What Kind of Charge Do You Get for Knowingly Giving Someone Hiv

AIDS Behav. Author manuscript; available in PMC 2014 October i.

Published in final edited class equally:

PMCID: PMC4060526

NIHMSID: NIHMS438037

Charges for Criminal Exposure to HIV and Aggravated Prostitution Filed in the Nashville, Tennessee Prosecutorial Region 2000-2010

Ballad L. Galletly

^A Middle for AIDS Intervention Research (CAIR) Medical College of Wisconsin 2071 N Height Ave Milwaukee, WI 53202

Zita Lazzarini

^b Department of Community Medicine and Health Care Academy of Connecticut School of Medicine Farmington, CT 06030-6325 ude.chcu.osn@inirazzal

Keywords: HIV-specific criminal statutes, HIV exposure laws, Persons living with HIV, Criminal law, HIV seropositive condition disclosure, HIV transmission prevention

INTRODUCTION

Near all Us jurisdictions have criminal measures that can be imposed in cases of knowing exposure to HIV. Although some states rely on traditional criminal provisions such every bit reckless endangerment, the majority of US states have enacted HIV-specific statutes. These statutes include those criminalizing sexual exposure, sharing contaminated injection equipment, or donating blood or tissue. Many states also have statutes that enhance sentences for crimes such equally sexual assault or prostitution when committed by someone who knows that he or she has HIV. Tennessee has both types of provisions (1,2).

Although there have been reports of prosecutions of defendants for HIV exposure or transmission since early in the HIV epidemic (3,4), relatively little is known about how these laws are actually enforced. Federal law does not crave jurisdictions to report violations of these statutes equally they do for homicide and other specific crimes. If there is any tape of statutory activity at all, information technology oft includes convictions, not arrests. Nonetheless convictions may greatly under-represent the number of times a statute is invoked--particularly in a system such as we have in the US where overcharging is mutual and verdicts are ofttimes reached by plea bargain. Because reporting systems vary greatly between jurisdictions and because the quality of records or their comprehensiveness can vary even within a jurisdiction, tracking cases can exist very difficult.

Due to this lack of comprehensive data, previous studies of prosecutions had to rely on published court reports and the news media to identify cases (iii,4). Consequently, these studies were based on incomplete information and there was no simple way to determine how many other arrests, prosecutions, or convictions had taken identify. This lack of data has resulted in obvious but important questions going unanswered, including: how frequently these laws are enforced; how the police decide whom to arrest and what motivates them to human action; how prosecutors decide whom to charge and when to allow defendants to plea to a bottom charge; whether characteristics of defendants brand them more likely to be charged with HIV-specific offenses; whether characteristics of the lament witness matter; what proportion of arrests lead to convictions; and whether persons convicted of HIV-specific crimes go harsher sentences than those convicted of other offenses.

This paper provides a step towards greater understanding of the enforcement of HIV exposure laws in the US by examining comprehensive information on all those charged with HIV exposure and aggravated prostitution (i.eastward., solicitation by i who knows he or she has HIV infection) within a single jurisdiction, the Nashville, Tennessee prosecutorial region, over an 11-year period. The paper reports descriptive statistics of those charged, presents information related to the circumstances of the HIV-related charges, and discusses what these information tin can and cannot tell usa.

The Laws

Tennessee makes information technology a Form C felony for a person who knows he or she has HIV to engage in "intimate contact" with some other person (1). Intimate contact is broadly defined equally "the exposure of the torso of one person to a actual fluid of another person in whatever fashion that presents a significant hazard of HIV transmission." The law does non define the phrase "meaning risk," making it hard to know which sexual activities are proscribed and nether what conditions. For example, Tennessee's statute is silent on condom use. It is not clear if an individual who engages solely in condom-protected sex could be charged with violating Tennessee's statute. The answer to this could depend on whether prosecutors and courts believe that prophylactic-protected intercourse poses a "significant adventure" of transmission as the statute requires. Penalties for violating Tennessee's HIV exposure law include imprisonment for 3 to 15 years and fines up to $10,000 (5).

In society for an HIV-positive person in Tennessee to engage lawfully in intimate contact with another person, the HIV-positive person must disembalm his or her positive serostatus to the partner and receive their consent in advance of the activity (1). If charged with violating the HIV exposure statute, the HIV-positive person must prove by a preponderance of the evidence that the partner knew the defendant was infected with HIV, knew that the contact could outcome in infection with HIV, and gave advance consent to the activity with that knowledge. HIV transmission is non required for conviction. The law also criminalizes such activities as altruistic blood or tissue or transferring contaminated "intravenous or intramuscular drug paraphernalia." The statute was amended in 2011 to include persons who are infected with Hepatitis B and C viruses, although the penalty for exposure in these cases remains a misdemeanor.

