USA - Tennessee

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Tennessee
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 50
Number of people convicted: 
Min. 40
Applicable law: 

Tenn. Code Ann. § 39-13-109

It is unlawful for a person, knowing that he or she is infected with HIV, to knowingly: (1) engage in intimate contact with another; (2) transfer, donate or provide any potentially infectious body fluid or part for administration to another person in any manner that presents a significant risk of HIV transmission; or (3) transfer in any way to another any nonsterile intravenous or intramuscular drug paraphernalia. “Intimate contact with another” means the exposure of the body of one person to a bodily fluid of another person in any manner that presents a significant risk of HIV transmission. It is an affirmative defense, if proven by a preponderance of the evidence, that the person exposed to HIV knew the infected person was infected with HIV, knew the action could result in infection with HIV, and gave advance consent to the action with that knowledge. The actual transmission of HIV is not a required element of this offense.

Violation of this statute is a class C felony punishable by three to fifteen years imprisonment and a possible fine of up to $10,000. (If an HIV-positive person is convicted under this statute she/he will also have to register as a sex offender.)

Tenn. Code Ann. § 39-13-516

A person commits aggravated prostitution when, knowing that such person is infected with HIV, the person engages in sexual activity as a business or in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity. Actual transmission of HIV is not a required for prosecution. Violation of this statute is a class C felony punishable by three to fifteen years imprisonment and a possible fine of up to $10,000.

Tenn. Code Ann. §§ 68-10-107, 68-10-101

It is unlawful for any person infected with an STD to expose another person to such infection. This is a class C misdemeanor, punishable by a fine of no more than $50 and/or imprisonment for no more than thirty days. (HIV is identified as STD in Tenn. Comp. R. & Regs. 1200-14-1-.41.)

Key Cases: 

Tennessee’s criminal exposure statute requires that there be “exposure” of bodily fluids between an HIV-positive person and another that presents a significant risk of transmission, but the scope of such exposure is not defined in the statute. In State v. Bonds (Tenn. Crim. App. 2005) the Tennessee Court of Appeals defined “exposure” to encompass acts that presented a risk of transmission but declined to require an exchange of bodily fluids.  The HIV-positive defendant in that case was sentenced to six years for criminal exposure of HIV and an additional twenty-five years for aggravated rape.

On appeal, the defendant argued that under the terms of the HIV exposure statute he never “exposed” the complainant to HIV because there was no proof that there had been any exchange of bodily fluids during the commission of the crime. The court determined that actual exposure to body fluids was not required but rather “the prosecution need only show that the defendant subjected the victim to the risk of contact with the [d]efendant’s bodily fluids[...] in a manner that would present a significant risk of HIV transmission.” Because the defendant knew of his HIV status and anally raped the victim, the court found that this presented a significant risk of HIV transmission punishable under the HIV exposure statute.

After reviewing previous cases of HIV exposure in Tennessee, the court in Bonds found successful prosecutions hinged on the fact that the sex was unprotected and undisclosed, increasing the possible “risk” of transmitting HIV – as opposed to if a condom or other protection had been used.

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: 

Between February 2009 and August 2011, eleven HIV-related criminal cases were reported in the media. Charges related to sexual HIV non-disclosure (8) spitting whilst HIV-positive (2) and sex work whilst HIV-positive (1)  The outcome of only two cases is known - in one case charges were dropped, and in the other defendant pleaded guilty and was sentenced to six years of probation.

According to a June 2009 media report, at least thirty-nine women in Tennessee have been convicted of aggravated prostitution (i.e sex work whilst HIV-positive).

At our last update, in November 2008, we had recorded 19 cases and 14 convictions. Since it is impossible to know how many of those related to sex work whilst HIV-positive, we have calculated the latest estimates using those 39 cases plus at least eleven other cases reported in the media since Feburary 2009.  This means we are neccessarily understimating the total number of HIV-related criminal cases.

Given that there are an estimated 15,715 people living with (diagnosed) HIV in Tennessee (Source: Tennessee Department of Health)  prosecutions per capita of PLHIV are estimated to be a minimum of 3.18 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/Tennessee

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