Introduction
Nick Rhoades was diagnosed with human immunodeficiency virus (HIV) in 1998.1 By 2008, an antiretroviral treatment had lowered Rhoades’s viral load2 to an undetectable level, meaning that he was incapable of transmitting HIV to sexual partners.3 In 2008, Rhoades engaged in consensual oral and anal sex with a condom and without informing his partner that he was HIV positive.4 Rhoades’s partner “understood Rhoades to be HIV negative, in part because Rhoades’s online profile listed him as HIV negative.”5 Rhoades’s partner later found out that Rhoades was living with HIV, and he contacted the police.6 Rhoades was charged under an Iowa law that criminalized transmission of HIV, even though his partner never tested positive for HIV.7
Rhoades pled guilty to criminal transmission of HIV.8 An Iowa district court sentenced him to twenty-five years in prison and required him to register as a sex offender.9 In 2010, Rhoades applied for postconviction relief, alleging that his trial counsel was ineffective.10 The district court and appeals court denied his application.11 In 2014, the Iowa Supreme Court reversed and granted his application, effectively holding that Iowa’s HIV-specific criminal statute could not be used to prosecute people living with HIV (PLHIV) who engaged in activity with a very low risk of transmitting HIV.12
Just three months later, the Tennessee Supreme Court reached a similar conclusion.13 In November 2006, Barry Hogg was diagnosed with HIV, and his doctor informed him that he could transmit HIV through unprotected sexual activity.14 In 2009, forty-seven-year-old Hogg engaged in sexual acts with a thirteen-year-old boy.15 Hogg did not inform the boy of his HIV status.16 Hogg was arrested and tried for sexual misconduct and criminal exposure of another to HIV.17 A jury convicted Hogg of several offenses, including seven counts of criminal HIV exposure, and the judge sentenced him to an effective sentence of 174 years in prison.18
Hogg appealed, arguing that the evidence was insufficient to support the convictions for criminal HIV exposure.19 The Tennessee Supreme Court agreed in part, holding that there was insufficient evidence to support the convictions in three of the counts—those which involved licking the victim’s anus, performing oral sex on the victim, and manipulating the victim’s penis with his hand.20 The court held that these three activities posed little to no risk of transmitting HIV, and therefore did not fall under activities prohibited by Tennessee’s HIV-specific criminal statute.21
Rhoades and Hogg involved defendants with very different levels of moral culpability, but the Iowa Supreme Court and Tennessee Supreme Court both read heightened risk requirements into their state’s respective HIV-specific criminal laws.22 Many writers have argued that HIV-specific criminal laws are overbroad because they punish PLHIV who are not morally deserving of punishment.23 Although such laws have survived claims that they are unconstitutionally vague, they often do not specify which acts are punishable, and this, coupled with their often cursory descriptions of the level of risk necessary for conviction, means that they do not provide adequate notice to PLHIV that they may be legally liable for certain behaviors.24 Many public health experts argue that such laws are contradictory to public health goals because they disincentivize HIV testing25 and contribute to misinformation about how HIV is transmitted.26 Advocates for PLHIV also argue that these laws harm vulnerable populations that already experience stigmatization and discrimination.27
This Note argues that judicially imposed heightened risk requirements, like those in Rhoades and Hogg, mitigate many of the harms that HIV-specific criminal laws cause. If states are going to criminalize HIV exposure or transmission, they should only criminalize behavior that has a nonnegligible risk of transmission based on medical evidence. Due to political impediments in the way of state legislatures amending their laws, state courts should look to the Rhoades and Hogg decisions as persuasive precedent and adopt similar risk requirements for conviction.
