Criminal Laws Concerning HIV

[30Years]

What are your opinions.  In many states it's a felony with possible jail time to knowingly expose someone to the virus.

[ACinKC]

Not agreeing with those laws one way or the other yet but consider the logic...

Shouldn't it then be also a felony to smoke around people who don't want you to?  Or with your kids in the car?

[30Years]

My point exactly...it seems to me that since sex is among 2 people shouldn't the other hold hold some type of responsibility.  Also there are no laws for other STDs.

[jimw]

Criminalization of HIV transmission has absolutely nothing to do with prevention.  The HIV transmission criminal laws enacted by state legislators during the last 25 years have done nothing to slow the spread of the disease, prevent new infections or address the driving forces behind the epidemic.  A law will not prevent anyone from getting infected with HIV or any other sexually transmitted disease and no credible research exists to show that these laws actually aid prevention.   It is education and other preventive methods that have proven effective in the war against HIV/AIDS, not criminal sanctions.  These laws ineffectiveness in preventing or even slowing the spread of HIV/AIDS far outweighs any historic precedent or public support that may exist for such laws.   Although legislators argue that they must send a message scary enough to make positive people think twice about having sex without disclosing their status to their sexual partner, these laws undermine real prevention strategies, create a serious risk for the continued spread of the disease by creating a false sense of security and are nothing more than a society’s need for revenge and retribution.  

These laws don’t target people who intentionally set out to infect other individuals.  The vast majority of these laws simply require that the positive partner in a sex act was aware of his or her status and did not reveal it.  Of the 23 states that currently have HIV transmission laws, the vast majority make no distinction for condom use and transmission is not required by any state.

[30Years]

These laws don’t target people who intentionally set out to infect other individuals.  The vast majority of these laws simply require that the positive partner in a sex act was aware of his or her status and did not reveal it.  Of the 23 states that currently have HIV transmission laws, the vast majority make no distinction for condom use and transmission is not required by any state.

EXACTLY!!!

Most of the laws fall short of stating an intent to harm.  Also, to me an intent to harm should be proven.  For instance did our country's Vice President intend to harm his friend when he was hunting with the 12 gauge?

Also, if people know they are infected, they will not seek out medical help because they would have the fall back of stating that they did not know.

[Jake72]

Also there are no laws for other STDs.

That's not quite true.  In some parts of the English-speaking world, at least, it seems that people can be charged if they knowingly spread STDs other than HIV.  Here's an interesting, albeit slightly lengthy read on the subject (scroll down to get to the nitty gritty about current attitudes):

http://www.genital-herpes-corner.com/herpes-and-criminal-law.html

[jimw]

That's not quite true.  In some parts of the English-speaking world, at least, it seems that people can be charged if they knowingly spread STDs other than HIV. 

That is exactly right.  Some of the laws on the books are not limited to HIV - but rather address any contagious, infectious, or communicable disease.  Other states that don't have such laws on the books have brought prosecutions under their general criminal laws, such as attempted murder, etc.

Jim

[Jake72]

These laws don’t target people who intentionally set out to infect other individuals.  The vast majority of these laws simply require that the positive partner in a sex act was aware of his or her status and did not reveal it.  Of the 23 states that currently have HIV transmission laws, the vast majority make no distinction for condom use and transmission is not required by any state.

Also, as I've said elsewhere, doesn't that make those of us who DO disclose especially vulnerable?  When we do disclose, we usually don't use a legally-recognized affidavit, so how would we be able to prove disclosure if it were ever challenged?  Also, couldn't a partner (after a bona fide disclosure) come back days, weeks, months, etc. after the event and say 'do xyz for me or give me $$$ or else I'm going to the courts to tell them you didn't disclose your status?'  It'd essentially be one person's word against the other person's word, especially since transmission isn't necessary.  The way the courts have rules against poz folk, I wouldn't expect them to be too sympathetic.  At the very least, it could be a messy, embarrassing hassle.  

[30Years]

The way the courts have rules against poz folk, I wouldn't expect them to be too sympathetic.  At the very least, it could be a messy, embarrassing hassle.  

you are exactly right.  the courts are only sympathetic when they find out how the accused contracted HIV.

[jimw]

Also, as I've said elsewhere, doesn't that make those of us who DO disclose especially vulnerable?  When we do disclose, we usually don't use a legally-recognized affidavit, so how would we be able to prove disclosure if it were ever challenged?  Also, couldn't a partner (after a bona fide disclosure) come back days, weeks, months, etc. after the event and say 'do xyz for me or give me $$$ or else I'm going to the courts to tell them you didn't disclose your status?'  It'd essentially be one person's word against the other person's word, especially since transmission isn't necessary.  The way the courts have rules against poz folk, I wouldn't expect them to be too sympathetic.  At the very least, it could be a messy, embarrassing hassle.  

