HIV Criminalization: Are You at Risk? HIV Health and Human Services Planning Council of New York Policy Committee Monday, January 28, 2013, 3-5pm

Agenda  Introduction  Short Film – “Women, HIV, and Criminal Law”  Overview of HIV Criminalization in the United States  Overview of HIV Criminalization in New York  Positive Justice Project

Introduction. The Center for HIV Law and Policy

Introduction  The Center for HIV Law and Policy is a national legal and policy resource and strategy center for people with HIV and their advocates. We work to reduce the impact of HIV impact on vulnerable and marginalized communities and to secure the human rights of people affected by HIV. 65 Broadway, Suite #832 New York, New York Phone: | Fax:

Short Film. The Center for HIV Law and Policy

HIV Crim.: Short Film “Women, HIV, and Criminal Law” In the Life Media

HIV Crim. The Center for HIV Law and Policy

HIV Crim.: In the U.S.  Dozens of states and territories have HIV-specific criminal statutes, including sentence enhancement.  Nondisclosure is frequently an element of the crime.  2 types of behavior targeted:  Spitting and biting (usually specific to law enforcement and corrections officers)  Sexual contact (types are rarely specified; may include anal sex, oral sex, vaginal sex, etc. – even sex toys).

HIV Crim.: In the U.S. (cont.)  In most cases:  Transmission is unnecessary; “exposure” without prior disclosure of status is enough.  Disclosure is often the only defense to prosecution, but is difficult to prove.  Risk of transmission (e.g., condom use, low viral load), which is relevant to intent, is rarely considered.  Proof of intent to harm is rarely considered  Actual harm of HIV is assumed, not addressed.

HIV Crim.: In the U.S. (cont.)  Many courts assume that no one would knowingly have sex with an HIV-positive person.  Arrests and prosecutions coincide with sensationalist media coverage of similar cases.  Most laws were passed in the early days of the epidemic when HIV was considered invariably fatal.  Laws and prosecutions premised on scientifically inaccurate info re: routes and actual risk of HIV transmission and the belief that HIV infection is a death sentence.

HIV Crim.: In the U.S. (cont.)  Risk of HIV infection per sexual encounter with an HIV- positive person when the HIV-negative partner engages in*:  Insertive vaginal sex (0.01% %)  Studies range from 1 in 10,000 to 14 in 10,000  Receptive vaginal sex (0.04% %)  Studies range from 4 in 10,000 to 3 in 1,000 * Source: Fox et al., 2011.

HIV Crim.: In the U.S. (cont.)  (cont.)  Insertive anal sex (0.06%)  Studies show about 6 in 10,000  Receptive anal sex (0.04% - 3%)  Studies range from about 4 in 10,000 to 3 in 100  Insertive oral sex (about 0%)  Studies show near-zero risk  Receptive oral sex (0% %)  Studies range from about a zero risk to 4 in 10,000  Spitting cannot transmit HIV; biting poses near-zero risk.

Comparison of Prosecutions in Two Time Periods ( & ) Mode of Exposure *Percent **Percent Consensual Sex 8427%6358% Prostitution4113%1110% Spitting/ Biting 7523%2624% Total * Source: Lazzarine et al., 2002 ** Source: Positive Justice Project, 2010

HIV Crim.: In the U.S. (cont.) HIV-Specific StatuteVehicular Manslaughter While Intoxicated Statute: 3 – 8 years imprisonment Actual prosecutions: 3 years imprisonment Up to 1 year imprisonment Sentencing Proportionality – California

HIV Crim.: In the U.S. (cont.) HIV-Specific StatuteVehicular Manslaughter While Intoxicated Statute: 5 – 20 years imprisonment Actual prosecutions: 8 years imprisonment; and 2 years probation Up to 1 year imprisonment; and/or fine of up to $1,000 Sentencing Proportionality – Georgia

