United States

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US: Center for HIV Law and Policy releases updated ‘HIV Criminalization Sourcebook’

30 Aug 2017
Today, the Center for HIV Law and Policy (CHLP) has released a third, updated version of their ‘Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions’ series, first published in 2010. The renamed HIV Criminalization in the … More

US: Advocates launch Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform

14 Jul 2017
Yesterday saw the launch of a Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, to provide guidance for efforts to reform or “modernize” HIV-specific laws across the United States. The concern, as highlighted by Charles King, President … More

US: 2018 HIV Is Not a Crime National Training Academy to be held in Indianapolis, Indiana (Press Release)

15 May 2017
SERO Project and Positive Women’s Network-USA Announce 2018 HIV Is Not a Crime National Training Academy in Indianapolis May 15, 2017: Building on the amazing success of the HIV Is Not a Crime II National Training Academy last year, the … More

US: Florida State Senate Committee Supports Public Health Measure To Modernize HIV Laws (Press Release)

22 Mar 2017
Press release from the Sero Project Tallahassee March 22, 2017 The Florida HIV Justice Coalition today applauded members of the Florida State Senate’s Criminal Justice Committee for voting unanimously yesterday in favor of Senate Bill 628. SB 628 will modernize … More

US: HIV Court Nightmare Ends For Olympian Darren Chiacchia (Press Release)

20 Feb 2017
Photo by Bob Carey HIV Court Nightmare Ends For Olympian Darren Chiacchia, Ocala, FL – 2/19/17 2004 Olympic medalist, 2003 Pan American Games gold medalist, and 2004 Rolex Kentucky CCI**** victor, Darren Chiacchia of Ocala, FL and Springville, NY, has … More

Social Science Update: Where criminalisation of sex work intersects with HIV criminalisation

24 Nov 2016
In this article, authors Sienna Baskin, Aziza Ahmed, and Anna Forbes examine the interlocking webs of anti-prostitution laws and HIV criminalisation. Throughout the piece, the authors demonstrate critical research ethics by taking, as their starting point, the lives, freedom, and dignity of sex … More

Social Science Update: Review of HIV criminalisation research in the US, 1990-2014

23 Nov 2016
An article reviewing 15 years of U.S.-based social science research on HIV criminalisation was published in the September 2016 issue of AIDS and Behavior. The research team, led by Dini Harsono of Yale University’s Center for Interdisciplinary Research on AIDS … More

Canada: ‘HIV is not a crime’ documentary premieres in Montreal at Concordia University’s ‘The Movement to End HIV Criminalization’ event

21 Sep 2016
Last week, Concordia Unversity in Montreal, Canada, held the world premiere public screening of HJN’s ‘HIV is not a crime training academy’ documentary, followed by three powerful and richly evocative presentations by activist and PhD candidate, Alex McClelland; HJN’s Research … More

Video and written reports for Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 now available

08 Sep 2016
On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on … More

HIV JUSTICE WORLDWIDE releases ‘HIV IS NOT A CRIME’ training academy video documentary

24 Aug 2016
Today, HIV JUSTICE WORLDWIDE releases a 30-minute video to support advocates on how to effectively strategise on ending HIV criminalisation, filmed at the second-ever ‘HIV IS NOT A CRIME’ meeting, co-organised by Positive Women’s Network – USA and the Sero … More

Global advocacy highlights against HIV criminalisation presented at AIDS 2016

22 Jul 2016
Yesterday, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ presented highlights relating to global advocacy against HIV criminalisation based on updated research from our Advancing HIV Justice 2 report. Advancing HIV Justice: Building momentum in … More

HIV Justice Network presents important new HIV criminalisation data today at AIDS 2016

21 Jul 2016
Today, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ will present important new data on HIV criminalisation based on updated research from our Advancing HIV Justice 2 report. Global Trends in HIV Criminalisation (Download the … More

Advocates fighting to end HIV criminalisation reach a global TV/web audience on The Stream

28 Jun 2016
Last night, HIV criminalisation advocacy reached a global audience on both TV and the internet with The Stream, on Al Jazeera English. During the 30 minute programme, HIV criminalisation survivor, and Sero advisory board member, Ken Pinkela appeared with co-hosts … More

US: Second HIV is not a crime training academy creates an important intersectional shift in the US anti-HIV criminalisation movement

27 Jun 2016
The second HIV Is Not a Crime Training Academy, which took place in May at the University of Alabama, Huntsville, brought together more than 300 advocates from 34 US states, as well delegations from Canada and Mexico. Organised jointly by … More

US: Missouri Supreme Court upholds overly broad HIV non-disclosure law following second constitutional challenge

16 Mar 2016
The Missouri Supreme Court has upheld the conviction of a woman (known as ‘S.F.’) who did not tell her sexual partner that she was living with HIV before engaging in sex. At her original trial she was found guilty of … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted Yes

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 913

Known arrests or prosecutions

Laws

Applicable laws

The United States of America is made up of states and territories all of which have different laws.

