[Update] US: Utah House Judiciary Committee approves bill making it a criminal offense to engage in consensual sexual activity without disclosing known HIV-positive status

Utah committee approves bill that increases penalties for failing to disclose HIV-positive status – Measure would also make it a crime to have consensual sex without disclosing infection.

Sexual offense convictions would carry an enhanced penalty if the perpetrator is HIV-positive under a bill approved Friday by the House Judiciary Committee.

Committee members voted 9-2 in favor of HB369, which calls for a one-step increase in charges for offenses perpetrated by individuals with HIV or AIDS.

The proposal also would make it a class A misdemeanor to engage in otherwise consensual sexual activity if people fail to disclose their HIV status to their sexual partners.

Rep. Justin Fawson, R-North Ogden, said his bill’s class A misdemeanor “nonconsensual sexual conduct” charge is comparable to a charge of reckless endangerment. And while treatment and medication can significantly minimize the risk of spreading infection, Fawson said, people still put their partners in danger by failing to disclose their status.

“There is no way to reduce the risk to zero,” he said. “There’s no way.”

Equality Utah Executive Director Troy Williams said there are already criminal enhancements in Utah code for “bodily harm,” which would cover the intentional or reckless spread of sexually transmitted infections (STIs).

He said the state should encourage HIV-positive individuals to get tested and receive treatment and is worried that HB369 could undermine STI prevention efforts by focusing on status rather than actions.

“We should absolutely be enhancing penalties for intent and harm, but not the health status of the perpetrator,” he said. “We would want to do everything in our power to open the doors to encourage people to be tested.”

Rep. Dixon Pitcher, R-Ogden, asked Williams whether the state’s compassion for a person who is HIV-positive should outweigh the compassion for a person who is infected without warning.

“It’s unconscionable to me that somebody would have sex with somebody without disclosing what they are carrying,” Pitcher said.

But Williams said compassion is not mutually exclusive, cautioning lawmakers against taking steps that target individuals based on their health.

“It is moving us down a path of stigmatizing and criminalizing people who live with HIV,” he said.

Will Carlson, a representative for the Statewide Association of Prosecutors, said applying the law in court could be challenging, because it requires proof beyond a reasonable doubt that perpetrators were aware of their HIV-positive status.

“Proving that a defendant knew, at the time, that a sexual act occurred, may be problematic,” he said.

The committee considered several amendments to the bill, including one that would have broadened the criminal enhancement to the transition of any sexually transmitted infection. That amendment failed, and Fawson suggested that additional changes could be made when HB369 reaches the House floor.


Utah House Judiciary Committee discuss passing law that would classify HIV non-disclosure as rape

Bill Charging HIV/AIDS Patients with Rape if they Don’t Disclose Held

Legislation that criminalizes sexual situations involving HIV/AIDS sufferers who knowingly engage in sex without informing the other person was held Wednesday by the House Judiciary Committee.

HB 369 – Sexual Offenses and Statutory Nonconsent Amendments, sponsored by Representative Justin Fawson (Republican – North Ogden), amends statutory nonconsent to sexual activity to include sexual contact in situations where a person who is knowingly infected with HIV or AIDS and engages in sexual activity with a person who is unaware of their illness.

Will Carlson, representing the Statewide Association of Prosecutors, agrees with the legislation’s intent – however, he feels that it goes too far. “We join with the representative in searching out ways to prevent its spread. We appreciate the idea that the best and healthiest form of intimacy is a fully-informed intimacy,” said Carlson. “But with first-degree felonies, which is the heaviest hammer the criminal justice system can offer, this does not do what the sponsor is trying to do. This does not say if you have a crime and the offender is HIV-positive then that crime is enhanced. This says if you are HIV-positive and you are intimate, this is a crime unless you’ve disclosed your status.”

Troy Williams, executive director of Equality Utah, called the bill “a punitive approach” that further stigmatizes those who suffer from HIV or AIDS and could actually result in a reduction in HIV testing. “Like all people, we want to see a reduction in HIV infections. We want HIV-positive members of the LGBTQ community to be tested, know their status, and to not feel stigma in disclosing their status with intimate partners,” said Williams. “This proposed legislation could actually have the opposite effect. By increasing HIV-related stigma and potential criminal consequences for knowing and sharing one’s HIV-positive status, this bill could actually discourage HIV testing and disclosure. There’s no evidence that laws targeting people living with HIV for criminal penalties actually reduce the number of new cases of HIV or improve public health in any way.”

Like the others who testified, Ron Gordon, executive director of the Utah Commission on Criminal and Juvenile Justice, also feels that HB 369 simply goes too far. “The question of whether that should have any kind of enhancement might be one proper for discussion, but this bill goes much further than that and takes conduct that right now would not be criminal at all and would make that a first-degree felony rape,” said Gordon. “That’s the concern that my commission has, is that it goes from being lawful under current law to first-degree felony rape. That’s a very big jump in our criminal code.”

Representative Karianne Lisonbee (Republican – Clearfield) believes the legislation is fine the way it is. “I really don’t see the problem with this bill. I think informed consent means informed consent. Whether the disease is transmitted or not, the person should inform, the person should disclose. If they don’t, it should be a crime because they are potentially infecting another person with a deadly disease. I don’t have a problem with this language.”

Representative Brian Greene (Republican – Pleasant Grove) agrees that something needs to be done but questioned going as far as labeling it as rape. “The question has been raised, shouldn’t this be criminal? Shouldn’t having sexual relations with somebody, an infected person having those relations with somebody else and not disclosing that be criminal? I think we all agree that it ought to be, but the question is should it be rape?” said Greene.

Greene also believes the statute itself needs fixing. “This is a problematic statute. It’s a poorly drafted statute, and we continue to come back to it and try to add new elements rather than fixing the statute,” said Greene. “I think [HB 369] just perpetuates the problems.” In 2015, Greene came under fire when he questioned whether engaging in sex with an unconscious person is rape in every instance while discussing legislation in the same section of code. Greene later apologized for his remarks.

Representative Brian King (Democrat – Salt Lake City) moved to hold the bill, a motion which unanimously passed. Fawson told committee members he would work on the bill and bring it back in a couple of days.

Published on Utah Political Capitol on February 22, 2017