Tennessee also has an aggravated prostitution statute that makes it a law-breaking when a person, knowing he or she is infected with HIV, "engages in sexual action as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of beingness hired to appoint in sexual practice" (two). Exposure to HIV is not required for prosecution, nor is sexual or even physical contact. Aggravated prostitution is a Grade C felony conveying the same penalties as the HIV exposure law, 3-15 years imprisonment and upwardly to $x,000 fine (5). The same activities, solicitation of sex for money, by a person not diagnosed with HIV, is a either a Grade B or a Form A misdemeanor. Ordinary solicitation is a Course B misdemeanor, with penalties of up to vi months incarceration and no more than than $500 fine (5), while solicitation within 100 feet of a church building or 1-and-a-one-half miles of a school is a Course A misdemeanor, with penalties up to 11 months 29 days incarceration and fines of $1000 to $2500 (6).

Neither Tennessee's HIV exposure nor aggravated prostitution laws require that the defendant intend to infect or even to harm the other person. The "intent" element of the laws is satisfied when an individual engages in the prohibited behaviors while knowing he or she has HIV infection. The laws exercise not require actual transmission, or, in the case of aggravated prostitution, actual physical contact.

Currently, persons convicted of violating Tennessee's HIV exposure or aggravated prostitution statutes are classified equally violent sex offenders, regardless of whether the circumstances surrounding their abort involved spitting, biting, or offering oral sexual activity (7). (Prior to July 1, 2011, persons who were bedevilled of aggravated prostitution were classified as sex offenders rather than violent sex offenders.) Sex offenders must register with Tennessee's sexual activity offender registry for a minimum of 10 years (7). Their information is provided to a variety of entities including local schools and law enforcement agencies. The activities of sex offenders are regulated and monitored. Failure to satisfy registration or reporting requirements is a Class Due east felony.

METHODS

Individual case reports were obtained for 27 arrests (25 persons) for HIV exposure (1) and 25 arrests (23 persons) for aggravated prostitution (ii) betwixt January ane, 2000 and Dec 31, 2010. Reports included arrest records, case summaries, and affidavits of complaint. Each instance study included the defendant'due south proper name, gender, race, date of birth, charges incident to arrest, prosecuting chaser, defense attorney (and whether the defense force attorney was court appointed), context of abort, complaining witness (if any), case disposition, and penalty (if any). These data were extracted, coded, and entered into a information assay plan (SPSS 15.0). Descriptive statistics were calculated (due east.g., frequencies and cantankerous tabs) for categorical data and median, mean, standard deviation, and range for numerical data. The statistical significance of intergroup differences was assessed using Fisher'southward Verbal test for categorical data and the Mann-Whitney U-test for numerical variables. The alpha level for statistical significance was fix at .05 for all analyses.

Researchers obtained Tennessee's relevant laws using traditional legal research methods. The Institutional Review Board at the first author'due south institution determined that this research was exempt from human subjects review.

RESULTS

HIV Exposure Cases

The following describes abort records, example summaries, and affidavits of complaint for persons charged with violating Tennessee'south HIV exposure statute (ane) from January 1, 2000 to December 31, 2010 in the Nashville prosecutorial region.

Arrests and Timeframe

Between January 1, 2000 and December 31, 2010, 25 persons in the Nashville prosecutorial region were formally charged with violating Tennessee'due south HIV exposure law. Two of these individuals were charged with violating the HIV exposure statute more than than once during this period, bringing the total number of charges to 27. Some other individual who was arrested for HIV exposure during this timeframe was arrested two years prior for aggravated prostitution.

The earliest charge was filed January three, 2000. The near contempo was November vii, 2010. Charges were ultimately dismissed in more than one-tertiary of the HIV exposure cases.

Defendants

The majority of persons charged with HIV exposure were male person (74%) and white (56%). The median historic period of defendants was 36 years old. Ages ranged from 23 to 56 years old. As an indicator of social economic status, public defenders represented the defendants in two-thirds of the cases. Information on counsel was not provided in 4 cases. Three defendants were homeless. (Please see Table 1.)

Table 1

Defendant & Complaining Witness Characteristics

	HIV Exposure		Aggravated Prostitution
	Number	Percent	Number	Percent
Defendant
Male	xx	74%	8	32%
Female	7	26%	17	68%
White	15	56%	13	52%
Black a	12	44%	12	48%
Age mean standard deviation (range)	36 sd eight.76 (23-56)		37 sd v.96 (25-49)
Had a public defender b	17	74%	20	87%
Homeless c	3	11%	7**	30%
Lament witness d
Male person	15	58%	n/a	n/a
Female person	11	42%	n/a	north/a

Complaining Witnesses

Merely over half (56%) of the complaining witnesses in HIV exposure cases were male. The gender of one complaining witness was unknown. (For details on defendant-complaining witness pairs, delight meet Table 2.)

