Criminal transmission of HIV in the United States

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The criminal transmission of HIV in the United States varies among jurisdictions. More than thirty of the fifty U.S. states have prosecuted HIV-positive individuals for exposing another person to HIV. State laws criminalize different behaviors and assign different penalties. While pinpointing who infected whom is scientifically impossible, a person diagnosed with HIV who is accused of infecting another while engaging in sexual intercourse is, in many jurisdictions, automatically committing a crime. A person donating HIV-infected organs, tissues, and blood can be prosecuted for transmitting the virus. Spitting or transmitting HIV-infected bodily fluids is a criminal offense in some states, particularly if the target is a prison guard. Some states treat the transmission of HIV, depending upon a variety of factors, as a felony and others as a misdemeanor.

Contents

Criminal statutes were intended to reduce HIV transmission by encouraging safe sex practices, increased HIV testing, and disclosure of HIV status. The Ryan White CARE Act passed in 1990 had a significant influence on these laws, as states were required to have criminal regulations on HIV transmission to be eligible to receive federal funds for HIV-related health programs. Unfortunately, these laws did not appear to have the intended effect. In October 2012, the HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA) called for the repeal of statutes that criminalize HIV-related behavior, writing: "Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV-infected are unjust and harmful to public health around the world." It argued that such laws contribute to stigmatization and discrimination that inhibit diagnosis and result in "harsh sentencing for behaviors that pose little to no risk of HIV transmission." It advised that "All state and federal policies, laws and regulations ... be based on scientifically accurate information regarding HIV transmission routes and risk." [1]

In 2017 the Centers for Disease Control and Prevention (CDC) stated that those who are on HIV medication and have undetectable viral loads can no longer transmit the virus while their viral load is undetectable, but the possibility for a person to not use a prescription and continue to infect others remains. [2] [3] [4] They did not specify how long after an undetectable viral load test a person can guarantee that they are still undetectable, as viral loads can rise very quickly.

Federal law and policy

National HIV/AIDS strategy

In July 2010, the White House announced a major change in its HIV/AIDS policy; the "National HIV/AIDS Strategy for the United States" stated that "the continued existence and enforcement of these types of laws [that criminalize HIV infection] run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment." [5] The administration's strategy cited a 2008 paper by Scott Burris and Edwin Cameron, a South African judge: "The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so." [6]

In September 2010, the Center for HIV Law and Policy launched the Positive Justice Project, a campaign to combat HIV-related stigma and discrimination against people with HIV by the US criminal justice system. [7] In November the Project released a 293-page manual detailing HIV-specific laws and prosecutions in the 50 states, District of Columbia, U.S. Territories, Federal government, and the U.S. military. [8]

On March 15, 2014, the U.S. Department of Justice (DOJ) along with the Centers for Disease Control published a study of HIV-specific state laws called "Prevalence and Public Health Implications of State Laws that Criminalize Potential HIV Exposure in the United States". [9]

On July 15, 2014, the DOJ released a paper called "Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors", designed to guide states in updating their statutes to "reflect contemporary understanding of HIV transmission routes and associated benefits of treatment" and to establish policies that "do not place unnecessary burdens on individuals living with HIV/AIDS". [10]

Proposed federal legislation

REPEAL HIV Discrimination Act was the abbreviated name of the 'Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act' (H.R. 3053), also called the REPEAL Act, proposed legislation that was introduced in the U.S. Congress on September 23, 2011, by Rep. Barbara Lee (D-CA). [11] It called for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It was the first piece of federal legislation to address HIV criminalization and provided incentives for states to reconsider laws and practices that target people with HIV for consensual sexual activity and conduct that poses no risk of HIV transmission. [12] The bill had 41 cosponsors and was referred in September/October 2011 to three subcommittees, where it died. [11]

Barbara Lee re-introduced the REPEAL HIV Discrimination Act 2013 as H.R. 1843 in May 2013 with 42 cosponsors, and it again died in three subcommittees. [13] Senator Chris Coons introduced the legislation as S.1790 on December 10, 2013, and it did not make it out of the Judiciary Committee. [14]

