Criminal Law

From the beginning of the HIV epidemic, fear and ignorance about HIV's routes and relative risks of transmission have fueled a backlash against people living with HIV, most evident in the laws that punish them for engaging in consensual sex or activities that pose no risk of HIV transmission. The media coverage that accompanies these cases often demonizes people with HIV and misrepresents the risk of transmission, helping to perpetuate stigma that results in denial of jobs and services and decreased willingness to get tested. Because there is no evidence that HIV-specific criminal laws and prosecutions have any effect on behavior, the argument that these laws serve a deterrent effect is unfounded. Punishing people for behavior that is either consensual or poses no risk of HIV transmission only serves to further stigmatize already marginalized communities while missing opportunities for prevention education.

This HIV Policy Resource Bank category includes legal and advocacy tools that address issues such as crim inal prosecution for spitting and other actions that pose no risk of HIV transmission, the status of state criminal laws across the country, the effect of criminal exposure laws on sex workers, prosecution for HIV exposure as it relates to larger public health concerns, the number and types of prosecutions, and international guidelines on rational public policy related to HIV exposure.

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Highlighted Resources

Criminal Law

Timeline of State Reforms and Repeals of HIV Criminal Laws, CHLP (updated 2022)

Map: HIV Criminalization in the United States, CHLP (updated 2022)

U.S. HIV Laws and Prosecutorial Tools, CHLP (updated 2022)

This is How We Win: A Toolkit for Community Advocates, Ending and Defending Against HIV Criminalization, A Manual for Advocates, Volume 3, The Center for HIV Law and Policy (2013)

Guidance for People Living with HIV Who Are At Risk of, or Are Facing, Criminal Prosecution for HIV Nondisclosure or Exposure, Center for HIV Law and Policy (2011)

Positive Justice Project Consensus Statement on the Criminalization of HIV in the United States, Positive Justice Project/Center for HIV Law and Policy (Updated 2017)

Protecting HIV-Positive Women’s Human Rights: Recommendations for the United States National HIV/AIDS Strategy, Aziza Ahmed et al., 17 Reproductive Health Matters 127 (2009)

Arrests and Prosecutions for HIV Exposure in the United States, 2008–2019, The Center for HIV Law & Policy (2019)

U.S. v Ms T., U.S. District Court, District of Maine (June 2009)

State v. Eversole, __ N.E.2d __, 2009 WL 1264295 (Ohio Ct. App. 2009)

Smallwood v. State, 680 A.2d 512 (Md. 1996)

Sex Rights and the Law in a World with AIDS, Meeting Report and Recommendations, International Center for Research on Women (2009)

Community Engagement on HIV Policy: Are Town Halls Meaningful Enough? (2009)

State v. Richardson, 209 P.3d 696 (Kan. 2009)

U.S. Organizations Speak Out on Women and HIV to Inform Health Policy and National AIDS Strategy, Press Release, The Center for HIV Law & Policy (CHLP), CHANGE, ICW, WORLD (2009)

United States v. Ms. T (anonymous), Amicus Brief, U.S. Dist. Court for the District of Maine, National Advocates for Pregnant Women, Center for HIV Law and Policy, Verrill Dana, LLP on behalf of Medical, Public Health and HIV Experts and Advocates (2009)

Sample Expert Statement on HIV Transmission Risk, Center for HIV Law & Policy (2009)

Recommendations for Partner Services Programs for HIV Infection, Syphilis, Gonorrhea, and Chlamydial Infection, U.S. Centers for Disease Control and Prevention (CDC), 2008

HIV and Its Transmission, Centers for Disease Control and Prevention, 1999

10 Reasons to Oppose the Criminalization of HIV Exposure or Transmission, Open Society Institute (2008)

Criminalization of HIV Transmission, Policy Brief, UNAIDS (2008)

State v. Eversole, N.E.2d , 2009 WL 1264295 (Ohio Ct. App. 2009)