Part I of this Note explains the risk of HIV transmission associated with certain behaviors, lays out variations in HIV-specific criminal laws, and examines how those laws are applied. Part I also examines the courts’ reasoning in Rhoades and Hogg. Part II analyzes the legal and policy problems that these laws create, the challenges to amending or repealing the laws, and the utility of Rhoades and Hogg as persuasive precedent. Part III highlights the benefits of heightened risk requirements and proposes that attorneys and advocates rely on Rhoades and Hogg to encourage state courts to adopt those requirements. Considering the vast number of HIV-specific criminal laws—as of December 2021, thirty-five states have such laws and/or sentence enhancements—this Note does not comprehensively address all of the debates that they inspire, nor does it address every possible solution to the problems they cause.28
I. Background
A. Evolution of Knowledge of HIV Transmission and Treatment
When the HIV pandemic began, doctors, governments, and the general public had little understanding of how HIV was transmitted.29 In the years after its discovery, speculation over how the virus spread abounded. Potential means included: casual contact; sharing food, water, and ambient air; insect vectors; and contact with saliva, urine, tears, sweat, or feces of PLHIV.30 These have all been disproven as methods of transmission,31 and understanding of transmission routes has since improved.32 It is now understood that HIV is only spread through certain types of contact with the blood, semen, vaginal fluids, rectal fluids, or breast milk of PLHIV.33 The most common means of transmission in the United States are sexual activity and sharing drug-injection needles.34 These fluids must somehow enter a person’s bloodstream for transmission to occur.35 Contemplating risk of HIV infection can be difficult, considering that the likelihood of transmission is, in plain terms, low for nearly all activities, including sexual acts.36 However, medical professionals agree that behaviors such as spitting, biting, throwing bodily fluids, sharing sex toys, and oral sex pose a negligible risk of transmission.37
Other factors further mitigate the risk of transmitting HIV.38 PLHIV may take antiretroviral medications to suppress their viral loads to prevent HIV’s progression to AIDS.39 PLHIV who properly adhere to antiretroviral regimens and who achieve and maintain viral suppression—often referred to as being “undetectable” because a viral load that is sufficiently reduced cannot be detected by an HIV test—have effectively no risk of transmitting HIV to their sexual partners and a greatly reduced risk of transmitting HIV via other methods, including needle sharing.40 People without HIV can also effectively eliminate the risk of becoming infected by taking pre-exposure prophylaxis (PrEP).41 If taken correctly, PrEP is ninety-nine percent effective at preventing transmission.42 Condom use is approximately eighty percent effective at preventing transmission, at least among heterosexual men and women.43
Although HIV was at first considered a death sentence given its inevitable progression to AIDS if left untreated, treatment has improved to the point where HIV diagnosis has little effect on life expectancy.44 Conditions such as high blood pressure, heart disease, and diabetes have a greater impact on life expectancy than does HIV.45 One author has pointed out the inconsistency of applying criminal sanctions to HIV transmission, when “criminal sanctions generally do not apply to conduct that puts people at risk for these conditions.”46
B. The History and Policy of HIV-Specific Criminal Laws
By the 1990s, the situation in the United States was dire. It is estimated that up to 988,000 Americans had become infected with HIV by 1991.47 By 1992, AIDS had become the number one cause of death for men aged twenty-five to forty-four; by 1994, it was the leading cause of death for all Americans in that age group.48 It was in the context of this growing crisis and under pressure from the federal government that states enacted HIV-specific criminal laws.
State legislatures enacted most HIV-specific criminal laws early in the pandemic, when little was understood about the virus and it was considered a “gay man’s disease.”49 In 1987, President Reagan created the Presidential Commission on the Human Immunodeficiency Virus, which found that states should “explore the use of the criminal law in the face of this epidemic,” but cautioned that “criminal sanctions for HIV transmission must be carefully drawn, must be directed only towards behavior which is scientifically established as a mode of transmission, and should be employed only when all other public health and civil actions fail to produce responsible behavior.”50 Congress enacted the Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (CARE Act), which mandated that “states would only receive federal funding for HIV/AIDS prevention and relief after demonstrating that ‘the criminal laws of the State are adequate to prosecute [intentional HIV exposure].’”51 Under the CARE Act, states either had to enact HIV-specific criminal laws or demonstrate that existing criminal laws were sufficient to prosecute intentional HIV exposure.52 The majority of states chose the former option and passed HIV-specific criminal laws.53 Many states, including some that enacted HIV-specific criminal laws, prosecute HIV-related offenses under general criminal laws, such as those pertaining to reckless endangerment, attempted murder, and aggravated assault.54 The purpose of these laws and prosecutions is to both punish criminally culpable behavior and to support the public health goal of combating the HIV pandemic.55
States took different approaches to criminalizing HIV exposure or transmission,56 including, most relevant to this Note, regarding which behaviors are criminalized.57 The laws also vary in other ways, including whether actual transmission—or just “exposure”—is necessary for conviction, the mens rea necessary for conviction, the availability of defenses, and the punishment imposed for violations.58 These criteria are discussed below in varying levels of detail.
