1. HIV, CRIMINAL LAWS, PUBLIC HEALTH LAWS, AND PRIVACY RIGHTS
Daniel Bruner, JD, MPP
Senior Director of Policy
Whitman-Walker Health
Washington School of Psychiatry
June 27, 2015

2. Objectives Answer questions from persons with an HIV diagnosis:
Who do I have to tell?
Can I be prosecuted or sued for having sex?
Can I be prosecuted or sued for not telling my sex partner(s) that I am HIV+?
Can my doctor or another health care provider report me if he or she thinks I am having unsafe sex?
Understand your legal obligations when you have a client/patient with an HIV diagnosis

3. Before We Get to Sex
No obligation to disclose an HIV diagnosis to an employer, landlord, school, etc.
Unless
The individual needs an accommodation (doctor’s appointments, medication side effects)
Maybe if the individual works in health care
Seek legal advice from WWH first!

4. Legal Obligations to Disclose to Sex Partners or to Avoid Sex?
HIV-Specific Criminal Laws in Maryland and Virginia
No HIV-Specific Criminal Law in DC
Potential Lawsuit for Damages by Sex Partner?

5. HIV Criminal Laws Generally
Most HIV-specific criminal laws were enacted in the early days of the epidemic, and many are not consistent with medical realities.
General criminal laws can also be used (attempted murder, assault, reckless endangerment).
Prosecutions are infrequent but arbitrary; often used only when another sex offense is alleged (such as rape or sex with a minor).
Penalties are often disproportionately harsh.
No evidence that criminal laws are effective HIV prevention tools, but the laws have strong political and public opinion support.

6. HIV Criminal Laws Generally
Prosecutions of people living with HIV for exposing others can also occur under general criminal laws (attempted murder, assault, reckless endangerment).
Such prosecutions have occurred occasionally in Virginia and Maryland.
May prosecutions and convictions have been based on ignorance of actual transmission risks. For instance, in some states individuals have been sentenced to lengthy prison terms for spitting on or bting a police or corrections officer.

7. District of Columbia No HIV-specific criminal law
No reported prosecutions under general criminal laws for a number of years

8. Maryland
“An individual who has the human immunodeficiency virus may not knowingly transfer or attempt to transfer the human immunodeficiency virus to another individual.”
MD Code Health-General § (a)

9. Maryland
“A person who violates the provisions of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $ 2,500 or imprisonment not exceeding 3 years or both.”
MD Code Health-General § (b)
In 2012 a bill was introduced in the Maryland General Assembly to make this offense a felony with a 25-year sentence. The bill did not pass.

10. Maryland Public Health regulations state:
An attending physician “shall … [r]equest the assistance of the health officer if an individual with HIV refuses to comply with recommendations that reduce the risk of transmission to unsuspecting contacts.”
Code of Maryland Regulations § (B)(3)

11. Maryland Public Health regulations state:
The health officer “shall … [t]ake the least restrictive action necessary to induce appropriate behavior changes to reduce the risk of transmission of HIV, including …. [c]onsulting with the State’s attorney about action, if appropriate, under [the criminal laws].”
Code of Maryland Regulations § (C)(3)(d)

12. What Does the Maryland Law Mean?
“Knowing attempt to transfer HIV” – requires specific intent?
Have I violated this law if I intend to enjoy myself and am not thinking about the other person? What if I use a condom? If I don’t use a condom but my viral load is undetectable? If my partner knows I am HIV+ and consents? If my partner is on PrEP?
In Bragdon v. Abbott, the Supreme Court cited the Maryland statute, with those of other states, noting: “The laws of some States … forbid persons infected with HIV from having sex with others, regardless of consent.” 524 U.S. 624, 641 (1998).

13. Prosecutions Under the Maryland Law Are Infrequent But Do Occur
There have been a handful of reported prosecutions, and several individuals have served jail time. There have been more prosecutions under the general criminal offense of “reckless endangerment,” which is also a misdemeanor with similar penalties.
The most widely publicized prosecutions have been for biting or spitting on a police officer – acts that pose essentially no risk of HIV transmission.
In March 2015, a man who had been charged under the Maryland exposure statute for having unprotected sex with 2 women he met in bars, without disclosing his HIV status, pled guilty to “reckless endangerment” and was sentenced to 18 months. He was on ART and his viral load was undetectable, and neither woman was infected.

14. Virginia: “Infected Sexual Battery”
“Any person who, knowing he is infected with HIV, syphilis, or hepatitis B, has sexual intercourse, cunnilingus, fellatio, anallingus or anal intercourse with the intent to transmit the infection to another person is guilty of a Class 6 felony.”
VA Code § :1(A)
Penalty: 1-5 years and up to $2,500 fine.

15. Virginia: “Infected Sexual Battery”
“Any person who, knowing he is infected with HIV, syphilis, or hepatitis B, has sexual intercourse, cunnilingus, fellatio, anallingus or anal intercourse with another person without having previously disclosed the existence of his infection to the other person is guilty of a Class 1 misdemeanor.”
VA Code § :1(B)
Penalty: up to 1 year and up to $2,500 fine.

