The Criminalization of HIV Transmission

thumb_scales_of_justiceIn both Canada and the United States, courts are imposing heavy criminal sentences for individuals for the transmission of HIV through consensual sex without disclosure to their partners. It is a trend that has alarmed some AIDS activists who fear that the scope of the prosecutions will put many HIV-positive individuals at risk of prosecution for negligence. I discussed the trend on this segment of NPR’s Talk of the Nation.

In Canada, Ugandan-born Johnson Aziga became the first person to be convicted for first-degree murder for spreading HIV. A former staffer at the Ontario Ministry of the Attorney General, Aziga was diagnosed with HIV in 1996 but continued to have unprotected sex without telling 13 women. Seven would later test positive for HIV and two of them died from AIDS. He was convicted on two counts of first-degree murder and ten counts of aggravated sexual assault. The case took five years to get to court.

In the United States, various states have passed “HIV laws.” Many of these statutes were the result of the Presidential Commission on the Human Immunodeficiency Virus Epidemic infamous cases like Gaetan Dugas, who was identified by Randy Shilts in And the Band Played On, who told his victims after sex “I’ve got gay cancer. I’m going to die and so are you.”

Twenty-one states have laws criminalizing such conduct, though there are critical and surprising differences. Some statutes reduce intent to simply the intent to have sexual contact as an HIV-positive person without disclosure. Others technically require an intent to transmit but define that intent as intending to have sex. Most do not require actual transmission. A typical provision is found in California:

120291. (a) Any person who exposes another to the human
immunodeficiency virus (HIV) by engaging in unprotected sexual
activity when the infected person knows at the time of the
unprotected sex that he or she is infected with HIV, has not
disclosed his or her HIV-positive status, and acts with the specific
intent to infect the other person with HIV, is guilty of a felony
punishable by imprisonment in the state prison for three, five, or
eight years. Evidence that the person had knowledge of his or her
HIV-positive status, without additional evidence, shall not be
sufficient to prove specific intent.
(b) As used in this section, the following definitions shall
(1) “Sexual activity” means insertive vaginal or anal intercourse
on the part of an infected male, receptive consensual vaginal
intercourse on the part of an infected woman with a male partner, or
receptive consensual anal intercourse on the part of an infected man
or woman with a male partner.
(2) “Unprotected sexual activity” means sexual activity without
the use of a condom.
(c) (1) When alleging a violation of subdivision (a), the
prosecuting attorney or grand jury shall substitute a pseudonym for
the true name of the victim involved. The actual name and other
identifying characteristics of the victim shall be revealed to the
court only in camera, and the court shall seal that information from
further revelation, except to defense counsel as part of discovery.
(2) All court decisions, orders, petitions, and other documents,
including motions and papers filed by the parties, shall be worded so
as to protect the name or other identifying characteristics of the
victim from public revelation.
(3) Unless the victim requests otherwise, a court in which a
violation of this section is filed shall, at the first opportunity,
issue an order that the parties, their counsel and other agents,
court staff, and all other persons subject to the jurisdiction of the
court shall make no public revelation of the name or any other
identifying characteristics of the victim.
(4) As used in this subdivision, “identifying characteristics”
includes, but is not limited to, name or any part thereof, address or
any part thereof, city or unincorporated area of residence, age,
marital status, relationship to defendant, and race or ethnic

Other states, as in the recent case of Philippe Padieu, have used conventional charges to prosecute such individuals. We have also seen enhanced charges against HIV-positive individuals such as the recent case of the man given 35-years for spitting on an officer. We have also seen civil lawsuits based on a failure to disclose, including a recent lawsuit against parents of the carrier.

These prosecutions, however, raise concerns over the use of highly circumstantial evidence, particularly in the Texas case where some victims were infected at swinger clubs and had multiple partners. In that case, the “deadly weapon” was the defendant’s blood. For HIV-positive people, that can be a chilling notion that makes any sexual contact potentially a criminal matter. On the other hand, in cases like the Canada and Texas cases, you have clearly reckless and knowing conduct that placed these women at obvious risk of death.

In prior years, individuals would be charged with conventional crimes and the HIV element would be considered at sentencing as an aggravating factor. For example, Nushawn Williams was accused of exposing 13 women and girls to the disease in 1997 in New York. He was convicted of statutory rape and reckless endangerment, and was sentenced to four to 12 years. He was recently denied parole.

19 thoughts on “The Criminalization of HIV Transmission

  1. This is good that they are doing something about these people. In my mind if they knew they are sentencing some of these people to a life of hell.

    But I can only say they following:
    This is from a statement that “John Bradford” (1510 – 1555) is alleged to had said as he was awaiting his execution. “‘There but for the grace of God, goes John Bradford.” The words were uttered by Bradford while imprisoned in the Tower of London, when he saw a criminal going to execution for his crimes.

