USA - Texas

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Texas
Whether Specific law enacted: 
General
Number of people prosecuted: 
Min. 22
Number of people convicted: 
Min. 20
Applicable law: 

There is no HIV-specific statute in Texas, but alleged HIV exposure and transmission have been most commonly prosecuted under general assault laws.

§ 22.01.  ASSAULT.

(a)  A person commits an offense if the person:

(1)  intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; 
(2)  intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse;  or
(3)  intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

§ 22.02.  AGGRAVATED ASSAULT.

(a)  A person commits an offense if the person commits assault as defined in § 22.01 and the person:

(1)  causes serious bodily injury to another, including the person's spouse;  or
(2)  uses or exhibits a deadly weapon during the commission of the assault.

Key wording in the law: 

Intentionally, knowingly, or recklessly… uses or exhibits a deadly weapon [i.e. HIV: see below] during the commission of the assault.

Key Cases: 

In 1997, The Texas Court of Appeals, 3rd District, upheld the conviction of an HIV-positive man charged with using his penis and semen as deadly weapons during a rape and murder trial.

The first case of a criminal HIV exposure/transmission prosecution for consensual sex without disclosure was in 1998, when Paul Leslie Hollingsworth was pleaded guilty to aggravated assault with a deadly weapon, a felony punishable by up to 20 years in prison although he only received nine months' deferred adjudication, a form of probation.

In Mathonican v. State (2006) the Texas Court of Appeals found that HIV status can be considered a deadly weapon in aggravated assault and aggravated sexual assault cases. Similar to assault cases, sexual assault can be enhanced to aggravated sexual assault if the assailant used a deadly weapon in the commission of the crime. The HIV-positive defendant in this case was sentenced to ninety-seven years imprisonment for sexually assaulting another individual. The original indictment held that the defendant’s seminal fluid was a deadly weapon because he was HIV-positive. The defendant appealed his case, asserting that the deadly weapon finding was erroneous because HIV status should not be considered a deadly weapon.

The court found that seminal fluid may be a deadly weapon “if the man producing it is HIV-positive and engages in unprotected sexual contact.” The court reasoned that a deadly weapon is anything that can be used to cause death or serious injury and that the seminal fluid from an HIV-positive man can cause such death or serious injury to another if that man engages in unprotected sex. Even if the defendant did not ejaculate or otherwise expose the complainant to HIV, the court determined that the single fact that the defendant’s seminal fluid “as used or as intended to be used” supported the deadly weapon finding. This reasoning suggests that if an HIV-positive person engages in any unprotected sexual activity, regardless of the person’s viral load and whether the sexual activity posed any possibility of transmission, criminal liability could follow.

In 2009...Campbell v. State presented the Texas Court of Appeals with an opportunity to revisit whether or not the saliva of an HIV-positive person could be considered a "deadly weapon." In 1992, the same court in Weeks v. State upheld the attempted murder conviction of an HIV-positive man for spitting on a prison guard, allegedly believing that his saliva could kill the guard... Unfortunately in both the Weeks and Campbell cases the state medical witness testified that there was a theoretical possibility of HIV transmission through saliva, and the convictions were upheld.

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: 

Texas has been the location of several high profile HIV-related criminal prosecutions in recent years.

In 2008, a 42 year-old HIV-positive man who spat at a police officer during his 2006 arrest for being drunk and disorderly was sentenced to 35 years in prison by a Dallas court and was told he must serve at least half of his sentence before being eligible for parole because the jury found that his saliva was a deadly weapon. His 2009 appeal (see above) was rejected.

In 2009, a 53 year-old man was found guilty of six counts of aggravated assault with a deadly weapon for apparently infecting six women during concurrent long-term romantic relationships. He was sentenced to 45 years for five counts and 25 years for the remaining count. The case was significant because it was only the third time that phylogenetic analysis had been used in US criminal case to attempt to link the defendant's virus with those of the complainants.  It also received widespread mainstream coverage, including  '20/20' and 'The Oprah Winfrey Show'. 

At the time of our last update, October 2008, we had found 19 prosecutions and 15 convictions. Since then, we are aware of a further three cases relating to HIV non-disclosure prior to sex, all of which resulted in convictions. 

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

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