That is an evidentiary question, and the trier of fact, whether it is a sitting judge or jury must make a determination of the credibility of the witnesses.  That happens in every case that is tried in this country. 

Although there have been numerous prosecutions under these laws, at least 300 by some sources, there are few guilty verdicts out there.  I don't know the reason for it, I have not done the research.  I know that there was a particularly egregious case in NJ where a gentleman, Gregory Dean Smith, was convicted of attempted murder, aggravated assault and terroristic threats after he allegedly bit and spat on jail guards in 1989.  He died last year, still in prison, from AIDS, at the age of 40.

[Jake72]

That is an evidentiary question, and the trier of fact, whether it is a sitting judge or jury must make a determination of the credibility of the witnesses.  That happens in every case that is tried in this country. 

Although there have been numerous prosecutions under these laws, at least 300 by some sources, there are few guilty verdicts out there.  I don't know the reason for it, I have not done the research.  I know that there was a particularly egregious case in NJ where a gentleman, Gregory Dean Smith, was convicted of attempted murder, aggravated assault and terroristic threats after he allegedly bit and spat on jail guards in 1989.  He died last year, still in prison, from AIDS, at the age of 40.

Even if the chance of a guilty verdict is statistically small, the idea of having our HIV status out in the courts and possibly in the media/public, combined with the stress of a legal defense and the mere possibility of jail time could send shivers up and down our spines.   

[wishihadacat]

Where two consenting adults engage in a sexual activity and either partner knowingly carries a sexually communicable disease, disclosure of the existence and nature of the disease is a moral requirement and it should be a legally required if:

          1. The person who carries the sexuallly communicable disease knows or has reason to know that there is a reasonable risk that the sexually communicable disease can be transmitted by engaging in the type of sexual activity conducted, and
 
          2. Neither of the partners is a paid sexual performer.

It should not be punishable as a criminal offense of any degree or kind uless a disease is actually transmitted.

It should be unlawful for either party to communicate to any other person or agency the fact that such a disclosure was made, without the prior consent of the party who made the disclosure.



Send this to your congressmen.

[30Years]

Where two consenting adults engage in a sexual activity and either partner knowingly carries a sexually communicable disease, disclosure of the existence and nature of the disease is a moral requirement and it should be a legally required if:

          1. The person who carries the sexuallly communicable disease knows or has reason to know that there is a reasonable risk that the sexually communicable disease can be transmitted by engaging in the type of sexual activity conducted, and
 
          2. Neither of the partners is a paid sexual performer.

It should be unlawful for either party to communicate to any other person or agency the fact that such a disclosure was made, without the prior consent of the party who made the disclosure.



Send this to your congressmen.

WOW!

[Moffie65]

Welcome to the forums "30Years".  (If your Icon Photo is of you, Arthur Ashe must have been your twin)

You come out swinging don't you? 

I don't have a very popular view of these laws, and many members of this very forum do not agree with me on my views, but I feel that if it is illegal for someone with HIV to have intimate relations with another without disclosure, I feel very strongly that the other party should be held to the same high marker, and that would nullify the law completely. 

Now I know that in the U.K., it is very different, so I will not pretend to extend my views or beliefs beyond our shores here in the U.S. .  One thing for sure, if rape or prostitution is the incident, then all bets are off and the laws should be upheld, which does not reflect my views on "Legal Prostitution" either.  I think the oldest profession is about as controllable as an Excedrin Headache.

Love,

[Queen Tokelove]

Interesting views...I have issues with disclosing as most of you know from past threads. But when I was having sex it was protected but I didn't feel right doing it and not disclosing. I just keep my legs closed for now til I meet my poz prince. I just don't feel I can deal with a -/+ relationship and even if I was using condoms, I would still worry about infecting my partner. I would rather deal with someone who is in the same boat as me. Just saying....

[Coffeechick88]

My state is one where the law is pretty strict--you can be charged with a class A felony (not sure what the penalty is)--transmission or intent to infect is not required.  Now a law where you are required to prove intent to infect, I would be more inclined to agree with, but otherwise, we are just giving people who had a bout of stupidity their need for revenge.  Yes, they are angry they got infected, but that is hardly a matter for the courts.  I believe it is the negative person's responsibility to protect their negative status and insist on condoms.  It isn't right that the negative person's responsibility is overlooked and the HIV positive person is the one who is looked at like a criminal.  That's not to say I agree with not disclosing your status, but in most cases it is not a criminal matter (in my opinion).

