Criminalization of AIDS Transmission & Exposure at the State & Federal Level   Tags: advanced_legal_research, criminal_law  

From the very beginning of the AIDS epidemic, there were calls to use the power of the law to help in stopping the spread of AIDS. From the failure of the blood industry to screen potential donors for the virus early in the epidemic to the inflammatory horror story of “Patient Zero,” the fear of future spread led to cries for a number of remedies: from criminalization of behavior risking HIV exposure to immediate quarantine of HIV-positive individuals. In response, President Reagan established the Presidential Commission on the Human Immunodeficiency Virus Epidemic in 1987. The following year, the Commission published a report encouraging state legislatures to begin using criminal law in combatting the AIDS epidemic. The report encouraged states to initiate the creation of HIV-specific statutes:

            “Because of the problems in applying traditional criminal law to HIV transmission, however, states should review their criminal codes to determine the possible need to adopt a criminal statute specific to HIV infection. . . . An HIV-specific statute . . . would provide clear notice of socially acceptable standards of behavior specific to the HIV epidemic and tailor punishment to the specific crime of HIV transmission.”

Soon after, state legislatures began to respond to this call by enacting criminal HIV-specific statutes. In 1990, Congress added power and persuasion to the call for criminalization by passing the Ryan White Comprehensive AIDS Resources Emergency Act of 1990, which conditioned federal funding to states for HIV/AIDS prevention upon the adequacy of the state’s laws governing criminal prosecution for intentional transfer of HIV. Over the next three years, half of the states had initiated HIV-specific criminal legislation. This legacy remains as twenty-one states maintain statutes criminalizing behavior that may risk the transfer of HIV or AIDS. Other states responded to the demands of the Ryan White Act by demonstrating the ability of their current criminal laws to punish behavior risking exposure to HIV. Thus, the use of the criminal law to combat the spread of HIV can be boiled down into three distinct categories: (1) HIV-specific exposure and transmission laws; (2) Public health statutes prohibiting conduct which may lead to exposure of others to sexually transmitted diseases and/or communicable diseases; or (3) General criminal laws covering attempted murder and assault.

The motivations behind the use of criminal law to combat the spread of HIV parallel the general arguments found in the criminal law context. Proponents believed that traditional theories of criminal law, retribution and utilitarianism, would properly aid in stemming the epidemic. Retributive principles would help reduce risky behavior because “if specific behaviors are prohibited, HIV-positive individuals will refrain from engaging in those activities.” Utilitarianism would help reduce transmission by imprisoning the HIV-positive individual “to eliminate the threat posed by the individual, to deter similar future behavior by others, and hopefully to reform the imprisoned individual.”

Most of the criminalization statutes and prosecutions revolve around the behaviors which are known to be the most risky for HIV transmission, such as sexual intercourse, intravenous needle sharing or use, and donation of blood or semen. However, many states go beyond the criminalization of just these known risky behaviors and prohibit behaviors such as “biting another person” and “spitting, biting, [and] stabbing with an AIDS contaminated object.” Other states appear to take a more generalized approach, placing a blanket ban on any behavior which may result in intentional exposure of HIV to other persons. Therefore, these general laws encompass both scientifically proven risky behavior, such as unprotected sexual intercourse, and lesser risky behaviors, such as biting or spitting.

Brett Ashton Williams is a law student at Georgia State University's College of Law and will graduate in May of 2012. As a student, Ms. Williams served as a Graduate Research Assistant for Professor Leslie Wolf, a health law professor specializing in human subjects research issues and the interplay between HIV/AIDS and the law. Ms. Williams wrote this web research guide for Professor Johnson's Advanced Legal Research class in the Fall of 2011.

Please email Professor Johnson at njohnson@gsu.edu for more information about this bibliography.

This research guide is an introduction to the interplay between HIV/AIDS and criminal law. Specifically, this guide focuses on the criminal statutes and cases which cover behavior considered to lead to the transmission of HIV by HIV-positive individuals at the state and federal level throughout the United States. This guide will not discuss tort liability for the transmission of HIV or many of the other pertinent law topics influenced by HIV-positive individuals, such as insurance or healthcare guidelines.

It is important to note that as the medical community gained (and gains) further understanding and scientific evidence of HIV and how it is precisely trnasmitted, the way courts have applied these statutes and general criminal laws against HIV-positive defendants has continued to change. For this reason, the cases and secondary sources have been presented in chronological order to give the reader an understanding of the change-over-time that is occurring in this area of law. The statutes and cases chosen serve as useful resources with which to analogize or distinguish a researcher's current facts or case.  This guide also provides various secondary resources as well as several starting points for computerized research in this area of law ranging from general information, to legal research, to interest group websites.

The annotations provided here do not constitute legal advice. This guide is designed to be a starting point for research and is not comprehensive. Further, this guide has not been updated since November 2011. Do not rely on the author's interpretations of the cases or statutes provided. If you have questions on how to proceed with your research, please talk to the reference librarians.