Table 2

Sexual HIV exposure cases: Defendants' gender and race, lament witnesses' gender, whether defendant and complaining witness were in an on-going relationship at fourth dimension of the alleged exposure, and case consequence

	Number of cases a	Race of defendant	On-going human relationship/ Non on-going relationship	Case outcome: bedevilled of a criminal offence/not convicted of a crime
Male defendant/Female lament witness	8	6 black	five ongoing human relationship ane not an ongoing human relationship	4 guilty, 1 dismissed 1 guilty
		2 white	0 ongoing relationship two not an ongoing relationship	1 guilty, 1 dismissed
Male person defendant/Male lament witness	iii	0 blackness
		3 white	1ongoing relationship 2not an ongoing human relationship	i dismissed 1 guilty lesser charge, 1 dismissed
Female person defendant/Male person complaining witness b	4	four blackness	3 ongoing relationship one not an ongoing human relationship	1 guilty, i guilty lesser accuse, 1 dismissed 1 guilty
		0 white

Nonsexual Incidents

Eleven of the xx-7 arrests for HIV exposure (41%) involved scratching, spitting (some with saliva, some with saliva mixed with claret), bitter, or flinging or splattering blood. (Please run into Table 3.) In ten of the eleven cases, the complaining witnesses were police officers (8) or hospital emergency staff (2). Another instance involved an individual biting another person during a conflict. HIV transmission was not alleged in any of these cases, although i emergency department staff person reportedly was "treated for HIV exposure" afterwards an HIV-positive defendant spit on her. In 2 cases, the defendants were charged with attempting to betrayal another to HIV (in both cases, the "others" were constabulary officers); there was no transfer of bodily fluid.

Table 3

HIV Exposure Offenses, Behaviors, Dispositions, & Penalties

Offenses	Number of cases		Penalties/ Sentences a
		Transmission alleged?
HIV Exposure			Dismissed	Non-HIV penalty	HIV-penalty	Range
Non-sexual	11
Spitting, scratching	four	0	2	two	0	iii months – eleven months & 29 days
Biting, blood splatter	seven	0	three	3	1	iii years
Sexual	16
Consensual (unprotected vaginal or anal sex)	nine	3	iii	i	five	11 months 29 days – viii years
Consensual (no data on behavior or condom utilise)	6	0	two	1	iii	two years – 4 years
Sexual exposure of child	i	0	ane	0	0	10 years
Total	27	3	eleven	vii	9

Near of the nonsexual exposure cases involved individuals resisting arrest or incarceration (73%). In several of these cases, defendants reportedly threatened to betrayal police officers to the virus or implied, after contact with the officeholder, that he or she would become infected with HIV.

The defendants in the majority of the nonsexual exposure cases (64%) were intoxicated or described every bit highly agitated and/or impaired when the incident occurred. In two cases, defendants were in medical facilities existence treated for injuries due to prior altercations. Another defendant became combative while beingness transported by medics afterward being injured in an assault. Two defendants were described every bit having cocky-inflicted caput lacerations while resisting arrest or detention. Another defendant, whom officers confronted every bit he was displaying a sign saying "homeless, hungry vet," reportedly attempted to cut his wrist in order to avoid going to jail.

Disclosure of HIV Status

HIV exposure statutes are unusual when compared to most criminal laws because these statutes require absorbing officers or prosecutors to be enlightened of defendants' individual wellness information. Five defendants (45%) reportedly disclosed to officers that they had HIV in threats to betrayal the officers to the virus. In another case, the officers became enlightened that the accused had HIV considering the defendant informed the infirmary emergency department staff of his HIV infection prior to beingness treated. In three cases, the defendants' HIV-positive status was known by police from frequent interactions with the defendants. In a fourth case, the officers were aware of the defendant's HIV-positive serostatus because of a prior arrest for violating the HIV exposure statute. Another defendant, who was arrested for reckless driving, reportedly began screaming, manifestly unprompted, that he had HIV and had infected his girlfriend and their unborn baby.

Trends over time

Of the ten charges involving police or hospital emergency room staff, nine occurred prior to 2007, suggesting that prosecutions of this sort macerated in the latter half of the decade. This tendency was not statistically significant (p = .06). (Run across Figure 1.)

Arrests for HIV exposure and aggravated prostitution from 2000 to 2011 by year of arrest

Sexual Incidents

Sixteen of the twenty-7 arrests (59%) involved non-disclosed "exposure" to HIV through sexual activity. The majority of incidents (75%) involved opposite sexual activity partners. (Please run across Tables 2 & 3.) Nine of these complaints indicated that the accused and the complaining witness engaged in unprotected anal or vaginal sex. HIV transmission was alleged to take occurred in 3 of these cases. Six additional complaints did non indicate the sexual activities involved; none of these complaints alleged HIV transmission. A concluding case involved rima oris-to-penis contact with a child (the child's mouth made contact with the accused's penis). Again, at that place was no mention of HIV manual, and a description of the sexual contact suggested that there was no transfer of bodily fluid.

Relationship between Defendant and Lament Witness

In more than than one-half (56%) of sexual exposure cases, the lament witnesses and defendants did not appear to be in ongoing relationships with each other. For example, one incident involved alleged solicitation. Another incident involved a single sexual encounter in an outdoor venue. When lament witnesses and defendants were in ongoing sexual relationships, the alleged offenses spanned 7 to thirteen months. For characteristics of defendant-lament witness pairs, please see Table ii.

Timing of Charges

The fourth dimension between the dates of the alleged offenses and the dates that the charges were filed varied considerably when sexual exposure was alleged. In a few cases, the complaining witness became aware of the defendant's HIV infection but did not file charges until another prompting event occurred. Once, for example, the lament witness indicated that he became infected and so plant out that the defendant had HIV, merely filed charges five months subsequently, after the human relationship ended. The charges were filed when both the accused and complaining witness were co-defendants in a example involving illegal drug use and drug possession.

