Oklahoma

Oklahoma criminalises non-disclosure through an HIV-specific law introduced in 1997. This law has been used to prosecute HIV cases on a number of occasions, and general criminal laws have also been used to do so at least once.

The HIV-specific provision makes it an offence for anyone living with HIV to engage in conduct ‘reasonably likely’ to result in the transfer of blood, bodily fluids containing visible blood, semen, or vaginal secretions into the bloodstream or through the skin of another. The law includes a requirement of ‘intent to infect’, and the ‘crime’ is committed through consensual acts where HIV status was not disclosed as well as non-consensual acts. There is no requirement for transmission, and no need to prove that fluids were actually transferred. The law is silent on the use of condoms or adherence to antiretroviral treatment, as defences. This offence is a felony carrying a penalty of up to five years’ imprisonment.

Although the law suggests that only people with ‘intent to infect’ could be prosecuted, the courts have convicted people seemingly without clear evidence of this intent. Case reports suggest that a lack of disclosure is the key factor in prosecuting people living with HIV in Oklahoma, such as in a 2016 case where the maximum sentence of five years’ imprisonment was imposed for HIV non-disclosure. We are also aware of cases for biting and spitting, although there appears to be no suggestion that the saliva contained visible blood as is required by the law. These cases demonstrate that the interpretation of the law is much broader than the letter of the law.

Oklahoma law also includes a sentence enhancement provision for sex work offences committed by people living with HIV. The law criminalising ‘prostitution’ is generally a misdemeanour offence carrying a penalty of up to one year imprisonment, but this is increased to a felony with up to five years’ imprisonment if committed by someone living with HIV. The offence includes a broad range of conduct including oral sex, masturbation, and ‘lewdness’, which essentially includes any sexual behaviour, meaning that people living with HIV can face much harsher penalties under this provision for sexual acts which carry no risk of transmission, or even where no physical contact is made. We are aware of at least one case under this law.

There is also a general disease ‘exposure’ provision under the law which makes it an offence for anyone living with any ‘contagious disease’ to ‘wilfully expose’ themselves to the public. This is a misdemeanor with a penalty of up to one year imprisonment and a fine, though we are not aware of any HIV cases under this law.

The general criminal law has been used to prosecute HIV ‘exposure’ in at least one case. This case in 2000 was one involving sexual assault of minors for which the person was convicted for multiple counts of sexual assault, however his HIV status triggered an additional charge of attempted murder as it was argued by the prosecution that the defendant had repeated unprotected sex with one victim, and HIV was transmitted to both her and her unborn baby.

Public health laws require people living with STIs, which by definition includes HIV, not to refuse treatment or examination, and permit their mandatory isolation and quarantine. Non-compliance with these regulations can result in prosecution and misdemeanour conviction of up to 30 days’ imprisonment.

In 2019 an unsuccessful attempt to reform the HIV-specific law was made. House Bill 1858 would have changed the law to require proof of a ‘substantial risk of transmission’ of HIV rather than reasonable likelihood of transmission of fluids, as well as insert an explicit defence where the person living with HIV adheres to recommended medical treatment. It would also have lowered the penalty to a misdemeanour with a sentence of up to one year imprisonment. The law died in committee stage.

For a detailed analysis of HIV criminalisation in Oklahoma, 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.