It may not be a surprise to some that HIV law and HIV science don't often see eye to eye, particularly insofar as the criminalization of HIV is concerned. What may be surprising, however, is the extent by which U.S. states have enacted criminal laws, some of which can result in prison sentences of up to 20 years whether an HIV exposure has occurred or not.
According to the U.S. Centers for Disease Control and Prevention (CDC), a total of 37 states have laws or statutes that can prosecute everything from the failure to disclose status to a doctor or dentist (Arkansas) to "spitting, biting, stabbing with an AIDS-contaminated object, or throwing of blood or other bodily substances" at another person (Louisiana).
In fact, no less than five U.S. states have laws that specify spitting as a criminal action, despite there being not a single documented case of exposure of this type ever.
Many of the HIV laws currently in place were enacted by legislatures who are simply out of touch with the fast-advancing sciences, failing to grasp—or adamantly refusing to accept—the most basic principles of transmission or risk. In other states, the laws reflect an active bias against women (criminalizing the prostitute, but not the customer), against men (defining exposure as presence of semen), or against prison populations (prosecuting actions that the general public would never be penalized for).
Even in states like Texas, which has no HIV-specific criminal laws, there have been sentences laid against those whose HIV was considered a weapon. In 2008, an HIV-positive, homeless man was convicted of spitting into the eye of a police officer, an action for which he was handed a 35-year prison sentence—as a result of Texas' habitual offender statute, plus 10 for aggravated assault with a "deadly" weapon.
A study conducted in 2003 by the Yale University Center for Interdisciplinary Research on AIDS found that there no less than 24 instances of prosecutions of HIV-positive individuals for spitting, including two who were convicted of attempted murder.
Given these types of assertions and convictions, a number of organizations are actively seeking to change the laws from the federal level. In May 2013, Representative Barbara Lee of of California received appropriations approval for the REPEAL HIV Discrimination Act, the bill of which calls for the review of all federal and state laws pertaining the criminal and civil prosecution of people with HIV.
HIV Criminal Laws by State
[Please note that the following guide is meant to provide a brief overview of the HIV-specific laws of each state, and should not be used as a legal reference. The list does not include laws or statutes that pertain to transmission of a communicable disease, which in some states can also be punishable by a fine and/or prison sentence. A complete, updated registry of State HIV Laws is available online from the CDC.]
|State||It Is a Crime If a Person with Known HIV Infection...||Misdemeanor||Felony|
|Alabama||Knowingly engages in actions that may expose another person to HIV.||Class C||--|
|Alaska||Exposes a person to the risk or fear of HIV in the course of a felony crime.||--||May allow for additional sentencing in the event of a felony conviction|
|Arkansas||Potentially exposes another person to HIV through blood, or through sex (including vaginal, anal, and oral sex), with or without the presence of semen.||--||Class A|
|Fails to disclose his/her HIV status to a doctor or dentist.||Class A||--|
|California||Knowingly donates body fluids, organs, or human tissue.||--||Punishable by a two-, four-, or six-year sentence|
|Fails to disclose their HIV status, with the intent of infecting another person through unprotected sex.||--||Punishable by a three-, five-, or eight-year sentence|
|Engages in prostitution after a previous sex-related offense.||--||Yes|
|Colorado||Either engages in prostitution or patronizes a prostitute, with full knowledge of their HIV status.||--||Class 5/6|
|Florida||Engages in sexual intercourse without first disclosing their HIV status and receiving informed consent.||Unspecified||Unspecified|
|Knowingly donates blood, organs, or human tissue.||--||3rd degree, punishable by not more than five years|
|Georgia||Engages in sex without first obtaining informed consent; shares needles; engages in prostitution; or donates body fluid, organs, or human tissue.||--||Punishable by not more that 10 years|
|Commits an assault on a a police or corrections officer with the intent of transmitting HIV through blood, saliva, feces, urine, semen, for any other body fluid.||--||Yes, punishable by not less than five years, but not more than 20 years|
|Idaho||Knowingly donates body fluid, organs, or human tissue.||--||Yes, punishable by not more than 15 years or a fine of not more than $5,000, or both (although consent with full disclosure is considered an affirmative defense)|
|Illinois||Potentially exposes another person to HIV through intimate contact; donates body fluids, organs, or human tissue; or participates in non-sterile intravenous drug use.||--||Class 2 (although informed consent is considered an affirmative defense)|
