An Iowa man in 2008 was convicted and sentenced to 25 years in prison for having sex with a partner without revealing his HIV-positive status. That HIV treatment had left him with an undetectable viral load and that he was wearing a condom (meaning, the chance of him transmitting HIV was negligible) was not considered relevant under the law.
But in June, Iowa's Supreme Court tossed out the sentence, because the law required evidence of an exchange as bodily fluids and because there was no evidence that HIV transmission was actually possible in the case. Iowa reformed their disclosure laws (first passed in 1998) this year to account for changes in our understanding of transmission and to require that the defendant actually intended to spread HIV and for HIV transmission to actually happen. They also criminalized deliberate efforts to spread viruses like hepatitis and meningitis.
Now the Department of Justice is pushing other states to take a look at their HIV notification and transmission laws and update them to reflect what we know now. Thirty-three states now have HIV notification or transmission laws on the books, some of them dating all the way back to 1986, a time when people still worried you could get HIV from pools or sweat and when the disease was still a painful death sentence.
The Centers for Disease Control examined the nature of these laws and put out a report in March, arguing that the laws were not effective in actually meeting the public health goal of reducing HIV transmission and that many were not even aware of the nature of his or her state's disclosure or transmission laws.
Now on the heels of that study, the Civil Rights Division of the Department of Justice has released a "best practices" guide for states, suggesting they take a route similar to Iowa's. From the DOJ report:
Generally, the best practice would be for states to reform these laws to eliminate HIV-specific criminal penalties except in two distinct circumstances. First, states may wish to retain criminal liability when a person who knows he/she is HIV positive commits a (non-HIV specific) sex crime where there is a risk of transmission (e.g., rape or other sexual assault). The second circumstance is where the individual knows he/she is HIV positive and the evidence clearly demonstrates that individual's intent was to transmit the virus and that the behavior engaged in had a significant risk of transmission, whether or not transmission actually occurred.
For states that choose to retain HIV-specific criminal laws or penalty enhancements beyond these two limited circumstances, the best practice would be to reform and modernize them so that they accurately reflect the current science of risk and modes of transmission, the quality of life and life span of individuals who are living with HIV, account for circumstances where the failure to disclose is directly related to intimate partner violence, and ensure they are the desired vehicle to achieve the states' intended purpose in enacting them initially or retaining them in modernized form.
To summarize: The DOJ is recommending state HIV notification and transmission laws take into account intent to spread and actual modern risk factors.