Are HIV Criminalization Laws Outdated and Discriminatory?
In 1981, doctors first observed Human Immunodeficiency Viruses (HIV), the virus which causes Acquired Immunodeficiency Syndrome (AIDS). Over the next two decades, HIV- and AIDS-related policies were developed to combat the virus, with some states passing laws HIV criminalization laws. But now more than 40 years later, HIV is much more treatable and its transmission can be prevented. However, many of the laws criminalizing HIV remain. Are these laws outdated and discriminatory?
Background on HIV Criminalization
In 1990, federal legislators passed the Ryan White CARES Act. Under this legislation, a program was created to provide funding for HIV care and treatment. However, to receive that funding states had to establish laws to prosecute HIV-infected individuals who knowingly and intentionally exposed others to the virus.
As such, states passed varying laws on HIV criminalization. For example, laws may criminalize a person with HIV who engages in sexual intercourse without disclosing their status to their sexual partner. Other laws may criminalize spitting or transmitting HIV-infected bodily fluids, particularly when directed toward law enforcement. Depending on the state, the crime could be punished as a misdemeanor or a felony.
As of December 2023, thirty-four states in the US have HIV criminalization laws. Additionally, four states – Louisiana, Ohio, Tennessee, and South Dakota – make some of those crimes registrable sex offenses.
How HIV Criminalization Laws Are Problematic
The laws on HIV criminalization were put in place in the 1980s and 1990s, and many say they were driven by fear. At the time, there was still a lot that was not known about the virus or AIDS from a medical standpoint. Moreover, many early HIV and AIDS patients were members of marginalized communities. This included LGBTQ+ persons, intravenous drug users, sex workers, or people of color.
Although doctors and researchers know much more about HIV and AIDS today, many laws criminalizing HIV remain on the books. Moreover, these laws continue to disproportionately impact people of color, LGBTQ+ persons, and sex workers. When it comes to public health and contact with the criminal legal system, these groups already face discrimination, and such laws may add to that.
According to the Centers for Disease Prevention and Control, most people who take a daily HIV treatment will have undetectable viral levels within six months. As such, they will likely not transmit the virus to a sexual partner. With these treatments, a person living with HIV has a similar life expectancy as someone who is HIV-negative.
New York’s Laws on HIV Criminalization
While New York doesn’t have a criminal statute explicitly addressing HIV exposure or transmission, there are other laws that may apply. Under Public Health Law § 2307, anyone living with an “infectious venereal disease” that has sex with another person can be charged with a misdemeanor. The New York Department of Health has stated it does not intend to use this law against those who do not know they have a disease, or those who have previously disclosed their status to a sex partner.
In some cases, the Penal Law been used to prosecute those who don’t disclose their HIV-positive status and transmit the virus to a sexual partner. Under Penal Law § 120.20, the crime of reckless endangerment in the second degree may lie if a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” In a reckless endangerment case based on HIV transmission, a criminal defendant’s medical records may be accessed by the prosecution.
For one man in New York, he has been held indefinitely in civil confinement pursuant to Mental Hygiene Law Article 10. In 1997, when Nushawn Williams was 19 years old, he was convicted of statutory rape and reckless endangerment. He completed his 12 year prison sentence in 2010, but he’s never been released. Continuing to this day, he has been held in civil confinement in a secure psychiatric facility. In upholding his continued confinement, an appellate court cited to Mr. William’s HIV status as a factor in determining he has a mental abnormality that predisposes him to engage in repeated sex offenses.
References:
- Candice Norwood, “HIV no longer a death sentence, but Louisiana laws target people who live with it,” Louisiana Illuminator (Mar. 14, 2024). Available at: https://lailluminator.com/2024/03/14/hiv-laws/ (last accessed Mar. 20, 2024).
- The Center for HIV Law And Policy, “New York,” HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice: 3d Edition (updated Jan. 2024). Available at: https://www.hivlawandpolicy.org/resources/hiv-criminalization-united-states-sourcebook-state-and-federal-hiv-criminal-law-and (last accessed Mar. 20, 2024).
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