07 Aug 23

Intentional Exposure to HIV – Defense Lawyers

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Last Updated on: 15th September 2023, 10:36 pm

Defending Clients Facing HIV Exposure Charges

In the 1980s and 1990s, fear surrounding the HIV/AIDS epidemic led many states to enact laws criminalizing potential exposure to the virus. Today, 33 states still have HIV-specific statutes that can punish actions like non-disclosure of positive status before sexual contact.

While these laws were created to protect public health, many are now outdated and do not reflect current medical science. Effective antiretroviral therapy (ART) can reduce the risk of HIV transmission to near zero. Pre-exposure prophylaxis (PrEP) also provides a high level of protection against contracting HIV.

Defense attorneys are increasingly challenging these laws as unconstitutional and advocating for reform. Representing an individual charged under HIV criminalization statutes requires understanding the science, assessing potential penalties, and crafting an effective defense.

HIV Transmission Risks

Laws criminalizing actions like spitting or biting were based on initial misconceptions about HIV transmission. In truth, HIV is only transmitted through specific bodily fluids:

  • Blood
  • Semen
  • Pre-seminal fluid
  • Rectal fluids
  • Vaginal fluids
  • Breast milk

Even exposure to these fluids does not guarantee contraction. The highest risks come from unprotected anal or vaginal sex, sharing needles, and vertical transmission during pregnancy. Lower risk activities like oral sex or biting pose negligible threats.

HIV virus

Modern medications can reduce transmission risks even further. ART suppresses viral loads to undetectable levels in blood and genital fluids for most patients. Those with sustained undetectable viral loads have effectively no risk of transmitting HIV sexually.

State Laws and Penalties

Laws criminalizing HIV exposure vary widely but generally focus on failure to disclose positive status. Possible charges include:

  • Criminal transmission of HIV
  • Reckless endangerment
  • Attempted murder
  • Assault or aggravated assault

Depending on the state, defendants may face years in prison, large fines, probation, and sex offender registration. Some states classify nondisclosure or exposure as a misdemeanor, while others prosecute it as a felony.

Only a few states limit charges to cases involving intentional transmission. Failing to disclose is illegal regardless of actual transmission, consent, viral load, or use of protection in most jurisdictions.

Possible Defenses

Skilled criminal defense lawyers can often get charges reduced or dismissed by challenging:

  • Constitutionality – Many laws are vague, overly broad, or violate privacy rights.
  • Intent – Prosecutors may struggle to prove intent to inflict harm.
  • Transmission – No transmission removes basis for serious charges like attempted murder.
  • Disclosure – Defendant may argue disclosure occurred or consent was given.
  • Medical evidence – Undetectable viral load and/or PrEP use negate likelihood of harm.
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Defense lawyer in courtroom

Presenting expert testimony on HIV transmission can undermine claims of reckless or negligent endangerment. Procedural errors by police or prosecutors may also provide grounds for dismissal.

Avoiding Conviction

If charges cannot be dropped pre-trial, the focus shifts to avoiding conviction and minimizing penalties. Strategies may include:

  • Seeking a bench trial rather than a jury trial
  • Suppressing prejudicial evidence
  • Excluding improper expert testimony
  • Raising reasonable doubt on intent and likelihood of transmission
  • Presenting mitigating factors to reduce severity of sentence
  • Leveraging prosecutorial discretion to secure a plea deal

Thorough investigation and preparation can uncover facts and witnesses that support acquittal or leniency.

Reform Advocacy

In addition to defending individual clients, many lawyers advocate for updating or eliminating outdated HIV criminal laws through:

  • Legislative reform
  • Litigation strategies
  • Law enforcement education
  • Community organizing