C. The Form of HIV-Specific Criminal Laws
There are two main categories of state laws. Many states prohibit PLHIV from engaging in certain conduct, regardless of the actions someone takes to reduce the risk of exposure or transmission of HIV.59 Other states prohibit PLHIV from engaging in certain conduct only if the circumstances are such that the conduct presents a certain level of risk of HIV transmission, meaning that risk reduction measures may result in avoidance of criminal liability.60 Some states have passed multiple HIV-specific criminal statutes and have laws that fall into both categories.61 Florida is an example of the former category. In Florida, it is a third-degree felony for PLHIV who are aware of their HIV status and who have been informed that HIV can be transmitted through sex to have sex without disclosing their HIV status to partners.62 Condom use, an undetectable viral load, and other factors that greatly mitigate risk of transmission are not defenses against prosecution—as written, Florida’s law absolutely prohibits PLHIV from having sex without informing partners of their status, even when transmission risk is negligible.63 Numerous other states similarly place blanket prohibitions on certain behaviors, even behaviors that have extremely low risk of transmission, such as exposure to urine, saliva, or feces.64
State laws in the second category consider risk of transmission, but they vary in how risk is defined. Some require that the risk be medically significant. For example, in Minnesota, it is unlawful for someone “who knowingly harbors an infectious agent to transfer” the infectious agent through “sexual penetration with another person without having first informed the other person that the person has a communicable disease. . . .”65 “Transfer” is defined as “engag[ing] in behavior that has been demonstrated epidemiologically to be a mode of direct transmission of an infectious agent which causes the communicable disease.”66 In Indiana, it is unlawful for PLHIV to engage in “high risk activity” with others, including sexual contact “that has been epidemiologically demonstrated . . . to bear a significant risk of transmitting [HIV].”67
Other state laws have broader definitions of risk that do not incorporate epidemiological knowledge. In Tennessee, it is illegal for a PLHIV to engage in “intimate contact with another,” which is defined as “the exposure of the body of one person to a bodily fluid of another person in any manner that presents a significant risk of HIV transmission.”68 In South Dakota, it is unlawful for PLHIV to engage in “intimate physical contact,” which the statute defines as “bodily contact which exposes a person to the body fluid of the infected person in any manner that presents a significant risk of HIV transmission.”69
Further, some state laws do not explicitly contemplate risk, but they implicitly require its consideration for conviction or application of a sentence enhancement. For example, Massachusetts’s sentence enhancement for rape of a child states that “sexual intercourse . . . with a child under 16 . . . in a manner in which the victim could contract a sexually transmitted disease or infection” may result in “imprisonment in the state prison for life or for any term of years, but not less than 15 years.”70
The laws vary as to the mens rea necessary for conviction, the availability of defenses, and the punishments faced by those convicted. The variations in mens rea requirements include the standards of intentional, willful, knowing, and reckless.71 The laws also deviate regarding whether specific or general intent is required for conviction.72 An example of general intent in these circumstances would be the intent to engage in sexual activity, while specific intent would entail the intent to transmit HIV via that sexual activity.73
The availability of defenses ranges from robust in some states to completely unavailable in others. California’s affirmative defenses are an example of the former—PLHIV cannot be prosecuted for acting with the specific intent necessary for conviction if they take any “practical means to prevent transmission,” which are:
method[s], device[s], behavior[s], or activit[ies] demonstrated scientifically to measurably limit or reduce the risk of transmission of an infectious or communicable disease, including, but not limited to, the use of a condom, barrier protection or prophylactic device, or good faith compliance with a medical treatment regimen for the infectious or communicable disease prescribed by a health officer or physician.74
Prior disclosure of HIV status to the person exposed to HIV is also a defense in California.75 In many other states, disclosure, or the HIV-negative person otherwise knowing the PLHIV’s status, is the only available defense.76 Some states’ statutes specifically allow antiretroviral treatment plans or an undetectable viral load as defenses to prosecution,77 while others provide for “medical advice” defenses, which are, in effect, the same thing.78 The text of other states’ statutes does not leave room for any such defense, based largely on the unconditionality of the statutes’ language.79
The punishments imposed upon conviction are often severe. The laws are not uniform regarding whether conviction is a felony or a misdemeanor and, correspondingly, the lengths of prison sentences and sizes of fines also vary. In Florida, failure to disclose one’s HIV status on multiple occasions is a first-degree felony punishable by a maximum of thirty-years’ imprisonment.80 In Arkansas, a first-time offender can be sentenced to up to thirty years in prison.81 Some violations are misdemeanors and prescribe much briefer sentences, including California’s statute, which allows for sentences ranging from six months’ imprisonment for transmission to ninety days for intentional exposure without transmission.82 Most of the statutes prescribe prison sentences of between one and ten years.83
These factors in combination mean PLHIV can face criminal liability for engaging in behaviors that pose little to no risk of HIV transmission and for which PLHIV do not know they may be liable. For example, Florida’s law allows for imposition of thirty-year prison sentences if PLHIV have sexual intercourse without disclosing their HIV status, regardless of the use of risk-reduction measures or intent to expose another to HIV or whether transmission actually occurred.84 But such scenarios are not mere hypotheticals. In 2016, an HIV-positive Illinois man was arrested and charged with knowingly transmitting HIV after failing to disclose his serostatus to three women with whom he had sex.85 He adhered to an antiretroviral regimen throughout the course of his relationships with the women, so transmission was virtually impossible, and sources do not state that the women contracted HIV.86 In 2014, an HIV-positive Florida man was arrested for having a sexual relationship with a woman for several months without informing her that he was HIV positive.87 He used a condom during all of their encounters.88 Nonetheless, he pled guilty to the charges.89
Contact with bodily fluids of PLHIV outside of sex can also lead to criminal liability. In 2018, an Alabama man with HIV was arrested for allegedly splashing a police officer with feces.90 He faced a sentence enhancement due to his having HIV, despite the medical community’s consensus that HIV cannot be transmitted via contact with the feces of someone with HIV.91 In 2008, a Maryland man with HIV was sentenced to eighteen years in prison for biting a police officer during his arrest.92 Ten years of the sentence came from a charge of knowingly attempting to transfer HIV, despite the medical consensus that biting poses a negligible risk of transmission.93
D. Efforts to Amend HIV-Specific Criminal Laws
As of December 2021, thirty-five states criminalize HIV exposure and four states have sentence enhancement laws, which increase sentence length when PLHIV commit certain crimes.94 Several states have seen successful campaigns to amend or appeal their laws. Amendments have variously reformed risk and mens rea requirements, availability of defenses, and sentences imposed.
