HIV and STD Criminal Laws

During the early years of the HIV epidemic, many states implemented HIV-specific criminal exposure laws (statutes and regulations). Some of these state laws criminalize behaviors that cannot transmit HIV and apply regardless of actual transmission. As of 2020, 37 states have laws that criminalize HIV exposure.

The laws for the 50 states and the District of Columbia were assessed and categorized into five categories.

1. HIV-specific laws that criminalize or control behaviors that can potentially expose another person to HIV.
2. Sexually transmitted disease (STD), communicable, contagious, infectious disease (STD/communicable/infectious disease-specific) laws that criminalize or control behaviors that can potentially expose another person to STDs/communicable/infectious disease-specific. This might include HIV.
3. Sentence enhancement laws specific to HIV that do not criminalize a behavior but increase the sentence length when a person with HIV commits certain crimes.
4. Sentence enhancement laws specific to STDs that do not criminalize a behavior but increase the sentence length when a person with an STD commits certain crimes. This might include HIV.
5. No specific criminalization laws.

General criminal statutes, such as reckless endangerment and attempted murder, can be used to criminalize behaviors that can potentially expose another to HIV and or an STD. Many states have laws that fall into more than one of the categories listed above. For this analysis only HIV-specific laws are captured for states with both HIV-specific laws and STD/communicable/infectious disease-specific laws. Only HIV or STD/communicable/infectious disease-specific laws are captured for states with both HIV or STD/communicable/infectious disease-specific laws and sentence enhancement statutes.

Criminalization of potential HIV exposure is largely a matter of state law, with some Federal legislation addressing criminalization in discrete areas, such as blood donation and prostitution. These laws vary as to what behaviors are criminalized or what behaviors result in additional penalties. Several states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.

In 21 states, laws require people with HIV who are aware of their status to disclose their status to sex partners, and 12 states require disclosure to needle-sharing partners.

The maximum sentence length for violating an HIV-specific statute is also a matter of state law. Some states have a maximum sentence length up to life in prison, while others have maximum sentence lengths that are less than 10 years. However, only 9 states have laws that account for HIV prevention measures that reduce transmission risk, such as condom use, and antiretroviral therapy (ART).

Since 2014, at least five states have modernized their HIV criminal laws. Changes include removing HIV prevention issues from the criminal code and including them under disease control regulations, requiring intent to transmit, actual HIV transmission, or providing defenses for taking measures to prevent transmission such as viral suppression or being noninfectious, condom use, and partner PrEP use.

Resources

Background on HIV Criminalization in U.S.

The following resources provide a broad overview of HIV criminalization in the United States. Specifically, these resources address the science of HIV, provide background literature on the history and practices of HIV criminalization, and the current status of HIV criminalization laws and statutes in the United States.

1. The Center for HIV Law and Policy: HIV Criminalization in the United Statesexternal icon
2. The Center for HIV Law and Policy: Criminal Law web page and resource bankexternal icon
3. The Center for HIV Law and Policy: The Science of HIV for Lawyers and Advocatespdf iconexternal icon

Case Studies

The following case studies provide an in-depth analysis of the HIV criminalization laws, practices, convictions, and sentencing outcomes in a variety of states.

1. The Williams Institute: State Case Studies

1. • Californiapdf iconexternal icon
   • Floridapdf iconexternal icon
   • Georgiapdf iconexternal icon
   • Missouripdf iconexternal icon

Federal Guidance

The current federal guidance from the U.S. Department of Justice on HIV criminalization practices and reform is provided below.

• Department of Justice: Best Practices Guide to Reform HIV Specific Criminal Laws to Align with Scientifically Supported Factorspdf iconexternal icon

Scientific and Legal Research

The following resources represent a sample of articles from the legal and scientific research communities.

1. Sweeney, P., Gray, S., Purcell, D., Sewell, J., Babu, A., Tarver, B., Mermin, J. (2017). Association of HIV diagnosis rates and laws criminalizing HIV exposure in the United States. AIDS,31(10), 1483-1488. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/28398957external icon.
2. Lehman, J. S., Carr, M. H., Nichol, A. J., Ruisanchez, A., Knight, D. W., Langford, A. E., … Mermin, J. H. (2014). Prevalence and public health implications of state laws that criminalize potential HIV exposure in the United States. AIDS and behavior, 18(6), 997–1006. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4019819/external icon
3. Barré-Sinoussi, F., Abdool Karim, S. S., Albert, J., Bekker, L. G., Beyrer, C., Cahn, P., Godfrey-Faussett, P. (). Expert consensus statement on the science of HIV in the context of criminal law. Journal of the International AIDS Society, 21(7), Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/30044059external icon
4. Harsono, Dini. Bibliography on criminalization of HIV non-disclosure, exposure, and transmission. New Haven, CT: Center for Interdisciplinary Research on AIDS at Yale University; 2018. Retrieved from https://cira.yale.edu/sites/default/files/Criminalization%20of%20HIV%20Bibliography%20Aug%202018.pdfpdf iconexternal icon

The information presented here does not constitute legal advice and does not represent the legal views of the Centers for Disease Control and Prevention or the Department of Health and Human Services, nor is it a comprehensive analysis of all legal provisions relevant to HIV. This information is subject to change and does not contain measures implemented by counties, cities, or other localities. Use of any provision herein should be contemplated only in conjunction with advice from legal counsel.