On March 28, Governor Gary Herbert signed House Bill (HB) 369, adding a new section to the sentencing part of the punishments chapter of the Utah Code. HB 369 enacts Utah Code § 76-3-203.12, “Enhanced penalty for sexual offenses committed by a person with Human Immunodeficiency Virus (HIV), Acquired Immunodeficiency Virus (AIDS), hepatitis B, or hepatitis C.”
The new statute states that a person convicted of a sexual offense described in Chapter 5, Part 4, Sexual Offenses, is subject to an enhanced penalty if at the time of the sexual offense the person was infected with HIV, AIDS, hepatitis B, or hepatitis C and the person knew of the infection. Except when the underlying criminal offense is a first-degree felony, Utah Code § 76-3-203.12(2)(a) provides that the enhancement of a penalty described in Utah Code § 76-3-203.12(1) shall be an enhancement of one classification higher than the root offense for which the person was convicted.
The Salt Lake Tribune describe the version of HB 360 passed by the Senate as “a watered-down version” after a the bill “originally included a controversial provision that would make it illegal for an HIV-positive individual to engage in otherwise consensual activity without disclosing their HIV status to their partner.” Sale Lake Magazine reported in February that Will Carlson, representing the Statewide Association of Prosecutors, said he agreed with the bill’s intent but had reservations when HB 369 was first heard by the House Judiciary Committee.
“This does not say if you have a crime and the offender is HIV-positive then that crime is enhanced,” Carlson said. “This says if you are HIV-positive and you are intimate, this is a crime unless you’ve disclosed your status.”
According to the United States Congress, there are 33 states and two United States territories that have criminal statutes relating to perceived HIV exposure. The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA), which represents physicians, scientists, and other health care professionals who practice on the frontline of the HIV/AIDS pandemic, issued a press release on October 16, 2012, in which it urged for the repeal of HIV-specific criminal statutes.
“Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis,” the press release said. “Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.”
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Ironically, United States Representative Barbara Lee of California introduced H.R. 1739, otherwise known as the “Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2017” or the “REPEAL HIV Discrimination Act of 2017,” the day before Governor Herbert signed HB 369. If passed, the act would require the Attorney General, the Secretary of Health and Human Services, and the Secretary of Defense to act jointly and initiate a national review of federal and state “laws, policies, regulations, and judicial precedents and decisions regarding criminal and related civil commitment cases involving people living with HIV/AIDS, including in regard to the Uniform Code of Military Justice (UCMJ).”
Some of the concerning findings of Congress that are contained in H.R. 1739 include the following:
- 11 states have HIV-specific laws that make spitting or biting a felony, even though it is not possible to transmit HIV via saliva;
- 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission;
- HIV-specific criminal laws are classified as felonies in 28 states; in three states, a person’s exposure to another to HIV does not subject the person to criminal prosecution for that act alone, but may result in a sentence enhancement. Eighteen states impose sentences of up to 10 years; seven impose sentences between 11 and 20 years; and five impose sentences of greater than 20 years;
- The number of prosecutions, arrests, and instances where HIV-specific criminal laws are used to induce plea agreements is unknown;
- Multiple peer-reviewed studies demonstrate that HIV-specific laws do not reduce risk-taking behavior or increase disclosure by people living with or at risk of HIV, and there is increasing evidence that these laws reduce the willingness to get tested. Furthermore, placing legal responsibility for preventing the transmission of HIV and other pathogens exclusively on people diagnosed with HIV, and without consideration of other pathogens that can be sexually transmitted, undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases;
- The identity of an individual accused of violating existing HIV-specific restrictions is broadcast through media reports, potentially destroying employment opportunities and relationships and violating the person’s right to privacy; and
- Individuals who are convicted for HIV exposure, nondisclosure, or transmission often must register as sex offenders even in cases of consensual sexual activity. Their employability is destroyed and their family relationships are fractured.
H.R. 1739 also notes that state and federal “criminal law does not currently reflect the three decades of medical advances and discoveries made with regard to transmission and treatment of HIV/AIDS.” The bill states that according to Centers for Disease Control and Prevention (CDC), “correct and consistent male or female condom use is very effective in preventing HIV transmission,” but most state “HIV-specific laws and prosecutions do not treat the use of a condom during sexual intercourse as a mitigating factor or evidence that the defendant did not intend to transmit HIV.” The federal bill also specifically notes, “Criminal laws and prosecutions do not take into account the benefits of effective antiretroviral medications, which reduce the HIV virus to undetectable levels and further reduce the already low risk of transmitting the HIV to near zero.”
Utah’s bill indeed does not account for alleged offenders who are virally suppressed—meaning that the amount of HIV in their blood is very low (less than 200 copies per milliliter) and the chances of transmitting HIV are greatly reduced. It is in the best interest of any person accused of a sex crime in Utah to immediately contact an experienced Salt Lake City criminal defense attorney. People who are facing increased penalties because they were diagnosed with HIV, AIDS, hepatitis B, or hepatitis C are still entitled to a presumption of innocence.