Illinois amended its law in 2012 to require that prosecutors prove that PLHIV have specific intent to transmit HIV and limited prosecution to only “sexual activity with another without the use of a condom,” in turn defining “sexual activity” to include only vaginal or anal intercourse.95 The bill was enacted with unanimous support from both chambers of the Illinois General Assembly.96 The law, as initially introduced by two Republican General Assembly Members, amended the state’s law to allow prosecutors to access medical records to learn if someone knew their HIV status, which is an element that must be established prior to conviction.97 The provisions of the bill that narrowed the statute’s scope were added as a compromise between advocates for PLHIV and law enforcement, who desired easier access to PLHIV’s medical records.98 In 2021, Illinois took the important step of entirely repealing its HIV-specific criminal statute.99
In 2017, California amended its law by reducing charges for certain HIV-related crimes from felonies to misdemeanors and reducing sentencing to a maximum of six months; prior to the amendment, convicted PLHIV could face up to eight years in prison.100 The new law established that PLHIV cannot be prosecuted for acting with the specific intent necessary for conviction if they take practical means to prevent transmission, while also establishing that someone who does not employ such practical means is not presumed to have acted with specific intent.101 The amendment also changed the law so that it no longer applies exclusively to HIV but also to other communicable diseases.102 Louisiana amended its HIV criminal statute in 2018 to provide for three affirmative defenses, all of which are some variation on disclosing HIV status to sexual partners.103
There is an ongoing effort in Georgia to amend its law.104 Under Georgia’s current law, PLHIV face up to ten years in prison for not disclosing their HIV status to sexual partners, and up to twenty years imprisonment for an assault of a peace or correctional officer “using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces.”105 The current law does not consider a defendant’s viral load or whether a condom was used during sex.106 Proposed amendments would narrow Georgia’s law by requiring “a significant risk of transmission based on current scientifically supported levels of risk of transmission” for conviction.107 The Georgia House of Representatives approved a bill to amend Georgia’s law in 2020.108 The Georgia Senate overwhelmingly approved a similar bill in March 2021, but the bill eventually failed due to time limitations.109
Iowa is a prominent example of a state that has dramatically reformed its HIV-specific criminal laws.110 Prior to reforming the law, Iowa’s statute made it a crime for PLHIV to intentionally engage in “intimate contact” with another person without informing that person that they were HIV positive.111 “Intimate contact” required that (1) there was an “intentional exposure of the body of one person to a bodily fluid of another person” and that (2) this occurred “in a manner that could result in the transmission of” HIV.112 Iowa’s new law applies to hepatitis and meningococcal disease in addition to HIV, recognizing that modern options available for managing HIV mean that HIV does not necessarily qualify for the uniquely harsh treatment it once received.113 The law criminalizes conduct only when it poses a “substantial risk” of transmitting one of these diseases, creates gradations in the offense based on intent and result of the conduct (whether transmission occurs), and establishes an affirmative defense that applies if defendants “take practical means to prevent transmission.”114
In May 2021, Missouri also approved a broad overhaul of its HIV-specific criminal law via the passage of Senate Bill 53, which downgraded the crime of “reckless exposure” to HIV to a Class D felony from a Class B felony.115 Senate Bill 53, which took effect in August 2021, also changed the mens rea requirements so that prosecutors must prove that PLHIV “knowingly” exposed others to HIV.116 HIV is no longer singled out for particularly harsh treatment, given that the law also applies to all “serious or communicable diseases.”117
E. The Rhoades and Hogg Decisions and Their Reasoning
In Rhoades and Hogg, the Iowa Supreme Court and the Tennessee Supreme Court read heightened risk requirements into their respective HIV-specific criminal laws when presented with defendants who engaged in behaviors with a negligible risk of transmitting HIV.118
Prior to its amendment, the Iowa statute prohibited PLHIV from “[e]ngag[ing] in intimate contact with another person” without disclosing their HIV status, and it defined “intimate contact” as “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 [HIV].”119 In 2001, the Iowa Supreme Court held that the word “could” required “that transmission of . . . HIV from the infected person to the exposed person was possible considering the circumstances.”120
However, thirteen years later, the court vacated Nick Rhoades’s conviction because it determined that the statutory language contained an implied reasonableness requirement that precluded conviction for very low or merely theoretical risks.121 The court then determined that scientific evidence and medical advances precluded a finding by judicial notice that Rhoades’s acts “met the requisite risk level to transmit HIV.”122 In Rhoades, the court elaborated on the meaning of “possible” as used in the statute and noted that it “may mean allowing any likelihood of occurrence, no matter how remote.”123 The court explained that “possible” can also mean “having an indicated potential by nature or circumstances,” a definition that the court noted, “considers the reality of a thing occurring, rather than a theoretical chance.”124 The court considered the Eleventh Circuit’s position on what makes an occurrence “possible”:
