Indiana

Number of reported cases At least 22 How do we calculate the number of cases

Overview

Indiana has a complex range of HIV-specific criminal laws across both the state Criminal and Health Codes. These laws were introduced in the late 1980s and 90s, and despite criticisms, they have not significantly changed since then; however a review is underway which could see the law reformed.

The Indiana Health Code criminalises non-disclosure of HIV and Hepatitis B to sexual and needle-sharing partners where that person is aware of their status and engages in conduct that has been ‘epidemiologically demonstrated’ to carry a significant risk of transmitting either virus. This places a duty to inform partners on all people living with HIV (and Hepatitis B). Knowingly or intentionally breaching this duty is a felony offence punishable by up to three years’ imprisonment and a fine, with each day of non-disclosure constituting a new offence. No requirement of transmission is included in the provision.

The conduct prohibited under this provision is not specified in the text and instead is based on the US Center for Disease Control and Prevention’s (CDC) understanding of ‘high risk’ activity. It is clear that this would include anal and vaginal sex and the sharing of needles, while activities such as oral sex and biting are recognised by the CDC not to represent a significant risk of transmission. While the CDC’s guidance notes that preventative measures such as the use of condoms and adherence to medication reducing viral load significantly lowers the risk of transmission, the law does not explicitly account for this. The lack of clarity in this provision leaves open the possibility of criminalisation of conduct not normally considered ‘high risk’.

Perceived ‘exposure’ to HIV (as well as hepatitis and tuberculosis) through bodily fluids is also criminalised under provisions in the Criminal Code on ‘battery’, which prohibits knowing or intentional ‘exposure’ by placing a fluid on another person, and ‘malicious mischief’, which prohibits reckless, knowing or intentional ‘exposure’ by placing a fluid in a place with intent that another person will involuntarily touch or ingest it. The base sentence for both offences is up to 180 days’ imprisonment and a fine, increased to up to two and a half years’ imprisonment and a fine if the fluid contains HIV. The penalty for the battery offence can be increased to up to six years’ imprisonment and a fine if directed at a public safety official, and up to 12 years’ imprisonment and a fine for malicious mischief if the ‘exposure’ results in HIV transmission. The types of bodily fluids encompassed under these two provisions includes those from which HIV is not known to be transmitted, such as saliva, sweat, and urine.

The donation, sale or transfer of blood or semen which carries HIV is also criminalised under both the Criminal Code and Health Code. The base penalty is up to six years’ imprisonment and a fine, increased to a maximum of 12 years’ imprisonment and a fine if the act results in transmission. There is no requirement of transmission. Donation of blood or semen for research purposes is excluded from this offence (see our report, Bad Blood, for a global analysis of the criminalisation of blood donations).

Doctors providing care for people living with HIV are also set certain obligations. They are required to explain to them their duty to inform partners, and are authorised to inform health officials and partners of the person living with HIV of their status if they believe there is a present risk of transmission. Failure to comply with this provision is a misdemeanour offence. Additionally, medical records may be accessed to aid prosecution, and enforced quarantine can be imposed on people living with HIV.

In addition to these specific offences, people living with HIV have been convicted under general criminal laws, including a 1989 conviction for attempted murder. The presence of an STI, including HIV, is also considered an aggravating factor in ‘child molestation’ offences, resulting in enhanced sentences.

It is not clear exactly how many HIV criminalisation cases have occurred in Indiana. A 2021 analysis of law enforcement data found that 185 people had court contact between 2009 and 2021 based on their disease status, but it is not clear how many of these relate to HIV as the data includes hepatitis and tuberculosis cases. Almost 80% of these cases fell under the battery provision, such as two cases reported in 2019 (January and February) involving spitting which carries no risk of transmission. There were 34 people who had contact under the non-disclosure offence, all of which were living with HIV. A small number of people were charged under the malicious mischief provision, as well as the offence prohibiting donation of blood or semen, including two cases in 2014 and 2015. In terms of demographics, 70% of those arrested were men, while almost 30% were people of colour, which is significantly higher than the non-white population in Indiana.

In 2016 the HIV Modernization Movement was established to advocate for reform of Indiana’s HIV laws. The coalition is made up of local people living with HIV, as well as allies in medicine, public health, law and the wider community. The Movement does not advocate for full repeal, but modernisation of these laws, allowing space for criminalisation where there is an appropriate legal intention.

In subsequent years there have been attempts in the legislature to reform the law. In 2021, House Bill 1340 was adopted, replacing stigmatising language in the law with more humanising language. However, other reform attempts have been less successful. A Bill was introduced in the House of Representatives in January 2022 which would repeal the criminal offences relating to the donation, sale or transfer of blood or semen, and remove HIV from the scope of the battery and malicious mischief offences (making them applicable only to hepatitis and tuberculosis). Another Bill, which would decriminalise non-disclosure and change the existing rules around notifying the health authorities of someone’s HIV status, was passed by the House. Ultimately both Bills failed to be adopted.

