AIDS and Criminal (in)Justice:
Incarceration, HIV Transmission, and Human Rights
LGBT Community Center New York, NY
December 12, 2006
David W. Webber, J.D.
1229 Wharton Street
Philadelphia, PA 19147-4509
Voice & Fax: 215-334-1214
dwwebber@critpath.org
www.AIDSandtheLaw.com
I. Criminal penalties for knowing HIV transmission
A. Essentially two elements:
1. Knew of HIV infection (and possibly proof of knowledge of means of
transmission of HIV); and
2. Engaged in risk behavior - degree of risk of transmission may vary depending
on the case
B. Does not include proof of actual transmission, only evidence of risk as defined by
statute
C. Intentionality: “Knowing” transmission vs. “intentional” transmission
D. Statutory provisions in all states provide criminal penalties for knowing HIV
transmission and related offenses - see HIV Criminal Law and Policy Project,
www.hivcriminallaw.org
1. Simple assault: attempt to cause, or purposely, knowingly, or recklessly
causing bodily injury to another
2. Aggravated assault: attempt to cause “serious” bodily injury or attempt to
cause bodily injury with a “deadly weapon”
3. Reckless endangerment: recklessly (with conscious disregard of a
substantial and unjustifiable risk) engaging in conduct which places or may
place another person in danger of death or serious bodily injury - typically
charged along with other assault offenses
4. HIV-specific criminal statutes: vary in terms from jurisdiction to jurisdiction,
ranging from prohibitions simply on knowing or intentional transfer or
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attempted transfer of HIV to another, to more precise statements of prohibited
behavior
II. CDC programs involving documentation of HIV risk behaviors for individuals who
know they are HIV positive
A. Prevention for Positives - 2003 CDC Recommendations: Incorporating HIV
Prevention into the Medical Care of Persons Living with HIV, 55 MMWR RR-12
(July 18, 2003), http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5212a1.htm
For a critique of this program, see Self-Incrimination, Partner Notification,
and the Criminal Law: Negatives for the CDC’s ‘Prevention for Positives’
Initiative,
http://www.aidsandthelaw.com/publications/WebberAPPJ19no1.htm
B. CDC, Program Evaluation and Management System (PEMS)
See “Overview of the HIV Prevention Program Evaluation & Monitoring
System,”
http://www.cdc.gov/hiv/projects/perinatal/materials/Presentations/Thomas
_Craig_PEMS.pdf - as part of the CDC’s Comprehensive Risk Counseling
and Services, http://www.cdc.gov/hiv/topics/prev_prog/CRCS/index.htm
C. CDC, Revised Recommendations for HIV Testing of Adults, Adolescents
and Pregnant Women in Health Care Settings, 55 MMWR (RR14) 1-17 (Sept.
22, 2006), http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5514a1.htm
See also Questions and Answers for Professional Partners: Revised
Recommendations for HIV Testing of Adults, Adolescents and Pregnant
Women in Healthcare Settings,
http://www.cdc.gov/hiv/topics/testing/resources/qa/qa_professional.htm
III. Reported cases involving use of confidential medical or public health information as
evidence in prosecution
A. From public health officials to law enforcement authorities (go to
http://www.AIDSandtheLaw.com
B. Law enforcement access to public health or private medical sources
C. Cases finding confidentiality right, only in limited circumstances
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