    This is a part of the Dallas Morning News article:

    Testimony opens in Collin County HIV assault trial

    02:34 PM CDT on Wednesday, May 20, 2009

    By DIANE JENNINGS / The Dallas Morning News

    MCKINNEY – Testimony began this morning in the case of Phillipe Padieu, the HIV-positive Frisco man charged with six counts of aggravated assault with a deadly weapon for allegedly having unprotected sex with a half-dozen women.


    This is a post on the Dallas Morning News about this persons activities.

    wild child all grown up | 2 weeks ago

    This sicko was always prowling Ernie’s and Arthur’s (night-clubs)trying to PU us ladies. He would come up and rub up on us and try to get us to “want” him. He thought he was such a hot shot with his cool black ‘vet. We all thought him a gigalo, but I never dreamed this. I just thought him sleasy and rude. I am glad I never am stupid enough to take home a stray or go to someone’s house. God had a reason for saving the right moments for the right people…… the sanctity of marriage. (ok what is a church lady doing in a night club?……drinking water and watching the fools go by).


    I had read an article years ago, not sure exactly where but the inference was that the HIV/AIDS Virus was a creation of the CIA for Haiti. It was designed to rid us of baby doc. I am not sure exactly where it came from but at the time it made sense to me.

  2. While there is no doubt in my mind that knowingly exposing an unknowing to HIV is a criminal act, I am still leery of the often quoted “slippery slope” this type of legislation could create. Although it may never happen, the door is cracked open to the criminalization of sneezing without covering your mouth (and it being a felony if you have the flu when you do it).

  3. I want to hear the arguments on this and think about it. I cannot see how a person should fail to disclose the fact that they are HIV positive to a partner or multiple partners. It seems like something we owe other people, even if we are ashamed of having HIV. Even when people are really scared and ashamed, they have to show concern towards others and not expose them to a difficult disease that will effect them for life. I think other people have the right to decide if they want to take that risk at all or take precautions to minimize risk to themselves. I believe this is the most ethical way to treat others. This is a serious issue and I don’t believe that exposing someone else to HIV without their consent is acceptable. There must be a way to deal with this situation that gives justice to those who were harmed and which also minimizes the concerns of AIDs activists.

  4. In the 50’s they quarantined kids with Polio.
    Maybe we should think about that as far as aids is concerned. I think they do it in Cuba. The patients get good meals and medicine but they are segragated from society. This is a deadly disease with no known cure and quite easily preventable at this point. Hopefully it wont mutate or if it does the mutation will be less severe.

  5. Don’t be ridiculous. There is no argument for withholding such vital and potentially deadly information from someone professing to be truly intimate with a partner. Aids activists need not be alarmed in such cases.

    It’s in less clear cut cases of obvious negligence, they need be worried.

  6. For Jonathan—How do the HIV-specific statutes compare with borader statutes regarding other sexually transmitted disease or common, reportable infectious diseases like tuberculosis?

  7. If you have HIV and knowingly engage in sex with a partner who you fail to disclose this to, then in my opinion you are guilty of a crime. This is not a problem of homosexuality since many of these cases deal with heterosexual sex. This is a problem people who are willing to, or perhaps desirous of, hurting other people for their own gratification. As for the Texas case, sorry to sound the prude which I’m not, someone with HIV has no place going to “swingers clubs.” While some might argue that those who go to “swingers clubs” are exhibiting carelessness with their own sexuality, I would say that even if true, they are nevertheless victims.

    The crucible of these cases should be whether the HIV infected person knew of their infection and at what point in time did they know it.

  8. okay. so if HIV is protected as some special class as viral crime, what about Hepatitis C?
    what’s next? have we all forgotten the recent hysteria around that last flu scare? sars?

    the solution: work faster to find a cure. teach safe sex. make condoms free. decriminalize needle exchange programs.

    the real truth is that with decent medical care –and that is a big conversation — people live a log time with HIV. Look at Magic Johnson.

    HIV does not have to be an automatic death sentence anymore

  9. I agree with JT that Aziga’s actions are monstrous. That said, every person is responsible for their own health. If there is consent to sex, there is consent to multiple medical risks.

    Does this mean that an HIV infected woman can be found guilty of murder if she becomes pregnant and her future child later dies of AIDS?

    What if the odds are only 25% of transmission from mother to the child? Is that intent?

    If a cure for AIDS is found at a later date, will those charged under HIV transmission laws be set free?

    Does the public interest require that the government test all individuals for HIV and publish these results?

  10. For a case for criminalization, the pros and cons, See Dennis J. Baker’ “The Moral Limits of Consent as a Defense in the Criminal Law”, 12(1) New Criminal Law Review 93 (2009)

  11. I was married to a spouse who actively concealed she had Hep C and engaged in risky sexual and hygenic practices (also endangering the children in the home) I believe in an effort to infect me so I wouldn’t ‘leave her’. Eventually her behaviours forced me to leave for my own safety and I have since found out she has done the same to at least two other men after first draining them of their assets and then claiming criminal assault for the protection of the courts while she systematically ruined them financially. Thus far, the courts have seen her as the victim but she is an evil manipulator who has destroyed the lives of several people including her own children who she has also exposed to serious risk of infection by her behaviour. Police, lawyers and the courts (criminal, family and civil) thus far have failed to see through this woman and she continues to practice this behaviour with additional men without any censure by anyone, including the child welfare authorities. What can be done to keep others safe from an evil person like this?