16. What Does the Virginia Law Mean?
The statute is more specific than Maryland’s law. However, what is “intent to transmit the infection”? If I just intend to have unprotected sex and don’t care whether my partner becomes infected, am I guilty?
It appears that if HIV is not disclosed, using a condom, or having an undetectable viral load, or having a sex partner who is on PrEP, is not a defense to a misdemeanor charge.

17. Prosecutions Under the Virginia Law Are Infrequent But Do Occur
Individuals have been prosecuted under this statute for having sex without disclosure of their HIV status. Defendants have included prostitutes, adults who had sex with minors, and individuals who had sex with their girlfriends or fiancés. Convictions have generally been under the misdemeanor non-disclosure provision or under general criminal laws (assault, sex with minors).

18. Risk of Criminal Prosecution: the Bottom Line
No significant risk in DC
In Virginia and Maryland, some risk – probably small – if one’s sex partner isn’t informed
The risk is probably very small under the Maryland law, and the Virginia felony law, if the person is on ART, has a well-controlled viral load, and uses condoms. However, the Virginia misdemeanor law seems to require disclosure even in those circumstances.

19. Lawsuits for Damages Against the Person With HIV for Sex Without Disclosure?
No reported cases in DC, Maryland or Virginia
The outcome of a lawsuit would likely be controlled by scientific knowledge (was there actually a significant risk of transmission in the circumstances?) and whether the individual consented to the sexual act(s)

20. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
The general rule is that medical information is confidential, and non-consensual disclosures are unlawful – but there are exceptions.

21. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Under DC law, confidentiality of the patient is paramount. Disclosures to an HIV+ patient’s sex partner(s) is not authorized, and failure to disclose does not subject a provider to any liability to a third party. N.O.L. v. District of Columbia, 674 A.2d 498 (D.C. 1995); see also the broad statements of the importance of patient confidentiality in Vassiliades v. Garfinckel’s, 492 A.2d 580 (D.C. 1985).
Although an HIV diagnosis must be reported to the Department of Health, the right of a health care provider to notify the Department of Health if concerned that a patient with HIV is endangering third parties is unclear.
Therefore, DC does not recognize an obligation to warn third parties of the type recognized in some jurisdictions, at least with regard to the sexual behavior of a patient/client with HIV. Tarasoff v. Regents of the Univ. of Calif., 17 Cal.3d 425, 551 P.2d 334 (1976).

22. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Maryland law authorizes an HIV+ patient’s physician to make disclosures to the patient’s sexual and needle-sharing partners if the patient refuses to inform them, or to report the patient to the public health department. The health care provider has immunity under the law for any good-faith decision to disclose or not to disclose.
Md. Code Ann., Health-Gen. I §

23. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Maryland public health regulations state that an attending physician “shall … [r]equest the assistance of the health officer if an individual with HIV refuses to comply with recommendations that reduce the risk of transmission to unsuspecting contacts.”
Code of Maryland Regulations § (B)(3)

24. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Maryland has addressed the question of a Tarisoff-type duty to warn, when a patient/client poses a risk of violence, in a recent statute: “A cause of action or disciplinary action may not arise against any mental health care provider or administrator for failing to predict, warn of, or take precautions to provide protection from a patient's violent behavior unless the mental health care provider or administrator knew of the patient's propensity for violence and the patient indicated to the mental health care provider or administrator, by speech, conduct, or writing, of the patient's intention to inflict imminent physical injury upon a specified victim or group of victims.” Md. Code Ann., Courts and Judicial Proceedings § 5-609(b). Since other statutes and regulations specifically address an HIV+ patient whose sexual behavior may endanger others, this statute is unlikely to be applied to such a situation.

25. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Virginia law authorizes (but does not require) the disclosure to a patient’s “spouse” of “[t]he results of every test to determine infection with human immunodeficiency virus.” Sex partners other than a spouse, and needle-sharing partners, are not mentioned. It is unclear whether this law applies only to disclosures when an HIV diagnosis has been made (as distinguished from when a therapist or other health care provider learns of a patient’s other-endangering behavior).
Va. Code Ann. §

26. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
Like DC and unlike Maryland, Virginia law is unclear on whether a health care provider can report to the health department a patient who fails to follow safe-sex recommendations and exposes others to HIV without their knowledge.

27. Can My Health Care Providers Report Me For Unsafe Sex Or Contact My Partners?
The Virginia Supreme Court has rejected the holding of Tarasoff and similar cases in other states that a therapist or health care provider has a duty to third parties to prevent foreseeable harm. In Virginia, such a duty to third parties exists only when the provider has “taken charge” of the patient or client. Even a voluntary hospitalization does not amount to “taking charge” in this sense. Nasser v. Parker, 249 Va. 172, 455 S.E.2d 502 (1995).

28. HIPAA
Disclosures of protected health information without the patient’s written consent are prohibited with limited exceptions.
Disclosures to public health officials that are required or authorized by law are permitted.
Disclosures may be permitted when an individual poses a serious danger to themselves or to others, but the scope of this exception are unclear.