Disclosure of HIV Status

In about cases involving sexual exposure in an ongoing relationship, the lament witness discovered the accused's HIV infection through friends or family of the defendant, rather than from the defendant directly. The example reports also provide some evidence about the circumstances surrounding defendants' failure to disembalm. Once, the lament witness reported that she directly asked the defendant, prior to engaging in sex, if the defendant had HIV. When straight asked, the defendant reportedly denied having HIV, although he had been diagnosed prior to this incident. In some other example, when the complaining witness told the accused that she had get aware that he was putting her at adventure for HIV infection, the accused was reportedly "indifferent."

Other defendants attributed their failure to disclose to fright of rejection. For case, one individual, when asked by the lament witness why he did not disclose that he had HIV, reportedly answered "Because women generally practice not want to be in a relationship with HIV-positive partners." Another defendant attributed her failure to disclose her HIV-positive status to an incorrect assumption. The defendant reported that she assumed that a mutual friend had informed the complaining witnesses that she had HIV.

Evidence of Intent to Harm

Evidence in the example reports related to nondisclosure, above, includes 1 accused who reportedly lied about his HIV status when asked direct by a prospective sex partner. Others failed to disclose, whether for instrumental reasons or mistaken assumptions. While these acts, including outright lying and may be blameworthy to varying degrees, the records revealed no evidence that whatever of the defendants in sexual exposure cases intended to infect or to impairment the complaining witnesses.

Dispositions

16 of the twenty-seven HIV exposure cases (sixty%) resulted in a conviction. Nine of the convictions were for HIV exposure and seven were convictions for a lesser charge. (Delight see Table 3.)

Nonsexual Incidents

Of the xi nonsexual exposure charges, merely one instance concluded in conviction for violating the criminal HIV exposure statute (intoxicated man, self-inflicted laceration). One case was dropped, five cases were dismissed, and 4 ended with defendants being found guilty of lesser charges. (Please see Tabular array 3). Convictions on lesser charges included misdemeanor assault, assail with bodily injury, and assault with offensive or provocative contact.

Sexual Incidents

Of the sixteen sexual exposure cases, viii cases concluded in a guilty verdict for HIV exposure, ii ended in guilty verdicts for a bottom charge (reckless endangerment), and half dozen were dismissed. Defendants in over half of the cases described as involving unprotected sex were convicted on HIV exposure charges; i was constitute guilty of reckless endangerment, and charges were dismissed for the remaining three cases. Of the three cases where HIV transmission was alleged, one concluded in a guilty verdict and two were dismissed. (Delight see Table 3.)

Sentences

Sentences for HIV exposure ranged from one month to viii years' incarceration. The median was thirty months. Sentences for nonsexual exposure ranged from one calendar month to three years with a median sentence of four months, while those for sexual exposure ranged from ane to eight years with a median judgement of forty-2 months. (Meet Tabular array 3.) Sentences did not differ by the gender of the accused or the gender of the complaining witness; however, individuals who were black received significantly longer sentences than those who were white (z = −2.078, p = .038). This disparity in sentencing may be due, in part, to the blazon of offense (i.e., sexual or nonsexual). Persons who were black were more likely to be convicted of criminal HIV exposure related to a sexual interaction than persons who were white (Fisher'south exact test, p = .035), and penalties for sexual exposure are significantly longer than penalties for nonsexual exposure (z = 2.784 p = .003).

The convictions for HIV exposure that received the most severe penalties were unprotected sexual exposure with alleged transmission (v years); followed by unprotected sexual exposure inside an ongoing relationship, no transmission declared (eight years and 5 years); unspecified sexual act inside an ongoing human relationship, no transmission alleged (four years); and unprotected sex with a casual sex partner (iii years). There was i anomaly--an HIV exposure confidence involving blood splatter on a police force officeholder while the accused was resisting arrest. The accused was charged with two counts, both of which received three-year sentences. The sentence for the second count was suspended; notwithstanding, the defendant subsequently violated probation and served the term. (See Table iii.)

In some cases, judges included special orders as part of the case disposition. In three cases, the gauge included an order that the accused stay away from the complaining witness. In ii cases, the judge ordered the accused to participate in a support and secondary transmission prevention program offered at a local AIDS service organization.

Aggravated Prostitution

Arrests and Timeframe

Between January 1, 2000 and December 31, 2010, 23 persons in the Nashville prosecutorial region were formally charged with violating Tennessee'south aggravated prostitution statute (ii). Two of these individuals were charged with violating the statute more than once during this period, bringing the total cases to 25. One individual who was arrested for aggravated prostitution betwixt January ane, 2000 and December 31, 2010 was as well arrested for criminal HIV exposure in the aforementioned timeframe (encounter HIV exposure, to a higher place).

The primeval charge was filed May xi, 2000. The well-nigh recent was May 26, 2010. The annual arrests for aggravated prostitution were non consistent over fourth dimension. For example, there were no arrests betwixt 2007 and 2008, but in that location were three arrests in 2006 and four arrests in 2009. (See Figure 1.)

