Human Immunodeficiency Virus - Hiv-specific Offenses

Concerns about the inappositeness of general criminal law has long led commentators from across the spectrum of opinion to prefer laws specifically defining culpable conduct among people with HIV, but positive legislation has brought neither clarity nor consistency. Many statutes deal only with specific modes of risk creation, such as blood donation or prostitution. Those that address sexual behavior more generally vary in the state of mind and acts addressed, as well as on important issues such as whether condom use or other safe sex practices can be considered in defense.

Two examples illustrate the range of provisions. California's law, one of the narrowest, covers only unprotected sexual activity carried out with the specific intent to infect the other, and states that knowledge of infection alone is not sufficient to satisfy the intent requirement. Idaho's law covers any transfer or attempted transfer of any body fluid, body tissue, or organ to another by a person who knows of his or her infection or any symptom of infection. "Transfer" includes "engaging in sexual activity by genital-genital contact, oral-genital contact, analgenital contact," without regard to the riskiness of the act or even the use of a condom. Thus in Idaho, a person who has oral sex using a condom but without informing the other is liable to up to fifteen years in prison, whereas the same conduct is not covered by California's law at all. Even without the condom and with a specific intent to infect, such conduct in California would be subject to a maximum of eight years. Absent systematic enforcement, the few prosecutions under these laws have depended upon a happenstance of detection under circumstances that led a prosecutor to charge the crime.