USA - Oregon

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Oregon
Whether Specific law enacted: 
No
Number of people prosecuted: 
Min. 3
Number of people convicted: 
Not known
Applicable law: 

§163.115 Murder (attempted)

§163.185 Assault in the first degree

§163.175 Assault in the second degree  

See Offences Against The Person Statutes at http://www.leg.state.or.us/ors/163.html

Key wording in the law: 

Intentionally or knowingly caus[ing] serious physical injury

Key Cases: 

In 1992, Timothy Hinkhouse, then 21, was found guilty of three counts of recklessly endangering his sexual partners. Whilst on parole he had told his probation officer, but not several women that he’d had sex with, that he was HIV-positive and had acknowledged that HIV could be passed on through a single unprotected sexual encounter, and that to do so without disclosure would be `murder'. Hinkhouse was convicted of attempted murder in relation to the unprotected intercourse and sentenced to 69 years.

State v Hinkhouse [912 P. 2d 921, Mod. 915 P.2d 489, Or. Ct App. 1996] the Oregon Court of Appeals found that a person is guilty under the law of Oregon of attempting to commit a crime when he `intentionally engages in conduct which constitutes a substantial step toward commission of the crime'. The Oregon law further provides that to act `intentionally' is to `act with a conscious objective to cause the result or to engage in the conduct so described'. Furthermore a person `commits attempted murder when he or she attempts, without justification or excuse, intentionally to cause the death of another human being'.

See Dine J and Watt B. The transmission of disease during consensual sexual activity and the concept of associative autonomy. Web Journal of Current Legal Issues 4, 1998.

Discussion: 

Despite Oregon having no HIV-specific laws, it has prosecuted criminal HIV exposure and transmission under ‘attempted murder’ and first- and second-degree assault laws.

We are only aware of one HIV-related case since the end of 2008, reported on 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/Oregon

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