Overview
The authors analyzed how current scientific knowledge on HIV transmission applies to laws in Indiana that criminalize certain behaviors of people living with HIV (PLWH). Indiana has six such laws criminalizing PLWH, spanning both the public health and criminal code, hereafter referred to as HIV criminal laws. These Indiana codes (IC) are as follows. Shortened versions of the laws in parentheses are used throughout the report.
- IC § 35-45-21-1 Transferring contaminated body fluids (Contaminated Body Fluids)
- HIV-Infected Semen: IC § 16-41-14-17 Donation, sale, or transfer of HIV-infected semen; penalties (HIV-Infected Semen)
- IC § 16-41-7-1 Individual with a communicable disease’s duty to inform persons at risk (Duty to Inform)
- IC § 35-45-21-3 Failure of individuals with communicable diseases to inform persons at risk (Failure to Inform)
- IC § 35-42-2-1(c2)(f)(h) Battery by bodily fluid or waste with HIV penalty enhancement (Battery by Bodily Fluid/Waste)
- IC § 35-45-16-2 (c-f) Malicious mischief by body fluid or waste with HIV penalty enhancement (Malicious Mischief)
This report—one in a series examining HIV criminalization in Indiana—evaluates whether Indiana’s HIV criminal laws reflect accurate and up-to-date understandings of HIV science and whether these laws criminalize conduct that has negligible or no risk of transmitting HIV.
Key Findings
- Indiana’s HIV criminal laws were passed when HIV was often a terminal condition, and there were few treatment options available.
- Four laws were enacted between 1988 and 1995 before effective HIV treatment options were available.
- The other two laws were enacted in 1998 and 2002 before it was established that those taking effective HIV treatments could not sexually transmit HIV.
- All of Indiana’s HIV criminal laws make HIV exposure a crime in certain situations; three include penalty enhancements for actual HIV transmission. None of the laws require an intent to transmit HIV to sustain a conviction.
- The Contaminated Body Fluids and HIV-Infected Semen laws criminalize conduct that does not transmit HIV. The donor supply is safe because every donation is tested for HIV, and units that come back positive are destroyed.
- Indiana public health code creates an exception to disposal if the semen is “used according to safer conception practices endorsed by the federal Centers for Disease Control and Prevention or other generally accepted medical experts.” However, the code sections that continue to criminalize semen donation remain unchanged to reflect this science update, leading to an inconsistency in Indiana law.
- The Duty and Failure to Inform laws reflect some advances in HIV science by restricting criminal conduct to only certain forms of sexual contact and needle sharing—acts that, according to the Centers for Disease Control and Prevention (CDC), can pose a significant transmission risk.
- However, the language remains open to interpretation because the exact meaning of “significant risk” has not yet been codified. The law does not require transmission for a conviction, nor does it specify the variety of HIV prevention measures that exist to effectively prevent transmission.
- Therefore, it is difficult to conclusively identify the circumstances under which PLWH are legally obligated to disclose their status and whether behaviors that pose no risk might be criminalized in practice.
- There is effectively zero risk of HIV transmission for the conduct criminalized in the Battery by Bodily Fluid/Waste and Malicious Mischief laws. HIV is neither transmitted by simply being exposed to someone’s body fluids or waste outside the body nor by ingesting fluids or waste from someone living with HIV (for example, by spitting).
- Because there’s no realistic risk of HIV transmission from the conduct criminalized, PLWH who are charged under the HIV enhancement sections of these laws are subjected to differential punishment solely because of their health condition.
- These laws have remained mostly unchanged since enactment and do not account for the remarkably effective medical advances in HIV treatment and prevention science over the past three decades, including
- Highly effective HIV medications that normalize life expectancy and allow most PLWH to achieve an undetectable viral load within six months, which eliminates HIV transmission through sex. This is commonly referred to as undetectable=untransmittable (or “U=U”).
- Highly effective HIV prevention tools beyond condom use, including Pre-Exposure Prophylaxis (PrEP) medications that can be taken by a person who does not have HIV to prevent HIV transmission through sex.
- Definitive science confirms that HIV is not transmitted through any kind of contact with saliva, urine, or feces and that other fluids (e.g., blood and semen) cannot transmit HIV when exposure happens outside the body (as with someone placing, spitting, or throwing a fluid at someone).
- Universal screening for blood donation. Every unit of blood and plasma in the United States is tested for HIV. If found positive for HIV, donated blood or plasma is destroyed. As a result, the domestic blood supply has been safe for decades.
- Semen donation from people living with HIV can be done without risk of HIV transmission.
Indiana’s HIV criminal laws were enacted between 1988 and 2002, a period overlapping with the height of the HIV/AIDS crisis in the United States. Thanks to advances in the science, medicine, and public health of HIV treatment and prevention, this report found that much of the conduct criminalized in Indiana’s HIV criminal laws cannot transmit HIV. Scientifically outdated laws work against public health goals regarding HIV testing, prevention, and treatment, thereby undermining efforts to end the HIV epidemic—a goal that many experts agree is supported by modernizing HIV criminal laws to reflect what is known about HIV science today.