What Happens if You Knowingly Infect Someone with HIV?
Can You Go to Jail for Giving Someone HIV?
The Human Immunodeficiency Virus (HIV) has had a long, deadly history here in the US. In today’s day and age, however, our advances in medicine have allowed people living with HIV (PLHIV) to live long, healthy lives. Despite these advancements, 37 states criminalize HIV exposure, including New Jersey. Not only that but some PLHIV have been charged with more serious crimes, such as attempted murder, as a result of transmitting HIV to another person.
That being said, let's take a look at New Jersey’s stance on this matter.
Criminal HIV Exposure Laws
A person who knows that they are infected with HIV could get charged with a third-degree crime if they commit an act of sexual pentation without the informed consent of the other person. A third-degree crime in New Jersey is punishable by 3 to 5 years in prison and/or up to $15,000 in fines or restitution.
As you can see, you can suffer a great deal of prison time and fines for having sexual intercourse with someone who doesn’t know you have HIV. However, engaging in sexual penetration with someone who doesn’t know you have HIV does not necessarily make you guilty of criminal HIV exposure. The prosecution has the burden of proving four elements beyond a reasonable doubt to convict you of this crime.
Burden of Proof for Criminal HIV Exposure
In New Jersey, the prosecution must prove the following elements to convict a person of criminal HIV exposure. These elements are:
- At the time charged in the indictment, the defendant was infected with HIV
- At that time, the defendant knew that they were infected with HIV
- At that time, the defendant committed an act of sexual penetration with another person
- The other person did not provide the defendant with their informed consent
For context, “knowing” is a state of mind that can only be proved through evaluating the defendant’s conduct, words, and actions. The prosecution does not have to prove that the defendant said they were in a state of mind when they did something. For instance, if the defendant was intoxicated and told the other person that they were “really drunk” before engaging in sexual penetration, those words won’t necessarily matter in court.
The third element that the prosecution has the burden of proving is that the defendant had sexual penetration with another person. The state defines “sexual penetration” as vaginal intercourse, cunnilingus, fellatio, anal intercourse, or the insertion of the hand, finger, or object into the anus or vagina.
The last element that we want to clarify is “informed consent.” In New Jersey, “informed consent” means the person’s voluntary and knowing agreement to engage in sexual penetration with a person having HIV. As such, the prosecution must prove beyond a reasonable doubt that the other person was not informed that the defendant was infected with HIV.
Case Examples of Criminal HIV Exposure
Many people don’t realize the true nature of criminal HIV exposure. Believe it or not, countless defendants have been convicted of this crime and suffered serious consequences as a result. The Center for HIV Law and Policy lists several examples of cases in which PLHIV were convicted of this offense as well as other crimes such as attempted murder, assault, and weapons crimes. See below:
- In October 2011, a 64-year-old man was charged under the exposure statute for engaging in sexual intercourse with two women without disclosing his HIV status. He pled guilty in exchange for a 364-day sentence and three years of probation.
- In March 2010, a 20-year-old man living with HIV was charged under New Jersey’s diseased persons statute for having sexual relations with two women without disclosing his HIV status. The man served roughly two years of a four-year sentence before being paroled.
- In 1994, a 17-year-old woman was charged as an adult for attempted murder and aggravated assault after she bit a juvenile detention officer. At the time of the indictment, it was not confirmed whether the woman had tested positive for HIV, only that “she believ[ed]” she had HIV.
- In State v. Smith, the New Jersey Superior Court Appellate Division affirmed the conviction and 25-year sentence of an inmate living with HIV who was found guilty of attempted murder, aggravated assault, and terrorist threats for biting a corrections officer. The court gave sufficient weight to trial evidence— consisting of three anecdotal sources—to affirm that saliva can transmit HIV.
- In State v. Ainis, the New Jersey Superior Court Law Division found that a hypodermic needle purportedly infected with HIV is a deadly weapon. Under New Jersey law, a deadly weapon is defined as an object “which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury
- In State v. E.W., the Superior Court of New Jersey Appellate Division upheld the conviction and sentencing of a PLHIV to six years’ imprisonment for one count of second-degree sexual assault and five years’ imprisonment, to be served concurrently, for one count of third-degree sexual penetration by a diseased person. The defendant, who was adherent to medical treatment, was charged for engaging in consensual sex with his housemate without disclosing his HIV status.
As you can see, PLHIV have a lot on the line when they participate in sexual activities, among other acts described above. These individuals face harsher charges and subsequent penalties for doing things that non-infected people otherwise wouldn’t get in the same trouble for, and these disparities tend to have significant costs for PLHIV.
HIV is not a rare virus. While it may seem like criminal HIV exposure is not treated as seriously as other crimes, you can see from the information above that this is not the case. To demonstrate just how common HIV is, take a look at the HIV statistics below:
- Approximately 1.2 million people in the U.S. have HIV. About 13 percent of them don’t know it and need testing.
- HIV continues to have a disproportionate impact on certain populations, particularly racial and ethnic minorities and gay, bisexual, and other men who have sex with men.
- In 2019, an estimated 34,800 new HIV infections occurred in the United States.
- New HIV infections declined 8% from 37,800 in 2015 to 34,800 in 2019, after a period of general stability.
- In 2019, 36,801 people received an HIV diagnosis in the U.S. and 6 dependent areas — an overall 9% decrease compared with 2015.
- HIV diagnoses are not evenly distributed across states and regions. The highest rates of new diagnoses continue to occur in the South.
If you are facing criminal charges, get expert defense from our attorneys at Brickfield & Donahue today. Contact us at (201) 574-7919 to discuss your situation and learn about your next steps today. You are not alone!