USA - Pennsylvania

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Pennsylvania
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 13
Number of people convicted: 
Not known
Applicable law: 

HIV-specific statutes

Pa. Cons. Stat. Ann. § 2703

A person who is confined in or committed to any jail, prison or correctional or penal institution is guilty of a felony of the second degree if he or she, while so confined (or being transported to or from such a facility), intentionally or knowingly causes another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material when, at the time of the offense, the person knew, had reason to know or should have known or believed that such fluid or material was infected with HIV.

Pa. Cons. Stat. Ann. §2704

If a person sentenced to death or life imprisonment intentionally or knowingly causes another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material when, at the time of the offense, the person knew, had reason to know, or should have known or believed that the fluid or material was infected with HIV, then the person is guilty of a crime. (penalty shall be the same as the penalty for murder of the second degree)

Pa. Cons. Stat. Ann. § 5902

It is a felony of the third degree for a person to commit prostitution knowing he or she is HIV positive; to knowingly promote prostitution of one who is HIV positive; or, if the person knows him or herself to be HIV positive, to patronize a prostitute.

General statutes

Pa. Cons. Stat Ann. § 2705

Recklessly endangering another person: A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. (HIV exposure included since 2006 Superior Court ruling: see below)

In addition to reckless endangerment, HIV-positive individuals have also been charged with murder and attempted murder for failing to disclose their HIV-positive status to their sexual partners

Key Cases: 

In 2006, the Superior Court ruled that HIV-positive Pennsylvanians accused of not telling their consensual sexual partners they have the virus can be charged with reckless endangerment. The case involved an HIV-positive man accused of having unprotected oral sex with another man, without disclosing his HIV-status. The accused did not ejaculate into the complainant’s mouth. Therefore, any kind of unprotected oral, as well as unprotected vaginal and anal sex without disclosure, may well be prosecuted. [Commonwealth v. Cordoba, 2006 WL 1875259 (Pa.Super.), 2006 PA Super 165.]

Commentary and analysis at: http://newyorklawschool.typepad.com/leonardlink/2006/07/unprotected_ora.html

Discussion: 

Although Pennsylvania does not have a specific criminal HIV-exposure law to address non-incarcerated persons and those who are not sex workers, numerous persons have been prosecuted for HIV exposure under general criminal laws, including murder, attempted murder,  and reckless endangerment (for sex-related cases) and making terroristic threats (for spitting and biting cases.)

The Positive Justice Project found at least 12 arrests/prosecutions by the end of 2010. Since then we are aware of one further prosecution, which resulted in conviction, for spitting and biting whilst HIV-positive.

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/Pennsylvania

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