Immigration

In 2012, the Department of Homeland Security (DHS) used the conviction of Jose Luis Ramirez, an HIV-positive immigrant, of solicitation for oral sex as an argument for his deportation, calling it a "particularly serious crime". An immigration judge ordered his deportation, but the DHS withdrew its argument and the Board of Immigration Appeals (BIA) reversed the deportation order on May 31, 2013. [15]

State law and policy

Statutes

As of 2019, at least 29 states criminalize "nondisclosure, exposure or transmission" of HIV, [16] while an additional 5 states use this to justify enhancements for sentences for other crimes. [17] As of 2008, 33 states had laws regarding the criminalization of HIV transmission. [18]

The following states may currently have laws that prosecute individuals for criminal exposure of HIV: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Florida, Georgia, [19] Idaho, Illinois, [20] Indiana, [21] [22] Iowa, [23] Kansas, Kentucky, Louisiana, Maryland, Michigan, [24] Minnesota, Mississippi, Missouri, [25] Montana, [26] Nevada, New Jersey, New York, [27] North Carolina, [28] North Dakota, Ohio, [29] Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Washington. [28] [30]

Minnesota has a statute that criminalizes the transmission of certain communicable diseases including HIV. Under that statute, Daniel James Rick, despite having informed his sexual partner of his HIV status, was charged with attempted first-degree assault with great bodily harm. His conviction in the trial court was overturned on appeal, and the Supreme Court of Minnesota on August 21, 2013, agreed that the prosecutor had misapplied the statute's provision meant to address the transmission of a communicable disease in non-sexual contexts, such as sperm or organ donations. [31] [32]

Iowa Code 709c was one of the most severe criminal transmission of HIV laws in the country until its repeal 1 May 2014. For 16 years it allowed anyone with HIV exposing another person without disclosing his or her positive status, whether infection occurred or not, to be convicted of a class B felony, i.e. up to 25 years in prison and mandated registration as a sex offender. [33] It has been called "draconian". [34] According to the Iowa Department of Public Health, Iowa ranked second in prosecutions behind Tennessee of persons with HIV, despite having a relatively small number of persons living with HIV/AIDS. [35] Efforts to modernize had been underway since at least 2009, led by Community HIV/Hepatitis Advocates of Iowa Network (CHAIN) and 12 other Iowa medical professional, public health, civil rights and stakeholder organizations. Senate File 2297 redefined crimes for transmission of HIV, as well as hepatitis, tuberculosis and meningococcal disease and introduced a tiered-system of sentencing: Intentional transmission remains a class B felony, but if there is intent and no transmission it is a class D felony. Exposing an individual due to reckless disregard without intent to transmit is also a class D felony. It also includes defense in court, if following a treatment regimen and physician’s advice, and no longer requires sex offender registration. On 27 February 2014, SF2297 passed the Iowa Senate by a 48-0 margin [36] attracting national media attention. [37] The House Judiciary passed an amended version on March 13, 2014 reintroducing "too much of the existing law". [34] Senate File 2297 remained on the House’s list of unfinished business and was passed after going virtually unmentioned just in time before the legislature's adjournment in the early hours of 1 May 2014. Its passage repealed 709C and codified its replacement 709D. [36] [38]

There are also a variety of state laws regarding perinatal HIV testing of the mother and/or newborn during and following birth. [39]

Prosecutions

Prosecutions have included:

The Center for HIV Law and Policy has documented 168 cases of prosecution between January 2008 and June 2013. [55]

See also

Related Research Articles

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Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Other countries charge the accused under existing laws with such crimes as murder, manslaughter, attempted murder, assault or fraud.

Johnson Aziga is a Ugandan-born Canadian man formerly residing in Hamilton, Ontario, Canada, notable as the first person to be charged and convicted of first-degree murder in Canada for spreading HIV, after two women whom he had infected without their knowledge died.

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Edgard Monge is a native of Nicaragua who is serving a ten-year sentence in Kingston Penitentiary, Ontario, Canada, for four counts of aggravated assault after he knowingly had unprotected sex while HIV infected and failed to inform his four sexual partners. Two of his partners also became infected with HIV. One of the two had a child from the union with Monge and the child also contracted HIV.

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