Four States with HIV-Specific Criminal Statutes That Fly in the Face of Science

U.S. map highlighting states with HIV-specific criminal statutes that fly in the face of science (image courtesy of The Advocate).

States began adopting laws criminalizing certain conduct of people living with HIV back in the late 1980s. Now, more than 30 states carry HIV-specific criminal statutes - laws that were passed in response to fear harvested in the early years of the epidemic.

The American Independent recently reported:

Critics of laws criminalizing the nondisclosure, exposure, and transmission of HIV – most of which were passed at a time when HIV transmission was not well understood – argue that many of the state laws in place do not reflect the current scientific understanding of HIV transmission.

Below are examples of four state laws that criminalize activities that, according to the Centers for Disease Control and Prevention, do not necessarily transmit the virus.

1. Georgia: It is a felony crime – punishable by between five and 20 years in prison – for a person who knowingly has HIV to not disclose his or her status when having sex or sharing needles with another person.

Persons who can be convicted under this law include:

A person who is an HIV infected person or hepatitis infected person and who, after obtaining knowledge of being infected with HIV or hepatitis, commits an assault with the intent to transmit HIV or hepatitis, using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces upon: (1) A peace officer while the peace officer is engaged in the performance of his or her official duties or on account of the peace officer’s performance of his or her official duties; or (2) A correctional officer while the correctional officer is engaged in the performance of his or her official duties or on account of the correctional officer’s performance of his or her official duties.

The Facts: HIV is not transmitted by saliva, tears, urine, or feces, according to the CDC. Additionally, the CDC says it is highly unlikely that bodily fluids exposed to the air could infect someone. “Scientists and medical authorities agree that HIV does not survive well outside the body, making the possibility of environmental transmission remote,” the CDC website says.

2. Indiana: It is a Class D felony, punishable by between six months and three years in prison and up to a $10,000 fine for the crime of “malicious mischief.” It is a misdemeanor to place blood, urine, semen, or feces in a place with the intent a person will “involuntarily touch” the listed body fluids. But under this law, if the accused “knew or recklessly failed to know that the blood, urine, or waste” was infected with HIV, Hepatitis B or tuberculosis, it becomes a Class D felony.

The Facts: The CDC reports that transmission of HIV from bodily fluids and waste exposed to the air is “remote.” The federal experts also say HIV is not spread through urine or feces.

3. Michigan: It is a four-year felony in Michigan for those who know they are HIV-positive to engage in sexual penetration, “however slight” without first disclosing that status to a partner. Sexual penetration is defined to include oral, anal and vaginal intercourse but also includes inserting an “object” into a person’s “genital or anal openings.”

The Facts: The CDC says the risk of transmission from sharing sex toy is “negligible.” But under this law, it need not be a shared toy or object; it need only “penetrate” the “genital or anal openings.” A CDC fact sheet on transmission probabilities says transmission through shared sex toys “is technically possible but extremely unlikely and not well documented.” 

4. Missouri: Under this HIV-specific statute, it is a crime – punishable by between five and 15 years in prison and up to life in prison if transmission occurs – for a person “knowingly infected with HIV” to expose someone to HIV “without the knowledge and consent of that person to be exposed to HIV” through sex, sharing needles or “by biting another person.” The law also specifically prohibits the use of a condom as defense in a nondisclosure case.

The factsThe CDC has listed the risk of transmission of HIV by a bite as “negligible.” A May 2005 paper, published in the journal AIDS, cites six cases worldwide of alleged transmission of HIV through biting. The paper refers to a 1993 study on the subject of transmission of HIV through biting, which found that while it is biologically possible, it is “epidemiologically insignificant.”

The prohibition against the use of condoms as an affirmative defense undermines nearly three decades of public-health messaging that condoms prevent infections. The CDC reports that condoms are 80 percent effective in preventing transmission of HIV when used consistently, and an analysis released at the Conference on Retroviruses and Opportunistic Infections held in Atlanta last month found that condom use during anal sex prevents seven out of 10 HIV transmissions.

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