[racingmind]

Does anyone know of a website that lists HIV laws for all states? 

I'm just curious to see who has what and how they vary....

[Moffie65]

I just don't feel I can deal with a -/+ relationship and even if I was using condoms, I would still worry about infecting my partner. I would rather deal with someone who is in the same boat as me. Just saying....

Very interesting viewpoint Queen. 

I wanted to let you know that I am in my 19th year of a -/+ relationship, and while it has been known from day one, it hasn't always been a cakewalk.  I still suffer feelings of being deadly, and it has definitely caused problems for both of us in the bedroom.  However, since both of us had sworn off men alltogether, and we were still magicly drawn to each other; we haven't questioned destiny and are once again enjoying a relationship of astounding quality.  We were also together once before in Central America, and raised exotic birds for the European market, sometime in the 1600s.  At least we were told that by a "See-er" in New Mexico.

S...............t..................r.................a..............n...............g.....................e..................!!!!!!!!!!!!!

Just thought you might like to know.

Love,

[wishihadacat]

I cannot agree with you, Coffee Chick: If someone knows they are about to engage in some kind of sexual activity that will subject the other person to a realistic possibility of catching a sexually transmitted disease, I believe that it is wrong not to tell them about it.

[wishihadacat]

Under the circumstances above, failure to disclose should not be unlawful at all unless the STD is actually transmitted. There should also be strict requirements of corroboration, just as there are with most of NY's sexual offense statutes.

[Coffeechick88]

I cannot agree with you, Coffee Chick: If someone knows they are about to engage in some kind of sexual activity that will subject the other person to a realistic possibility of catching a sexually transmitted disease, I believe that it is wrong not to tell them about it.

I don't agree with not disclosing as i stated above.  I think it is wrong to not disclose, but should a person go to jail for it necessarily?  No.  I also think that the negative person should be held to the same standards and be held responsible as well.  I just don't think it is always a criminal matter.  The laws should require transmission to take place and intent to infect if they are to exist at all.  Most of the laws that exist are too broad. 

[wishihadacat]

CC, I agree with you that most of the laws are overbroad and discriminatory as they are now written, and their existence, unless they are changed, contributes to the stigmatization and marginalization that we endure.

[30Years]

I feel that it is both parties responsibility; if they practiced safe sex then no charges should be allowed to be filed.  I also feel that if the other party was not infected then there should not be a problem.  The sad part is when someone files charges, past lovers can come foward as well and file charges.....

The law is so broad that it leaves SO much open....

I'm just searching my HIV+ Wife.....any takers I'm accepting resumes........

[milker]

I have no problem with prison sentences for someone that knowingly infects someone with HIV. I have a problem with the length of the prison sentence. The USA seems to tend to life in prison for anyone that does something against the law.

Milker.

[Ody]

In our state there is only a HIV/AIDS disclosure law, however, there are no other laws on the books regarding other STDs. Even if there is no body contact, fluid contact/exchange, under our state law you have to disclose.

We had a legal organization that aided infected people in a whole rel hm of HIV related issues that started a proof of disclosure campain in 2004, that ended up being more popular than they could have imagined. It had a place for a sexual partner to print their name and sign it, business card sized, that basically stated,

"I ___, have been informed by this person that he/she is infected with the HIV virus. signed______date_____" 

The disclosing party then keeps the card for later supporting proof that the infected party had disclosed their status should any legal action be taken.

The campain was well received and many still ask her for the cards. You would tend to think that fear and privacy concerns would have been a factor that would have killed the campain, oddly enough it wasn't.

I personally think the law is discriminator and actually interferes with true efforts to educate and prevent the spread. By putting a person infected in a prison, remembering the majority of prisons do not allow condoms as it is against the rules to engage in sex, the law meant to slow/stop the spread is counter productive and furthers the spread of the virus. Although prisons segregate the infected, they still have contact with others through out the prison and prison employees.

Ody

[jimw]

Does anyone know of a website that lists HIV laws for all states? 
I'm just curious to see who has what and how they vary....

Yes, the ACLU has a list of State Criminal Statues on HIV Transmission on its website.  It was last updated in 2004, so it may not be completely accurate, but it will give you an idea of what is out there.  Jim

[wishihadacat]

A fairly comprehensive listing of HIV disclosure statutes can be found at:

http://www.thebody.com/content/art6936.html


If you find yourself in legal trouble as a result of any of these laws, a competent defense counsel may be able to attack a particular law as unconstitutional.

[milker]

In california it says:

Any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom) when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony. A person's knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent.