The potential for legal liability must be reasonable, not merely theoretical. In considering possible state law claims, possible must mean more than such a possibility that a designated residence can be hit by a meteor tonight. That is possible. Surely, as in other instances, reason and common sense have some role.125
The justices noted that some courts in other states have recognized an “inherent reasonableness consideration in construing the meaning of ‘possible’ in the context of certain statutes.”126 After considering Legg and several cases from other states, the court chose the latter definition of “possible” because the justices “recognize[d] this statute require[d] expert medical testimony on the likelihood of transmission of HIV,” and experts need not “testify in absolutes when it comes to causation,”127 which “implicitly acknowledged [that] . . . it is very difficult to have an expert testify that a specific act under specific circumstances poses absolutely no risk.”128 The justices also relied on the purposes of criminal law, to punish and deter, in reaching their decision: they “would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that could only theoretically occur.”129
The court held that “[c]ausation must be reasonably possible under the facts and circumstances of the case to convict a person of criminal transmission of HIV.”130 Advancements in medicine were essential to the court’s decision.131 Consistent with this analysis, the court was “unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person’s viral load.”132 The Iowa Supreme Court was the first state court of last resort to incorporate modern medical knowledge of HIV transmission into its analysis of an HIV-specific criminal law.133
In Hogg, the Supreme Court of Tennessee redefined the risk requirement in Tennessee’s HIV-specific criminal statute, which made it a crime for PLHIV to engage in “intimate contact” in a manner that presented a “significant risk” of transmitting HIV.134 The relevant issue before the court was whether there was sufficient evidence to support the convictions for the seven counts of criminal exposure to HIV of which the defendant was convicted.135 The defendant argued that although his conduct could result in transmission of HIV, it did not pose a “significant risk” of transmission, and that the State’s evidence therefore did not support his conviction.136
The court noted that “[w]hen the language of the statute is clear and unambiguous, we apply the statute’s plain language in its normal and accepted use.”137 Hogg challenged his conviction on all seven counts of criminal HIV transmission upon which he had been convicted, arguing that the most appropriate definition of “significant risk” was “risks so great that they are almost certain to materialize if nothing is done.”138 The State countered that significant risk in this context meant “that the risk is notable, as opposed to negligible or de minimis.”139
To settle this question, the court considered the framework laid out by the United States Supreme Court in School Board of Nassau County v. Arline.140 The Supreme Court:
identified four factors for determining whether a person with a contagious disease poses a significant risk to others. These include: (a) the nature of the risk; (b) the duration of the risk; (c) the severity of the risk; and (d) the probability the disease will be transmitted.141
The Eleventh Circuit expanded upon these factors in Onishea v. Hopper.142 The circuit court wrote that “when the adverse event is the contraction of a fatal disease, the risk of transmission can be significant even if the probability of transmission is low: death itself makes the risk ‘significant.’”143 It went on to hold that in the context of potential transmission of a fatal disease, risk is “significant” if it “shows both (1) that a certain event can occur and (2) that according to reliable medical opinion the event can transmit the disease.”144 The Tennessee Supreme Court also considered the United States Supreme Court’s examination of “significant risk” in the context of the Occupational Health and Safety Act in Industrial Union Department v. American Petroleum Institute, in which the Supreme Court wrote that identifying significant risk did not require a “mathematical straightjacket.”145 Even if the risk in question is one of death, the risk is not significant if the likelihood of the harm occurring is very low.146
Based on its review of these cases, the court rejected both parties’ proffered definitions of “significant risk” and instead determined that risk is a product of (1) the severity of the consequences and (2) the likelihood of HIV transmission.147 The magnitude of the harm caused by HIV infection was potentially very high, but that did not automatically render all risks of transmission “significant.”148 The court ultimately held that “significant risk” required “a chance of HIV transmission that is more definite than a faint, speculative risk, as shown by expert medical proof.”149 In doing so, the court abandoned what was effectively a bright line rule that any risk of exposure qualified as “significant” because the consequences were so severe.
