Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2013

At present, 32 States and 2 United States territories have criminal statutes based on perceived exposure to HIV, rather than actual transmission of HIV to another. Thirteen States have HIV-specific laws that make spitting or biting a felony, even though it is not possible to transmit HIV via saliva.

According to the Centers for Disease Control and Prevention (CDC), HIV is only transmitted through blood, semen, vaginal fluid, and breast milk.

Prosecutions for perceived exposure, nondisclosure, or unintentional transmission of HIV have occurred in at least 39 States under general or HIV-specific laws.

Even in the absence of HIV transmission, people living with HIV have been given sentences of up to 35 years based on exaggerated fears of HIV, regardless of actual risk of transmission.

State and Federal criminal law does not currently reflect the three decades of medical advances and discoveries made with regard to transmission and treatment of HIV.

According to CDC, correct and consistent male or female condom use is very effective in preventing HIV transmission. However, most State HIV-specific laws and prosecutions do not treat the use of a condom during sexual intercourse as a mitigating factor or evidence that the defendant did not intend to transmit HIV.

Criminal laws and prosecutions do not take into account the benefits of effective antiretroviral medications, which reduce the HIV virus to undetectable levels and further reduce the already low risk of transmitting the HIV to near-zero.

Although HIV/AIDS currently is viewed as a treatable, chronic, medical condition, people living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes because prosecutors, courts, and legislators continue to view and characterize the blood, semen, and saliva of people living with HIV as a “deadly weapon”.

Multiple peer-reviewed studies demonstrate that HIV-specific laws do not reduce risk-taking behavior or increase disclosure by people living with or at risk of HIV, and there is increasing evidence that these laws reduce the willingness to get tested. Furthermore, placing legal responsibility for preventing the transmission of HIV and other pathogens exclusively on people diagnosed with HIV, and without consideration of other pathogens that can be sexually transmitted, undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases.

The identity of an individual accused of violating existing HIV-specific restrictions is broadcast through media reports, potentially destroying employment opportunities and relationships and violating the person’s right to privacy.

Individuals who are convicted for HIV exposure, nondisclosure, or transmission often must register as sex offenders even in cases of consensual sexual activity. Their employability is destroyed and their family relationships are fractured.

The United Nations, including the Joint United Nations Programme on HIV/AIDS (UNAIDS), urges governments to “limit criminalization to cases of intentional transmission. Such requirement indicates a situation where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit it”. UNAIDS also recommends that criminal law should not be applied to cases where there is no significant risk of transmission.

The Global Commission on HIV and the Law was launched in June 2010 to examine laws and practices that criminalize people living with and vulnerable to HIV and to develop evidence-based recommendations for effective HIV responses. The Commission calls for “governments, civil society and international bodies to repeal punitive laws and enact laws that facilitate and enable effective responses to HIV prevention, care and treatment services for all who need them”. The Commission recommends against the enactment of “laws that explicitly criminalise HIV transmission, exposure or non-disclosure of HIV status, which are counterproductive”.

In 2010, the President released a National HIV/AIDS Strategy (NHAS), which addressed HIV-specific criminal laws, stating: “[W]hile we understand the intent behind [these] laws, they may not have the desired effect and they may make people less willing to disclose their status by making people feel at even greater risk of discrimination. In some cases, it may be appropriate for legislators to reconsider whether existing laws continue to further the public interest and public health. In many instances, the continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”. The NHAS also states that 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.

In February 2013, the President’s Advisory Council on AIDS (PACHA) passed a resolution stating “all U.S. law should be consistent with current medical and scientific knowledge and accepted human rights-based approaches to disease control and prevention and avoid imposition of unwarranted punishment based on health and disability status”.

should not place unique or additional burdens on such individuals solely as a result of their HIV status; and

should instead demonstrate a public health-oriented, evidence-based, medically accurate, and contemporary understanding of—

Report— Not later than 180 days after initiating the review required by subsection (a), the Attorney General shall transmit to the Congress and make publicly available a report containing the results of the review, which includes the following:

Guidance— Within 90 days of the release of the report required by subsection (b), the Attorney General and the Secretary of Health and Human Services, acting jointly, shall develop and publicly release updated guidance for States based on the set of best practice recommendations required by subsection (b)(3) in order to assist States dealing with criminal and related civil commitment cases regarding people living with HIV/AIDS.

Monitoring and evaluation system— Within 60 days of the release of the guidance required by subsection (c), the Attorney General and the Secretary of Health and Human Services, acting jointly, shall establish an integrated monitoring and evaluation system which includes, where appropriate, objective and quantifiable performance goals and indicators to measure progress toward statewide implementation in each State of the best practice recommendations required in subsection (b)(3).

Modernization of Federal laws, policies, and regulations— Within 90 days of the release of the report required by subsection (b), the designated officials shall develop and transmit to the President and the Congress, and make publicly available, such proposals as may be necessary to implement adjustments to Federal laws, policies, or regulations, including to the Uniform Code of Military Justice, based on the recommendations required by subsection (b)(4), either through Executive order or through changes to statutory law.

HIV and HIV/AIDS— The terms HIV and HIV/AIDS have the meanings given to such terms in section 2689 of the Public Health Service Act (42 U.S.C. 300ff–88).

State— The term State includes the District of Columbia, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the United States Virgin Islands.