Criminalization of Potential Exposure

During the early years of the HIV epidemic, a number of states implemented HIV-specific criminal exposure laws. These laws impose criminal penalties on living with HIV who know their HIV status and - who potentially expose others to HIV. In 1990, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, which provides states with funds for AIDS treatment and care, required every state to certify that its criminal laws were adequate to prosecute any HIV-infected individual who knowingly exposed another person to HIV.¹
Picture of US Courtroom

Criminalization of potential HIV exposure is largely a matter of state law, although some federal legislation addresses criminalization in discrete areas, such as blood donation. The National HIV/AIDS Strategy, released by the White House in July 2010, provides some guidance regarding the issue of criminalization, noting that in some instances, existing HIV exposure laws may need to be re-examined.²
Currently, 33 states have one or more HIV-specific criminal exposure laws. These laws focus explicitly on persons living with HIV. Some additional states may include HIV under general communicable disease statutes. HIV-specific criminal laws criminalize and/or impose additional penalties on certain behaviors, such as: sexual activityor needle-sharing without disclosure of positive status; prostitution and solicitation; donation of blood/tissue/fluids; biting, spitting and throwing of body fluids; and sex offenses. It should be noted that all states have general criminal laws—such as assault and battery, reckless endangerment, and attempted murder—that can and have been used to prosecute individuals for any of the above-mentioned behaviors.
Click to see a map of states with HIV related laws.
¹Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 104 Stat. 576).
²National HIV/AIDS Strategy

See recommended action 3.3 - Promote public health approaches to HIV prevention and care: State legislatures should consider reviewing HIV-specific criminal statutes to ensure that they are consistent with current knowledge of HIV transmission and support public health approaches to preventing and treating HIV.