Constitutional Challenges Brought Against State Statutes
That Criminalize HIV Transmission

By Elaine A. Lisko, Health Law & Policy Institute

Almost one-half of the states, including Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Louisiana, Maryland, Michigan, Missouri, Nevada, New Jersey, Ohio, Oklahoma, South Carolina, Tennessee, Virginia and Washington, have enacted legislation that criminalizes the intentional, knowing or reckless exposure of another to HIV. Texas previously had such a statute but repealed it effective September 1, 1994. The majority of these statutes classify the criminal transmission of HIV as a felony.

The statutes take various forms. Some statesí statutes are relatively broad in scope. For example, Marylandís statute provides that "[a]n individual who has [HIV] may not knowingly transfer or attempt to transfer [HIV] to another individual." Md. Code Ann., Health-Gen. § 18-601.1(a) (1994). While Idaho and Louisiana have statutes that prohibit intentionally or knowingly exposing another "in any manner" or "through any means or contact." Idaho Code § 39-608(1) (1993); La. Rev. Stat. Ann. § 14:43.5(B) (West Supp. 1997).

Other statutes are much more limited in scope. They restrict the conduct that is subject to punishment to one specific type of behavior. For example, Colorado and Ohio have statutes that prohibit HIV transmission only by prostitutes or those patronizing prostitutes. See Colo. Rev. Stat. §§ 18-7-201.7 & 18-7-205.7 (1997); Ohio Rev. Code Ann. §§ 2907.24 & 2907.25 (Page 1996).

Still other statesí statutes are directed at multiple types of behavior that are commonly considered to be high risk. They contain a laundry list of activities that are subject to punishment. Among the prohibited activities listed in these types of statutes are engaging in various forms of sexual activity, donating or transferring blood, semen, tissue, organs or other potentially infectious bodily fluids, and sharing or transferring hypodermic needles. Georgia, Illinois, South Carolina and Tennessee have passed statutes of this nature. See Ga. Code Ann. § 16-5-60 (1996); Ill. Comp. Stat. Ann. ch. 720, para. 5/12-16.2 (1993); S.C. Code Ann. § 44-29-145 (West Supp. 1997); Tenn. Code Ann. § 39-13-109 (1997).

Arguably, the more specific a statute is the more likely it is to avoid constitutional challenge. However, this is not always the case. In fact, challenges have been brought against both specific and general statutes.

The principal constitutional challenges brought against criminal HIV transmission statutes are: (1) they violate the defendantís right to privacy because they require the disclosure of personal medical information (e.g., HIV test results) and they interfere with the conduct of intimate life decisions (e.g., sexual relations); and (2) they are unconstitutionally vague and overbroad.

A recently reported case in which the constitutionality of a criminal HIV transmission statute was challenged is State v. Mahan, 1998 WL 312752 (Mo. June 16, 1998) (en banc). Both defendants had been informed of their HIV-positive status and received counseling from state public health officials. Nevertheless, both engaged in unprotected sex without first advising their partners of their status. Both defendants challenged the statute as overly broad and one challenged it as vague. The Missouri Supreme Court rejected these challenges. The court found that the defendants lacked standing to attack the breadth of the statute because their actions did not fall into any constitutionally protected category. It also found that the conduct of the defendant who attacked the statute as vague was sufficiently grave to fall within the type of risk that the statute was intended to cover. Additionally, the court rejected the defendantsí argument that their HIV-positive status was confidential and should not have been revealed to the prosecutor and the jury because the Missouri statute that provided for the strict confidentiality of HIV test results specifically excepted disclosure to public employees who need to know the results to perform their duties.

The Mahan decision joins a growing number of state court decisions upholding criminal HIV transmission statutes as constitutional. See, e.g., People v. Russell, 630 N.E.2d 794 (Ill.), cert. denied, 513 U.S. 828 (1994); State v. Serrano, 1998 WL 352798 (La. Ct. App. June 17, 1998); State v. Gamberella, 633 So.2d 595 (La. Ct. App. 1993, writ denied); State v. Stark, 832 P.2d 109 (Wash. Ct. App. 1992). While the trend appears to be to in favor of finding the statutes constitutional, more challenges can be expected in the future as more prosecutions are brought.

Opponents of criminal HIV transmission statutes argue that criminal sanctions will not alleviate the problem but only cause people who are potentially at risk to avoid testing and treatment. They believe that the matter should be left to public health officials. They contend that, like persons with tuberculosis or other contagious diseases, persons who are HIV-positive should be quarantined or civilly committed only for as long as they refuse to modify their behavior. Some states, like Colorado and Florida, make provision for both criminal and public health action.