Human Immunodeficiency Virus

Depending on the actor's state of mind, actual transmission of HIV by any means could be prosecuted as murder or manslaughter if it resulted in death of the exposed party. In practice, the long latency period of the disease, and old doctrines such as the rule that the fatal act must have occurred within a year and a day of the death to be prosecuted as a murder, may help explain why there is no reported case in the United States.

More commonly prosecuted is the act of exposing someone else to HIV. Available charges include reckless endangerment, assault, assault with a deadly weapon (or aggravated assault), and attempted murder. Reckless endangerment requires proof that the actor placed another at risk of serious bodily harm with conscious disregard of the risk. An assault is established if the actor is proven to have knowingly or purposefully engaged in conduct likely to transmit HIV. Some courts have allowed prosecution for aggravated assault or assault with a deadly weapon on the theory that HIV, or some body part containing HIV, is a weapon. Attempted murder requires a showing that the defendant purposely or knowingly deployed HIV as a weapon of homicide.

Both proponents and opponents of criminalization have been critical of the current approach of the criminal law to HIV cases. Proponents worry that bad actors get off too easily. The long course of the disease makes prosecuting actual transmission as murder impractical. Cases of exposure are also said to be hard to prosecute. A minority of courts have refused to analogize HIV to a deadly weapon, or have ruled that one or two sexual contacts are simply not risky enough to place another at the kind of risk prohibited by assault. Numerous commentators have pointed to a supposed difficulty of proving an intent to harm, particularly where, as the Supreme Court of Maryland ruled, proof of infection alone is not sufficient to establish the defendant's intent to do harm.

Critics worry that both intent and risk are poor tools for assessing HIV cases. They note convictions in numerous assault and attempted murder cases involving very low risk acts like spitting, biting, and throwing infected body fluids. In such cases, and potentially in cases involving voluntary sexual activity, the unacceptability of the risk to jurors can skew their assessment of the likelihood of harm. Critics also worry about the effect of race, class, and the stigma of HIV on the decision-maker's assessment of the defendant's intent. Convictions of biters and spitters for attempted murder are seen as proof that judges and juries can ascribe a homicidal intent to a person with HIV even where the chosen weapon was practically incapable of causing death.