Yale Regulation Journal – Incapacity Regulation and HIV Criminalization

abstract. More than thirty states have criminal laws specifically aimed at people living with HIV. Thousands of people are prosecuted under these laws, exposing them to decades of incarceration, thousands of dollars in fines, and state-sanctioned stigma. This broad pattern of discrimination based solely on HIV status – referred to in this note as serodiscrimination – is not supported by any scientific evidence or public health reasons. This note argues that many states’ HIV-specific criminal laws are in violation of the Americans with Disabilities Act’s non-discrimination against public entities. While earlier constitutional challenges to these laws were neglected, legal disputes under the Federal Disability Act offer a new path for reforms.

Author. Yale Law School, JD 2020. I am deeply grateful to Joe Fischel, Christine Jolls, Yuvraj Joshi, John Knight, Jamelia Morgan, Andrew Pendleton, Scott Schoettes, Scott Stern, Ryan Thoreson, Jonah Wacholder, and workshop grateful participants for thoughtful comments and discussions Arthur Liman Center for Public Interest Law at Yale. I also thank the staff at Yale Law Journal, particularly Timur Akman-Duffy, Joshua Feinzig, and Alexander Nabavi-Noori, for their keen editorial insight and support.


In June 2008, Nick Rhoades had a consensual sexual encounter in Iowa. He and his partner had without condom Oral and anal sex with a condom, activities that have little or no risk of passing human immunodeficiency virus (HIV) from one person to another. Even though Rhoades has HIV, his viral load was undetectable and so he was unable to transmit the virus even while engaging in potentially high-risk activity. Despite all of these factors, Rhoades was charged and convicted of criminal exposure under Iowa’s HIV-specific law after his partner discovered Rhoades’ HIV status and contacted the police. Under the law then in force, Rhoades was sentenced to 25 years in prison and had to register as a sex offender.

In January 2019, Drew Slider spat on two health care workers at an Indiana hospital. For most people in Indiana, spitting on someone is an offense that can be punished with up to 180 days in prison and a maximum fine of $ 1,000. But because Slider HIV enforced a different and tougher state law. Under that law, spitting on another person exposed him to a serious crime conviction, two and a half years in prison, and a fine of $ 10,000. Because of his HIV status alone, he could face five times the prison sentence and ten times the fine – even though spitting cannot transmit HIV.

Over thirty states across the country enforce similar criminal laws and impose heavy penalties on people living with HIV for doing certain things. These laws apply to the more than one million people living with HIV in the United States today and lead to thousands of government charges under HIV-specific laws. The statutes are broad and even prohibit behavior that has no chance of passing the virus on to another person. That pattern of discrimination based on HIV status – what this notice describes Serodiscrimination– Subjects individuals to arrests, fines, court fees, and incarceration only on the basis of this status. The statutes also explicitly inflict damage by singling out people living with HIV for state-sanctioned stigma.

The federal Americans with Disabilities Act (ADA), enacted to combat public and private discrimination based on disability status, provides a way to rectify this criminalized regime. This notice provides a novel argument that the ADA’s reach extends to discriminatory state criminal law based on Disability, including most HIV criminalization laws, and precludes their enforcement. While this litigation strategy has not been implemented to challenge such laws, the existing ADA case law of the Supreme Court and the federal appeals courts provides a strong doctrinal basis for its approach.

Part I describes the problem of state criminal laws that discriminate against people with disabilities. HIV criminalization laws reflect a long history of misinformation and stereotypes about HIV and acquired immunodeficiency syndrome (AIDS) in the United States. Dozens of states passed HIV-specific criminal laws between the late 1980s and early 2000s. As written, they prohibit a wide range of behaviors, including many forms of interaction that do not involve the risk of virus transmission. But despite previous litigation efforts and demands from reform advocates, these discriminatory criminal laws remain on the books in more than thirty states and are still enforced today.

Part II offers a solution. It develops a novel theory for the judicial dispute with the state HIV criminalization laws within the framework of the Federal Anti-Discrimination Act. The ADA prohibits public institutions from discriminating based on Disability, including a person’s HIV status. Most state HIV criminalization laws violate Title II of the ADA and are therefore unenforceable. While there are exemptions from public sector liability when there are concerns about the health and safety of others, most HIV criminalization laws do not provide the individual investigation and risk assessment necessary to trigger this Exception if it was considered to be correct. Thereby these are serodiscriminatory
Laws are simple Title II violations that criminalize a wide range of behaviors (across different levels of risk) based on a person’s disability status.

Finally, Part III discusses the benefits of implementing this litigation strategy as part of a wider effort to challenge and reform existing HIV criminalization laws. After considering the prudence of the proposed legal arguments, the consequences associated with possible litigation outcomes, and the interaction between litigation and legislative advocacy, the Note concludes that asserting ADA claims against state HIV criminalization laws is a viable untapped route for reform offers.

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