Kentucky

Number of reported cases At least 10 How do we calculate the number of cases

Overview

Kentucky state law contains HIV-specific provisions criminalising sex work and the donation of bodily tissues. Additionally, there is a general disease provision which can be used to criminalise perceived ‘exposure’, and general criminal laws have been used extensively to prosecute people living with HIV.

The Penal Code criminalises sex work generally under a ‘prostitution’ offence, which also requires everyone convicted of engaging or procuring sex work to undergo testing for HIV. Anyone found to be knowingly living with HIV and aware that they could transmit HIV through sex, and who commits, offers, agrees to, or procures ‘prostitution’, is guilty of a class D felony, and is liable to an enhanced sentence of up to five years’ imprisonment and a fine. This penalty is significantly longer than for people living with other STIs (up to one year), and can be imposed in addition to the base offence penalty. There are no defences of disclosure or the use of condoms. There is also no requirement for intent or transmission for this offence, and people living with HIV can be charged without even engaging in any sexual acts, as has been seen in at least one case.

The other HIV-specific criminal law in Kentucky makes it an offence for people knowingly living with HIV to donate organs, skin, or other tissues if they have been informed of the risk of transmission by this means. This is also a class D felony, and again, intent and transmission are not required.

These laws were the subject of a 2021 analysis of prosecutions in Kentucky by the Williams Institute, which found that there had been 32 arrests under these two laws since 2006, with all but one relating to the sex work offence. The analysis revealed that white women are disproportionately targeted by these laws in the state, representing 65% of arrests but just 8% of people living with HIV. Unlike many other states, Black people were actually underrepresented in arrest data compared with the numbers living with HIV.

In 2018, the Kentucky legislature added a new section to the offence of third-degree assault which criminalises intentionally causing a peace officer to come into contact with bodily fluids without their consent. This is a class B misdemeanour unless the person is living with a communicable disease and medical evidence demonstrates that there is a risk of transmission, in which case it is a class A misdemeanour, enhancing the maximum sentence by four times. There has been at least one arrest under this provision since its passage, with a 2018 case involving a man living with HIV who allegedly spat at a police officer. It is not clear whether he was convicted, but given that saliva is not considered a transmission route, the requirement of a risk of transmission should have excluded this possibility.

Additionally, general criminal laws have been used frequently to prosecute perceived ‘exposure’ to HIV. Most commonly this has been done under the offence of ‘wanton endangerment’, including cases tried in the first-degree which requires a display of ‘extreme indifference to the value of human life’. Acts which carry little to no risk of transmission, such as spitting and biting, have been the basis for charges under this provision, as well as cases of non-disclosure to sexual partners. Other offences such as attempted murder and assault have also been used to prosecute cases of perceived ‘exposure’ regardless of transmission risk, such as in a 2013 case in which a man living with HIV allegedly threw urine at a corrections officer.

Authorities in Kentucky also have broad powers to impose treatment, testing, quarantine and isolation on people living with, or suspected of living with, communicable diseases. It is not clear what penalty can be imposed for failure to comply with such orders.

For a detailed analysis of HIV criminalisation in Kentucky, 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

2021 Kentucky Revised Statutes; Chapter 529 - Prostitution offenses; 529.020 Prostitution.

General criminal law (active)
Year enacted
2013
Relevant text of the law

529.020 Prostitution.

(1) Except as provided in KRS 529.120, a person is guilty of prostitution when he engages or agrees or offers to engage in sexual conduct with another person in return for a fee.

(2) Prostitution is a Class B misdemeanor.

Effective: June 25, 2013

2021 Kentucky Revised Statutes; Chapter 529 - Prostitution offenses; 529.090 Person convicted required to submit to screening for HIV infection -- Prostitution or procuring prostitution with knowledge of sexually transmitted disease or HIV.

Other law (active)
Relevant text of the law

529.090 Person convicted required to submit to screening for HIV infection –Prostitution or procuring prostitution with knowledge of sexually transmitted disease or HIV.

(1)Any person convicted of prostitution or procuring another to commit prostitution under the provisions of KRS 529.020 shall be required to undergo screening for human immunodeficiency virus infection under direction of the Cabinet for Health and Family Services and, if infected, shall submit to treatment and counseling as a condition of release from probation, community control, or incarceration. Notwithstanding the provisions of KRS 214.420, the results of any test conducted pursuant to this subsection shall be made available by the Cabinet for Health and Family Services to medical personnel, appropriate state agencies, or courts of appropriate jurisdiction to enforce the provisions of this chapter.

(2)Any person who commits prostitution and who, prior to the commission of the crime, had tested positive for a sexually transmitted disease and knew or had been informed that he had tested positive for a sexually transmitted disease pursuant to KRS 214.410 and that he could possibly communicate such disease to another person through sexual activity is guilty of a Class A misdemeanor. A person may be convicted and sentenced separately for a violation of this subsection and for the underlying crime of prostitution.

(3)Any person who commits, offers, or agrees to commit prostitution by engaging in sexual activity in a manner likely to transmit the human immunodeficiency virus and who, prior to the commission of the crime, had tested positive for human immunodeficiency virus and knew or had been informed that he had tested positive for human immunodeficiency virus and that he could possibly communicate the disease to another person through sexual activity is guilty of a Class D felony. A person may be convicted and sentenced separately for a violation of this subsection and for the underlying crime of prostitution.

