Louisiana

In 1987 Louisiana adopted an HIV-specific law criminalising perceived ‘exposure’, which was partially amended in 2018. This law has been enforced many times against people living with HIV for a range of conduct. General laws can also be used to prosecute perceived HIV ‘exposure’.

The Penal Code contains the offence titled ‘intentional exposure to HIV’. This makes it a crime for anyone who is knowingly living with HIV to ‘intentionally expose’ someone to HIV through sexual contact, or through any other ‘means or contact’, without that person’s knowing consent. Despite the text of the law clearly requiring ‘intentional exposure’, the courts have held that intention to expose is not a required element of the offence. Contact has been interpreted broadly and there need not be any risk of transmission or evidence of transmission from the contact, and in fact cases have been prosecuted where there is no contact at all. This has been seen in a 2009 case in which a person was charged under the offence merely for allegedly agreeing to sex work with an undercover police officer, and in a 2020 case in which someone being arrested allegedly attempted to spit on a police officer.

The penalty for this offence is imprisonment for up to ten years and/or a fine, or if committed against a first responder, up to eleven years and an increased fine. There is also the possibility of hard labour being ordered, and courts have imposed this sentence several times. Those convicted of the ‘intentional exposure’ offence are also required to register as sex offenders. Several cases have occurred for HIV ‘exposure’ through sexual contact including as recently as 2020, as well as for other types of contact, such as spitting and biting.

In 2018 a bill was introduced with the intention to modernise the law, including by amending the provision to require a ‘specific intent to transmit’ HIV. However HB 275 met opposition within the legislature and this proposal was dropped. The sponsor of the Bill, Democratic Representative Edmond Jordan, neglected to engage with local civil society properly prior to drafting, and the resulting bill was seen as misguided by the Louisiana Coalition on Criminalization and Health, who advocated against it. The bill ultimately passed unanimously and was signed into law in May 2018. It made two main changes to the law: firstly it replaced language erroneously referring to AIDS with HIV, and it added an affirmative defence of disclosure in three circumstances:

1. 1. If the ‘exposed’ person knew the contact could result in infection and gave consent to that act anyway.
   2. If the transfer of bodily fluids, tissues, or organs occurred after advice from a licensed physician that the accused was not infectious.
   3. If the accused took practical means to prevent transmission as advised by a physician or healthcare provider following professionally accepted control procedures.

Although the addition of an affirmative defence is a positive, albeit minor step, this was a misguided attempt at reform as it makes the use of effective measures to prevent transmission, such as the use of condoms or adherence to medical treatment, conditional on the disclosure of status, which is not in itself an effective tool against transmission and is difficult to prove in individual cases.

A 2022 analysis of police data by the Williams Institute found that there had been at least 137 reports of alleged HIV-related offences in Louisiana since 2011. There were at least 47 separate convictions involving 43 people under the HIV law. The data shows a substantial overrepresentation of black people in arrest data. Despite the 2018 amendments to the law, the number of arrests has not reduced over time and enforcement remains high.

In addition to the HIV-specific law, general criminal laws have been used to prosecute perceived ‘exposure’ to HIV. This includes offences as severe as attempted second-degree murder, such as in a 1995 case in which a man allegedly inserted a syringe filled with clear liquid into the arm of a store clerk. Although it was never proven that the liquid contained HIV, he was found guilty and sentenced to 50 years’ imprisonment with hard labour. In another case in 1998, a doctor was given the same sentence for allegedly injecting an ex-lover with blood said to be carrying HIV and hepatitis C, although he was not personally living with HIV and the blood was taken from his patients. HIV status has also been considered an aggravating factor in sentencing for other offences.

The public health section of the Code also makes it an offence for any person living with a ‘venereal disease’, which does not specifically include HIV but falls within the definition provided, to ‘infect’ or ‘expose’ another. The same code gives health officials powers to compel examinations, isolation, or quarantine as deemed reasonable. Violation of these sections results in fines for the first and second instances, and fines or imprisonment up to six months for subsequent offences. The Administrative Code grants similar powers in the context of communicable diseases, and permits the release of HIV test results upon a court order.

For a detailed analysis of HIV criminalisation in Louisiana, 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.