In May 2022 a broad review of Indiana’s Criminal Code was announced with a view to modernising the laws on HIV. A panel to review these laws met in the summer of 2022, and in October 2022 the panel unanimously recommended the repeal of most HIV laws in Indiana, finding them to be “unnecessarily discriminatory” and stating that they “don’t accomplish anything”. The panel recommended that only attempts at deliberate transmission should remain a crime. Whether these recommendations will be adopted by lawmakers will be determined in the next legislative session beginning in January 2023.

For a detailed analysis of HIV criminalisation in Indiana, as well as all other US states, see the Center for HIV Law and Policy report, HIV Criminalisation in the United States: a Sourcebook on State and Federal HIV Criminal Law and Practice.

Laws

Indiana Code § 16-41-7-1

Public health law (active)
Year enacted
2016
Relevant text of the law

Individual With a Communicable Disease’s Duty to Inform Persons at Risk

1. (a) This section applies to the following serious communicable diseases:

(1) Human immunodeficiency virus (HIV).

(2) Hepatitis B.

[…]

(d) Individuals with a communicable disease who know of their status as an individual with a communicable disease and have a serious communicable disease described in subsection (a) have a duty to inform or cause to be notified by a third party a person at risk of the following:

(1) The individual with a communicable disease’s disease status.

(2) The need to seek health care such as counseling and testing.

Indiana Code § 35-45-21-3

HIV-specific criminal law (active)
Relevant text of the law

Failure of Individuals With Serious Communicable Diseases to Inform Persons at Risk

3. (a) A person who recklessly violates or fails to comply with IC 16-41-7 commits a Class B misdemeanor.

(b) A person who knowingly or intentionally violates or fails to comply with IC 16-41-7-1 commits a Level 6 felony.

(c) Each day a violation described in this section continues constitutes a separate offense.

Indiana Code § 35-45-21-1

HIV-specific criminal law (active)
Year enacted
2016
Relevant text of the law

Transferring Contaminated Body Fluids

1. (a) As used in this section, “blood” has the meaning set forth in IC 16-41-12-2.5.

(b) A person who recklessly, knowingly, or intentionally donates, sells, or transfers blood or semen for artificial insemination (as defined in IC 16-41-14-2) that contains the human immunodeficiency virus (HIV) commits transferring contaminated body fluids, a Level 5 felony.

(c) However, the offense under subsection (b) is a Level 3 felony if it results in the transmission of the human immunodeficiency virus (HIV) to any person other than the defendant.

Indiana Code § 35-45-16-2

HIV-specific criminal law (active)
Year enacted
2013
Relevant text of the law

Malicious Mischief

(…)

(c) A person who recklessly, knowingly, or intentionally places human:

(1) body fluid; or

(2) fecal waste;

in a location with the intent that another person will involuntarily touch the body fluid or fecal waste commits malicious mischief, a Class B misdemeanor.

(d) An offense described in subsection (c) is a

(1) Level 6 felony if the person knew or recklessly failed to know that the body fluid or fecal waste was infected with:

(A) infectious hepatitis;

(B) HIV; or

(C) tuberculosis;

(2) Level 5 felony if:

(A) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with infectious hepatitis and the offense results in the transmission of infectious hepatitis to the other person; or

(B) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with tuberculosis and the offense results in the transmission of tuberculosis to the other person; and

(3) Level 4 felony if:

(A) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with HIV; and

(B) the offense results in the transmission of HIV to the other person.

(e) A person who recklessly, knowingly, or intentionally places human:

(1) body fluid; or

(2) fecal waste;

in a location with the intent that another person will ingest the body fluid or fecal waste commits malicious mischief with food, a Class A misdemeanor.

(f) An offense described in subsection (e) is:

(1) a Level 6 felony if the person knew or recklessly failed to know that the body fluid or fecal waste was infected with:

(A) infectious hepatitis;

(B) HIV; or

(C) tuberculosis;

(2) a Level 5 felony if:

(A) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with infectious hepatitis and the offense results in the transmission of infectious hepatitis to the other person; or

(B) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with tuberculosis and the offense results in the transmission of tuberculosis to the other person; and

(3) a Level 4 felony if:

(A) the person knew or recklessly failed to know that the body fluid or fecal waste was infected with HIV; and

(B) the offense results in the transmission of HIV to the other person.

Indiana Code § 16-41-14-17

Public health law (active)
Year enacted
1993
Relevant text of the law

Donation, Sale, or Transfer of HIV Infected Semen; Penalties

17. (a) This section does not apply to a person who transfers for research purposes semen that contains antibodies for the human immunodeficiency virus (HIV).

(b) A person who, for the purpose of artificial insemination, recklessly, knowingly, or intentionally donates, sells, or transfers semen that contains antibodies for the human immunodeficiency virus (HIV) commits transferring contaminated semen, a Level 5 felony. The offense is a Level 4 felony if the offense results in the transmission of the virus to another person.

Further resources

Not all laws used to prosecute people living with HIV in this state are included on this page. For a comprehensive overview and analysis of HIV-related criminal and similar laws and policies, visit The Center for HIV Law and Policy

Acknowledgements

This information was last reviewed in October 2022