Washington State Advocates Succeed in Reforming State’s HIV Criminal Law (2020)
UPDATE: Washington State Governor Jay Inslee signed HB 1551 into law on Thursday, March 19, 2020. (Click for video.)
On Tuesday, March 3, 2020, in a well-earned victory for advocates in Washington State, the Senate passed a bill that reformed the state’s HIV criminalization law. Governor Jay Inslee, who supports the bill, is expected to sign it into law.
The bill’s passage is a credit to the collaborative work that began in 2012 of community organizations in Washington including former CHLP staffer Lauren Fanning and the Washington HIV Justice Alliance. CHLP provided local advocates with analysis and support throughout these efforts.
ESHB 1551 reduces penalties for HIV exposure from a felony to a misdemeanor, requires specific intent to transmit HIV and for transmission to occur, and removes the requirement for sex offender registration. Before this reform, the law carried a felony conviction (punishable by up to life in prison) for exposure, which required neither intent to transmit nor that transmission occurred.
The law also now affords PLHIV affirmative defenses against prosecution that were not previously available, including disclosure of HIV status and the use of a condom or other “practical means to prevent transmission.”
If a person misrepresents their status to a sexual partner, intends to transmit, and transmission occurs, they would be subject to the higher penalty level of gross misdemeanor. The reform retains the felony penalty for PLHIV who are convicted of transmitting HIV to a child or vulnerable adult. Such a conviction would still require registration as a sex offender; however, the conduct described would typically be treated as a sex offense.
Some of the bill’s changes to the public health code concerning interventions with sexually active persons who are living with an STI, including HIV, will warrant further monitoring of rules proposed to implement these changes and how they are enforced.
In addition to the above changes, other provisions in the bill include:
Updates language to replace some references to HIV with "blood-borne pathogen," removing stigmatizing language that singled out HIV for special and disproportionate public health and criminal justice treatment.
Language explicitly stating that public health orders requiring a person to cooperate with public health efforts can only be issued once authorities have conducted an investigation, documented their efforts to work with that person voluntarily, and determined that those efforts were not sufficient to protect public health. That provision also inserts a maximum period of 12 months for those orders, which must be calibrated in length to their intended aims.
Clarifies procedures permitting a person subject to a public health order to challenge that order in court and receive a hearing within 72 hours, including creating a provision for publicly-funded legal representation of such persons.
Creates a misdemeanor for failing to comply with a public health order which could result in confinement or probation.
Permits minors ages fourteen and up to access post-exposure prophylaxis medication (PEP) without parental consent.
Expands scope of required sexual health educational curriculum from HIV to sexually transmitted infections generally.
Updates pre- and post-test notice, consent, and counseling requirements, including expanding requirements from HIV only to include other bloodborne pathogens.
Provides more procedure for inmates who are subject to orders for testing by prison authorities.
Removes existing requirements of HIV training and education for applicants for licensure as hearing aid specialists and speech language pathologists.
CHLP will be releasing a more detailed analysis of the legislation in the coming weeks.