Guidance Regarding N.J.S.A. 2C:34-5(b) in Light of Advancements in Treatment for HIV/AIDS, New Jersey Attorney General (2021)

Statutes, Regulations, and Agency Guidelines

The Attorney General of New Jersey announced guidance to state prosecutors regarding charging people living with HIV under N.J.S.A 2C:34-5(b), which criminalizes certain sexual activities for PLHIV. The guidance cites scientific advancements regarding the treatment of HIV, the ongoing discrimination and stigma faced by PLHIV, and positions by the American Medical Association, American Psychological Association, and the U.S. Department of Justice's Civil Rights Division. While the law remains on the books, the guidance instructs prosecutors to consider three factors when considering charging an individual, those are:

  1. Whether the individual forced or coerced their partner to engage in sexual activity; 
  2. Whether the individual engaged in sexual activity for the purpose of transmitting HIV to their partner; and/or 
  3. Whether the individual was adhering to a medically appropriate HIV treatment plan at the time of the sexual activity.

The guidance concludes that it would be "virtually impossible" to charge an undetectable individual absent aggravating factors and that the Director of the Division of Criminal Justice should be consulted before charges are brought.