HIV Crim.: In the U.S. (cont.) HIV-Specific StatuteVehicular Manslaughter While Intoxicated Statute: 2 – 8 years imprisonment; possible fine of up to $15,000 Actual prosecutions: 16 years imprisonment; mandatory sex offender registration 15 days – 90 days imprisonment Sentencing Proportionality – Ohio

HIV Crim.: In New York  No HIV-specific statutes.  However, HIV-positive persons are still targeted using general criminal laws:  Reckless endangerment.  1 st degree – class D felony  2 nd degree – class A misdemeanor  Aggravated assault upon a police officer or peace officer.  Class B felony

HIV Crim.: In New York (cont.)  Forced Disclosure of HIV Status  At least one New York court has allowed access to a defendant’s medical records to prove whether she was HIV- positive to meet elements of reckless endangerment  Venereal disease; person knowing himself to be infected  A person who knows she/he has an STI may be guilty of a misdemeanor if she/he has sexual intercourse with someone else  Statute does not mention HIV, and it has never been used to prosecute an HIV-positive person

HIV Crim.: In New York (cont.) Case Study 1 – Reckless Endangerment  In 2011, a 20-year-old African-American man in Buffalo, NY was charged with felony 1 st degree reckless endangerment for allegedly failing to disclose his HIV status before having unprotected sex with several women.  He accepted a plea bargain and pleaded guilty to 5 counts of misdemeanor 2 nd degree reckless endangerment to avoid the felony 1 st degree reckless endangerment charge.  He was sentenced to 5 concurrent 1-year prison sentences for misdemeanor 2 nd degree reckless endangerment.

HIV Crim.: In New York (cont.) Case Study 2 – Reckless Endangerment  In 1997, a 20-year-old African-American man in prison for drug- related charges was alleged to have had unprotected sexual intercourse with 70+ women in western NY and NYC without disclosing his HIV status, and responsible for infections. He was charged with felony 1 st degree reckless endangerment, felony 2 nd degree attempted assault, misdemeanor sexual misconduct, and misdemeanor child endangerment.  He pleaded guilty to 2 counts of statutory rape and 2 counts of 1 st degree reckless endangerment.  He was sentenced to 4-12 years in prison and served 12. He remains in custody under New York’s sex offender civil commitment statute.

HIV Crim.: In New York (cont.) Case Study 3 – Aggravated Assault  In 2006, an HIV-positive man outside Utica, NY was charged with felony aggravated assault upon a police officer for allegedly biting a police officer during a scuffle, which resulted in the breaking of the officer’s skin.  Saliva, which was “infected with the AIDS virus,” was alleged to be the dangerous instrument.  He pleaded guilty and was sentenced to 10 years in prison for felony aggravated assault upon a police officer.  In 2007, he appealed his conviction, and the case reached the NY Court of Appeals in April In July 2012, his conviction was vacated and the aggravated assault charge dismissed.

HIV Crim.: IA v. Rhoades Case Background  In Sept. 2008, Nick Rhoades of Plainfield, Iowa was arrested and charged with one count of violating I OWA C ODE § 709C.1, the state’s criminal transmission of HIV statute, after a one-time sexual encounter with Adam Plendl.  I OWA C ODE § 709C.1 is a class B felony.

HIV Crim.: IA v. Rhoades (cont.) I OWA C ODE § 709C.1 – Criminal transmission of HIV. 1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following: a. Engages in intimate contact with another person. b. Transfers, donates, or provides the person’s blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person. c. Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.

HIV Crim.: IA v. Rhoades (cont.) I OWA C ODE § 709C.1 – Criminal transmission of HIV. (cont.) 2. For the purposes of this section: a. "Human immunodeficiency virus" means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome. b. "Intimate contact" means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus. c. "Intravenous or intramuscular drug paraphernalia" means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into or withdrawing a bodily fluid from the human body.

