Toward rational criminal HIV exposure laws

Abstract

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.