That's odd. I guess that is saying that the negative person should take protection and cannot blame the positive person for everything, except in particular conditions of specific intent and that intentional infection has to be proven. That helps for cases when someone sues me even though I have full protected sex with him but he got infected by someone else.

Milker.

[wishihadacat]

In california it says:

Any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom) when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony. A person's knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent.

That's odd. I guess that is saying that the negative person should take protection and cannot blame the positive person for everything, except in particular conditions of specific intent and that intentional infection has to be proven. That helps for cases when someone sues me even though I have full protected sex with him but he got infected by someone else.

That is NOT correct, Milker. The Cal. statute that you posted is a CRIMINAL statute. Unless there is other california case law to the contrary, you might still be subject to being sued in a civil court there for $$$ damages if you transmitted the virus.

[milker]

That is NOT correct, Milker. The Cal. statute that you posted is a CRIMINAL statute. You may still be subject to being sued in a civil court for $$$ damages.

Yes, of course, but it makes it difficult to sue without proof of intent.

Milker.

[wishihadacat]

Yes, of course, but it makes it difficult to sue without proof of intent.

Milker.

I would not make that assumption at all. There are alot of very hungry and aggressive negligence lawyers out there.

[Grinch]

  I really see this argument boiled down to this.

I want to get laid.
If I tell my potential partner I'm infected the odds of me getting laid decrease drastically.
If it's not against the law, then it must be OK to not tell my prospective partner.

We rationalize with the following arguments:

I used a condom so it's unlikely an infection will occur.
My partner is responsible for his/her own health. It's not my problem.
We had vaginal sex so it's unlikely she'll get infected.
He was the top so it's unlikely he'll get infected.

 All of the above go right back to the first statement. I want to get laid.

Fact is transmission most often occurs via sex.
Causing someone to get infected is wrong.
We are infected and should ensure no one else has to live and ultimately die with this disease simply because we wanted to get laid.

Since there are those that willfully infect others and there are those that take no responsibility for their own actions we've been forced to make it illegal.

  There are individuals on this very site that have made the statement.  I'll fuck whomever I want.  If he gets infected it's his own fault.  Those are the people that cause these laws to be enacted.

[30Years]

There are individuals on this very site that have made the statement.  I'll fuck whomever I want.  If he gets infected it's his own fault.  Those are the people that cause these laws to be enacted.

What about the people who have no intent to harm, utilized safe sex, and the person filing charges is not positive and has not tested positive EVER...over some 2 to 5 years after exposrue?

[David_CA]

Grinch,

This is a bit simplistic.  "I want to get laid"... well, so does the partner, else it would be masturbation.  The difference between sex between consenting adults is that both are active participants.  I think we'll all (most) agree that disclosure should take place.  Can you see that one of the problems in relying on somebody telling another that they are HIV+ is that they have to know that they are HIV+ first?  Until I tested positive, I didn't know I was positive.  If you'd asked me if I was HIV+, I'd said 'no'.  Would I have been lying?  No, I'd have been wrong.  Criminalizing it won't change situations like that.  Did the person who infected me know that he was HIV+?  I don't know.  If I'd asked, would I have known he was HIV+?  Possibly.  The only real way for me to have avoided becoming infected would have been for me to have taken care of myself a bit better, which I (obviously) didn't do well enough.  Laws wouldn't (and didn't) change this.

It's sort of like a hunting accident.  Most know that there's a chance that one could get accidentally shot.  That's different than going out and intentionally shooting another while in the woods hunting.  I don't know of anybody that would intentionally infect another, but then I don't know any murderers either (that I know of).

So, can we agree that intentionally infecting another is different from accidentally infecting another and that treating them the same is not in anybody's best interest?

David

  I really see this argument boiled down to this.

I want to get laid.
If I tell my potential partner I'm infected the odds of me getting laid decrease drastically.
If it's not against the law, then it must be OK to not tell my prospective partner.

We rationalize with the following arguments:

I used a condom so it's unlikely an infection will occur.
My partner is responsible for his/her own health. It's not my problem.
We had vaginal sex so it's unlikely she'll get infected.
He was the top so it's unlikely he'll get infected.

 All of the above go right back to the first statement. I want to get laid.

Fact is transmission most often occurs via sex.
Causing someone to get infected is wrong.
We are infected and should ensure no one else has to live and ultimately die with this disease simply because we wanted to get laid.

Since there are those that willfully infect others and there are those that take no responsibility for their own actions we've been forced to make it illegal.

  There are individuals on this very site that have made the statement.  I'll fuck whomever I want.  If he gets infected it's his own fault.  Those are the people that cause these laws to be enacted.

