Legal Blog

HIV Criminalization May Discourage Testing

02 June 2016 | Criminal Defense,  Federal,  Legal Blog,  

Attorney Sean Hessler

Written by
Sean Hessler

02 June 2016

Criminal Defense,  Federal,  Legal Blog,  

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In the past year, Indiana has struggled with how to handle HIV and a concentrated outbreak of the disease in Austin, a small town in southern Scott County, Indiana. Since the beginning of 2015, more than 190 people living in or near Austin have tested positive for HIV – a wave of transmissions linked to sharing needles. The situation became so dire the state declared a state of emergency.

Now, Indiana and other states have to determine if their current policies and laws are helping in stopping the spread of HIV or if something else needs to be done.

Indiana’s HIV Laws

Like many states, Indiana has criminalized some occurrences of transmitting HIV. Not everyone who transmits HIV to another person is guilty of a crime, but certain circumstances in which a person who is aware they have HIV puts another person at risk for the disease constitute a crime.

If someone who knows they are HIV positive has sex with another person without informing them of that fact, they could be charged with a crime. This can be true even if they use a condom to prevent transmission. Not telling the other person is a failure to warn before participating in a high-risk activity. Sharing hypodermic needles while HIV positive is another high-risk activity. An individual could be charged with a Class B misdemeanor or a Class D felony.

If someone who is HIV positive knowingly places blood, semen, feces, or urine in a place that would cause someone to touch it or ingest it with the intention for that person to do so, they have committed malicious mischief and may be guilty of a Class D felony. If the other person contracts HIV, the defendant can be charged with a Class B felony with a stricter punishment.

If an HIV positive individual purposefully attacks someone with a bodily fluid, they will be charged with a Class C or Class B felony. If the other attack transmits HIV, it becomes a Class A felony.

Depending on the specific charge, a defendant faces up to 6 months in jail and a $1,000 fine for a Class B misdemeanor to 50 years in prison and a $10,000 fine for a Class A felony. The fines and jail times for other felonies vary depending on the specific circumstances.

Criminalization Might Affect Whether People Get Tested

In recent studies, researchers found HIV criminalization may discourage testing and actually harm efforts made to prevent the spread of HIV. The results showed that a minority of individuals reported that failure to warn prosecutions decreased their willingness to get tested and made them afraid to speak with nurses and physicians about their sexual practices. This minority also reported higher instances of risky sexual practices, such as unprotected penetrative sexual intercourse with numerous sexual partners. The thinking may be that if they don’t know about their HIV status, they can’t fail to warn a partner or be charged with a crime later.

While it may have been a small portion of the group who responded this way, this is still a significant discovery. The best way to stop the spread of HIV is through open discussion with medical practitioners, education, and access to testing and treatment. If individuals are afraid to talk to doctors about their sexual practices for fear of being labeled criminals, then the medical community’s efforts to stop HIV transmissions go to waste.

The researchers acknowledge that these findings might not translate to the general U.S. population because it was a Canadian study that used a non-random sample of participants. The results of a similar study might also be different in America because individuals might not know their specific state’s HIV laws. Carol Galletly, J.D., Ph.D., from the Medical College of Wisconsin told The American Independent.

If you are facing criminal charges for HIV transmission, contact one of the skilled Indianapolis criminal defense attorneys at Hessler Law. Call (317) 886-8800 for a free, initial consultation of your case.