Six of the twenty-three persons (26%) arrested for aggravated prostitution between Jan 1, 2000 and December 1, 2010 had been previously arrested for HIV-specific charges. Ane had been arrested 3 times, ane "multiple times," and another 2 times. This last accused had also been arrested prior to January 1, 2000 for HIV exposure.

Defendants

The majority of persons charged with aggravated prostitution were female (68%) and white (52%). The median age of defendants was 37 years old. Ages ranged from 25 to 49 years erstwhile. Public defenders represented the defendants in 80% of the cases. Information on defence counsel was non provided in two cases. Seven defendants were homeless (30%), and ii others had no dwelling address listed on court records (9%). (See Table 1).

Incidents: Specific Behaviors Alleged

Of the 17 cases for which at that place is information on the sexual beliefs solicited, 13 cases involved solicitation for oral sex activity, three cases involved solicitation for vaginal intercourse, and 1 instance involved solicitation for condom-protected anal sex. (Run across Table iv).

Tabular array 4

Aggravated Prostitution Offenses, Behaviors, Dispositions, & Penalties

Offense	Number of Cases		Penalties/ Sentences a
Aggravated Prostitution			Dismissed	Non-HIV penalty	HIV punishment	Range
		Transmission alleged?
Solicited only oral sexual practice	13	0	1	7	5	30 days - 6 years b
Solicited protected anal or vaginal sex	1	0	0	ane	0	11 months & 29 days
Solicited anal or vaginal sex condom use unspecified	iii	0	0	ane	two	4 years – 5 years
Solicited deed unspecified	8	0	1	five	2	xxx days – 2 years
Full	25	0	2	14	9

Incidents: Circumstances of Arrests

In more half of the aggravated prostitution arrests (xiv arrests, or 56%), the defendants were charged afterwards solicitation of an undercover constabulary officer or police representative. Two of these defendants were identified past police after they posted advertisements on the Net. 7 defendants were arrested later on being seen "flagging down cars," "leaning into cars," or loitering in areas known for prostitution. The boosted two arrests resulted from unrelated calls to the police.

In nearly one-half (44%) of the aggravated prostitution cases, defendants were charged with illegal drug-related charges forth with the aggravated prostitution charge. One of these individuals was described as "high" when arrested; when asked for her identification, she handed the officer a crack pipe. Some other private was arrested after offering to exchange sexual activity for crack cocaine. Two individuals were charged with possession of drug paraphernalia because they had syringes.

Disclosure of HIV Condition

In ten aggravated prostitution cases (40%), the defendants themselves disclosed to police that they had HIV. In four additional instances, constabulary officers were familiar with the defendants from previous interactions and were aware that defendants were HIV-positive. In some other instance, the individual was known to exist HIV-positive because he had told an officer the previous week that he did not engage in prostitution anymore because he "knew he was HIV-positive."

Evidence of Criminal Intent

There was no evidence that whatever of the defendants charged with aggravated prostitution intended to infect or to harm the complaining witness.

Dispositions

Ninety-two pct of aggravated prostitution cases (23 out of 25) resulted in a conviction. Nine cases (41%) resulted in conviction for aggravated prostitution. Fourteen (56%) resulted in convictions for a bottom charge (the majority for misdemeanor prostitution), and one (5%) resulted in conviction for aggravated assault. Charges were dismissed in two of the twenty-five arrests for aggravated prostitution. (Run across Tabular array 4.)

Sentences

Sentences for aggravated prostitution ranged from ii to six years' incarceration. The median sentence was three years. Sentences for misdemeanor prostitution ranged from thirty days to 11 months and 29 days (the maximum for a misdemeanor). The median was nine months. (Encounter Table four). In one example, the approximate ordered the defendant to undergo drug handling. In another example, the defendant was ordered to attend a support group for persons living with HIV. One individual was required to complete 40 hours of customs service after his sentence for reckless endangerment was suspended. Another private was required to undergo testing for sexually transmitted infections.

Word

HIV-specific criminal laws are regarded as highly suspect both in the U.s. and elsewhere in the world (8-eleven). HIV exposure laws are especially problematic because these laws take the potential to be enforced in ways that reinforce stigma and discrimination, undermine national and global HIV prevention letters, and violate human rights. The laws are usually applied by persons who have no experience in HIV hazard assessment, and they are often applied to persons who are so marginalized from mainstream society that they have little recourse when accused. Furthermore, beingness charged with an HIV-specific offense, whether one is prosecuted or the instance is dismissed, reveals i's individual wellness information to all parties involved in the complaint and may memorialize i's HIV-positive status in public records. There is great potential for abuse of these statutes.

Although the number of prosecutions in the Nashville jurisdiction is too small-scale and the data gleaned from the affidavits of complaint too limited for extensive analyses, these data exercise provide of import insights into how these laws have been implemented in one jurisdiction for more than than a decade. The results are not generalizable, but they are informative. The data suggest that previous research may have significantly underestimated the incidence of arrests and convictions for HIV-specific crimes. There were 52 HIV-related arrests over xi years in the Nashville region, while the landmark study of enforcement prior to this identified simply 316 cases in the US over 15 years (iii). The data raise numerous questions and suggest that further analysis of the enforcement of HIV-specific crimes could reveal that far more individuals take been charged and/or bedevilled of these offenses then previously estimated.

