Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws
Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels.1 Three years later, the treatment had done just that. Rhoades’s risk of transmitting the virus to a sexual partner had been reduced by 93%, nearly the same reduction of risk associated with condom usage.2 Shortly thereafter, Rhoades engaged in consensual sexual activity with a man he met on a social networking site. The two men used additional protection. But Rhoades did not disclose his HIV-positive status until several days after their encounter. Rhoades’s sexual partner did not contract the virus. He pressed charges anyway under Iowa’s HIV criminal statute, which makes it a felony to expose another person to HIV. A jury convicted Rhoades in 2008. He was sentenced to twenty-five years in prison.3
Every state imposes criminal penalties for HIV exposure. Some states prosecute offenders under general criminal provisions like reckless endangerment.4 Others consider HIV exposure an aggravating factor for sentencing purposes.5 The majority, however, have enacted criminal laws that specifically address HIV exposure and carry severe penalties.6 These laws, under which states bring hundreds of new criminal charges every year, have been widely criticized.7 State HIV laws disproportionately impact the LGBT community and people of color.8 They provide an incentive to at-risk individuals to avoid HIV testing due to fear of prosecution.9 They criminalize behaviors that pose little to no risk of transmitting the virus.10 And, as Rhoades’s prosecution illustrates, states have failed to adjust their laws in response to breakthroughs in treatment and prevention.
One notable breakthrough is Pre-Exposure Prophylaxis (PrEP). PrEP is a pill taken daily that, when used correctly, allows HIV-negative individuals to nearly eliminate their risk of acquiring the virus.11 Truvada, a highly publicized brand of PrEP, claims to reduce the risk of transmission by 99%.12 The World Health Organization, in late 2015, recommended PrEP for “all population groups at substantial risk of HIV infection.”13 And in 2016, a Washington Post contributor urged more at-risk individuals to take the “miracle” drug.14 As the first drug ever to be approved by the FDA to prevent HIV infection, PrEP “has the potential to dramatically alter the sexual behavior—and psychology—of a generation.”15 Experts warn that PrEP could make its users feel “invincible”16—a feeling that has already increased risky behavior and the number of sexual encounters between HIV-positive and negative individuals.17
This Essay assesses PrEP’s implications for state HIV laws. While scientists believe that the new “miracle drug” is just as effective as a condom (if not more so), PrEP is not a defense to a violation of most HIV criminal statutes (whereas condoms sometimes are). The advent of PrEP has not reduced the scope of criminal liability for HIV-positive individuals. In other words, an HIV-positive person who has sex with a PrEP-using partner commits a felony in most states, unless the partner is informed of that person’s HIV-positive status. To be sure, HIV-positive individuals should always disclose their status to sexual partners. But the punishment here—a felony conviction and possibly decades in prison—is grievously disproportionate given the negligible risk of transmission. This Essay then urges state legislators to reform their HIV criminal statutes, and suggests several state laws that can serve as models for nationwide reform.
America’s patchwork of state HIV laws has existed since the AIDS epidemic began in the 1980s.18 The rise of these laws and the severe penalties they impose were fueled by a cocktail of ignorance and hysteria: ignorance of the virus and how it is transmitted, and hysteria generated by homophobia and the prospect of a deadly epidemic.19 In 1990, the federal government incentivized these laws by requiring each state to have adequate legal mechanisms for prosecuting HIV exposure as a condition of receiving funds for AIDS treatment.20 The laws that followed were severe and imprecise. While some states use general and conventional elements of criminal law (such as reckless endangerment) to criminalize HIV exposure, thirty-three jurisdictions have HIV-specific laws.21 In most of those jurisdictions, a violation is a felony.22
These laws impose exorbitant penalties on those who put others at risk, but rely on flawed factors for determining whether a person is really put “at risk.” Twenty-five states criminalize behavior among HIV-positive individuals that poses a negligible risk of spreading the virus.23 These laws have produced absurd and unjust results. The aforementioned case of Nick Rhoades sparked outrage, as did the 2008 conviction of Willie Campbell, an HIV-positive homeless man who spit in the eye of a police officer and was sentenced to thirty-five years in prison.24 (HIV is not spread through saliva.25)
Condom use can be a defense to prosecution under some of these laws. Four states—
California, Minnesota, North Carolina, and North Dakota—explicitly allow condom use as an affirmative defense.26 In five other states—Illinois, Indiana, Nevada, Oklahoma, and Pennsylvania—condom use is an implied defense. (The defense is implied because these five states only criminalize behavior that results in an exchange of bodily fluid or is “likely” to result in transmission.)27 In thirteen states, the wording of the statute makes a condom defense impossible.28 These statutes, which are actively enforced, criminalize all sexual intercourse among HIV-positive individuals who fail to disclose their status. In Florida, for example, “[i]t is unlawful for any person who has [HIV] . . . to have sexual intercourse with any other person, unless such other person has been informed of the presence of [HIV] and has consented to the sexual intercourse.”29 Prosecutors continue to enforce these statutes against HIV-positive individuals who use protection and reduce their transmission risk to negligible levels: Florida officials recently charged a 52-year-old man who wore a condom during a sexual encounter. He now faces 30 years in prison.30
The chorus of calls for reform has grown louder in recent years, but has yielded little progress. In July 2010, the Obama Administration announced a national strategy for fighting HIV/AIDS, and recommended that states reform their criminal laws accordingly.31 In December 2015, the White House put forward an updated plan in which the Department of Justice would disseminate strategies for reform to all state attorneys general.32 States have, however, resisted or ignored these recommendations. Only Iowa has taken steps toward reform. In May 2014, it reformed its criminal statute by reducing the applicable punishment and expanding it to include other infectious diseases, not just HIV.33 The following month, the Iowa Supreme Court reversed Nick Rhoades’s conviction, noting that his use of protection and antiretroviral therapy eliminated the factual basis for his conviction.34 It remains to be seen, however, if the rest of the country will follow Iowa’s lead.
