New Jersey Legislators Vote to Strike State’s HIV-Specific Criminal Law, but Retain Felony Prosecutions

On January 11, 2022, New Jersey legislators voted to repeal the state’s HIV-specific felony law but left the door wide open for felony prosecutions to continue without requiring transmission to occur.

On January 11, 2022, the New Jersey Legislature passed a bill that repeals New Jersey’s HIV- and STI-specific criminal law. Sponsored by Senators Joe Vitale and M. Teresa Ruiz, S-3707 repeals N.J.S.A 2C:34-5, which made it a third degree felony for PLHIV to have oral, anal or vaginal sex without the informed consent of their partner. This bill, which would make New Jersey the third state to repeal its HIV-specific criminal law, is now awaiting the Governor’s signature.

However, as the Senate Committee’s statement on the bill’s passage suggests, they did not intend to eliminate felony prosecution but to eliminate specific reference by name to HIV and other STIs. In fact, they explicitly state that infectious disease exposure incidents can be addressed by New Jersey’s existing criminal endangerment law, N.J.S.A. 2C:24-7.1, which makes it a crime in the fourth degree to recklessly expose another to a substantial risk of harm, and a crime in the third degree to knowingly expose another to a substantial risk of harm. 

The only other change would be an amendment to NJ’s endangerment law, 2C:24-7.1, in cases involving infectious disease exposure, to prohibit parties from disclosure of the other person’s personal health information. In short, the expectation is that prosecutions will continue, just under a different part of the criminal code.

What does this mean for PLHIV? If signed into law, S-3707 would actually broaden potential criminal liability for PLHIV and those with STIs by extending beyond sexual contact to other forms of conduct. Governor Phil Murphy is expected to sign the bill into law. 

And what about the NJ Attorney General’s 2021 statement and policy guidance to prosecutors throughout the state, directing that prosecutions will be unwarranted in cases that don’t involve coercion, intent to transmit, or when a person’s viral load is under control through prescribed treatment? At least while the current AG is in office, that should mean few if any prosecutions. However, even the AG statement suggests (in a footnote) that attempted murder charges may be appropriate in a case of intentional transmission.  

CHLP will be monitoring this and any plans for another bite at the criminalization apple in New Jersey. It may be too early to celebrate, but stay tuned.