What we tin can say ...

No Risk or Depression Risk Acts

From 2000-2010, a surprising proportion (41%) of the charges for criminal HIV exposure in the Nashville prosecutorial region were for nonsexual behaviors that pose minimal or no take chances of HIV transmission. None of these charges alleged HIV manual. The refuse in arrests for nonsexual exposure afterward 2007, nonetheless, is encouraging. It is as well encouraging that only ane of the eleven HIV exposure arrests that stemmed from a nonsexual incident resulted in conviction for HIV exposure. It is possible that there may be some sensitivity to transmission hazard in the adjudication of these cases. Still, the persistence of any HIV exposure arrests based on behaviors that pose no or negligible risk of HIV transmission suggests misunderstanding or misuse of the law. At the very least, these arrests propose that police officers and prosecutors interpret the statutory requirement of "significant exposure" much differently than infectious illness experts.

Although Tennessee's aggravated prostitution statute does not crave "meaning risk" of HIV transmission, or even any concrete contact, it is of import to note that more than half of those defendants arrested for aggravated prostitution had only offered oral sex. The risk of HIV manual from oral sex is very low, on the order of 0.04% per human activity of oral sex (12). This approximate probably overstates the risk in the Nashville cases because the 0.04% estimate was based on cases in which the HIV-infected person ejaculates into the mouth of some other, rather than the other mode around (i.due east., an HIV-infected prostitute performs oral sex on a male) (xiii). Although defendants violate the letter of the aggravated prostitution law by having HIV infection and offering to trade oral sex for money, in this case the intended act poses minimal risk of HIV transmission. Use of the aggravated prostitution provisions, with their significantly enhanced penalties, for the very low run a risk activities described in many of the prostitution cases does not appear to be based on either actual risk or testify of intent to impairment.

Substance Abuse and Mental Impairment

The summaries of both HIV exposure and aggravated prostitution cases suggest that substance abuse and other impairments played an important function in these cases. In nearly half of the aggravated prostitution arrests, the defendants were also charged with drug offenses or possession of drug paraphernalia. At to the lowest degree one defendant was nether the influence when arrested and at least one other was arrested while attempting to exchange sex activity for drugs. Too, 3 HIV exposure cases resulted from defendants resisting arrest after being charged with an booze-related offense such equally driving nether the influence or public intoxication. The summaries suggest further that some of the defendants suffered from mental illness or other cerebral harm.

Homelessness

The aggravated prostitution cases highlight the problem of homelessness among persons living with HIV. Nearly one-third of persons charged with aggravated prostitution were homeless. Another 9% had no dwelling address listed, suggesting that they also were homeless or unstably housed. In addition, three persons arrested for HIV exposure were homeless.

Recidivism and Intractable Behaviors

Several defendants were arrested on more than one occasion for HIV-related crimes. In i case, a defendant was arrested and charged with aggravated prostitution in two carve up instances in i week. In another example, the defendant was arrested twice in four months. Other defendants' arrest reports noted that they had all-encompassing criminal records or drug histories. Several defendants were described as "known to constabulary." In some cases, police were familiar enough with the defendants to know they were infected with HIV.

Police Response to Defendants who Resist Arrest

The majority of HIV exposure cases that involved spitting, scratching, or blood spattering occurred when defendants were intoxicated, agitated, or otherwise impaired. Most were resisting arrest. Many were being restrained prior to the incident that resulted in the HIV exposure charge, and some were described as having inflicted serious wounds upon themselves. Their resistance could have put themselves and arresting officers in danger, but non from HIV infection.

Although these data exercise not identify what specific factors drove police and prosecutors to arrest and bring felony charges against these defendants, the picture that emerges is of police and emergency responders who take hard and sometimes threatening encounters with persons who are intoxicated, mentally ill, or otherwise impaired. The police force may perceive few other local options or resources for dealing with people who exhibit these types of behaviors. Still, several defendants seemed as if they might be amend served through customs services such as drug treatment, supportive housing, intensive case management, etc., than through the criminal justice system. Judges ordered some defendants to seek services or to attend support groups. Unfortunately, in at to the lowest degree one example, the convicted individual left a court-ordered treatment facility and was afterwards incarcerated.

What nosotros tin can't tell from these cases...

Part of Empirical Evidence and Public Health

Public wellness sciences and engineering science are relevant to criminal HIV exposure cases in several means, only these records provide little testify of their role in the Nashville cases. Public health personnel might, for instance, advise police or emergency responders who are worried about their risk afterward exposure. If public health personnel could provide an objective assessment of adventure, defendants might not exist charged with HIV-specific crimes in cases where the actual risk of transmission was minimal or non-existent.

All-encompassing empirical research quantifies the risk of various types of exposure to HIV and the touch on of preventive measures such equally condom use. Although the cases reviewed here included a variety of exposure activities, in that location is no way to tell from these records whether the police, prosecutors, or defense attorneys were enlightened of this trunk of research or whether they considered information technology in any way in the process of charging, prosecuting, or defending these cases. However, the fact that several cases involving beliefs that posed minimal risk of transmission resulted in convictions and incarceration propose that, at least in some cases, testify of the bodily adventure of transmission was not considered or, if used, was not persuasive.

