USA - Washington

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Washington
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 9
Number of people convicted: 
Min. 6
Applicable law: 

Wash. Rev. Code Ann. §9A.36.011 (1997)

A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm, administers, exposes, or transmits to or causes to be taken by another, HIV.

A Class A felony carries a sentencing range of 93-318 months in prison and a fine of up to $50,000.

Key Cases: 

The Court of Appeals has rejected challenges to this statute on the basis that it violates the equal protection clauses of the U.S. and Washington constitutions, the privileges and immunities clause of the Washington constitution, and that it is unconstitutionally vague.

In State v. Stark (1992), the Court of Appeals rejected an argument that the statute was unconstitutionally vague, and stated that “expose” refers to “conduct that can cause another person to become infected with the virus,” an interpretation that provides no real guidance on defining such conduct.

The Court of Appeals in both Stark and State v. Whitfield (2006) provide limited guidance that sexual activity with a condom may not constitute exposure under Washington’s criminalization statute. In Stark, the Court specifically cites the fact that the defendant “engaged in unprotected sexual intercourse” in determining that his conduct constituted exposure. However, in State v. Whitfield the Court of Appeals interpreted exposure to include oral, anal, and vaginal sex without a condom.

In Washington, disclosure of HIV status and using condoms or other protection may provide a defense that there was no intent to inflect harm through exposure or transmission of HIV. The Court of Appeals in both Whitfield and Stark inferred criminal intent because the defendants did not disclose their HIV status to their sexual partners and failed to use condoms.

For prosecution under this statute, the State must also show intent to inflict great bodily harm through exposure to HIV. Despite the fact that the statute requires intent to inflict great bodily harm, some courts have interpreted that knowing one’s HIV-positive status and failing to take precautions limiting exposure is enough to constitute an intent to harm or expose another to HIV.

In Stark, the Court of Appeals determined that there was sufficient evidence of intent to harm because there was evidence that the defendant knew he had HIV and that it was possible to transmit HIV through oral and vaginal sex with women, and the defendant engaged in such conduct without the use of a condom or other types of protection. Similarly, in Whitfield, the Court of Appeals found sufficient evidence of intent based on the fact that the defendant knew he was HIV-positive; had been counseled on how HIV was transmitted, how to prevent transmission during sex, denied or failed to disclose that he had HIV or STIs to his sexual partners, and insisted on not using a condom or other type of protection. In both cases defendants made statements indicating a desire to infect other individuals and that this evidence also lead to the court’s determination of intent.

Similarly, in State v. Ferguson (2001) a defendant convicted under this statute not only knew his status and knew he could transmit HIV to partners, but also made comments to acquaintances indicating that he did not care if his partners were infected and that he wanted to infect his partners.

In State v. Ferguson, the Washington Court of Appeals left open the question of whether consent could constitute a defense but held that, even if consent is a defense, the partner must have “knowledge of all relevant facts,” including whether the defendant is using a condom. In Ferguson, the defendant’s partner knew the defendant was living with HIV before consenting to sex, but did not know that the defendant removed his condom during sex. The court refused to determine whether consent could be a defense to the statute, but held that, even if consent were a defense, the partner did not consent in these circumstances because she did not consent to sex without a condom.

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: 

Recently there has been a prosecutorial trend in Washington where if someone is HIV-positive and engages in sexual activities that may be enough to arrest her/him for assault. The following cases had absolutely no evidence to suggest that the defendant intended to expose or transmit HIV to others but only engaged in sexual activities allegedly without disclosing her/his status:

  • In October 2010, a 19-year-old perinatally infected college student was charged with first degree assault for having sex with his long-term girlfriend.
  • Also in October 2010, a 23-year-old, HIV-positive man was sentenced to 87 months imprisonment after pleading guilty to first-degree assault charges for allegedly not disclosing his status to a man that he met on manhunt.com, a dating website.
  • In June 2009, a man with HIV pleaded guilty to first-degree assault after he failed to disclose his HIV status to a bisexual married man with whom he had an affair with after meeting online.

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).

At the time of our last update (November 2008) we were aware of six prosecutions and three convictions.  Since then, we are aware of a further three prosecutions, 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.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Washington (State)

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