Dr. Catherine McGowan, an infectious disease specialist who had treated Hogg for his HIV and AIDS diagnoses, testified at trial.150 Dr. McGowan’s testimony was essential to the court’s analysis.151 She stated that there was some risk of transmission of HIV in any sexual encounter but noted that the chances of transmission “can be evaluated by considering the type of sexual contact, the viral load of the infected person, and the presence and quantity of bodily fluid exchanged during sexual activity.”152 Dr. McGowan explained that the different sexual activities between Hogg and the victim presented different risks.153 She testified that Hogg’s acts of licking the victim’s anus, performing oral sex on the victim, and particularly his performing masturbation on the victim posed little to no risk of transmitting HIV.154 However, she explained that the other acts—digitally probing the victim’s anus, performing anal sex on the victim (the offense in two of the seven counts), and receiving oral sex from the victim—posed varying, but higher, risks of transmission.155 Nevertheless, the jury convicted Hogg of all seven counts.156
Based on the Tennessee Supreme Court’s new definition of “significant risk” and Dr. McGowan’s testimony, the court reversed Hogg’s conviction on three of the counts because medical evidence introduced at trial showed that the acts did not constitute a significant risk of HIV transmission.157
II. Analysis
A. The Problems with HIV-Specific Criminal Laws
The problems with HIV-specific criminal laws are multitudinous and fall into three broad, often intersecting categories. These laws: (1) do not comport with society’s and the law’s typical conceptions and norms of criminal justice; (2) are at odds with the public health goals they allegedly buttress and are inconsistent with modern medical knowledge; and (3) contribute to stigmatization of PLHIV.158 These categories often overlap with and reinforce one another.
There is a general consensus among scholars that HIV-specific criminal laws are often at odds with the norms of criminal law.159 Authors are virtually unanimous in their criticism of these laws as overbroad—most of them as written and many in practice punish conduct that has a negligible risk, or no risk at all, of transmitting HIV.160 Since the enactment of HIV-specific criminal laws, PLHIV have been arrested, charged, and convicted for engaging in low-risk sexual activity and for spitting, throwing urine, or otherwise exposing people to bodily fluids in ways that do not transmit HIV.161 Even where a defendant is acquitted or charges are dropped, arrest and/or prosecution can be devastating.162
Most HIV criminal laws also differ from the norms of criminal law in that PLHIV’s conduct must merely create some risk of harm, not actually cause harm, and many of the laws also fail to differentiate between different mentes reae.163 Many of them infer intent to transmit or expose from merely failing to disclose one’s HIV status.164 As a result, these laws punish PLHIV who lack culpability and fail to give adequate notice to PLHIV that certain behaviors could lead to criminal liability.165 It is reasonable that PLHIV who engage in low-risk behaviors would not be on notice that those behaviors are criminally sanctionable where the law in question prohibits activities that have a “risk” or “significant risk” of exposure. This is particularly true when PLHIV use condoms or adhere to an antiretroviral regimen, considering that condoms greatly reduce risk and antiretrovirals can effectively eliminate it.166 Based on the foregoing, these laws generally do not further the two primary goals of criminal law: to punish and to deter.167
These laws also do little to serve the public health goals that are often invoked to justify them, and, in fact, they are likely counterproductive to reaching those goals. They make achieving public health goals more difficult by: (a) contributing to misinformation about HIV transmission routes; (b) discouraging HIV testing; and (c) placing the burden of preventing HIV transmission entirely on the backs of PLHIV.168 The general public still has many misconceptions about how HIV is transmitted, and arresting and prosecuting PLHIV for engaging in behaviors with negligible risks of transmitting HIV reinforces these misconceptions and makes it more difficult to educate people about how HIV is actually transmitted.169
Misconceptions regarding how HIV is transmitted also contribute to stigmatization and marginalization of PLHIV, many of whom already belong to communities that experience marginalization and prejudice.170 In the United States, these groups include sex workers, the LGBT community (particularly men who have sex with men), incarcerated persons, drug users, and Black and Latinx Americans.171 These groups have been stereotyped as “quintessential HIV transmitters” since the beginning of the pandemic.172 Some statutes further stigmatize those convicted by requiring registration as a sex offender.173
This stigma, coupled with the fact that nearly all HIV-specific criminal laws require knowledge of one’s HIV status as an element necessary for conviction, discourages people at risk of HIV infection from seeking out testing and knowing their status.174 Given that most HIV infections result from contact with people who are unaware that they are infected with HIV, this further contravenes the public health goals that these laws allegedly further.175