HIV transmission was alleged in three of the HIV exposure cases. Although the technology exists to establish whether 1 individual was a possible source of another's infection and also to prove conclusively that a defendant could not have been the source of another'south infection, we cannot tell from these case records whether such evidence was sought or used at trial.

It is troubling that in at least i case, justice officials subpoenaed health section records to establish that a defendant was enlightened of his HIV infection. This inter-agency cooperation could seriously diminish client confidence in the health department and ultimately impairment HIV prevention efforts.

Role of Race, Gender and Sexual Orientation

Defendants in the Nashville cases were male and female, heterosexual and homosexual, white and nonwhite. Complaining witnesses, too, were diverse in terms of race, gender, and credible sexual orientation. As mentioned above, there were proportionally more women amidst those arrested for HIV exposure than there were amongst persons living with HIV in Nashville. Although in that location was no statistically significant deviation in the racial characteristics of those arrested for HIV exposure and the racial characteristics of persons living with HIV in Nashville, analyses did reveal a significant departure in sentencing by race. (Come across beneath.) Beyond this it is difficult to tease out the possible role that race, gender, or sexual orientation may have played in these criminal cases.

Sentencing

None of the Nashville cases resulted in the extraordinarily long sentences institute in earlier studies of HIV prosecutions (many sentences for >10 years, instances of sentences for lx years, and even for life) (3,4). Nonetheless, amidst the xxx overall convictions there were still sentences for 8 years (HIV exposure) and six years (aggravated prostitution). Moreover, at least one defendant received a three-twelvemonth sentence for spitting/scratching and some other received a six-year judgement for solicitation of oral sex activity. Whether these sentences are proportionate to other crimes of similar gravity is difficult to respond. We also do not know the role that previous convictions may accept played in the final sentence. We tin can say, however, that a three-year sentence for splashing blood while resisting arrest—a behavior that posed minimal risk—seems disproportionate, every bit does a vi-year sentence for solicitation of oral sex activity.

The sentences of black individuals arrested for HIV exposure were significantly more severe than the sentences of their white counterparts. This racial disparity may point to serious flaws in the adjudication process. Black defendants were significantly more likely than white defendants to be prosecuted for sexual (equally opposed to nonsexual) exposure, and sexual exposure cases received more severe sentences. Sentences for HIV-specific offenses should be systematically compared to those handed down for other offenses to evaluate whether sentencing reflects prejudice or fear of contamination or more than the defendants' criminal motivation or bodily risk to society.

Police and Corrections Officers' Behavior

The data available about nonsexual exposure and aggravated prostitution cases are inherently biased in that they stand for the arresting officers' depiction of the declared incidents. Defendants' depictions of events are not recorded. It has been suggested that in some cases, police or corrections officers will employ excessive force or otherwise mistreat an individual and so charge the individual with a crime in order to diminish his or her credibility and/or deter the victim/defendant from reporting the mistreatment (14). With HIV exposure charges, it may also be possible that the defendant disclosed his or her seropositive status to police officers in an endeavor to fend off physical abuse. We cannot know if this occurred in any of the nonsexual exposure cases described here.

Bear upon of Sex Offender Status

Although we know that the statutory consequences of being classified as a "violent sex offender" under Tennessee law are all-encompassing, we have no way of knowing the bodily impact on the lives of the 17 individuals here that were convicted of either HIV exposure or aggravated prostitution. Nosotros practise not know if they take been forced out of housing or had difficulty finding new housing; we practice not know if they have been exposed to their friends and families through the country sex activity offender registry, or if this has had a negative impact on their employment, or education. We do not know what impact it had on their families, since some of them are likely parents.

Summary of Relevant Literature

HIV exposure Law Studies

Considerable research attention has been dedicated to the report of HIV exposure laws and more generally, the criminalization of HIV exposure. Along with studies of the enforcement of HIV exposure laws (described below), researchers take addressed topics such as attitudes toward the criminalization of HIV exposure (15-21), awareness of pertinent laws (15, 18-xx, 22-24), potential effectiveness of these laws as a structural-level HIV prevention intervention (3, 19, 22-26) and inadvertent negative furnishings of the laws (15-17, xx-25, 28).

Comparison with similar studies

There is no central arrangement in the Usa or, to our knowledge, in whatever single state within the Us, to which arrests for HIV exposure or aggravated prostitution are reported. Therefore, few studies accept been able to examine comprehensively and systematically the characteristics of defendants and the contexts of their arrests for HIV-specific offences in any given jurisdiction.

By tracking news media and court records, Lazarini et al. identified 316 distinct HIV-related criminal cases in 39 The states states and territories between 1986 and 2001 (3). Of these cases, 165 concluded in conviction on HIV-related charges. In 21 additional cases, HIV was the basis for an enhanced penalization after conviction for another law-breaking, such every bit sexual set on. (In one case, a defendant received both a conviction on an HIV-specific charge and a sentence enhancement.) The sentences in these cases were considerably longer (east.g., the average minimum judgement of those who received less than a life judgement was 14.3 years) than sentences in the Nashville region. Characteristics of defendants were not analyzed.

