December 21, 2011
Student guest-post asks intriguing questions about HIV crimes (and sentencing?)
A second student has now sent me guest-post material which I consider "top-flight" in terms of being an interesting topic, but the materials seems to me to be more suited to a Criminal Law Class blog than a Sentencing Law Class blog. Nevertheless, this student will still get some credit for this effort:
Topic: "Having HIV may get you 25-years in prison"
In fact, 34 states and 2 U.S. territories have HIV-specific laws on their books that state if a person (knowingly) living with HIV has sexual relations without prior disclosure of his or her HIV-positive status, then that person is committing a crime. Some of these laws permit sentencing a person living with HIV up to 25 years imprisonment for having consensual sex with someone who is HIV-negative (or does not know his or her HIV status) without prior HIV disclosure. A person may even be convicted if a condom is used and no HIV is transmitted, while some convictions occur with absolutely no sexual conduct, but rather the transmission of bodily fluid, such as saliva.
This link connects to an interesting article and video at the Huffington Post regarding this topic, entitled "HIV Is Not a Crime... Or Is It?":
Follow-up questions are as follows (some are aligned with the article):
1. Is this crime synonymous to attempted murder?
2. The article addresses the following concern: the CDC estimates that up to 20% of HIV-positive Americans do not know they are living with HIV. Because the laws absolve untested individuals, does this provide an incentive for the sexually promiscuous (those at the greatest risk of contracting HIV) to abstain from getting tested for HIV?
3. Should people living with HIV have to register as sex offenders? (If so, should this registration be required before or after the potential transmission of the HIV virus?)
4. Should people living with HIV be able to be sentenced up to 25 years in prison for a sexual act that did not result in the transmission of the HIV virus?
5. Should there be some responsibility (e.g. contributory negligence) on the victim if s/he did not ask whether the infected person had any diseases before engaging in sexual conduct with the infected person?
I am inclined to describe this issue and these queries as not quite sentencing issues because I have not heard/read any reports about defendants getting a harsher sentence based on HIV status alone. (Interestingly, I know that many HIV-positive defendants will request shorter prison terms by asserting the likelihood of poor medical care and/or a larger chance of dying in prison because of the disease.)
The Huff Post piece linked above reports some data on charges involving so-called HIV crimes:
Prosecutions against HIV-positive individuals have occurred in at least 39 states (some states have used non-HIV-specific laws for sexual assault), invoking a spectrum of charges including attempted murder, sexual assault, and assault with a deadly weapon. Yes, ignorance has led to defining blood, semen, vaginal fluid, vomit, and saliva of people living with HIV as "deadly weapons" by the courts -- and has even led to claims of "bio-terrorism" -- even though HIV is now considered a chronic manageable disease. In five states alone more than 500 people have been charged under these laws.
Obviously, being charged in special ways because of HIV status can have serious plea bargaining and sentencing consequences. But the concerns and questions raised by this issue still stike me as more fundamental criminal law concerns than distinct sentencing issues (even though, of course, every criminal law concern becomes a sentencing issue at some point).
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It's almost as if having the disease is the offense because of the potential to transmit the disease. I find this similar to (although not completely the same as) possession of child pornography... offenders may be harshly sentenced for a non-violent offense in both situations. Sex offenders in simple possession of child pornography may receive a sentence up to 20 years while HIV-positive people engaging even in safe sex practices may potentially be sentenced up to 25 years. I find both maximums to be harsh for a nonviolent offense.
Also, sentencing is a form of deterrence to the criminal conduct, so retributivist theory would not suggest absolving even ignorant criminals.
Finally, I don't think it would be beneficial to require infected persons to register as sex offenders, because this would only be an incentive to not get tested, which would avoid the issue of being sentenced altogether under the current language of the laws. (I'm sure that wasn't the purpose of creating the legislation.)
Posted by: Crystal M | Dec 21, 2011 7:40:03 PM
Though noot directly related to the post, I'll take this space to recommend the movie I Love You Philip Morris. It's a romantic comedy centering around a tumultuous relationship between Jim Carrey's character and Ewan McGregor's character. The two meet in prison, and date for several years following their release (if I remember correctly, for a while Jim Carrey fakes being a lawyer). At one point Jim Carrey's character goes back to prison. Their relationship has ended and Ewan McGregor wants no further contact. Jim Carrey fakes having AIDS. The medical staff thinks he is on his death bed, so they transfer him to a hospital where he is able to break out. He successfully meets up with Ewan McGregor before being caught and sent back to prison.
The movie is also based on a true story.
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