New York

Number of reported cases At least 9 How do we calculate the number of cases

Overview

New York does not have any HIV-specific laws; however both communicable disease and general criminal laws exist which can be used to prosecute people living with HIV, and a civil confinement law can keep people with HIV in prison long after their prison term has been served. Relatively few cases have been reported  in New York – given the high number of people living with HIV in the state – in part due to a somewhat restrictive interpretation of the law by the courts. However, those that have been reported have often been high-profile cases extensively covered in the media.

New York public health law criminalises perceived ‘exposure’ to ‘venereal diseases’, making it a misdemeanour offence for anyone who knows they are living with an ‘infectious venereal disease’ to have sexual intercourse with another. The law does not define ‘infectious venereal disease’, but it is known to include HIV. There is no requirement for intention to transmit or actual transmission within the law, and there is no defence of disclosure or use of protections, however the New York Department of Health has publicly stated that it believes the law should not apply to cases where the person disclosed their status prior to sex or did not know their status. It further stated that the law should only apply to cases of knowing ‘exposure’ to an ‘acute, bacterial venereal disease’ such as syphilis or gonorrhoea, which would exclude HIV. However, this guidance is not legally binding (see CHLP report below).

Perceived ‘exposure’ is also prosecutable under general criminal laws, though the courts have applied general provisions relatively restrictively. The most prominent offence which has been used to prosecute people living with HIV is ‘reckless endangerment’, initially prosecuted in the first degree, which is a felony charge. However, high-profile legal proceedings involving a man living with HIV who had unprotected sex with his partner on multiple occasions without disclosing his status, allegedly resulting in HIV transmission, led to a series of rulings which downgraded the possible charge for such conduct to second-degree reckless endangerment, a misdemeanour offence. The basis for this decision was that first-degree reckless endangerment requires a ‘depraved indifference to human life’ through conduct which carries a ‘grave risk of death’, which, based on expert medical testimony, is not satisfied by HIV ‘exposure’ due to improved medical treatments which allow people living with HIV to live ‘very healthy, normal’ lives, and in this case a lack of evidence of the required indifference to life by the defendant. This ruling saw the maximum sentence for perceived ‘exposure’ under this provision reduced from seven years’ imprisonment to one year and a fine.

There has also been some possibility of aggravated assault charges being laid against people living with HIV for perceived ‘exposure’ through bodily fluids on the basis of their fluids being considered a ‘deadly weapon or dangerous instrument’. Another high-profile case initially saw a man living with HIV convicted for aggravated assault in 2006 for biting a police officer’s hand (his saliva was considered a ‘dangerous instrument’), but this was ultimately overturned in 2012 on the basis that body parts or fluids cannot be considered instruments for the purposes of this provision. The court did not appear to consider the possibility of transmission by bodily fluids of people living with HIV (in this case, virtually zero), but the ruling nonetheless appears to remove the possibility of aggravated assault charges being laid for perceived ‘exposure’ via bodily fluids. 

The law also permits medical records to be accessed and used in the prosecution of people living with HIV where there is a compelling need, and health authorities can enforce isolation on people living with communicable diseases under threat of fine.

There have been only a handful of reported cases in New York, and we are aware of just nine in the state. This includes the high-profile case of Nushawn Williams who was convicted in 1997 for rape and reckless endangerment. His HIV status was widely publicised during his trial, which saw him receive a 12-year prison sentence. However a subsequent ‘civil commitment’ kept him imprisoned despite his sentence expiring in 2010. This has been justified on the basis that he is likely to reoffend. The Free Nushawn Coalition continues to advocate for his release.

Williams’ case initially spurred calls for a HIV-specific law to be introduced, which was proposed by at least one state senator, but did not materialise. To date, no HIV-specific law has been adopted in New York.

For a detailed analysis of HIV criminalisation in New York, 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

2307 - Venereal Disease; Person Knowing Himself to Be Infected

Public health law (active)
Relevant text of the law

2307. Venereal disease; person knowing himself to be infected. Any person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another shall be guilty of a misdemeanor.

2785-A - Court Order for HIV Related Testing in Certain Cases.