|Indiana||Knowingly donates blood or semen.||--||Class C for committing the offense and Class A if transmission occurs|
|Commits battery on a police officer, a corrections officer, or any other person with body fluid or body waste.||--||Class D for committing the offense; Class C if the person was unaware that the body fluid or waste was HIV infected; and Class A if transmission occurs|
|Iowa||Potentially exposes another person to HIV through sex; donation of body fluids, organs or human tissue; or participating in shared intravenous drug use.||--||Class B (although informed consent is considered an affirmative defense)|
|Kansas||Intentionally intends to infect another person through sex, needle sharing, or the donation of body fluids, organs, or human tissue.||Class A||--|
|Kentucky||Engages in prostitution, patronizes a prostitute, or attempts to donate organs or human tissue (but not blood)||--||Class D|
|Louisiana||Potentially exposes a person to HIV through sex without first obtaining informed consent, or enacting harm by "spitting, biting, stabbing with an AIDS-contaminated object, or throwing of blood or other bodily substances" at another person.||--||Publishable by a sentence of not more than 10 years or a fine of not more that $10,000, or both. If the victim is an acting police officer, the punishment can be increased to 11 years and/or $11,000.|
|Maryland||Intentionally infects or attempting to infect another person.||--||Punishable by a sentence of not more than three years or a fine of $2,500, or both|
|Michigan||Engages in penetrative sex (including oral sex) without first obtaining informed consent.||--||Yes|
|Mississippi||Exposes a corrections officer, a visitor to a corrections facility, or another prisoner to blood, urine, feces, semen, or saliva.||--||Felony|
|Missouri||Knowingly donates blood, organs, or human tissue; or exposing another to HIV through sex without first obtaining informed consent.||--||Class B felony and Class A if transmission has occurred|
|Montana||Knowingly exposes another person to HIV through sex.||Yes||--|
|Nevada||Knowingly engages in conduct that is intended or likely to transmit HIV, or engaging in prostitution after having tested HIV positive.||--||Class B (although informed consent can be considered an affirmative defense)|
|New Jersey||Commits sexual penetration without first informed consent.||--||3rd degree|
|New York||Engages in sexual intercourse with another person.||Yes||--|
|North Carolina||Willfully transfers body fluids to another person.||--||Class A sex crime (although informed consent can be considered an affirmative defense)|
|Ohio||Knowingly transfers blood to another person for the purpose of a transfusion.||--||4th degree|
|Oklahoma||Engages in prostitution, or knowingly engages in conduct where body fluids can be transferred to another person.||--||Punishable by a sentence of not more than five years (although informed consent and vertical transmission from mother-to-child can be considered affirmative defenses)|
|Exposes another person (including a married partner) to HIV.||--||Yes|
|Pennsylvania||Causes another prisoner in a correctional facility to come into contact with your blood, semen, urine, feces, or saliva.||--||2nd degree (or 2nd degree murder of the offending prisoner is on death row or has already been sentenced to life imprisonment)|
|Engages in prostitution, procures a prostitute, or promotes a prostitute who is HIV positive.||--||3rd degree|
|South Carolina||Knowingly engages in sex with another person without first obtaining informed consent; engages in prostitution; forces a legal spouse to have sex; shares needles; or donates body fluids, organs, or human tissue.||--||Punishable by a sentence of not more than 10 years or a fine of not more than $5,000 (although informed consent may be considered an exemption)|
|South Dakota||Engagegs in sexual intercourse; donates body fluids, organs, or human tissue; participates in non-sterile intravenous drug use; or intentionally cause another to come into contact with blood or semen.||--||Class 3|
|Tennessee||Knowingly engages in "intimate contact" with another person; participates in non-sterile intravenous drug use; or donates body fluids, organs, or human tissue.||--||Class C|
|Utah||Engages in prostitution or procures a prostitute.||--||3rd degree|
|Virginia||Willfully engages in sex (including oral sex) with the intent of infecting another person, or donating body fluids, organs, or human tissue||--||Class 6|
|Engages in in sex (including oral sex) without first disclosing their HIV status.||Class 1||3rd degree|
|Washington||Intend to inflict bodily harm by exposing or transmitting HIV to another person||--||Class A assault|
U.S. Centers for Disease Control and Prevention (CDC). "State HIV Laws." Atlanta, Georgia; updated July 15, 2013.
Kovach, G. "Prison for Man With H.I.V. Who Spit on Police Officer." New York Times. Published May 16, 2008.
Bray, S. "Criminal prosecutions for HIV exposure: overview and analysis." Yale University Center for Interdisciplinary Research on AIDS (CIRA); 2003