Rethinking HIV Transmission

States throughout the U.S. are struggling with the legal issue of HIV transmission. The most frequent question among the many that demand answers is, "When is knowingly exposing another person to the HIV virus without telling them a crime?" A recent case in New York illustrates the dilemmas faced by the courts and law enforcement.

In 2006, a 48-year old HIV-positive man bit an officer in Herkimer County when police responded to a disturbance call at a medical clinic. The man pled guilty to assault and aggravated assault and is serving a ten-year sentence at Sing Sing. However, the New York Court of Appeals recently ruled that saliva is not a deadly weapon or dangerous instrument and returned the case to the lower court for resentencing.

The police officer did not become infected as a result of the bite.

The court ruling means that saliva is the same as teeth, which the court determined in 1999 were not dangerous instruments. Rather, saliva, teeth, blood and other bodily fluids come with the assailant and thus do not heighten a defendant's criminal liability. As a result, sentence enhancements cannot be based on the use or presence bodily fluids, teeth or other body parts.

The man was originally prosecuted under general felony assault laws; New York does not have a specific statute criminalizing biting by an HIV-positive person. However, 13 states in the U.S. have made it illegal for an HIV person to spit on or bite someone, even though there are few, if any, proven instances of HIV transmission from saliva or biting.

The Center for HIV Law and Policy estimates that between 350 and 400 people have been convicted under such statutes since 1990, including people convicted for not informing partners of HIV status before unprotected sex.

Legal Consequences

Another important question in this discussion is, "What are the legal consequences for someone who is HIV positive and who has unprotected sex without informing partners of his or her status?" A recent Iowa case reveals some of the issues. A man who acquired the HIV virus from his long-time partner and later had unprotected sex with another man is now serving a 25-year prison term and will be required to register as a sex offender for the remainder of his life.

Iowa's criminal transmission law is one of the harshest in the U.S. According to state statistics, 37 charges were brought under the law between 1999 and June 30, 2011. Iowa's law does not require that the sexual partner contract the virus; prosecutors have won cases where a condom was used. In short, the crime in Iowa is not unprotected sex or the actual transmission of the virus, but the failure to disclose HIV status.

There are efforts underway to modify laws such as Iowa's. Illinois has passed a law that would amend its criminal transmission law to exempt condom users. The Iowa senate passed a law that would make transmission of HIV a misdemeanor like tuberculosis and hepatitis.

At the federal level, the Obama administration has argued that criminal transmission laws are counter-productive because they actually make people less willing to disclose their status for fear of discrimination. California Rep. Barbara Lee introduced the REPEAL Act that encourages states to repeal statutes that criminalize HIV transmission.

An experienced New Jersey criminal defense lawyer at The Law Offices of David T. Schlendorf can provide more information.