HIV-specific criminal law (active)
Relevant text of the law
  1. Notwithstanding any contrary provision of law or regulation, a state, county or local public health officer to whom an order or a consent for an HIV test is addressed or sent, in accordance with section 390.15 of the criminal procedure law or section 347.1 of the family court act, must cause HIV related testing to be administered to the subject named therein and, if the test is pursuant to court order, must immediately provide to the court that issued the order a written report specifying the date on which such test was completed. Such report to the court shall not, however, disclose the results of such test. Such officer must disclose the results of the testing to the victim indicated in the order or consent and must also disclose the results to the person tested, unless the person tested has been asked to but declines to authorize such disclosure to himself or herself.
  2. At the time of communicating the test results to the subject or the victim, such public health officer shall directly provide the victim and person tested with (a) counseling or referrals for counseling for the purposes specified in subdivision five of section two thousand seven hundred eighty-one of this article; (b) counseling with regard to HIV disease and HIV testing in accordance with law and consistent with subdivision five of section two thousand seven hundred eighty-one of this article; and (c) appropriate health care and support services, or referrals to such available services. If at the time of communicating the test results, the person tested is in the custody of the department of corrections and community supervision, office of children and family services, office of mental health or a local correctional institution, the counseling and services required by this subdivision may be provided by a public health officer associated with the county or facility within which the person tested is confined.
  3. Unless inconsistent with this section, the provisions of this article regarding the confidentiality and disclosure of HIV related information shall apply to proceedings conducted pursuant to section 390.15 of the criminal procedure law or section 347.1 of the family court act.

 

2100 - Communicable Diseases; Local Boards of Health and Health Officers; Powers and Duties.

Communicable disease law (active)
Relevant text of the law
  1. Every local board of health and every health officer shall guard against the introduction of such communicable diseases as are designated in the sanitary code, by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases.
  2. Every local board of health and every health officer may:

(a) provide for care and isolation of cases of communicable disease in a hospital or elsewhere when necessary for protection of the public health and,

(b) subject to the provisions of the sanitary code, prohibit and prevent all intercourse and communication with or use of infected premises, places and things, and require, and if necessary, provide the means for the thorough purification and cleansing of the same before general intercourse with the same or use thereof shall be allowed.

N.Y. COMP. R. & REGS Title10: Section 2.1 - Communicable diseases designated: cases, suspected cases and certain carriers to be reported to the State Department of Health

Communicable disease law (active)
Relevant text of the law

Communicable diseases designated: cases, suspected cases and certain carriers to be reported to the State Department of Health.

(a) When used in the Public Health Law and in this Chapter, the term infectious, contagious or communicable disease, shall be held to include the following diseases and any other disease which the commissioner, in the reasonable exercise of his or her medical judgment, determines to be communicable, rapidly emergent or a significant threat to public health, provided that the disease which is added to this list solely by the commissioner’s authority shall remain on the list only if confirmed by the Public Health and Health Planning Council at its next scheduled meeting:[…]

[…]

Title: Section 2.27 - Physician to isolate person with highly communicable disease and give instructions regarding prevention of spread of the disease

Communicable disease law (active)
Relevant text of the law

2.27 Physician to isolate person with highly communicable disease and give instructions regarding prevention of spread of the disease. It shall be the duty of the attending physician immediately upon discovering a case of highly communicable disease (as defined in section 2.1 of this Part) to cause the patient to be isolated, pending official action by the health officer. Such physician shall also advise other members of the household regarding precautions to be taken to prevent further spread of the disease and shall inform them as to appropriate specific preventive measures. He shall in addition furnish the patient’s attendant with such detailed instructions regarding the disinfection and disposal of infective secretions and excretions as may be prescribed by the State Commissioner of Health.

Title: Section 2.29 - Other highly communicable diseases

Communicable disease law (active)
Relevant text of the law

2.29 Other highly communicable diseases. Whenever a case of a highly communicable disease (as defined in section 2.1 of this Part) comes to the attention of the city, county or district health officer he shall isolate such patients as in his judgment he deems necessary.

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