The United States of America was, as far as we are aware, the first country in the world to prosecute people living with HIV and to enact HIV-specific criminal laws, commencing in 1986/7.
In addition to the federal law – which is summarised below – each US state and territory, as well as the US military, treats alleged HIV non-disclosure, potential or perceived ‘exposure’, and/or alleged transmission, differently.
Although some states began to adopt HIV-specific or general disease laws, or apply general criminal law to HIV cases in the 1980s, measures implemented by the federal government encouraged this further, particularly the passage of the Ryan White Care Act in 1990. This law – which made available significant amounts of federal funding for HIV treatment – made some funding contingent on the ability to prosecute intentional HIV exposure at the state level. Since then, only a minority of states opted not to introduce HIV-specific criminal laws and/or have not applied general criminal laws to HIV non-disclosure, ‘exposure’, or transmission. Where HIV-specific or general disease laws were introduced, they almost never required an intent to transmit or actual transmission, and instead criminalised conduct which carried little to no risk of transmission.
Since 2010 there has been a growing movement to repeal or reform state HIV laws. The tenacious efforts of civil society organisations, activists, and people living with HIV, in collaboration with medical experts, public health officials, and receptive politicians, have led to at least 15 states reforming their criminal laws to better reflect contemporary understanding of HIV treatment and risk behaviours, and/or fully repealing their HIV-specific laws.
The United States is by some distance the country with the highest number of known HIV criminalisation cases in the world, however numbers vary drastically by state or territory. Nevertheless, the vast majority of states have enforced HIV-specific and/or general laws to prosecute HIV non-disclosure, ‘exposure’, or transmission; to our knowledge, all but nine states have done so.
Case numbers for any particular US jurisdiction may not always tally with the number of reported cases on our site, primarily because our cases database only goes back to 2008. In addition, there may also appear to be an extremely large disparity between the number of cases in certain states compared with others. This is not only due to a number of important limitations that we highlight on our Disclaimer page, but also because in-depth research by the Williams Institute on several states – including California, Florida, and Georgia, among others – has unearthed hundreds of previously unreported cases.
We provide an overview of the law and cases relating to HIV non-disclosure, ‘exposure’, and/or transmission in each state, the District of Columbia, four overseas territories, and the military in our Database. We highlight the most pertinent provisions capable of criminalising people living with HIV based on HIV-positive status in each jurisdiction, including HIV-specific laws, general disease laws, and general criminal laws that we know to have been enforced against people living with HIV, and include relevant extracts from some of these laws. However, these overviews do not outline every single relevant law – such as health laws which regulate the conduct of people living with HIV – in full detail; they instead signpost to the US-based Center for HIV Law and Policy’s report, HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice, which contains a full analysis of all laws in depth.
The only HIV-specific criminal provision under the federal law relates to the donation of blood or other fluids and tissues. The law makes it an offence for someone knowingly living with HIV to donate or sell blood or other ‘potentially infectious’ fluids or tissues, except where necessary for medical research or testing. Neither intent to transmit or actual transmission are required, nor is any risk of transmission, which it should be noted is highly unlikely in the United States due to routine screening of blood donations (see our report, Bad Blood, for more on this). This law was enacted in 1994, however there have been no reported prosecutions under this provision.
On rare occasions HIV status has been used as the sole or primary basis for imposing enhanced sentences for criminal offences at the federal level. In an unusual federal case in Maine in 2009, a pregnant woman living with HIV received an enhanced penalty due to her HIV status. The woman had been convicted for having counterfeit social security documents, and at sentencing the federal judge imposed a sentence double the 114 days recommended by both the prosecutors and defence. The judge openly stated that this was due to the defendant’s HIV status but intended to ‘protect’ her unborn baby from HIV transmission during birth, as in his view the defendant was more likely to receive medical treatment in a federal prison than outside. Following significant backlash and an appeal, the woman was released on bail to give birth outside of prison before having her sentence reduced to the recommended level. Notwithstanding the supposed good intentions of the judge to prevent transmission of HIV to the child, this paternalistic approach demonstrates how people living with HIV can face harsher punishments purely on the basis of their health status.
People in federal prisons have also received enhanced sentences for assaults on correctional officers on the basis of their HIV status. In a 1995 case, the teeth of a man living with HIV were considered a ‘deadly weapon’ after allegedly biting two correctional officers. In a similar case in 2006, a man living with HIV was given a ten year prison sentence for allegedly biting a correctional officer during an assault (see Center for HIV Law and Policy report for case details).
More information is available on the following states
United States Code § 1122
Protection against the human immunodeficiency virus
(a) In General.—Whoever, after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing or in accordance with all applicable guidelines and regulations made by the Secretary of Health and Human Services under section 377E of the Public Health Service Act, shall be fined or imprisoned in accordance with subsection (c).
(b) Transmission Not Required.—Transmission of the Human Immunodeficiency Virus does not have to occur for a person to be convicted of a violation of this section.
(c) Penalty.—Any person convicted of violating the provisions of subsection (a) shall be subject to a fine under this title of not less than $10,000, imprisoned for not less than 1 year nor more than 10 years, or both.
From the Center for Interdisciplinary Research on AIDS Yale University: Overview of resources outlining criminal laws and analyses of case laws; empirical research in the US and Canada; legal and public health analyses; guidance, fact sheets and talking points; policy and consensus statements, and other relevant references on criminalization in a North American context.
From the Sex Workers Project: Presents a public health law mapping of U.S. states that mandate HIV testing and criminalize HIV positive sex workers. Shows HIV transmission and exposure laws interact with sex work laws to compound criminal penalties for people charged with prostitution related crimes. Argues that decriminalization of sex work and HIV transmission and exposure is integral to effectively address the HIV epidemic.
Interactive tool looking at the impact of HIV criminal laws on people living with HIV in nine US states: California, Florida, Georgia, Kentucky, Louisiana, Missouri, Nevada, Tennessee, Virginia.
We are grateful to the Center for HIV Law and Policy for allowing us to link to their original research and analysis on HIV-related criminalisation in the United States.