Indiana has six laws that criminalize people living with HIV (PLWH). Two of them—Battery by Bodily Fluid or Waste and Malicious Mischief by Body Fluid or Waste—make it a felony for a person who knows they are HIV positive to knowingly, intentionally, or recklessly expose another person to body fluids or waste.
A new report by the Williams Institute at UCLA School of Law found that 42 PLWH (across 51 cases) were charged under the two body fluids/waste laws between 2012 and 2023. Most occurred under the battery by body fluid law. In each case, the PLWH was charged with a felony for behaviors, such as exposure to saliva, that pose no transmission risk. None of the cases alleged actual transmission of HIV.
In nearly half (46%) of the cases reviewed, the person accused of exposure seemed to be experiencing acute mental distress, intoxicated, or both.
Findings show that the battery cases were highly concentrated in 17 of Indiana’s 92 counties, with about one-third (31%) occurring in Marion County, home to Indianapolis, the state capital and largest city.
Researchers analyzed data obtained from the Indiana Office of Court Services, online court-tracking tools, and Probable Cause Affidavits filed with the county court clerks in the jurisdictions where criminal cases were filed to examine the enforcement of Indiana’s HIV-related body fluid exposure laws.
Indiana’s HIV-related battery by body fluid laws disproportionately affect men, particularly white men. Approximately four out of five (81%) people charged with an HIV-related body fluids crime were men. While white men represent 38% of the state’s population, they accounted for 51% of all individuals accused of an HIV-related body fluid exposure crime.
“Neither of Indiana’s HIV-related body fluid exposure laws targets behaviors that transmit HIV,” said lead author Nathan Cisneros, HIV Criminalization Project Director at the Williams Institute. “These laws appear to single people living with HIV out for harsher punishment merely because of their HIV status. In many cases, the person was charged with a felony for simply spitting on or near another person.”
Key Findings
- Enforcement of the HIV-related battery by bodily fluid law increased over time, from 2.7 cases per year between 2012 and 2018 to 4.4 per year between 2019 and 2023.
- In contrast, between 2016 and 2021, only ten HIV-related malicious mischief cases were identified.
- White people were 64% of people charged under battery, although they accounted for only 45% of the state’s population of PLWH.
- Among the HIV-related battery by body fluid cases, 82% involved exposure to saliva, mainly through spitting, which is not an HIV transmission route.
- In about a fifth of the HIV-related battery by body fluid cases (22%), victims were advised to undergo HIV testing or post-exposure treatment, even though the alleged conduct did not pose a transmission risk.
- In all, 17 cases led to a conviction on at least one HIV-related battery by body fluid charge.
- HIV-related offenses resulted in significantly longer sentences, averaging 2.3 years, compared to 1.2 years for concurrent convictions.
HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based on a person’s HIV-positive status. More than half of U.S. states and territories have HIV-specific criminal laws. However, since 2017, a dozen states have undertaken modernization or repeal.