PrEP may be more effective than condoms at preventing the spread of HIV, but it is less amenable to a defense under state HIV statutes. PrEP is a pill. And while it contains two powerful drugs—tenfovir and emitricitabine—that work in tandem in the bloodstream to prevent infection, PrEP does not stop the exchange of bodily fluid.35 Consequently, nearly every state law that allows condom use as a defense would not permit PrEP as a defense. The nine states that unambiguously permit a condom defense, either explicitly or implicitly, are California, Illinois, Indiana, Minnesota, Nevada, North Carolina, North Dakota, Oklahoma, and Pennsylvania. California and North Carolina’s HIV criminal statutes only provide exceptions for condoms, and no other forms of protection.36 North Dakota’s statute only provides an exception for an “appropriate prophylactic device.”37 Illinois, Indiana, Oklahoma, and Pennsylvania impose criminal liability if bodily fluids are exchanged.
Only Minnesota and Nevada’s HIV statutes are written broadly enough to allow an exception for PrEP. The Minnesota statute provides that “[i]t is an affirmative defense . . .that [the infected person] took practical means to prevent transmission as advised by a physician or other health professional . . . .”38 The plain language here is not precise: it requires that the infected person take the requisite precaution, whereas PrEP is taken by the non-infected party. Accordingly, a person who takes PrEP and unknowingly engages in sexual activity with an HIV-positive person may have grounds to press charges under a strict reading of the law. The Minnesota law, nevertheless, could serve as a model for reform nationwide. It does not require that the preventative measure stop the exchange of bodily fluids. Nor does it provide an exhaustive list of acceptable methods of protection at a time when new methods continue to be discovered. Researchers have established that PrEP is a “practical method” of “prevent[ing] transmission” within the plain language of the Minnesota statute.39 And since PrEP requires a prescription from a health care provider, an individual who uses PrEP is doing so “as advised by a physician or other health professional.”
Nevada’s law is also a potential model for reform. Nevada law imposes what is effectively a “probability test” for transmission. While other states criminalize behavior that could possibly lead to infection,40 Nevada criminalizes “knowingly or willfully engag[ing] in conduct in a manner that is intended to or likely to transmit the disease to another person . . . .”41 As previously noted, infection while taking PrEP is possible but highly unlikely. Thus, a probability test is broad enough to include PrEP, as well as other non-traditional preventative measures like antiretroviral therapy.
Unfortunately, in the remaining states with HIV laws, PrEP could not be a valid defense. In states that impose blanket bans on all sexual intercourse among HIV-positive individuals, no form of protection qualifies as a defense. Other states simply criminalize “exposure.”42 But an HIV-negative person on PrEP who has sex with an HIV-positive person is still exposed to the virus, even if the risk of contracting the virus is negligible. The advent of PrEP has led to an increase in the number of sexual encounters in which a participant is “exposed” to HIV.43 The result is that more HIV-positive individuals will be subject to criminal liability. Liability may be generally appropriate: men and women with HIV have a duty to disclose their status to sexual partners. But the potential penalty for failing to disclose—a felony conviction and a lengthy prison term—is draconian in situations where there is virtually no risk of transmission. PrEP will continue to give rise to these situations. State legislatures must respond accordingly.
The enforcement of outdated and misguided HIV statutes is not trivial, particularly when they are over-enforced against the African-American and LGBT communities. With hundreds of new charges brought every year carrying severe penalties, the potential for profound injustice remains. Simply put, these laws are not suitably tailored to the policy objectives they claim to address. They discourage at-risk individuals from getting tested for HIV. By not providing exceptions for the use of protection, they miss a valuable opportunity to create additional incentives to practice safe sex. They impose draconian punishments for behaviors that pose little to no risk of transmitting the virus, and create an undue source of stigma for carriers of a virus that is increasingly preventable and treatable.
Legislators should amend these laws and either preclude liability altogether or drastically reduce punishments if the conduct is not likely to result in transmission. Without legislative reform, more cases like those of Nick Rhoades are bound to arise—cases where there is no serious risk of transmission, but the HIV-negative partner presses charges anyway because of the emotional trauma associated with the possibility of infection, however remote. In the meantime, at-risk individuals must be aware that despite the growing popularity of preventative measures like PrEP, avenues for criminal prosecution remain.
Graham White is a 2016 graduate of Yale Law School. He is grateful to Spencer Todd, Alexandra Perloff-Giles, and other members of the Yale Law Journal for outstanding editorial assistance.
Preferred Citation: Graham White, Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws, 126 Yale L.J. F. 77 (2016), http://www.yalelawjournal.org/forum/pre-exposure-prohylaxis-(prep)-and-criminal-liability-under-state-HIV-laws.