  12. For me its hard to sit here and see all the people in the world have this big scare about HIV/AIDS. When there needs to be laws to stop those people from going out an knowingly passing it around. an for me i was lied to an that led to my hunt for laws and ways that I can stop the man who gave me this very hard thing to deal with. In his own lying ways he lied to me and showed me fake papers that stated he was clean which that was found out to be A BIG FAT LIE. And for me I know of at least 5 other people he could have infected. Now if thats not Pure EVIL I dont know what is. And he’s still out here running around screwing who knows how many other people. Well I’m sitting here trying to pick up my shatered young life I will never have kids due to his lying an not being honest.

  13. I am a very understanding individual. However, I believe if you are HIV+ and refuse to tell your mate your are committing a crime. Even if you don’t want to disclose your status, put on a freakin’ condom and use them properly. That way you don’t have to worry about someone coming back later to throw your butt in jail!!! It is simple. And sad! Unfortunately there are people out there who don’t care about the next person because someone infected them. The difference between the two is one knows that they are potentially causing harm to someone else. That is the crime!

  14. Let’s clear up some misinformation here – first of all, HIV is 100% fatal. This bullshit about being a “manageable chronic condition” is probably put out by Big Pharma trying to represent their product as some kind of a cure, which it’s not. Sure, it might give you ten more years to live but eventually you will die with dementia and wasting disease, and it’s a horrible death. Second of all, condoms are not 100% effective – none of them. So, while condoms reduce your chance of getting the virus, they do not make protected sex 100% safe. And, third, I’ve run the numbers on this, and these assholes are lying to you about that too. My figures show at least one-sixth of the world’s population now carries the virus, and, if you don’t think that is extremely alarming, then you are an idiot.
    I’m trying to save millions of children from dying, and no body gives a shit.

  15. Lazarus, this article says treatment can add 24 years, and it is not the HIV that usually kills…it is the opportunist infections assaulting the weakened immune system.

    Do you work with HIV babies? Because they often convert to non-HIV status after birth despite being from an HIV+ mother

  16. 24 years? Where do you get your information- Big Pharma? Look – you put chemicals in your blood that the virus doesn’t like and sure, it’s going to decrease your viral load, for a while. But you don’t think there are side effects with the constant use of these chemicals? Of course there are. And I’m not even talking about the cost.
    HIV babies “often” serorevert? How often do they die from AIDS? How many babies have to die before these irresponsible parents are jailed for infanticide? And so, then you have a baby growing up with a dying mother. Just look at Africa. There is no justifiaction of even one innocent child being forced to die this way. NONE! ZERO! NADA!
    And this idiot media isn’t even mentioning this.

  17. No, I don’t believe this 24 years thing. The drugs haven’t even been around for that long, so this is obviously more bullshit from Big Pharma. They probably figure that by the time it comes for you to sue them, you are already dead.
    I read a story about a young African girl, who had full blown AIDS, emaciated, dying; well they gave her these drugs, and her health improved dramatically within a few days. She looked normal again. You know what she did – she went back to being a prostitute! Now, what is the sense of spending money on this? Now only will she continue to spread the virus for another 10 years, but the virus’s ability to mutate may produce a stronger form. Perhaps the money could have been better invested in morphine. Anyways, I’ve been studying HIV for 28 years. Thanks, at least, for responding.

  18. I was infected with HIV from a man that infected a number of us. I agree that we should all prectice unic=versal precautions. I was 19 and he was 44. There was definitely a power differential. i was younge and niave and had my own issues so i did not use protection. I have watched him over the last 10 years infect other women. It disgusts me. I believe that these acts should be criminalized on the other hand I have been open with my staus to my partners. I have dated two HIV negative peoplewho knew I was positive and accepted me. I am undetectable and the risk is very minor for transmission. I was with both partners for long periods of time and they are both HIV negative. I had a child 5 years ago and she is also negative and I am currenlty pregnant. I am confident that this one will be negative as well. I take my medications and take all necessary precautions not to transmit such as I do not breastfeed. I believe I have the right to have children and this day and age medical science has made that possible If I knew the baby would have it I would not try but today there are so many babies born negative. Now should I be prosecuted for living my dreams after such tragedy. I do not believe so. I am a good mother, a proffesional, a student, a fiancee and I am a person like any other who has HIV. I have disclosed my status to my negative partner and he loves me regardless. This is a complicated issue but if the transmission is intentional yes it’s a crime. But we also have the right to live a normal productive life. I am still undetectable and it has been 10 years,

  19. I’m not really against criminalizing the act of failing to disclose HIV-positive status to a sexual partner. How can the partner give informed consent to sex without knowing that it could be potentially fatal? Sex without consent is already illegal.

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