This contravention of public health goals is compounded by the fact that HIV-specific criminal laws place the onus of preventing exposure and transmission of HIV entirely on PLHIV.176 This instills complacency and a false sense of security in people who do not have HIV regarding their own health: It can be reasoned that if PLHIV are legally obligated to share their status, then people not living with HIV do not need to take their own protective measures.177 Because many transmissions result from sexual activities with PLHIV who do not know their status, this reasoning is obviously incorrect.178 Furthermore, regardless of potential legal liability, there is no guarantee that PLHIV will comply with disclosure obligations.179
B. Impracticality of Amending HIV-Specific Statutes
Despite the problems scholars have identified with HIV-specific criminal laws and the potential benefits of amending them, the laws have supporters, and writing heightened risk requirements into them faces hurdles.180 Authors have noted that in many states, there may be little chance of repeal or amendment because voters and legislators lack the political will for such change.181 Furthermore, examining successful amendment efforts reveals that not all amendments are created equal.182
Often, significant amendments have followed highly publicized blatant miscarriages of justice, as in the case of Iowa’s amendments following the experience of Nick Rhoades.183 In at least one state, a state agency that administered HIV-specific criminal regulations adopted new rules through notice and comment procedures.184 Previously, amendments that incorporated heightened risk requirements and other meaningful changes were typically passed in states where the legislatures were under Democratic control.185 However, the successful amendment of Missouri’s law,186 as well as the ongoing effort in Georgia,187 have challenged this trend. Republicans hold “trifectas” in both states.188
The conditions that enabled meaningful reform do not exist in many states. Although this should not be a partisan issue, there appears to be a correlation between membership in the Republican party and opposition to reforming HIV-specific criminal laws.189 Recent efforts in Missouri and Georgia190 challenge this view and hopefully Republican legislators will continue to be receptive to reform, but it is unclear whether this trend will continue. It should also be noted that Missouri’s amendment followed one of the “much publicized and obvious miscarriages of justice” previously discussed.191
In states with complete Republican control of government, chances of enacting meaningful amendments appear lower, at least absent public outrage over a particularly sympathetic case or an agency’s ability to amend administrative regulations.192 It is obviously undesirable that reform should have to wait for a case of egregious injustice. Furthermore, given that most HIV-specific criminal laws are contained in criminal codes and do not grant rulemaking authority to agencies, administrative agencies are generally not positioned to enact reforms.193
C. The Utility of Rhoades and Hogg for Challenging HIV-Specific Criminal Laws
Rhoades’s holding prevented the conviction of someone living with HIV who engaged in sexual activity while having an undetectable viral load.194 However, the Iowa Supreme Court’s reading of a reasonableness requirement into the state’s HIV-specific criminal law is applicable to prosecutions for other acts that have negligible risks of transmitting HIV. Hogg also reaches far beyond the facts on which it was decided. The Iowa Supreme Court and Tennessee Supreme Court both in 2014 independently established nearly identical frameworks for prosecutions under their states’ respective HIV-specific criminal statutes. First, the courts determined that the act in question must have an actual, nonnegligible risk of transmitting HIV based on the circumstances.195 Second, the prosecution must provide “expert medical proof” showing such a risk in the circumstances.196 To establish these frameworks, the courts identified ambiguities in the statutory language.197 The Tennessee Supreme Court relied exclusively on persuasive case law to determine the meaning of “significant risk,” while the Iowa Supreme Court considered dictionary definitions, the goals of criminal law, and case law to determine the meaning of “could.”198
As has already been argued of Rhoades, both cases can have an enormous impact in adjudicating charges brought under HIV-specific criminal laws in other states.199 Many HIV-specific criminal laws contain either explicit or implicit considerations of risk.200 Some, such as Indiana and Minnesota, already contain specific instructions for finding adequate risk of transmission by requiring epidemiological evidence.201 Others are broader in their definitions of risk, but when risk of transmission or exposure is explicitly an element of the offense, there is no question that Rhoades and Hogg can be cited as persuasive precedent. Consider South Dakota, where PLHIV may not engage in “intimate physical contact,” defined as “bodily contact which exposes a person to the body fluid of the infected person in any manner that presents a significant risk of HIV transmission.”202 It would be reasonable to rely on Hogg to encourage South Dakota courts to adopt a requirement that prosecutors enter into evidence medical proof that the behavior in question truly poses a significant risk of transmission.
