HIV Criminalization
NOTE: For those who are sexually active, the best ways to prevent the transmission of HIV are consistent use of medications to reduce an HIV-positive person’s viral load to near undetectable levels, consistent use of medications by the HIV-negative person to prevent the transmission of HIV (see PrEP), and consistent use of condoms. Attempts to identify and avoid potential partners who may be HIV positive is not endorsed as a method of HIV prevention by the Centers for Disease Control and Prevention (CDC).
Furthermore, criminal prosecution of people living with HIV for mere nondisclosure is not supported by the U.S. Department of Justice. While safe and voluntary disclosure of HIV status is encouraged by public health officials as a best practice, such disclosure is designed to facilitate greater communication and candor about all health risks between sexual partners, not as a substitute for valid HIV prevention techniques.
In many states, there are laws that require you to disclose your HIV-positive status to a sexual partner before having sex with that person. And even in some states without such laws, people have nonetheless been prosecuted under general criminal laws (such as “assault” or “reckless endangerment” laws) for not disclosing HIV-positive status before a sexual encounter. The type of sexual contact that triggers the obligation to disclose varies from state to state. We recommend that you look at Lambda Legal’s fact sheet for a list of all of the HIV-related criminal statutes in each state.
In most states with an HIV-specific criminal law, your viral load is not a factor in whether you must disclose your HIV-positive status; a few states, however, do take condom use into account. Also, at least one state (Iowa) now explicitly considers whether a person is taking steps, such as being on medication and using a condom, to prevent or greatly reduce the chances of transmission. In this situation, it is not viral load itself but the effort to reduce the likelihood of transmission that affects whether conviction will occur.
Lambda Legal is working to reform the HIV criminalization laws and halt HIV-based prosecutions in the states where they are still occurring. In the meantime, disclosure to a partner—regardless of viral load—may make prosecution less likely.
For the most part, whether or not your sexual partner asks about your HIV status has no direct effect on your legal obligation to disclose. The legal obligation generally arises without the question even being asked.
That said, if a prosecution occurs and a jury or judge hears that the person asked and was lied to about HIV status, it likely will affect the outcome of that case—whether in the verdict or in sentencing.
Unfortunately, no. Unless you are prepared to sue that person under a strong state law—and there are many challenges in pursuing that course of action (see Privacy and Confidentiality: “What are the limitations of these laws?”)—there are very few limitations on how this information could be shared and/or used against you. It is a horrible situation, but the system is not really set up to protect the person living with HIV in these circumstances. Lambda Legal is working on eliminating the criminal laws requiring disclosure, so that people living with HIV are not placed in this vulnerable position.
Some people save an electronic communication, such as a text message, that they can show the person saw before the sexual encounter. One can prove the person saw the message by asking them to respond to it in the affirmative, acknowledging that they know about your HIV status.
Other options include having the person sign something acknowledging that you disclosed, or sharing your status to the person in front of a third party—such as your doctor—who might testify on your behalf, if it came to that.
You could also record yourself disclosing your status, but you would want to get the person’s consent to the recording or ensure that you are recording in a state that allows for recording a person without their consent. And you would need to make sure the person responded in a manner that allows them to be heard and recognized on the recording.
We recognize that none of these options are very practical—and certainly they are not romantic or erotic—but they could help save someone from years in prison. The point is to be aware that simply telling the person, with no means to prove disclosure, is not very helpful in court.
At the moment, the vast majority of these laws require that the defendant knows his or her status at the time of the sexual encounter. A couple of states (Indiana and North Carolina) require notification of previous sexual partners after testing HIV positive, but we are unaware of anyone who has been criminally prosecuted for failing to do so.
Don’t engage in any further conversations with the person about the alleged nondisclosure—not even to explain or to apologize or to try to convince them not to move forward with their complaint. Don’t talk to the police, no matter how much they try to convince you that it is in your best interest and that they are only trying to help you out of a jam. Don’t talk to anyone who is not subject to attorney-client privilege, because anyone with whom you talk about this could be called as a witness against you. Do find yourself a criminal defense attorney, preferably someone local who can handle your case if charges are filed. If you can’t afford an attorney or find one willing to work for free or at a reduced rate, refuse to talk to the police until a public defender is provided. Also contact Lambda Legal’s Help Desk, as we may be able to provide assistance in locating an attorney and advising that attorney on the unique challenges of defending charges under one of these laws.
If you engaged in an activity involving a substantial risk of transmission (i.e., something riskier than oral sex or sex with a condom), you are not already on PrEP and it is within 72 hours of the potential exposure, you may want to see about obtaining post-exposure prophylaxis (PEP) medication from your doctor or another healthcare provider.
You may want to learn, however, whether your HIV-positive sexual partner is taking medications and has a suppressed viral load. According to medical researchers, if that person does have a suppressed viral load—which is defined as 200 copies or less of the virus per milliliter of blood—then there is very little risk of transmission. If you learn the person has a suppressed viral load, you should advise any health care provider you see of this fact, because it may affect whether the provider recommends PEP.
Lambda Legal also suggests people consider their own choices and responsibility for maintaining sexual health in light of their personal tolerance for risk. If you are planning an activity that you would not engage in with someone you knew to be HIV positive, then you may want to reconsider whether you should engage in that activity with anyone.
In terms of sexual transmission, the only people who one can know for sure are HIV negative are those who became celibate, tested negative a month later and have remained celibate ever since. That means whenever you have sex with someone you think is HIV negative, using whatever precautions you choose, you may be placing yourself at the same degree of risk as you would by having sex using those same precautions with an HIV-positive person. In fact, it is possible that the risk may actually be higher with someone you believe is HIV negative: newly infected people are significantly more infectious, and many people living with HIV are on medications that render them essentially non-infectious.
FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.