[izprince1984]

Criminalization of HIV transmission has absolutely nothing to do with prevention.  The HIV transmission criminal laws enacted by state legislators during the last 25 years have done nothing to slow the spread of the disease, prevent new infections or address the driving forces behind the epidemic.  A law will not prevent anyone from getting infected with HIV or any other sexually transmitted disease and no credible research exists to show that these laws actually aid prevention.   It is education and other preventive methods that have proven effective in the war against HIV/AIDS, not criminal sanctions.  These laws ineffectiveness in preventing or even slowing the spread of HIV/AIDS far outweighs any historic precedent or public support that may exist for such laws.   Although legislators argue that they must send a message scary enough to make positive people think twice about having sex without disclosing their status to their sexual partner, these laws undermine real prevention strategies, create a serious risk for the continued spread of the disease by creating a false sense of security and are nothing more than a society’s need for revenge and retribution. 

These laws don’t target people who intentionally set out to infect other individuals.  The vast majority of these laws simply require that the positive partner in a sex act was aware of his or her status and did not reveal it.  Of the 23 states that currently have HIV transmission laws, the vast majority make no distinction for condom use and transmission is not required by any state.

Well, with the fucked up healthcare system in this country, many terminally ill people will commit crimes just because in prison, they have to be given proper medical care.

[30Years]

So, can we agree that intentionally infecting another is different from accidentally infecting another and that treating them the same is not in anybody's best interest?

David

I can agree with that.  Yet, what I cannot agree with is punishing someone or filing charges against someone months later after they, themselves have informed you of their staus.  Then you file charges...the saddest part is someone who has tested negative years later and finds out someone else is postive and files charges...that's just wrong.

There should be a statute of limitations parallel to the time frame in which HIV shows up.  Meaning if there is a 3 month timeframe and you test negative in that 3 month time frame then charges should not be able to be filed.

[izprince1984]

I don't agree with not disclosing as i stated above.  I think it is wrong to not disclose, but should a person go to jail for it necessarily?  No.  I also think that the negative person should be held to the same standards and be held responsible as well.  I just don't think it is always a criminal matter.  The laws should require transmission to take place and intent to infect if they are to exist at all.  Most of the laws that exist are too broad. 

Look at it this way, if I pull a gun out and point it at someone in a threatening manner, thats already a crime, if I fire a shot and it happens to miss them, it's attempted murder, if I shoot them and they die, it's not murder (duh).

I think knowingly exposing someone to HIV without disclosure should be considered attempted murder, and I think we have better things to do with tax dollars than to give $1000 a month meds to a murderor in prison.

[30Years]

Look at it this way, if I pull a gun out and point it at someone in a threatening manner, thats already a crime, if I fire a shot and it happens to miss them, it's attempted murder, if I shoot them and they die, it's not murder (duh).

I think knowingly exposing someone to HIV without disclosure should be considered attempted murder, and I think we have better things to do with tax dollars than to give $1000 a month meds to a murderor in prison.

It takes one person to shoot another but two people to have sex.

[izprince1984]

It takes one person to shoot another but two people to have sex.

Right, I was referring to informed consent, that is they know you have HIV and do it anyway, that should not be considered a crime, unfortunately theres a lot of people who know they're infected and just use people to scratch their itch without caring what happens to them.

[Grinch]

David,

  If you don't know, you don't know. 
It's the person that knowingly puts another at risk that I am speaking of.  They're out there.
 Some members of these very forums have stated repeatedly, it's not their problem if they infect someone.  The other person should be responsible for his own health.  That's the attitude I take issue with.  That's why we really have no choice but to make it illegal.  Argue the wording of the law all you like but the spirit of the law should be to punish those that willfully risk the health of others.

And please people, don't drag out the smoking argument.  A person can see and smell that you smoke and can choose to stay away from you.  They can't see or smell that you have HIV.

[30Years]

David,

  If you don't know, you don't know. 
It's the person that knowingly puts another at risk that I am speaking of.  They're out there.
 Some members of these very forums have stated repeatedly, it's not their problem if they infect someone.  The other person should be responsible for his own health.  That's the attitude I take issue with.  That's why we really have no choice but to make it illegal.  Argue the wording of the law all you like but the spirit of the law should be to punish those that willfully risk the health of others.

And please people, don't drag out the smoking argument.  A person can see and smell that you smoke and can choose to stay away from you.  They can't see or smell that you have HIV.

Grinch, the issue is the law is too broad. 

[30Years]

Check this out:

A man who is positive gets married to a woman who is negative.  They get a divorce, she can file charges against him...no questions asked, even if she knew.  the sad part is there is no mitigation until the guy has been charged...