Using a like method of tracking media and published court cases, Positive Justice Project attorneys identified over 350 criminal HIV exposure cases spanning 2008-2011 in 36 states in the nation (4). However, the Positive Justice Project attorneys cautioned that their instance summaries are meant to be illustrative rather than exhaustive. Every bit such, statistical analyses were not conducted.

Hoppe identified 56 convictions for violations of Michigan'south criminal HIV exposure police force between 1992 and 2010 (27). Sufficient data were available in 30 of these cases for statistical analyses. Although the Michigan and Nashville studies differ in pregnant means (east.g., the Michigan data reflect adjudicated cases while the data in the present written report reverberate arrests through final disposition in virtually cases), there were similarities in the findings from both studies. Few of the cases in Michigan declared manual, which is consistent with findings in Nashville (2 of the xxx cases analyzed in Michigan and iii of the 52 arrests in Nashville declared manual), several cases in both studies were based on incidents involving piffling to no risk of HIV transmission, and few cases in either study involved more than than one complaining witness. In both Michigan and Nashville there was an overrepresentation of African-American men with female partners among those convicted for an HIV-specific criminal offence when compared to surveillance data on incident infections. The average criminal sentence for those convicted of a criminal offence (whether an HIV-specific crime or a lesser charge) was less than three years in both studies. In Michigan, as in the Nashville region, a substantial proportion of defendants appeared to endure from mental illness or drug habit.

Outside of the Us, Mykhalovskiy in Canada constitute that a large number of prosecutions were among blackness, immigrant men (28). In Nashville, on the other hand, women were overrepresented in arrests for HIV exposure when compared to the epidemiological profile of persons living with HIV in the region (defendants in aggravated prostitution cases were not included in these analyses because, as expected, the majority were women). Those arrested in Nashville did not differ significantly by race.

CONCLUSIONS

Ostensibly, HIV-specific criminal laws are enacted to reduce the incidence of new HIV infections (11); however, the enforcement of the laws in the Nashville prosecutorial region suggests that HIV exposure and aggravated prostitution statutes rarely address situations where HIV manual is probable. In fact, experts in infectious disease transmission might contend that few cases involved even the "significant exposure" required by the statute.

I argument that has been made in favor of adopting and maintaining HIV-specific criminal statutes (even among some who otherwise oppose such laws) is that the statutes should exist available to punish exceptionally heinous behavior, such every bit cases of intentional manual of HIV or cases where multiple individuals are infected. However, based on this assay of xi years of cases from one jurisdiction, that is not how these laws are existence used.

Few, if any, of the arrests for HIV exposure or aggravated prostitution involved the malice or moral deficiency that some imagine motivates HIV-positive persons who "betrayal" uninformed sex partners to HIV. For example, in only one example does the record advise that the defendant lied when asked directly by a prospective sex partner whether he had HIV. In another case the accused was characterized as "indifferent" when confronted about having sex with an uninformed partner.

The majority of people charged and bedevilled for these offenses are poor, from marginalized groups, and frequently suffer from drug dependency or mental illness, or both. Many of the HIV exposure arrests address fairly specific police interactions with defendants whose cluttered lives seem to brand them unresponsive to efforts to address their behavior through the criminal police. Their deportment seem too disorganized and besides ineffective to be malicious.

The aggravated prostitution cases highlight a like dynamic. The recidivism is alarming, not so much because the defendants put others at run a risk of HIV transmission, but because the defendants seem to act out of desperation. Drug addiction, homelessness, and other concurrent bug may get out defendants feeling they have no other means of survival.

Using HIV exposure and/or aggravated prostitution laws in these cases is inappropriate and inadequate for at least ii reasons. First, these laws are ill-suited because the behaviors punished have little to do with manual take a chance and are not motivated past criminal intent. Second, the defendants are probable to engage in repeat behavior if their addiction and mental health issues remain unaddressed. Many of these defendants have circuitous medical, behavioral, and social bug that the criminal justice system is ill-suited to solve. Identifying better options, both for police trying to deal with dangerous or recalcitrant defendants and for defendants struggling with multiple issues, should be a priority of public health policy-making that seeks to reduce new HIV infections and potential negative consequences of these laws. The development of prosecutorial guidelines might help to focus enforcement of these laws on incidents where an individual acts with intention to transmit HIV to another.

Examination of these 52 cases points to agonizing issues both amid the bodily findings and, to an even greater extent, among the questions left unanswered. Although individual cases of undisclosed exposure to HIV receive attention, troublesome patterns and practices may not be detected without analysis of additional, comprehensive data sets from a strategic sample of jurisdictions. Furthermore, many of these cases highlight the chaotic and often desperation-filled contexts in which persons are arrested for HIV-specific crimes. Research using a systems approach to explore interactions between the criminal justice and public health systems would exist helpful.

ACKOWLDGEMENTS

This research was supported by grants R01MH091875 and P30-MH52776 from the National Institute of Mental Wellness. The authors would like to acknowledge the assist of Dawn Deaner, Nashville Public Defender's Office, and Kevin Chocolate-brown, Linda Burney, and Steven Pinkerton, Medical Higher of Wisconsin, Center for AIDS Intervention Research.

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Source: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4060526/

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