consent

Discussion: 

Oklahoma's felony communicable disease statute that penalises exposure to venereal diseases was enacted long before HIV and there has never been a prosecution against an HIV-positive person under the statute.

According to media reports, since 2003 three individuals have been prosecuted for alleged HIV exposure due to non-disclosure prior to sex, and two have been prosecuted for alleged HIV exposure via spitting or biting. 

Since not all cases are reported by media, this number should be considered a minimum.

Given that there are an estimated 4,523 people living with (diagnosed) HIV in Oklahoma (Source: Oklahoma State Department of Health,  prosecutions per capita of PLHIV are estimated to be a minimum of 1.33 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/Oklahoma

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