HIV Crim.: IA v. Rhoades (cont.) Case Background (cont.)  In May 2009, Mr. Rhoades pleaded guilty to the offense and received the maximum sentence – 25 years in prison and lifetime registration as a sex offender.  After several months in prison, the court suspended his sentence and placed him on supervised probation for five years. His was still required to register as a sex offender.

HIV Crim.: IA v. Rhoades (cont.) Case Background (cont.)  In March 2010, through different counsel, Mr. Rhoades filed a Petition for Post-Conviction Relief, amended Dec. 2010, on the ground of ineffective assistance of counsel. He asserted that his attorney allowed him to plead guilty to a crime for which there was no factual basis and also failed to research, understand, investigate, and explain to him the elements of the offense.  In Dec. 2011, the court denied Mr. Rhoades’s Petition for Post- Conviction Relief and the following month Mr. Rhoades appealed.

HIV Crim.: IA v. Rhoades (cont.) Appeal of Post-Conviction Relief  Lambda Legal represents Mr. Rhoades in his appeal and filed its proof brief in June The brief asserts ineffective assistance of counsel based on two assertions: 1.) Mr. Rhoades did not understand that I OWA C ODE § 709C.1 requires that the State prove that he intended to expose his bodily fluid to the body part of another in a manner that could result in HIV transmission. 2.) Mr. Rhoades pleaded guilty to a crime for which no factual basis existed.

HIV Crim.: IA v. Rhoades (cont.) Appeal of Post-Conviction Relief (cont.)  National Alliance of State and Territorial AIDS Directors (NASTAD), CHLP, and HIV Law Project (HLP) filed an amicus brief requesting the court to grant Mr. Rhoades’s Petition for Post-Conviction Relief.  The amicus brief states that the parties’ sexual contact does not constitute “intimate contact” under I OWA C ODE § 709C.1, since there was no “intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV].”

HIV Crim.: IA v. Rhoades (cont.) Appeal of Post-Conviction Relief (cont.)  The amicus brief sets forth two arguments: 1.) Condom use and safer sex are the cornerstone of Iowa and national public health policy and practice, and 2.) State of Iowa policy and federal HIV prevention priorities reflect the fact that mandatory disclosure is inconsistent with both long- standing public health policy and with the realities of individual lives that inform that policy.

HIV Crim.: IA v. Rhoades (cont.) Appeal of Post-Conviction Relief (cont.)  The Supreme Court of Iowa is currently reviewing both parties’ arguments.  For more information, visit Lambda Legal’s page on the case: or CHLP’s news page:

PJP. The Center for HIV Law and Policy

Positive Justice Project  The Positive Justice Project (PJP) is a national coalition of organizations and individuals, including those living with HIV, those accused or prosecuted, medical and public health professionals, law enforcement, community organizers, advocates, attorneys, sex workers, social scientists and others working to end HIV criminalization in the United States.  We engage in federal and state policy advocacy, resource creation and support, and educating, organizing, and mobilizing communities and policy makers in the United States.

Positive Justice Project (cont.)  CHLP provides ongoing coordination with the active support of the PJP’s working group chairs and the many individual and organizational members of the PJP.  PJP Working Groups:  Federal Advocacy, State Advocacy, Constituency Outreach, Communications, Public Health, Legal, and Research  For more information, visit: sticeproject sticeproject

National Consensus Statement  In July 2012, PJP released Consensus Statement on the Criminalization of HIV in the United States, the first national joint statement on the criminal treatment of HIV.  The Consensus Statement addresses the urgent need to modernize HIV criminal laws and prosecution policies, and to end the use of special laws and rules for the handling of criminal complaints that a person with HIV allegedly exposed another person to their bodily fluids.  As of August 2012, over 50 individuals and organizations have endorsed the Consensus Statement.  For more information, visit:

Contact. The Center for HIV Law and Policy

Contact Information The Center for HIV Law and Policy 65 Broadway, Suite 832 New York, NY Phone: | Fax: Website: Facebook: Twitter: For more information, Adrian Guzman at

Q & A. The Center for HIV Law and Policy