(4) Any person convicted of procuring another to commit prostitution in a manner likely to transmit the human immunodeficiency virus and who, prior to the commission of the crime, had tested positive for human immunodeficiency virus and knew or had been informed that he had tested positivefor human immunodeficiency virus and that he could possibly communicate the disease to another person through sexual activity is guilty of a Class D felony

2021 Kentucky Revised Statutes; Chapter 311 - Physicians, osteopaths, podiatrists, and related medical practitioners; 311.281 Testing of organs, skin, or other human tissue for HIV and other communicable diseases, with informed consent.

HIV-specific criminal law (active)
Year enacted
1990
Relevant text of the law

311.281 Testing of organs, skin, or other human tissue for HIV and other communicable diseases, with informed consent.

(1)Every donation of organs, skins, or other human tissue for transplantation to another shall be tested by the agency responsible for procuring the organ, skin, or other human tissue prior to use for human immunodeficiency virus infection and other communicable diseases specified by the United Network for Organ Sharing, American Association of Tissue Banks, and Eye Bank Association of America. Tests for the human immunodeficiency virus infection shall be performed only after obtaining written, informed consent from the potential donor or the donor’s legal representative. Obtaining consent shall include a fair explanation of the procedures to be followed and the meaning and use of the test results. The explanation shall include a description of the confidential nature of the test as described in KRS 214.625. If consent for testing is not given, the person shall not be accepted as a donor.

(2)Notwithstanding the provisions of subsection (1) of this section, written informed consent to perform testing shall not be required if the organ, skin, or other human tissue is received for processing or testing from out-of-state or if tissue is received from a health care facility or health care provider for reference testing or processing and the results of the test are reported back to the facility or provider.

 

2021 Kentucky Revised Statutes. Chapter 508 - Assault and related offenses. 508.025 Assault in the third degree.

HIV-specific criminal law (active)
Year enacted
2018
Relevant text of the law

508.025 Assault in the third degree. (1)A person is guilty of assault in the third degree when the actor:

(a) Recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to

  1. A state, county, city, or federal peace officer;
  2. An employee of a detention facility, or state residential treatment facility or state staff secure facility for residential treatment which provides for the care, treatment, or detention of a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender;
  3. An employee of the Department for Community Based Services employed as a social worker to provide direct client services, if the event occurs while the worker is performing job-related duties;
  4. Paid or volunteer emergency medical services personnel certified or licensed pursuant to KRS Chapter 311A, if the event occurs while personnel are performing job-related duties;
  5. A paid or volunteer member of an organized fire department, if the event occurs while the member is performing job-related duties;
  6. Paid or volunteer rescue squad personnel affiliated with the Division of Emergency Management of the Department of Military Affairs or a local disaster and emergency services organization pursuant to KRS Chapter 39F, if theevent occurs while personnel are performing job-related duties;
  7. A probation and parole officer;
  8. A transportation officer appointed by a county fiscal court or legislative body of a consolidated local government, urban-county government, or charter government to transport inmates when the county jail or county correctional facility is closed while the transportation officer is performing job-related duties;
  9. A public or private elementary or secondary school or school district classified or certified employee, school bus driver, or other school employee acting in the course and scope of the employee’s employment; or
  10. A public or private elementary or secondary school or school district volunteer acting in the course and scope of that person’s volunteer service for the school or school district;

(b)Being a person confined in a detention facility, or a juvenile in a state residential treatment facility or state staff secure facility for residential treatment which provides for the care, treatment, or detention of a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender, inflicts physical injury upon or throws or causes feces, or urine, or other bodily fluid to be thrown upon an employee of the facility; or

(c)Intentionally causes a person, whom the actor knows or reasonably should know to be a peace officer discharging official duties, to come into contact with saliva, vomit, mucus, blood, seminal fluid, urine, or feces without the consent of the peace officer.

 

(2)(a)For violations of subsection (1)(a) and (b) of this section, assault in the third degree is a Class D felony.

(b)For violations of subsection (1)(c) of this section, assault in the third degree is a Class B misdemeanor, unless the assault is with saliva, vomit, mucus, blood, seminal fluid, urine, or feces from an adult who knows that he or she has a serious communicable disease and competent medical or epidemiological evidence demonstrates that the specific type of contact caused by the actor is likely to cause transmission of the disease or condition, in which case it is a Class A misdemeanor.

(c)As used in paragraph (b) of this subsection, “serious communicable disease” means a non-airborne disease that is transmitted from person to person and determined to have significant, long-term consequences on the physical health or life activities of the person infected.

Effective:July 14, 2018

2021 Kentucky Revised Statutes. Chapter 508 - Assault and related offenses. 508.060 Wanton endangerment in the first degree.

HIV-specific criminal law (active)
Year enacted
1980
Relevant text of the law

508.060 Wanton endangerment in the first degree.

(1)A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.

(2)Wanton endangerment in the first degree is a Class D felony.

Effective: 1975

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 April 2020