Establishing a legal database on criminalization of HIV transmission and exposure

Our research team did 50-state searches in the Lexis legal database for HIV/AIDS-specific criminal statutes and for reported cases which used the defendant's HIV status as an element of a crime (e.g., defendant's semen was a “deadly weapon”), as a reason to elevate or enhance a charge (e.g., defendant's HIV+ status changes charged offense from assault to aggravated assault), or as a factor in justifying enhanced sentencing. Searches were duplicated and cross-verified by team members, and checked against existing databases and articles on HIV criminalization. Statutes and cases were coded for characteristics and entered into two databases using LawAtlas. Previous researchers, including some who claimed not to have done an exhaustive search, had located and characterized all state HIV criminalization statutes. Ours was the first attempt to identify all reported state cases criminalizing HIV exposure and/or transmission, however. We found scores of criminalization cases in 36 states, many of which had no criminalization statutes, and had therefore not been identified in the literature as having criminalized HIV. Cases ranged from decades-old bite-and-scratch cases to very recent cases characterizing consensual sexual conduct without HIV status disclosure as aggravated assault, reckless endangerment, and even attempted murder. Most cases used HIV-related offenses to augment charges against persons already charged with crimes such as prostitution, assault or rape. Only one case made any assessment of actual HIV transmission risk. The prevalence of HIV-criminalizing case law suggests that efforts to decriminalize HIV status should focus more on changing prosecutors' views than on legal reform.