Rhoades and Hogg also have utility in states with implicit considerations of risk in their HIV-specific criminal laws. For example, Massachusetts’s sentence enhancement for rape of a child considers whether a defendant acted “in a manner in which the victim could contract a sexually transmitted disease or infection.”203 The Iowa Supreme Court’s analysis of “could” can be applied to require that causation be “reasonably possible under the facts and circumstances of the case.”204 Wisconsin imposes a similar sentencing enhancement for certain sex crimes.205 The enhancement applies where a defendant with HIV “significantly expose[s]” a victim to HIV.206 “Significant exposure” is defined as “sustaining a contact that carries a potential for transmission of a sexually transmitted disease or HIV.”207 “[A] potential” is not a far cry from “could,”208 given that both are defined as including a “possibility” of occurrence, so defendants are in a position to persuasively argue that the Rhoades standard should apply.209 In Nevada, PLHIV may face criminal liability if they “engage[] in conduct in a manner that is intended or likely to transmit the disease to another person.”210 Given that Nevada’s statute does not define “likely to transmit,”211 there is room to argue that prosecutors must provide medical evidence showing that defendants engaged in behaviors with actual, nonnegligible risks of transmission.
III. Proposal
Heightened risk requirements have the potential to mitigate many of the harms caused by HIV-specific criminal laws.212 Consider the effects on public health efforts. Courts rejecting charges under HIV-specific criminal laws where the risk of transmission is negligible will not only prevent prosecution of PLHIV but will affect the coverage of those cases in the media.213 This means that there will be fewer news stories of PLHIV being arrested, charged, and convicted under these laws for acts that do not pose a risk of transmitting the disease. When people read or see news about arrests and prison sentences for activities that do not spread HIV, it is reasonable for them to incorrectly conclude that these behaviors do in fact spread HIV.214 Furthermore, media representations of PLHIV in these circumstances often vilify the accused.215
This vilification contributes to stigmatization, as does the form that HIV-specific criminal laws take. By criminalizing acts with a negligible risk of transmitting HIV, these laws encourage the belief that sex and other forms of contact with PLHIV are inherently dangerous and that PLHIV are unclean or undesirable.216 Imposing heightened risk requirements will also alleviate a source of stigma—criminal prosecution and punishment—and will thereby reduce the perverse incentives these laws create to avoid taking HIV tests to learn one’s status.
Courts rejecting charges where PLHIV have engaged in activities with a negligible risk of transmission will place these laws in line with traditional conceptions of criminal law as a tool of deterrence and punishment. If the goal is deterrence, there is no reason that a heightened risk requirement would not deter behavior that poses a significant risk, while providing at least some notice that such behaviors may result in criminal sanctions. Heightened risk requirements will also decrease prosecutions under HIV-specific criminal laws by deterring prosecutors from bringing charges where there is not a significant risk of HIV transmission.217
If states choose to criminalize HIV exposure or transmission, they should only criminalize behavior that has an actual, nonnegligible risk of transmission, based on medical evidence. Given the likely insurmountable hurdles of repealing or amending HIV-specific criminal laws in many states, advocates for PLHIV should look to state courts as avenues for change. Specifically, advocates should look to Rhoades and Hogg as persuasive precedent and encourage high courts in other states to adopt similar risk requirements.
Authors note the utility of Rhoades as persuasive precedent, but they also note its limitations as a guide for reform depending on each state’s approach to criminalizing HIV.218 In many respects, Hogg faces the same limitations, given that both cases require the statute in question to somehow contemplate risk of transmission to serve as effective persuasive precedent. However, notwithstanding scholars’ lack of attention to Hogg, it adds to the conversation by providing very different facts than Rhoades. Unlike Rhoades, Hogg is not a story of resounding injustice—Hogg was undoubtedly culpable for his crimes. Where a court is presented with a less sympathetic defendant facing a sentence that is more in line with his overall culpability, as in Hogg, Hogg may prove more persuasive.
However, preventing convictions following a trial is not the only use for these cases. It is important that advocates continue to pressure prosecutors to exercise their discretion fairly, and they can point to these cases as examples of where certain charges should not have been brought because the activities posed negligible risks of transmission. This too is important, given that most charges end in plea bargains and that prosecutors have enormous discretion regarding what charges to bring and against whom to bring them.219
Conclusion
PLHIV have faced the possibility of criminal sanctions for engaging in acts that have negligible risk of transmitting HIV since the beginning of the HIV pandemic. Although spitting, biting, oral sex, and many other acts have always been very low risk, advances in medicine, such as the availability of antiretrovirals and PrEP, greatly reduce the possibility of transmission even in acts that were once invariably high risk, such as anal sex. Despite these advances and the scientific community’s consensus that the aforementioned acts pose only a negligible risk of transmission in most circumstances, HIV-specific laws passed early in the pandemic are still on the books and fail to account for these changes. These laws continue to contribute to stigmatization and marginalization of PLHIV, contradict the public health goals that they supposedly support, and, by inadequately accounting for culpability of defendants and deterring behavior that does not transmit HIV, do not comport with traditional notions of the purposes of criminal law.
Rhoades and Hogg are both potentially very valuable to advocates seeking to mitigate the negative effects of HIV-specific criminal laws. They should look to these cases for guidance when challenging laws in other states, especially where those laws incorporate the risk an act has of transmitting HIV as an element of the offense.