Human Immunodeficiency Virus - Criminalization In Practice

Prosecutors began charging people with HIV-related crimes early in the epidemic. Nearly all cases involved exposure to the virus, rather than its actual transmission. As many as one hundred prosecutions had been initiated by 1988, when the first reported decisions appeared. In that same year, the final report of the Presidential Commission on HIV recommended that "HIV infected individuals who knowingly conduct themselves in ways that pose significant risk of transmission to others must be held accountable for their actions." By 1999, there were approximately fifty reported cases and at least 200 prosecutions. Thirty states had passed HIV-specific criminal provisions, laws that varied enormously in the conduct they embraced and the penalties they imposed.

The cases fall into three main groups. The most numerous is comprised of instances of the allegedly deliberate use of HIV as a weapon to cause emotional distress or bodily harm. These cases, which have commonly involved biting or spitting, are notable for the high charges (including attempted murder) and long sentences meted out. A smaller group is made up of cases using HIV as a basis for more severe sentencing in cases of prostitution, rape, and child abuse. The third group is comprised of prosecutions, under the Uniform Code of Military Justice, of military personnel who disobeyed "safe-sex" orders to refrain from sexual contact without informing partners of their infection. No more than a handful of civilians have been prosecuted for isolated instances of unsafe sex without disclosure, and no reported cases involve needle sharing.