See individual state entries for further information.

Discussion

Overview

Thirty-four US states and two US territories have HIV-specific criminal statutes, many of which are vague, inconsistent with HIV science, and/or overly-broad. Rather than criminalising HIV transmission, most of these statutes criminalise behaviour that may or may not (and in some cases definitely does not) risk HIV transmission. Some outlaw practices that are not significantly risky or harmful (e.g. sharing sex toys, spitting, performing oral sex); and others criminalise non-disclosure of known HIV-positive status, regardless of whether or not a condom or other risk-reduction methods are relied upon.

In several states in the United States without HIV-specific laws (and even in some states with these laws), variations of assault or homicide laws have been used to prosecute a wide variety of sexual and non-sexual HIV exposure or transmission. Reckless endangerment statutes are commonly used to prosecute HIV-positive persons based on alleged non-disclosure of their status prior to consensual sex. Typically, “reckless endangerment” is defined as recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury. Prosecutions have also taken place using statutes criminalising assault, attempted murder, aggravated prostitution, bioterrorism, and terroristic threats.

At least an additional fifteen states have passed HIV-specific statutes that deal specifically with acts that are already crimes, including prostitution, rape or assaulting a peace officer, but are punished separately or more severely when the perpetrator knows he or she has HIV.

Arrests/Prosecutions

At least 38 states as well as the US Federal Goverment (via military court-martials) are known to have prosecuted HIV-positive individuals for alleged HIV non-disclosure, potential HIV exposure or alleged transmission. Penalties range markedly across states ranging from a $100 fine to imprisonment of up to 30 years in Arkansas. In addition, Missouri law allows for the death penalty if transmission is proven as a result of HIV exposure without disclosure.
In addition, military courts have court-martialled at least 25 HIV-positive individuals for having unprotected sex (with or without disclosure) and almost all have resulted in a conviction.

The Positive Justice Project (PJP) has been continually updating a list of arrests and prosecutions since January 2008. Although not exhaustive, it provides a broad snapshot of the current situation in the United States. The vast majority of the cases listed involved either cases of adults having sex, in the absence of disclosure of known HIV-positive status, with no apparent intent to harm, or conduct that poses no significant risk of HIV transmission (i.e. spitting, biting). Although the outcomes of some cases remain unknown, the known convictions and sentences often involve severe penalties, including prison terms that reach 25 years or more, even when no transmission of HIV occurred.

Proposed Federal legislation

In September 2011, California Congresswoman Barbara Lee introduced H.R. 3053, the REPEAL HIV Discrimination Act (see attached, below). This proposed legislation would require a review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. If passed, it would provide funding appropriations for a review of HIV-specific state and federal criminal laws; the production of human rights-informed best practice guidance; and ultimately recommendations to changes to federal laws and policies that are consistent with such guidance.

Advocacy

The Positive Justice Project (PJP), a campaign headed by the Center for HIV Law and Policy, was launched in September 2010. The PJP is the first coordinated, multi-organisational and cross-disciplinary national effort in the United States to combat HIV-related stigma and discrimination against people with HIV by the criminal justice system. Its primary focus is the repeal of laws that create HIV-specific crimes or which increase criminal penalties for people with HIV based solely on their HIV-positive status.

The PJP gained a boost from the 2010 National HIV/AIDS Strategy (NHAS), which includes recommendations for states to review such problematic laws. The Strategy report notes, "In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment."

The National Alliance of State and Territorial AIDS Directors (NASTAD) released a statement in March 2011 supporting both the Project the NHAS recommendations, stating that it "supports efforts to examine and support level-headed, proven public health approaches that end punitive laws that single out HIV over other STDs and that impose penalties for alleged nondisclosure, exposure and transmission that are severely disproportionate to any actual resulting harm."

In August 2011, PJP's recommendations to the President’s Advisory Council on HIV/AIDS (PACHA) to include addressing HIV criminalisation as a key action in implementing the NHAS in the coming year were unanimously accepted.

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.

Additional publications can be found at the Center for HIV Law and Policy's Resource Bank.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/USA

 

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017