HIV-Related Crime

Human Whole Blood, Human Whole Blood Derivatives, and Other Biologics: Enforcement

Law

By: California Legislature

Date: 1988

Source: California Codes. Health and Safety Code. Section 1621.5. 〈http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=01001-02000&file=1617–1621.5〉 (accessed April 26, 2006).

Unlawful Carrying and Possession of Weapons

Law

By: California Legislature

Date: 1988

Source: California Codes. Penal Code. Section 12022.85. 〈http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=12001-13000&file=12020-12040〉 (accessed April 26, 2006).

About the Author: The bicameral California legislature writes and approves California's laws and penal code. The lower house, or Assembly, has eighty members; the upper house, or Senate, has forty.

INTRODUCTION

The first cases of HIV/AIDS were identified in 1978 among gay men. By 1982, HIV transmission was linked to blood and other body fluids, which meant that the disease could be spread through sexual intercourse, intravenous drug use, and transfusion of infected blood and blood products. Several states, including California, have since passed laws making it a crime to knowingly expose others to HIV infection.

All states have generic criminal laws that can be used to prosecute people with HIV/AIDS who intentionally expose others to the disease. These include laws concerning the transmission of communicable disease, including sexually transmitted diseases and sodomy, which is still technically illegal in some states. During the 1980s, lawmakers passed legislation aimed specifically at those who knowingly exposed their partners or victims to the risk of HIV/AIDS, adding extra penalties to violent crimes like rape or assault when the perpetrator is HIV positive. The extracts from California law given below, passed in 1988, are examples of such legislation.

PRIMARY SOURCE

Health and Safety Code.

Division 2. Licensing Provisions

Chapter 4. Human Whole Blood, Human Whole Blood Derivatives, and Other Biologics

Article 6. Enforcement

1621.5. (a) It is a felony punishable by imprisonment in the state prison for two, four, or six years, for any person to donate blood, body organs, or other tissue, semen to any medical center or semen bank that receives semen for purposes of artificial insemination, or breast milk to any medical center or breast milk bank that receives breast milk for purposes of distribution, whether he or she is a paid or a volunteer donor, who knows that he or she has acquired immune deficiency syndrome, as diagnosed by a physician and surgeon, or who knows that he or she has tested reactive to the etiologic agent of AIDS or to the antibodies to that agent. This section shall not apply to any person who is mentally incompetent or who self-defers his or her blood at a blood bank or plasma center pursuant to subdivision (b) of Section 1603.3 or who donates his or her blood for purposes of an autologous donation.

(b) In a criminal investigation for a violation of this section, no person shall disclose the results of a blood test to detect the etiologic agent of AIDS or antibodies to that agent to any officer, employee, or agent of a state or local agency or department unless the test results are disclosed as otherwise required by law pursuant to any one of the following:

(1) A search warrant issued pursuant to Section 1524 of the Penal Code.

(2) A judicial subpoena or subpoena duces tecum issued and served in compliance with Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of the Code of Civil Procedure.

(3) An order of a court.

(c) For purposes of this section, "blood" means "human whole blood" and "human whole blood derivatives," as defined for purposes of this chapter and includes "blood components," as defined in subdivision (k) of Section 1603.1.

PRIMARY SOURCE

Penal Code.

Part 4. Prevention of Crime and Apprehension of Criminals.

Title 2. Control of Deadly Weapons.

12022.85. (a) Any person who violates one or more of the offenses listed in subdivision (b) with knowledge that he or she has acquired immune deficiency syndrome (AIDS) or with the knowledge that he or she carries antibodies of the human immunodeficiency virus at the time of the commission of those offenses, shall receive a three-year enhancement for each violation in addition to the sentence provided under those sections.

(b) Subdivision (a) applies to the following crimes:

(1) Rape in violation of Section 261.

(2) Unlawful intercourse with a person under 18 years of age in violation of Section 261.5.

(3) Rape of a spouse in violation of Section 262.

(4) Sodomy in violation of Section 286.

(5) Oral copulation in violation of Section 288a.

(c) For purposes of proving the knowledge requirement of this section, the prosecuting attorney may use test results received under subdivision (c) of Section 1202.1 or subdivision (g) of Section 1202.6.

SIGNIFICANCE

Although there are no federal laws on HIV exposure, Congress encouraged individual states to develop such legislation. In 1990, two years after the above law was passed, the Ryan White CARE Act, which funds AIDS treatment and care, required states, in return, to ensure that their laws could prosecute an HIV-positive person who knowingly infected another. By 2000, when all states met these stipulations, the requirement was removed,

As of mid-2005, twenty-four states had HIV-specific laws like California's, although they varied considerably. Many concern sexual activity, needle sharing, and blood donation. More rarely, they address acts of biting or spitting, which are less likely to spread HIV. Penalties range from a year to life in prison. Twelve states also have sentence-enhancement laws, in which additional penalties are added for HIV-positive sexual assault. Three other states have enhancement laws, but no HIV-specific laws. Six continue to rely on existing STD laws to control HIV exposure, and seventeen use general criminal law and have neither HIV-specific nor STD laws.

The HIV Criminal Law and Policy Project claims that there have been 316 prosecutions of people for HIV exposure or transmission between 1986 and 2001. Most cases involved sexual activity without disclosure of HIV status, and a minority involved selling infected blood. Of these, 164 people were convicted, although it was not always possible to determine under which kind of law they had been prosecuted. Cases in which sentence enhancement was applied peaked in 1993 and between 1998 to 1999. Twelve states and Puerto Rico reported no prosecutions and only California, Florida, Illinois, Missouri, Ohio and Pennsylvania had more than fifteen prosecutions each in all.

Significantly, there is little evidence to suggest that legislation against HIV exposure has had any impact on the transmission of the disease. Some individuals have received long prison terms even though the victim escaped infection. It is important that awareness of HIV law is raised among those who are HIV positive and by those agencies that support them, but criminalizing someone for not disclosing their HIV status does not promote greater condom use or safer sexual practices.

FURTHER RESOURCES

Books:

Web sites

HIV Criminal Law and Policy Project. "HIV-specific Criminal Transmission Laws." 〈http://www.hivcriminallaw.org/laws/hivspec.cfm〉 (accessed January 15, 2006).

University of California San Francisco. Center for AIDS Prevention Studies—AIDS Research Institute. "Is There a Role for Criminal Law in HIV Prevention?" 〈http://www.caps.ucsf.edu/publications/criminalization.html〉 ¦¦accessed January 15, 2006).